VOTING AGREEMENT
EXHIBIT
10.36
This
Voting Agreement (the “Agreement”)
dated
as of September 1, 2005 by and between ASOC Acquisition Corp., a Delaware
corporation (the “Buyer”),
and
the undersigned holder (the “Stockholder”)
of
shares (the “Shares”)
of
common stock, par value $0.001 per share, of Axeda Systems Inc., a Delaware
corporation (the “Company”).
WHEREAS,
the Buyer, the Company and certain of the Company’s direct and indirect
subsidiaries have entered into an Asset Purchase Agreement dated as of the
date
hereof (as such agreement may be subsequently amended or modified, the
“Purchase
Agreement”),
providing for the sale by the Company and its subsidiaries, and the purchase
by
the Buyer, of substantially all of the assets of the Business (as defined in
the
Purchase Agreement) (the “Asset
Sale”);
WHEREAS,
the Stockholder beneficially owns and has sole or shared voting power with
respect to the number of Shares, and holds stock options or other rights to
acquire the number of Shares indicated under the Stockholder’s name on the
signature page hereto;
WHEREAS,
it is a condition to the Buyer’s execution and delivery to the Company of the
Purchase Agreement that the undersigned execute and deliver to the Buyer this
Agreement on a date even herewith; and
WHEREAS,
all capitalized terms used in this Agreement without definition herein shall
have the meanings ascribed to them in the Purchase Agreement.
NOW,
THEREFORE, in consideration of, and as a condition to, the Buyer entering into
the Purchase Agreement and proceeding with the transactions contemplated
thereby, and in consideration of the expenses incurred and to be incurred by
the
Buyer in connection therewith, the Stockholder and the Buyer agree as
follows:
Agreement
to Vote Shares.
The
Stockholder agrees that at any meeting of the stockholders of the Company or
any
adjournment thereof, or in connection with any written consent of the
stockholders of the Company, with respect to the Asset Sale, the Purchase
Agreement or any Acquisition Proposal, the Stockholder shall:
appear
at
such meeting or otherwise cause the Shares to be counted as present thereat
for
purposes of calculating a quorum;
vote
(or
cause to be voted), or deliver a written consent (or cause a consent to be
delivered) covering all of the Shares that such Stockholder shall be entitled
to
so vote, whether such Shares are beneficially owned by such Stockholder on
the
date of this Agreement or are subsequently acquired, (i) in favor of adoption
and approval of the Purchase Agreement, the Asset Sale and all other
transactions contemplated by the Purchase Agreement as to which stockholders
of
the Company are called upon to vote or consent; (ii) against any action or
agreement that would reasonably be expected to result in a breach in any
material respect of any covenant, representation or warranty of the Stockholder
contained in this Agreement; and (iii) against any Acquisition Proposal,
or
any agreement or transaction that is intended to, or could reasonably be
expected to, materially impede, interfere with, delay, postpone, discourage
or
materially and adversely affect the consummation of the Asset Sale;
and
not
vote
or execute any written consent to rescind or amend in any manner any prior
vote
or written consent approving or adopting the Purchase Agreement and/or the
Asset
Sale.
Termination
Date.
This
Agreement shall terminate upon the earlier to occur of (a) the consummation
of
the Asset Sale, (b) such date and time as the Purchase Agreement shall be
terminated pursuant to Article XII thereof, or (c) upon mutual written agreement
of the parties hereto to terminate this Agreement. Upon termination or
expiration of this Agreement, no party shall have any further obligations or
liabilities under this Agreement; provided,
however, such
termination or expiration shall not relieve any party from liability for any
willful breach of this Agreement prior to termination hereof.
Agreement
to Retain Shares.
From
and after the date hereof, the Stockholder shall not directly or indirectly,
and
will not permit any company, trust or other entity controlled by the Stockholder
to, sell, assign, transfer, or otherwise dispose of (including, without
limitation, by the creation of a Lien (as defined in Section 4(c) below)),
or enter into any contract, option, commitment or other arrangement or
understanding with respect to the sale, transfer, assignment or other
disposition of, any Shares owned by the Stockholder, whether such Shares are
held by the Stockholder on the date of this Agreement or are subsequently
acquired, whether by the exercise of any stock options to acquire Shares or
otherwise. Notwithstanding the foregoing, the Stockholder may make transfers
by
will or by operation of law or other transfers for estate planning purposes,
in
which case this Agreement shall bind the transferee.
Representations
and Warranties of the Stockholder.
The
Stockholder hereby represents and warrants to the Buyer as follows:
the
Stockholder has the complete and unrestricted power and the unqualified right
to
enter into and perform the terms of this Agreement;
this
Agreement constitutes a valid and binding agreement with respect to the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy, insolvency
and
similar laws affecting creditors’ rights and remedies generally;
the
Stockholder beneficially owns the number of Shares (including options and rights
to purchase Shares) indicated under such Stockholder’s name on the signature
page hereto, free and clear of any liens, claims, charges or other encumbrances
or restrictions of any kind whatsoever (“Liens”),
and
has sole or shared, and otherwise unrestricted, voting power with respect to
such Shares; and
the
execution and delivery of this Agreement by the Stockholder does not, and the
performance by the Stockholder of his obligations hereunder and the consummation
by the Stockholder of the transactions contemplated hereby will not, violate
or
conflict with, or constitute a default under, any agreement, instrument,
contract or other obligation or any order, arbitration award, judgment or decree
to which the Stockholder is a party or by which the Stockholder is bound, or
any
statute, rule or regulation to which the Stockholder is subject or, in the
event
that the Stockholder is a corporation, partnership, trust or other entity,
any
bylaw or other organizational document of the Stockholder.
