EXHIBIT 10.01
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement"), dated as of
August 28, 2006, by and among Universal Computer Systems Holding, Inc., a
Delaware corporation ("Parent"), Racecar Acquisition Co., an Ohio corporation
and a newly-formed, indirect wholly-owned subsidiary of Parent ("Acquisition
Sub"), and the shareholder listed on Schedule I hereto (the "Shareholder").
W I T N E S S E T H:
WHEREAS, on August 7, 2006, an Agreement and Plan of Merger (as such
agreement may be amended from time to time, the "Merger Agreement") has been
entered into by and among Parent, Acquisition Sub and the ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Company, an Ohio corporation (the "Company"), pursuant to which Acquisition Sub
will merge with and into the Company, with the Company continuing as the
surviving corporation (the "Merger");
WHEREAS, as a condition to, and in consideration for, Parent's and
Acquisition Sub's willingness to enter into the Merger Agreement and to
consummate the transactions contemplated thereby, Parent and Acquisition Sub
have required that the Shareholder enter into a Voting Agreement (the "Voting
Agreement") pursuant to which the Shareholder has undertaken to vote certain
shares in the Company in favor of the Merger;
WHEREAS, in order to change certain references to the Proxy Shares (as
defined below) the Shareholder shall vote, subject to and in accordance with the
terms of this Agreement, in favor of the Merger, the parties wish to amend and
entirely restate the Voting Agreement as follows and intend for this Agreement
to supersede the Voting Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement:
"Company Securities" means, collectively, the Class A common
stock of the Company, no par value per share, and the Class B common
stock of the Company, no par value per share.
"Plans" means, collectively, the Company 2004 Executive Stock
Incentive Plan and the Company REYShare Plus Plan.
"Proxy Shares" means the restricted shares of Company Class A common
Stock upon which the Shareholder holds a proxy pursuant to the Plans, the
terms of which have been disclosed and made available to Parent. The number
of shares upon which the Shareholder holds a proxy pursuant to the Plans as
of August 16, 2006 is set forth next to Shareholder's name on Schedule II.
Notwithstanding anything herein to the contrary, Parent and Acquisition Sub
understand and hereby acknowledge that the number of Proxy Shares set forth
in such Schedule II is subject to variations and may decrease or increase
from time to time, as a result of certain events affecting the rights of
the beneficial owner of such Proxy Shares under the applicable Plans and
the corresponding rights of the Shareholder as proxy holder, provided,
however, that in no event shall the voting power represented by the Proxy
Shares, for purposes of this Agreement, exceed the difference between (A)
19.9% of the aggregate voting power of the Company for purposes of the
election of directors at any time and (B) the voting power for purposes of
the election of directors represented by the Shareholder Shares as defined
in the Voting Agreement dated August 7, 2006 among Parent, Acquisition Sub
and ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ III PLUS the voting power for purposes of the election
of directors represented by the Shareholders Shares as defined in this
Agreement.
"Shareholder Shares" means (i) the Existing Securities (as defined in
Section 5(a)(i) hereof) set forth on Schedule I hereto, (ii) any shares of
Company Securities distributed prior to the termination of this Agreement
in respect of the Shareholder's Shares by reason of a stock dividend,
split-up, recapitalization, reclassification, combination, merger, exchange
of shares or otherwise and (iii) any other shares of the Company Securities
of which the Shareholder acquires ownership, either directly or indirectly,
after the date hereof and prior to the Effective Time.
Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement.
Section 2. AGREEMENT TO VOTE SHARES.
Until the termination of this Agreement in accordance with the terms
hereof, the Shareholder shall, at any meeting of the holders of any
class of Company Securities, however such meeting is called and
regardless of whether such meeting is a special or annual meeting of
the stockholders of the Company, and at any postponement or
adjournment thereof, and in connection with any written consent of the
shareholders of the Company, vote, or cause to be voted, the
Shareholder Shares and the Proxy Shares, (1) in favor of the Merger
and the adoption of the Merger Agreement, the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
thereof and hereof and (2) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement):
(i) any action which is prohibited by the Merger Agreement or which is
intended, or could reasonably be expected, to prevent, impede,
interfere with, delay, postpone, discourage or materially adversely
affect the contemplated economic
benefits to Parent or Acquisition Sub of the Merger or the
transactions contemplated hereby or by the Merger Agreement; or (ii)
approval of any Company Acquisition Proposal.
Section 3. REVOCATION OF PROXIES; RELIANCE.
(a) The Shareholder hereby represents that any proxies heretofore
given in respect of the Shareholder Shares are not irrevocable, and that any
such proxies are hereby revoked.
(b) The Shareholder understands and acknowledges that Parent and
Acquisition Sub have entered into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of the Voting Agreement. The Shareholder
hereby affirms that this Agreement is given in connection with the transactions
contemplated by the Merger Agreement and agrees to the duties of the Shareholder
under this Agreement.
