Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of this 22nd day of August, 2005
("Agreement"), among each of the persons listed under the caption "etrials
Group" on Exhibit A attached hereto (the "etrials Group") and each of the
persons listed under the caption "Founders Group" on Exhibit A attached hereto
and CEA Acquisition Corporation, a Delaware corporation ("CEA"). Each of the
etrials Group and the Founders Group is sometimes referred to herein as a
"Group". For purposes of this Agreement, each person who is a member of either
the etrials Group or the Founders Group is referred to herein individually as a
"Stockholder" and collectively as the "Stockholders".
WHEREAS, as of the date hereof, each of CEA, etrials Worldwide, Inc.
(the "Company"), a Delaware corporation, etrials Acquisition Corporation
("Merger Sub"), a Delaware corporation, and the Stockholders who are members of
the etrials Group have entered into an Agreement and Plan of Merger (the "Merger
Agreement") which provides, upon the terms and subject to the conditions
thereof, for the merger of Merger Sub with and into the Company, with the
Company being the surviving entity and becoming a wholly owned subsidiary of CEA
(the "Merger");
WHEREAS, as of the date hereof, each stockholder who is a member of the
Founders Group owns beneficially of record shares of common stock of CEA, par
value $0.0001 per share ("CEA Common Stock"), as set forth opposite such
stockholder's name on Exhibit A hereto (all such shares and any shares of which
ownership of record or the power to vote is hereafter acquired by any of the
Stockholders, whether by purchase, conversion or exercise, prior to the
termination of this Agreement being referred to herein as the "Shares");
WHEREAS, at the Effective Time, all shares of Company Common Stock and
Company Preferred Stock beneficially owned by each Stockholder who is a member
of the etrials Group shall be converted into the right to receive and shall be
exchanged for his, her or its pro rata portion of the shares of CEA Common Stock
and Merger Warrants to be issued to the Company's security holders as
consideration in the Merger;
WHEREAS, as a condition to the consummation of the Merger Agreement,
the Stockholders have agreed, severally, to enter into this Agreement; and
WHEREAS, capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR DIRECTORS
SECTION 1.01 Vote in Favor of the Directors. During the term of this
Agreement, each Stockholder agrees to vote the Shares of CEA Common Stock he,
she or it now owns, or will hereafter acquire prior to the termination of this
Agreement, for the election and re-election of the following persons as
directors of CEA:
(a) Four persons who are designees of the e-trials Group, one to
stand for election in 2006 ("Class A Director"), who shall initially be Xxxx
Xxxxxxxx; one to stand for election in 2007 ("Class B Director"), who shall
initially be Xxxxx Xxxxx; and two to stand for election 2008 ("Class C
Directors"), who shall initially be Xxxx Xxxxx and Xxxxxx Xxxxx (collectively,
the "etrials Directors"); and
(b) Three persons who are designees of the Founders Group, one as
a Class A Director, who shall initially be Xxxxxx Xxxxxxx; one as a Class B
Director, who shall initially be Xxxxxx Xxxxxxx; and one as a Class C Director,
who shall initially be Xxxxxx Xxxx (the "Founders Directors," and together with
etrials Directors, the "Director Designees").
Neither the Stockholders, nor any of the officers, directors,
stockholders, members, managers, partners, employees or agents of any
Stockholder, makes any representation or warranty as to the fitness or
competence of any Director Designee to serve on the Board of Directors by virtue
of such party's execution of this Agreement or by the act of such party in
designating or voting for such Director Designee pursuant to this Agreement.
Any Director Designee may be removed from the Board of Directors in the
manner allowed by law and CEA's governing documents except that each Stockholder
agrees that he, she or it will not vote for the removal of any director who is a
member of Group of which such Stockholder is not a member. If a director is
removed or resigns from office, the remaining directors of the Group of which
the vacating director is a member shall be entitled to appoint the successor.
SECTION 1.02 Vote in Favor of Stock Option Plan. During the term of
this Agreement, each Stockholder agrees to vote the Shares of CEA Common Stock
he, she or it now owns, or hereafter acquires prior to the termination of this
Agreement, in favor of the adoption of the Parent Plan (as defined in the Merger
Agreement).
SECTION 1.03 Obligations of CEA. CEA shall take all necessary and
desirable actions within its control during the term of this Agreement to
provide for the CEA Board of Directors to be comprised of seven members and to
enable the election to the Board of Directors of the Director Designees.
SECTION 1.04 Term of Agreement. The obligations of the Stockholders
pursuant to this Agreement shall terminate immediately following the election or
re-election of directors at the annual meeting of CEA that will be held in 2007.
SECTION 1.05 Obligations as Director and/or Officer. Nothing in this
Agreement shall be deemed to limit or restrict any director or officer of CEA
from acting in his or
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her capacity as such director or officer or from exercising his or her fiduciary
duties and responsibilities, it being agreed and understood that this Agreement
shall apply to each Stockholder solely in his or her capacity as a stockholder
of CEA and shall not apply to his or her actions, judgments or decisions as a
director or officer of CEA if he or she is such a director or officer.
