EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), dated as of November 5, 2004,
is entered into between TechInvest Holding Company, Inc. ("Parent") and the
stockholder named on the signature page hereto (the "Stockholder").
WITNESSETH:
WHEREAS, Cypress Communications Holding Co., Inc., a Delaware
corporation (the "Company"), Parent and TechInvest Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), have entered into
an Agreement and Plan of Merger, dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement"), pursuant to which Sub will be
merged with and into the Company upon the terms and subject to the conditions
set forth in the Merger Agreement with the Company continuing as the surviving
corporation and as a wholly owned subsidiary of Parent (the "Merger");
WHEREAS, the Stockholder is the sole record and beneficial owner
(including sole voting power) of the Warrants set forth on the signature page
hereto (the "Warrants"), the Convertible Debt set forth on the signature page
hereto (the "Notes") and the shares of Series A Preferred Stock and Common Stock
set forth on the signature page hereto (the "Existing Shares" and, together with
any shares of Common Stock or other voting capital stock of the Company acquired
by Stockholder after the date hereof, including upon conversion of the Notes or
exercise of the Warrants, the "Shares");
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement and as a condition and inducement to Parent's willingness to enter
into the Merger Agreement, the Stockholder has agreed to vote all the Shares
pursuant to the terms and conditions of this Agreement; and
WHEREAS, capitalized terms used in this Agreement and not defined
herein shall have the respective meanings given to such terms in the Merger
Agreement;
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the mutual covenants and agreements contained herein and in the Merger
Agreement and intending to be legally bound, the parties agree as follows:
1. Voting of Shares. Until the termination of this Agreement in
accordance with the terms hereof, the Stockholder hereby agrees that, at any
annual, special or other meeting of the stockholders of the Company, and at any
adjournment or adjournments thereof, and in connection with any action of the
stockholders of the Company taken by written consent, the Stockholder will:
(a) appear at each such meeting or otherwise cause the
Shares owned beneficially or of record by the Stockholder to be counted as
present at such meeting for purposes of calculating a quorum; and
(b) (i) unless Parent votes such Shares directly pursuant
to the proxy granted in Section 2 hereof, vote (or cause to be voted), in person
or by proxy, or deliver a written consent with respect to such Shares in favor
of adoption of the Merger Agreement, approval of the Merger and any other action
of the holders of the Common Stock or Series A Preferred Stock (the "Company
Stockholders") requested in furtherance thereof and to which the Stockholder is
entitled to vote; (ii) unless Parent votes such Shares directly pursuant to the
proxy granted in Section 2 hereof, vote (or cause to be voted), in person or by
proxy, against, and not deliver any written consent with respect to such Shares
in favor of (x) any action or agreement submitted for approval of the Company
Stockholders that would reasonably be expected to result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company contained in the Merger Agreement or of the Stockholder contained in
this Agreement; and (y) any Acquisition Proposal or any other action, agreement
or transaction submitted for approval to the Company Stockholders that is
intended, or could reasonably be expected, to impede, interfere or be
inconsistent with, delay, postpone, discourage or adversely affect the Merger or
this Agreement, including: (A) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company or
its Subsidiaries (other than the Merger); or (B) a sale, lease or transfer of a
material amount of assets of the Company or any of its Subsidiaries or a
reorganization, recapitalization or liquidation of the Company or any of its
Subsidiaries.
2. Proxy.
2.1 The Stockholder, by this Agreement does hereby constitute and
appoint Parent, or any nominee of Parent, with full power of substitution,
during and for the Proxy Term (as hereinafter defined), as Stockholder's true
and lawful attorney and irrevocable proxy, for and in Stockholder's name, place
and stead, to vote each of the Shares as Stockholder's proxy, at every meeting
of the Company Stockholders or any adjournment thereof or in connection with any
written consent of the Company Stockholders, (i) in favor of approval and
adoption of the Merger Agreement, approval of the Merger and any other action of
the Company Stockholders requested in furtherance thereof; (ii) against any
action or agreement submitted for approval of the Company Stockholders that
would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
contained in the Merger Agreement or of the Stockholder contained in this
Agreement; and (iii) against any Acquisition Proposal or any other action,
agreement or transaction submitted for approval to the Company Stockholders that
is intended, or could reasonably be expected, to impede, interfere or be
inconsistent with, delay, postpone, discourage or adversely affect the Merger or
this Agreement, including: (A) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company or
its Subsidiaries (other than the Merger); or (B) a sale, lease or transfer of a
material amount of assets of the Company or any of its Subsidiaries or a
reorganization, recapitalization or liquidation of the Company or any of its
Subsidiaries.