Section 4. COVENANTS OF THE SHAREHOLDER. The Shareholder hereby
agrees and covenants that:
(a) RESTRICTION ON TRANSFERS. Except as may otherwise be agreed to by
Parent in writing, the Shareholder shall not (i) transfer (which term shall
include, without limitation, any sale, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the Shareholder
Shares, or any interest therein if such transfer would result in the Shareholder
no longer having the power to vote, or cause to be voted, the Shareholder
Shares; (ii) enter into any contract, option, derivative, hedging or other
agreement or understanding with respect to any such transfer of any or all of
the Shareholder Shares, or any interest therein; (iii) permit to exist any lien
of any nature whatsoever with respect to any or all of the Shareholder Shares;
or (iv) convert or exchange, or take any action which would result in conversion
or exchange of, any of the Shareholder Shares, including without limitation
conversion or exchange of any shares of Class B common stock into shares of
Class A common stock.
(b) RESTRICTIONS ON PROXIES AND VOTING ARRANGEMENTS. Except as
otherwise provided herein, the Shareholder shall not (i) grant any proxy,
power-of-attorney or other authorization in or with respect to the Shareholder
Shares or (ii) deposit any of the Shareholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any of the
Shareholder Shares.
(c) STANDSTILL. The Shareholder agrees that he will comply with the
prohibitions of Section 7.03 of the Merger Agreement that are applicable to the
Company as if they were applicable to him, and that he will not, except as
specifically authorized by, and on behalf of, the Company, take any of the
actions permitted by Section 7.03 to be taken by the Company.
(d) STOP TRANSFER. The Shareholder shall not request that the Company
register any transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shareholder's Existing
Securities (as defined in Section 5(a)(i) hereof), unless such transfer is made
in compliance with this Agreement.
(e) WAIVER OF APPRAISAL RIGHTS. The Shareholder hereby irrevocably and
unconditionally waives, and agrees to prevent the exercise of, any rights of
appraisal or rights to dissent in connection with the Merger that the
Shareholder may directly or indirectly have.
(f) NO INCONSISTENT ARRANGEMENTS. The Shareholder shall not take any
other action that would in any way prevent, impede, restrict, limit, delay or
interfere with the performance of any of the Shareholder's obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement.
Section 5. REPRESENTATIONS AND WARRANTIES.
(a) The Shareholder hereby represents and warrants to Parent and
Acquisition Sub as follows:
(i) OWNERSHIP OF SECURITIES. On the date hereof, the Shareholder
owns, directly or indirectly, or has the power to direct the voting
of, the Company Securities set forth next to the his name on Schedule
I hereto (excluding the Proxy Shares, the "EXISTING SECURITIES"), and
the Existing Securities are owned of record by the Shareholder or
certain of the Shareholder's subsidiaries or nominees (collectively,
the "RECORD HOLDERS"). Each Record Holder has sole voting power and
sole power to issue instructions with respect to the matters set forth
in Section 2 hereof, sole power of disposition, sole power of
conversion, sole power (if any) to demand appraisal rights and sole
power to agree to all of each of the matters set forth in this
Agreement, in each case with respect to all of each such Record
Holder's Existing Securities with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(ii) Shareholder has voting power with respect to the Proxy
Shares to the extent set forth in existing agreements in respect
thereof. On the date hereof, the Existing Securities and the Proxy
Shares constitute all of the shares of voting capital stock of the
Company owned of record or otherwise by the Shareholder or as to which
the Shareholder has the power to vote or direct the voting of the
shares.
(iii) In the event of any dividend or distribution, or any change
in the capital structure of the Company by reason of any non-cash
dividend, split-up, recapitalization, combination, exchange of
securities or the like, the term "Existing Securities" shall refer
to and include the Existing Securities as well as all such dividends
and distributions of securities and any securities into which or for
which any or all of the Existing Securities may be changed, exchanged
or converted.
(iv) POWER; BINDING AGREEMENT. The Shareholder has the power (or,
if applicable, corporate power) and authority to enter into and
perform all of the Shareholder's obligations hereunder. The execution,
delivery and performance of this Agreement by the Shareholder will not
violate any other agreement to which the he is a party including,
without limitation, proxy arrangement or voting trust. This Agreement
has been duly and validly executed and delivered by the Shareholder
and constitutes a valid and binding agreement of the Shareholder,
enforceable against him in accordance with its terms, except that (A)
such enforcement may be subject to applicable bankruptcy, insolvency,
moratorium, or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. There is no
beneficiary or holder of a voting trust certificate or other interest
of any trust of which the Shareholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the
compliance by the Shareholder with the terms hereof.
(v) NO CONFLICTS. None of the execution and delivery of this
Agreement by the Shareholder, the consummation by the Shareholder of
the transactions contemplated hereby or compliance by the Shareholder
with any of the provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without due notice or lapse of time
or both) a default under any agreement or other obligation to which
the he is a party or by which he is bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, arbitration award,
rule or regulation applicable to the him or any of his properties or
assets.
