EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 6, 2004, among
the undersigned stockholders (the "Stockholders") of Return on Investment
Corporation, a Delaware corporation ("ROI"), and VeriFone, Inc., a Delaware
corporation ("Buyer"). Except as otherwise provided herein, capitalized terms
that are used but not otherwise defined herein shall have the meaning assigned
to such terms in the Asset Purchase Agreement (as defined below).
WHEREAS, contemporaneously with the execution of this Agreement, ROI, GO
Software, Inc. (the "Seller") and Buyer have entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement"), providing for, among other things,
the Transaction;
WHEREAS, in order to induce Buyer to enter into the Asset Purchase
Agreement, the Stockholders wish to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Stockholders. Each of the Stockholders represents
and warrants to Buyer that:
(a) such Stockholder lawfully owns beneficially (as such term is defined
in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) or of record each of the shares of Common Stock, par value $0.01 per
share (the "ROI Common Stock"), of ROI set forth opposite such Stockholder's
name on Exhibit A hereto (such Stockholder's "Shares") free and clear of all
Encumbrances and, except for this Agreement and the Asset Purchase Agreement,
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character to which such Stockholder is a party relating to
the pledge, disposition or Voting of any shares of capital stock of ROI and
there are no Voting trusts or Voting agreements with respect to such Shares,
(b) such Stockholder does not beneficially own (as such term is used in
Rule 13d-3 of the Exchange Act) any shares of ROI Common Stock other than such
Shares and does not have any options, warrants or other rights to acquire any
additional shares of capital stock of ROI or any security exercisable for or
convertible into shares of capital stock of ROI, except as would not in the
aggregate materially affect such Stockholder's ability to perform such
Stockholder's obligations under this Agreement,
(c) such Stockholder has full power and authority and has taken all
actions necessary to enter into, execute and deliver this Agreement and to
perform fully such Stockholder's obligations hereunder,
(d) this Agreement has been duly executed and delivered and constitutes
the legal, valid and binding obligation of such Stockholder enforceable against
such Stockholder in accordance with its terms,
(e) other than filings under the Exchange Act, no notices, reports or
other filings are required to be made by such Stockholder with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by such Stockholder from, any Governmental Entity, in connection with
the execution and delivery of this Agreement by such Stockholder, and
(f) the execution, delivery and performance of this Agreement by such
Stockholder does not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation, modification or
acceleration) (whether after the giving of or the passage of time of both) under
any contract, agreement, arrangement or commitment to which such Stockholder is
a party or which is binding on him or her or his or her assets and will not
result in the creation of any Encumbrance on, or security interest in, any of
the assets on properties of such Stockholder.
2. Agreement to Deliver Proxy. Each of the Stockholders agrees to deliver
to Buyer promptly upon Buyer's request an irrevocable proxy substantially in the
form attached hereto as Exhibit B to Vote such Stockholder's Shares:
(a) in favor of adoption and approval of the Asset Purchase Agreement and
the transactions contemplated thereby, including the Transaction, at every
meeting of the stockholders of ROI at which such matters are considered and at
every adjournment or postponement thereof,
(b) against any action or agreement that would compete with, or materially
impede, or interfere with or that would reasonably be expected to discourage the
Transaction or inhibit the timely consummation of the Transaction,
(c) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of ROI or the Seller under the Asset Purchase Agreement, and
(d) except for the Transaction, against any merger, consolidation,
business combination, reorganization, recapitalization, liquidation or sale or
transfer of any material assets of ROI, or its Subsidiaries, Related to the
Business.
The proxy delivered by each of the Stockholders pursuant to this Section 2
shall be irrevocable during the term of this Agreement to the extent permitted
under Delaware law. For purposes of this Agreement, "Vote" includes voting in
person or by proxy in favor of or against any action, otherwise consenting or
withholding consent in respect of
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any action (including, but not limited to, consenting in accordance with Section
228 of the Delaware General Corporation Law) or taking other action in favor of
or against any action. "Voting" shall have a correlative meaning.