-2-
Irrevocable
Proxy.
By
execution of this Agreement, the Stockholder does hereby appoint the Buyer,
with
full power of substitution and resubstitution, as the Stockholder’s true and
lawful attorney and irrevocable proxy, to the fullest extent of the
undersigned’s rights with respect to the Shares, to vote, if the Stockholder is
unable, unwilling or otherwise fails, or is reasonably expected to be unable,
unwilling or to fail, to perform his or her obligations under this Agreement,
each of such Shares solely with respect to the matters set forth in Section
1
hereof. The Stockholder intends this proxy to be irrevocable and coupled with
an
interest hereunder until termination of this Agreement and hereby revokes any
proxy previously granted by the Stockholder with respect to the Shares.
No
Solicitation.
The
Stockholder, in his or her capacity as a stockholder of the Company, shall
not,
and shall not permit any of his or her Representatives (to the extent applicable
to the Stockholder) to, directly or indirectly, invite, initiate, solicit,
encourage or facilitate (including by way of furnishing nonpublic information
or
assistance) any inquiries, proposals, discussions or negotiations or the making
or implementation of any proposal or offer (including, without limitation,
any
proposal or offer to the stockholders of the Company) with respect to, or that
may reasonably be expected to lead to, any direct or indirect Acquisition
Proposal or engage in any discussions or negotiations with any Third Party
with
respect to, or that may reasonably be expected to lead to, an Acquisition
Proposal, or enter into any letter of intent, agreement in principle or
agreement relating to an Acquisition Proposal, or propose publicly to do any
of
the foregoing.
Specific
Enforcement.
The
Stockholder has signed this Agreement intending to be legally bound thereby.
The
Stockholder expressly agrees that this Agreement shall be specifically
enforceable in any court of competent jurisdiction in accordance with its terms
against the Stockholder. All of the covenants and agreements contained in this
Agreement shall be binding upon, and inure to the benefit of, the respective
parties and their permitted successors, assigns, heirs, executors,
administrators and other legal representatives, as the case may be.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same
instrument.
-3-
No
Waivers.
No
waivers of any breach of this Agreement extended by the Buyer to the Stockholder
shall be construed as a waiver of any rights or remedies of the Buyer with
respect to any other stockholder of the Company who has executed an agreement
substantially in the form of this Agreement with respect to Shares held or
subsequently held by such stockholder or with respect to any subsequent breach
of the Stockholder or any other such stockholder of the Company. No waiver
of
any provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
Miscellaneous.
This
Agreement to be governed by the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of laws thereof. If any
provision hereof is deemed unenforceable, the enforceability of the other
provisions hereof shall not be affected.
Capacity
as Stockholder.
The
Stockholder signs this Agreement solely in the Stockholder’s capacity as a
stockholder of the Company, and not in the Stockholder’s capacity as a director,
officer or employee of the Company or any of its subsidiaries or in the
Stockholder’s capacity as a trustee or fiduciary of any ERISA plan or trust.
Notwithstanding anything herein to the contrary, nothing herein shall in any
way
restrict a director and/or officer of the Company in the exercise of his or
her
fiduciary duties consistent with the terms of the Purchase Agreement as a
director and/or officer of the Company or in his or her capacity as a trustee
or
fiduciary of any ERISA plan or trust or prevent or be construed to create any
obligation on the part of any director and/or officer of the Company or any
trustee or fiduciary of any ERISA plan or trust from taking any action in his
or
her capacity as a director of the Company.
No
Agreement Until Executed.
Irrespective of negotiations among the parties or the exchanging of drafts
of
this Agreement, this Agreement shall not constitute or be deemed to evidence
a
contract, agreement, arrangement or understanding between the parties hereto
unless and until (a) the Board of Directors of the Company has approved, for
purposes of any applicable anti-takeover laws and regulations, and any
applicable provision of the Company’s certificate of incorporation, the Asset
Sale by the Buyer pursuant to the Purchase Agreement and (b) the Purchase
Agreement is executed by all parties thereto.
Entire
Agreement.
This
Agreement supersedes all prior agreements, written or oral, among the parties
hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by each
party hereto.
[Signature
Page Follows Next]
-4-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxxx
Xxxxxxx
Full
Legal Name: Xxxxx Xxxxxxx
No.
of
Shares: 7,800
Options
or other
Rights
to
Purchase: 260,500
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-5-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxx
Xxxx
Full
Legal Name: Xxxx Xxxx
No.
of
Shares: 0
Options
or other
Rights
to
Purchase: 55,000
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-6-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxxx
Xxxxxxxxxx
Full
Legal Name: Xxxxx Xxxxxxxxxx
No.
of
Shares: 0
Options
or other
Rights
to
Purchase: 325,000
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-7-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxxx
Xxxxxx
Full
Legal Name: Xxxxx Xxxxxx
No.
of
Shares: 12,400 + 5,142
Options
or other
Rights
to
Purchase: 425,000
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-8-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxxxx X. Xxxxxxx, Xx.
Full
Legal Name: Xxxxxx X. Xxxxxxx, Xx.
No.
of
Shares: 122,900
Options
or other
Rights
to
Purchase: 881,000
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-9-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxxxxx XxxXxxx
Full
Legal Name: Xxxxxxx XxxXxxx
No.
of
Shares: 12,300
Options
or other
Rights
to
Purchase: 780,000
ASOC
ACQUISITION CORP.
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-10-
EXECUTED
as of the date first above written.
STOCKHOLDER
/s/
Xxxx
Xxxxxx
Full
Legal Name: Xxxx Xxxxxx
No.
of
Shares: 158,741
Options
or other
Rights
to
Purchase: 575,000
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title: President
-11-