(vi) NO LIENS. Except as established hereby, the Existing
Securities are now and, at all times during the term hereof, will be
held by the Shareholder, or by a nominee or custodian for the benefit
of the Shareholder, free and clear of all Liens, proxies, voting
trusts or agreements, understandings or arrangements whatsoever.
(b) Parent and Acquisition Sub jointly and severally hereby represent
and warrant to the Shareholder as follows:
(i) POWER; BINDING AGREEMENT. Each of Parent and Acquisition Sub
has the corporate power and authority to enter into and perform all of
its obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by each of Parent and Acquisition Sub
and constitutes a valid and binding agreement of each of Parent and
Acquisition Sub, enforceable against each of them in accordance with
its terms, except as the enforceability thereof may be limited by (a)
applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect that
affect the enforcement of creditors rights generally or (b) general
principles of equity, whether considered in a proceeding at law or in
equity.
(ii) NO CONFLICTS. None of the execution and delivery of this
Agreement by Parent or Acquisition Sub, the consummation by Parent or
Acquisition Sub of the transactions contemplated hereby or compliance
by Parent or Acquisition Sub with any of the provisions hereof shall
(A) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default under any agreement or
other obligation to which Parent or Acquisition Sub is a party or by
which Parent or Acquisition Sub is bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, arbitration award,
rule or regulation applicable to Parent or Acquisition Sub or any of
Parent or Acquisition Sub's properties or assets.
Section 6. TERMINATION. This Agreement and the covenants,
representations, warranties, and agreements contained herein shall automatically
terminate upon the earliest to occur of (i) the termination of the Merger
Agreement in accordance with the terms thereof, (ii) the mutual consent of
Parent and the Shareholder, or (iii) the Merger Effective Time. Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby or by the Merger Agreement
on the part of any party hereto or any of its directors, officers, partners,
stockholders, employees, agents, advisors, representatives or affiliates;
provided, however, that nothing herein shall relieve any party from any
liability for such party's willful breach of this Agreement prior to
termination.
Section 7. MISCELLANEOUS.
(a) NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements contained herein and in
any certificate delivered pursuant hereto by any Person shall terminate at the
Merger Effective Time or upon the termination of the Merger Agreement pursuant
to the terms thereof, as the case may be.
(b) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by facsimile (with a confirmatory copy sent by overnight courier), by
overnight courier service or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 7(b)):
if to Parent or Acquisition Sub:
Universal Computer Systems Holding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
if to the Shareholder, to Shareholder and counsel as stated on Schedule III
hereto.
(c) 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 Merger is not affected in any manner materially 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 a mutually acceptable manner in order that the Merger be
consummated as originally contemplated to the fullest extent possible.
(d) ENTIRE AGREEMENT. This Agreement and the Merger Agreement
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
(e) ASSIGNMENT. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that, except as provided herein, no party may assign,
delegate or otherwise transfer any of its rights or obligations hereunder, in
whole or in part, by operation of law or otherwise by any of the parties,
without the consent of the other parties hereto.
(f) PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(g) SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
(h) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Ohio(regardless of the laws that
might otherwise govern under applicable principles of conflicts of law) as to
all matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
(i) CONSENT TO JURISDICTION.
(A) Each of the parties hereto hereby irrevocably submits to the
exclusive jurisdiction of the courts of the State of Ohio and the United States
District Court for the State of Ohio, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding may be heard and determined exclusively in any Ohio state or federal
court. Each of the parties hereto hereby agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(B) Each of the parties hereto hereby irrevocably consents to the
service of the summons and complaint and any other process in any other action
or proceeding relating to the transactions contemplated hereby, on behalf of
itself or its property, by personal delivery of copies of such process to such
party. Nothing in this Section 7(i) shall affect the right of any party to serve
legal process in any other manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT OR THE COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
(k) FURTHER ASSURANCES. From time to time, at the request of Parent or
Acquisition Sub, the Shareholder shall execute and deliver to Parent and
Acquisition Sub or cause other Record Holders to execute and deliver to Parent
and Acquisition Sub such additional letters or instruments to comply with
applicable laws and stock exchange rules as Parent or Acquisition Sub may
reasonably request in connection with the Shareholder's obligations under this
Agreement.
(l) 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.
(m) AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be
amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(n) COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
(o) VOTING AGREEMENT. This Agreement entirely restates and supersedes
the Voting Agreement.
IN WITNESS WHEREOF, Parent, Acquisition Sub and the Shareholder have
caused this Agreement to be duly executed as of the day and year first above
written.
UNIVERSAL COMPUTER SYSTEMS HOLDING, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
RACECAR ACQUISITION CO.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & CEO
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Chief Executive Officer
SCHEDULE I
Existing Shares
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SHAREHOLDER CLASS A COMMON STOCK
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▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ 140,000
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SCHEDULE II
Proxy Shares
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CLASS A COMMON STOCK
1,147,937
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SCHEDULE III
Address for notices to the Shareholder:
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
The ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇, Jr., Esq.