2.2 For purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement until the termination of this
Agreement in accordance with Section 7.1 hereof.
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3. Acknowledgment of Reliance. Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
4. No Inconsistent Agreements. The Stockholder hereby covenants
and agrees that, except for this Agreement, the Stockholder (a) has not entered,
and the Stockholder shall not enter at any time while this Agreement remains in
effect, into any voting agreement or voting trust with respect to the Shares
owned beneficially or of record by the Stockholder and (b) has not granted, and
the Stockholder shall not grant at any time while this Agreement remains in
effect, a proxy, a consent or a power of attorney with respect to the Shares
owned beneficially or of record by the Stockholder, other than the proxy granted
pursuant to Section 2 hereof.
5. Representations and Warranties of The Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
5.1 Authorization; Validity of Agreement; Necessary Action. The
Stockholder has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Stockholder
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder, and no other
actions or proceedings on the part of the Stockholder are necessary to authorize
the execution and delivery by it of this Agreement and the consummation by it of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of Parent, constitutes a valid and binding obligation of
the Stockholder, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and to general equity principles.
5.2 Ownership. The Existing Shares are, and such Existing Shares
and any additional Shares will be, owned beneficially and of record by the
Stockholder. The Notes and the Warrants are and will be owned beneficially and
of record by the Stockholder. As of the date hereof, the number of shares of
Common Stock and Series A Preferred Stock owned by the Stockholder is listed
opposite the Stockholder's name on the signature page hereto. As of the date
hereof, the Existing Shares constitute all of the shares of Common Stock and
Series A Preferred Stock held of record, owned by or for which voting power or
disposition power is held or shared by the Stockholder or any of its affiliates
(except for shares owned beneficially and of record by any affiliates of the
Stockholder that are parties to a Voting Agreement with Parent in the form of
this Agreement). For purposes of this Agreement, (i) "affiliates" shall mean
persons controlled by, under the control of or under common control with
Stockholder and (ii) "control" of a person or entity shall mean the possession,
directly or indirectly, of the power to direct the management and policies of
such person or entity, whether through the ownership of voting securities,
contracts or otherwise. The Stockholder has and will have at all times through
the Effective Time sole voting power, sole power of disposition, sole power to
issue instructions with respect to the matters set forth in Sections 1, 2, 4 and
6 hereof, and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and with
respect to all of the Shares at the Effective Time, with no limitations,
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qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. The Stockholder has good and
marketable title to the Existing Shares, free and clear of any security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and encumbrances of any nature whatsoever
("Liens"), and the Stockholder will have good and marketable title to such
Existing Shares and any additional Shares, free and clear of any Liens.
5.3 No Violation. The execution and delivery of this Agreement by
the Stockholder does not, and the performance by the Stockholder of its
obligations under this Agreement will not, (i) conflict with or violate any law,
ordinance or regulation of any Governmental Entity applicable to the Stockholder
or by which any of its assets or properties is bound or (ii) conflict with,
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, amendment, acceleration or cancellation of, or require
payment under, or require redemption or repurchase of or otherwise require the
purchase or sale of any securities, or result in the creation of any Lien on the
properties or assets of the Stockholder 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 its assets or properties is bound, except for any of the
foregoing as would not, either individually or in the aggregate, prevent or
materially delay or impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
5.4 Consents and Approvals. The execution and delivery of this
Agreement by the Stockholder does not, and the performance by the Stockholder of
its obligations under this Agreement will not, require the Stockholder to obtain
any consent, approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Entity based on the law, ordinance or
regulation of any applicable Governmental Entity, except for any of the
foregoing as would not reasonably be expected, either individually or in the
aggregate, prevent or materially delay or impair the ability of the Stockholder
to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
5.5 Absence of Litigation. There is no suit, action, investigation
or proceeding pending or, to the knowledge of the Stockholder, threatened
against the Stockholder before or by any Governmental Entity that could prevent,
materially delay or impair the ability of the Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby on a
timely basis.