3. No Voting Trusts. Each of the Stockholders agrees that they will not,
nor will they permit any entity under their control to, deposit any of its
Shares or New Shares (as defined in Section 6 hereof) in a Voting trust or
subject any of their Shares or New Shares to any arrangement with respect to the
Voting of such Shares or New Shares other than agreements entered into with
Buyer.
4. No Proxy Solicitations. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity under such
Stockholder's control, to:
(a) solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) in opposition to or
competition with the consummation of the Transaction or otherwise encourage or
assist any party in taking or planning any action which would compete with, or
materially impede, or interfere with or that would reasonably be expected to
discourage the Transaction or inhibit the timely consummation of the Transaction
in accordance with the terms of the Asset Purchase Agreement,
(b) directly or indirectly encourage, initiate or cooperate in a
stockholders' Vote or action by consent of ROI's stockholders in opposition to
or in competition with the consummation of the Transaction, or
(c) become a member of a "group" (as such term is used in Section 13(d) of
the Exchange Act) with respect to any voting securities of ROI for the purpose
of opposing or competing with the consummation of the Transaction.
5. Transfer and Encumbrance. On or after the date hereof and during the
term of this Agreement, each of the Stockholders agrees not to transfer, sell,
offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares or New Shares.
6. Additional Purchases. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of ROI Common
Stock after the execution of this Agreement ("New Shares"), nor will any
Stockholder voluntarily acquire the right to Vote or share in the Voting of any
shares of ROI Common Stock other than the Shares, unless such Stockholder agrees
to deliver to Buyer immediately after such purchase or acquisition an
irrevocable proxy substantially in the form attached hereto as Exhibit B with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
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7. Specific Performance. The parties acknowledge that there may be no
adequate remedy at law for a breach of this Agreement and that money damages may
not be an appropriate remedy for breach of this Agreement. Therefore, the
parties agree that each party has the right to injunctive relief and specific
performance of this Agreement in the event of any breach hereof in addition to
any rights it may have for damages, which shall include out of pocket expenses,
loss of business opportunities and any other damages, direct and indirect,
consequential, punitive or otherwise. The remedies set forth in this Section 7
are cumulative and shall in no way limit any other remedy any party hereto has
at law, in equity or pursuant hereto.
8. Entire Agreement; Amendment; Waiver. This Agreement (including the
exhibit hereto) contains the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters.
Any provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
Buyer and the Stockholders, or in the case of a waiver, by the party or parties
against whom the waiver is to be effective. 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.
9. Notices. All notices and communications hereunder shall be deemed to
have been duly given and made if in writing and if served by personal delivery
upon the party for whom it is intended or delivered by registered or certified
mail, return receipt requested, or if sent by telecopier or email, provided that
the telecopy or email is promptly confirmed by telephone confirmation thereof,
to the Person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such Person:
To Buyer:
VeriFone, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxx Xxxxxxxxxxx, Chief Financial Officer
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 650-461-5700
Attention: Xxxxxxx X. Xxxx
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If to a Stockholder, to the address or telecopy number set forth for such
Stockholder on the signature page hereof:
With a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxxxxxx X. Xxx
10. Miscellaneous.
(a) Governing Law. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(b) Venue; WAIVER OF JURY TRIAL. Each party hereto agrees that it shall
bring any action or proceeding in respect of any claim arising out of or related
to this Agreement or the transactions contained in or contemplated by this
Agreement, exclusively in the United States District Court for the Southern
District of New York or any New York State court sitting in New York County (the
"Chosen Courts"), and solely in connection with claims arising under this
Agreement or the transactions that are the subject of this Agreement (i)
irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii)
waives any objection to laying venue in any such action or proceeding in the
Chosen Courts, (iii) waives any objection that the Chosen Courts are an
inconvenient forum or do not have jurisdiction over any party hereto and (iv)
agrees that service of process upon such party in any such action or proceeding
shall be effective if notice is given in accordance with Section 9 of this
Agreement. Each party hereto irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
(c) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision
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and (b) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
(e) Termination. This Agreement shall terminate upon the earliest to occur
of (i) the Closing and (ii) the termination of the Asset Purchase Agreement in
accordance with its terms.