SECTION 1.06 Transfer of Shares. If a member of the etrials Group
desires to transfer his, her or its Shares to a permitted transferee pursuant to
the Lock-Up Agreement of even date herewith executed by such member, or if a
member of the Founders Group desires to transfer his or its shares to a
permitted transferee pursuant to the Escrow Agreement dated as of February 12,
2004, it shall be a condition to such transfer that the transferee agree to be
bound by the provisions of this Agreement. This Agreement shall in no way
restrict the transfer on the public market of Shares that are not subject to the
Lock-Up Agreement or the Escrow Agreement, and any such transfers on the public
market of shares not subject to the provisions of the Lock-Up Agreement or the
Escrow Agreement, as applicable, shall be free and clear of the restrictions in
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby severally represents warrants and covenants as
follows:
SECTION 2.01 Authorization. Such Stockholder has full legal capacity
and authority to enter into this Agreement and to carry out such person's
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder, and (assuming due authorization, execution and delivery by CEA
and the other Stockholders) this Agreement constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 2.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) conflict with or violate any Legal Requirement applicable to such
Stockholder or by which any property or asset of such Stockholder is bound or
affected, or (ii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of any encumbrance on any property or asset of
such Stockholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, domestic or
foreign, except (i) for applicable requirements, if any, of the
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Exchange Act, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay the performance by such Stockholder of such
Stockholder's obligations under this Agreement.
SECTION 2.03 Title to Shares. Such Stockholder is the legal and
beneficial owner of its Shares, or will be the legal beneficial owner of the
Shares that such Stockholder will receive as a result of the Merger, free and
clear of all liens and other encumbrances except certain restrictions upon the
transfer of such Shares.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by overnight
courier service, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 3.01):
(a) If to CEA:
CEA Acquisition Corporation
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
000-000-0000 telecopy
with a mandatory copy to
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to any Stockholder, to the address set forth opposite his, her
or its name on Exhibit A.
SECTION 3.02 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 3.03 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
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long as the economic or legal substance of the transactions contemplated hereby
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 to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 3.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 3.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that 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 in equity.
SECTION 3.06 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 in that State.
SECTION 3.07 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court in Delaware.
SECTION 3.08 No Waiver. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 3.09 Counterparts. This Agreement may be executed 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
taken together shall constitute one and the same agreement.
SECTION 3.10 Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives all right to trial by jury in any action,
proceeding or counterclaim (whether based in contract, tort or otherwise)
arising out of or relating to this Agreement or the Actions of the parties
hereto in the negotiation, administration, performance and enforcement thereof.
SECTION 3.11 Merger Agreement. All references to the Merger Agreement
herein shall be to such agreement as may be amended by the parties thereto from
time to time.
[Signature page(s) follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CEA ACQUISITION CORPORATION
By: s/ Xxxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President
STOCKHOLDERS:
THE FOUNDERS GROUP:
CEA Group, LLC
By: s/ J. Xxxxxxx Xxxxxxxx, Jr.
--------------------------------------
J. Xxxxxxx Xxxxxxxx, Jr., Chairman
s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
s/ Xxxxxx Xxxx
------------------------------------------
Xxxxxx Xxxx
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THE ETRIALS GROUP:
MINIDOC AB
By: s/ Per Xxxxxxx
-------------------------------------------
Name: Per Xxxxxxx
Title: CEO
INFOLOGIX (BVI) LIMITED
By: EQ Secretaries (Jersey) Limited, Company Secretary
By: s/Xxxxx Xxxxx s/ Xxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxx Xxxxxxxx Xxxxxxx
Title: Authorized Signatories
NEWLIGHT ASSOCIATES II, LP
By: Newlight Partners II, LP, General Partner
By: s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
NEWLIGHT ASSOCIATES II (BVI), LP
By: Newlight Partners II (BVI), LP, General Partner
By: s/Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
NEWLIGHT ASSOCIATES II-E, LP
BY: Newlight Partners II-E, LP, General Partner
By: s/Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
s/ Xxxxx Xxxxx
-----------------------------------------------
XXXXX XXXXX
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s/ Xxxxx and Xxxxx X. Xxxxx
-----------------------------------------------
XXXXX AND XXXXX X. XXXXX, XX TEN
XXXXXX INDUSTRIES
By: s/Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
s/ Xxxx Xxxxx
-----------------------------------------------
XXXX XXXXX
s/ Xxxxx X. and Xxxxxxx X. Xxxxx
-----------------------------------------------
XXXXX X. AND XXXXXXX X. XXXXX, XX TEN
s/ Xxxxxx Xxxxxx
-----------------------------------------------
XXXXXX XXXXXX
s/ Xxxx Xxxxx
-----------------------------------------------
XXXX XXXXX
E-ZAD PARTNERSHIP LIMITED
By: s/Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
XXXXXXX X. XXXXXX
s/ Xxxxxxx Xxxx
-----------------------------------------------
XXXXXXX XXXX
s/ Xxxxxxx Xxxxx
-----------------------------------------------
XXXXXXX XXXXX
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EXHIBIT A
STOCKHOLDERS
THE ETRIALS GROUP:
MiniDoc AB
Attn: Xxxx Xxxxxxxx
Xxxxxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx
Infologix (BVI) Limited
Attn: Ita Xxxxxxxx
Post Office Box 546
00-00 Xxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Channel Islands
Newlight Associates II, LP
c/o Newlight Management LLC
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Newlight Associates II (BVI), LP
c/o Newlight Management LLC
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Newlight Associates II-E, LP
c/o Newlight Management LLC
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Xxxxx Xxxxx
c/x Xxxxx Capital
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Xxxxx and Xxxxx X. Xxxxx
c/x Xxxxx Capital
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Xxxxxx Industries
c/o Tryon Capital
Attn: Xxxxx Xxxxx
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
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Xxxx Xxxxx
000 Xxxxxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Xxxxx X. and Xxxxxxx X. Xxxxx
000 Xxxxxxxx Xxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx Xxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Xxxx Xxxxx
Xxxxx & Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
E-ZAD Partnership Limited
c/o Prodea, Inc.
Attn: Xxxx Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Xxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxx
Xxxx XX0 00X
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
0000 Xxxxxx Xxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
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THE FOUNDERS GROUP
CEA Group, LLC
Suite 3300
000 X. Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxx
Suite 3300
000 X. Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxx
Suite 3300
000 X. Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx Xxxx
Suite 3300
000 X. Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
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