5.6 Absence of Agreements with the Company. There are no existing
Agreements or arrangements between the Stockholder or any of its affiliates, on
one hand, or the Company or any of its Subsidiaries, on the other hand, relating
to the Shares owned beneficially and of record by the Stockholder or any other
securities of or investment in the Company.
6. Covenants of the Stockholder. The Stockholder hereby covenants
and agrees as follows:
6.1 While this Agreement is in effect, and except as expressly
contemplated hereby, not to sell, transfer, pledge, encumber, assign,
distribute, gift or otherwise dispose of
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(collectively, a "Transfer") or enforce or permit the execution of the
provisions of any redemption, share purchase or sale, recapitalization or other
agreement with the Company or any other person or entity or enter into any
contract, option or other arrangement or understanding with respect to any
Transfer (whether by actual disposition or effective economic disposition due to
hedging, cash settlement or otherwise) of, any of the Existing Shares owned
beneficially and of record by the Stockholder, any Shares acquired by the
Stockholder after the date hereof, any securities exercisable or exchangeable
for or convertible into Common Stock including, without limitation, the Notes
and the Warrants, any other capital stock of the Company or any interest in any
of the foregoing with any person or entity.
6.2 In case of a stock dividend or distribution, or any change in
Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
6.3 Except as permitted of the Stockholder by the Merger Agreement
as a member of the Company's Board of Directors in order to comply with such
member's fiduciary duties, during the term of this Agreement it shall not, and
shall not authorize any of its representatives to, and shall not permit any of
its representatives to, directly or indirectly, (a) solicit, initiate or
encourage, or take any other action to facilitate, the submission of any
Acquisition Proposal or any proposal with respect to any matter described in
Section 6.1 hereof or (b) participate in or encourage any discussion or
negotiations regarding, or furnish to any person or entity any non-public
information with respect to, or take any other action to facilitate any
inquiries or the making of, any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal. The Stockholder agrees
immediately to cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any possible Acquisition Proposal or any matter described in Section 6.1, and
the Stockholder will take all necessary steps to inform its respective
representatives of the obligations undertaken by the Stockholder pursuant to
this Section 6.3.
6.4 While this Agreement is in effect, it shall notify Parent
promptly (and in any event within one business day) in writing of (i) the number
of any additional Shares acquired by the Stockholder, if any, after the date
hereof and (ii) any such inquiries or proposals that are received by, any such
information which is requested from, or any such negotiations or discussions
that are sought to be initiated or continued with, the Stockholder with respect
to any matter described in Section 6.1 or 6.3.
6.5 The Stockholder will not take any action which would have the
effect of preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Agreement.
7. Miscellaneous.
7.1 Termination. Sections 1, 2, 4 and 6 of this Agreement, and any
proxy granted pursuant to Section 2, shall terminate upon the earlier of (i) the
date on which the Merger Agreement is terminated in accordance with Section 7.1
thereof, (ii) at such time as the board of directors of the Company withdraws or
modifies its approval and recommendation of the Merger and the Merger Agreement
in the manner set forth in Section 5.5(c) of the Merger Agreement or
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(iii) the Effective Time. Nothing in this Section 7 shall relieve or otherwise
limit any party of liability for breach of this Agreement.
7.2 Stop Transfer Order. In furtherance of this Agreement, the
Stockholder shall and hereby does authorize and instruct the Company to instruct
its transfer agent to enter a stop transfer order with respect to all of the
Existing Shares owned beneficially and of record by the Stockholder and all
Shares acquired by the Stockholder after the date hereof.
7.3 Further Assurances. From time to time, at the other party's
request and without further consideration, each party shall execute and deliver
such additional documents and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement and the Merger Agreement.
7.4 No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholder, and Parent shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholder in the voting of any of the Shares, except as otherwise provided
herein.