(f) Further Assurances. Each party hereto shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or desirable to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(g) Headings. The heading references herein hereof are for convenience
purposes only, and shall not be deemed to limit or affect any of the provisions
hereof.
(h) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS OR
IMPLIED, IS INTENDED TO CONFER UPON ANY PERSON OTHER THAN BUYER, THE
STOCKHOLDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, ANY RIGHTS OR REMEDIES
UNDER OR BY REASON OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
VeriFone, Inc.
By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: Chief Financial Officer
THE STOCKHOLDERS:
/s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
/s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
Address: 0000 Xxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Address: 0000 Xxxxxxxx Xxx., Xxxx 0
Xxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
(EXHIBIT A)
RETURN ON INVESTMENT COMPANY
LIST OF STOCKHOLDERS
NAME NUMBER OF SHARES
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Xxxxxxx X. XxXxxxxxx 1,052,640
Xxxx X. XxXxxxxxx 987,525
Xxxx X. Xxxxxxx 3,452,127
(EXHIBIT B)
FORM OF PROXY
The undersigned, for consideration received, hereby appoints Xxxxxxx
Xxxxxxxx or another representative of VeriFone, Inc. designated by him and each
of them my proxies, with power of substitution and resubstitution, to Vote (as
defined below) all shares of Common Stock, par value $0.01 per share, of Return
on Investment Corporation, a Delaware corporation ("ROI"), owned by the
undersigned (the "Shares") as of the date hereof as follows:
(a) FOR approval and adoption of (i) the Asset Purchase Agreement, dated
as of December 6, 2004 (the "Asset Purchase Agreement"), by and among ROI, GO
Software, Inc., a Georgia corporation and a wholly owned subsidiary of ROI (the
"Seller"), and VeriFone, Inc., a Delaware corporation ("Buyer") and (ii) the
approval of the purchase and sale contemplated by the Asset Purchase Agreement
(the "Transaction"), and
(b) AGAINST (i) any action or agreement that would compete with, or
materially impede, or interfere with or that would reasonably be expected to
discourage the Transaction or inhibit the timely consummation of the Transaction
or (ii) any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
ROI or the Seller under the Asset Purchase Agreement or, (iii) except for the
Transaction, any merger, consolidation, business combination, reorganization,
recapitalization, liquidation or sale or transfer of any material assets of ROI,
or its Subsidiaries, Related to the Business.
"Vote" means voting in person or by proxy in favor of or against any
action, otherwise consenting or withholding consent in respect of any action
(including, but not limited to, consenting in accordance with Section 228 of the
Delaware General Corporation Law) or taking other action in favor of or against
any action. This proxy applies to any Vote (i) at any meeting of the
stockholders of ROI, and any adjournment or postponement thereof, at which the
matters described above are considered, including the Special Meeting of
Stockholders of ROI to be held as soon as practicable after the date hereof or
(ii) in connection with any written consent of stockholders of ROI.
This proxy is coupled with an interest, revokes all prior proxies granted
by the undersigned and is irrevocable until such time as the Voting Agreement
(the "Voting Agreement"), dated as of December 6, 2004, among certain
stockholders of ROI, including the undersigned, and Buyer, terminates in
accordance with its terms, at which time this proxy shall expire.
Except as otherwise provided herein, capitalized terms that are used but
not otherwise defined herein shall have the meaning assigned to such terms
pursuant to the Voting Agreement.
Dated December __, 2004
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(Signature of Stockholder)
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(Signature of Stockholder)