7.5 Expenses. All costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement shall be paid by the party
incurring such expenses; provided, however, that the Stockholder shall promptly
pay all costs and expenses (including legal fees and expenses) incurred by
Parent in seeking to enforce this Agreement, provided that Parent is the
prevailing party in such action
7.6 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with confirmation) or delivered by an overnight courier (with confirmation) to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Parent to:
TechInvest Holding Company, Inc.
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxxx, Inc.
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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(b) if to Stockholder to the address listed next to the
Stockholder's name on the signature page hereto.
7.7 Interpretation. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section references are to this Agreement unless otherwise specified. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." 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. No provision of this
Agreement shall be construed to require Parent, the Stockholder or any of its
respective Subsidiaries or affiliates to take any action which would violate any
United States federal, state or local or any foreign statute, law, rule,
regulation, ordinance, code, order, judgment, decree or any other requirement or
rule of law (a "Law"). Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Merger Agreement.
7.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.9 Entire Agreement. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
7.10 Governing Law; Jurisdiction. All disputes, claims or
controversies arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated by
this Agreement shall be governed by and construed in accordance with the Laws of
the State of Delaware without regard to its rules of conflict of laws. Each of
the Parent and Stockholder hereby irrevocably and unconditionally consents to
submit to the sole and exclusive jurisdiction of the Delaware Chancery Court for
any litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated by
this Agreement (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Chancery Court and agrees not to plead or claim in
any Delaware Chancery Court that such litigation brought therein has been
brought in any inconvenient forum. Each of the parties hereto hereby irrevocably
waives the right to a trial by jury. Each of the parties hereto agrees, (a) to
the extent such party is not otherwise subject to service of process in the
State of Delaware, to appoint and maintain an agent in the State of Delaware as
such party's agent for acceptance of legal process, and (b) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by the United States Postal Service constituting
evidence of valid service. Service made pursuant to (a) or (b) above shall have
the same legal force and effect as if served upon such party personally within
the State of Delaware. For purposes of implementing the parties' agreement to
appoint and maintain an agent for service of process in the State of Delaware,
each such party does hereby appoint CT
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Corporation, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
as such agent.
7.11 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
7.12 Specific Performance. Each of the parties acknowledges and
agrees that the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
the other party shall be entitled to seek an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action instituted in
any court of the United States or any state thereof having jurisdiction over the
parties and the matter, in addition to any other remedy to which it may be
entitled, at or in equity.
7.13 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
7.14 Assignment; Third Party Beneficiaries. Neither this Agreement
nor any of the rights, interests or obligations of any party hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and permitted
assigns. This Agreement is not intended to confer upon any person or entity
other than the parties hereto any rights or remedies hereunder.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, the parties have signed or have caused this
Agreement to be signed by their respective officers or other authorized persons
thereunto duly authorized as of the date first above written.
TECHINVEST HOLDING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
VOTING AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder has signed or has caused
this Agreement to be signed by its respective officers or other authorized
persons thereunto duly authorized as of the date first written above.
WAKEFIELD GROUP III, LLC
/s/ X X Xxxxxx
---------------------------------------
By: X X Xxxxxx
Title: MD
Address for notices:
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Number of shares of Series A Preferred
Stock owned beneficially 16.7
and of record:
Number of shares of Common Stock owned
beneficially
and of record: 0
Convertible Debt owned beneficially and
of record: as of 9/30/04
$1,967,037.41
as of 9/30/04
Warrants owned beneficially and of record: 1,757,241
VOTING AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Stockholder has signed or has caused
this Agreement to be signed by its respective officers or other authorized
persons thereunto duly authorized as of the date first written above.
NORO-XXXXXXX V, LLP
/s/ Xxxxx Xxxxxxxxxx
--------------------------------------
By: Xxxxx Xxxxxxxxxx
Title: Member
Address for notices:
0 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Number of shares of Series A Preferred
Stock owned beneficially 72.9
and of record:
Number of shares of Common Stock owned
beneficially 0
and of record:
Convertible Debt owned beneficially and as of 9/30/04
of record: $8,586,648.43
as of 9/30/04
Warrants owned beneficially and of record: 7,671,804
