Exhibit 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
July __, 2004, by each of the persons whose names appear on the signature pages
hereof (the "Stockholders" or individually, each a "Stockholder"), in favor of
GVI Acquisition, LLC, a California limited liability company ("GVI LLC").
W I T N E S S E T H
WHEREAS, GVI Security Solutions, Inc., a Delaware corporation ("GVIS"),
Rapor Acquisition Corp., a Florida corporation and wholly-owned subsidiary of
GVIS ("Purchaser Subsidiary"), and Rapor, Inc., a Florida corporation ("Rapor"),
have entered into an Agreement and Plan of Merger (the "Merger Agreement")
pursuant to which, among other things, Purchaser Subsidiary will merge with and
into Rapor (the "Merger"), and the Stockholders will be issued shares of the
common stock, par value $.001 per share of GVIS (the "Shares"); and
WHEREAS, pursuant to Section 6.15 of the Merger Agreement and as a
condition to and in consideration for GVIS and Purchaser Subsidiary entering
into the Merger, GVIS and Purchaser Subsidiary are requiring the Stockholders to
execute and deliver to GVI LLC this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto do hereby agree as follows:
SECTION 1. LEGEND ON SHARES. Each certificate evidencing the Shares shall
be stamped or otherwise imprinted with a legend in substantially the following
form:
THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF
A VOTING AGREEMENT DATED AS OF JULY __, 2004, AMONG GVI ACQUISITION, LLC,
THE HOLDER OF RECORD OF THIS CERTIFICATE AND CERTAIN OTHER SIGNATORIES
THERETO, AND NO TRANSFER OF SUCH SECURITIES SHALL BE VALID OR EFFECTIVE
EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL SUCH TERMS AND
CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF GVI SECURITY SOLUTIONS, INC.
SECTION 2. VOTING AGREEMENT. At each annual and special meeting of the
stockholders of GVIS, and at any time at which stockholders of GVIS shall have
the right to, or shall, vote for or consent to any matter submitted to a vote or
action by written consent of the stockholders of GVIS, then, in each such event,
each Stockholder shall vote all Shares now owned or hereafter acquired by such
Stockholder (or controlled as to voting rights) by it, whether by purchase,
exercise of rights, warrants or options, stock dividends or otherwise, in the
same manner as GVI LLC votes the shares of GVIS common stock held by GVIS LLC.
SECTION 3. REMEDIES. In case any provision of this Agreement shall have
been breached by any Stockholder, GVI LLC may proceed to protect and enforce its
rights either by suit in equity and/or by action at law, including, but not
limited to, an action for damages as a result of any such breach; and/or an
action for specific performance of any such covenant or agreement contained in
this Agreement and/or a temporary or permanent injunction, in any case without
showing any actual damage. The rights, powers and remedies of GVI LLC under this
Agreement are cumulative and not exclusive of any other right, power or remedy
which such parties may have under any other agreement or law. No single or
partial assertion or exercise of any right, power or remedy of a party hereunder
shall preclude any other or further assertion or exercise thereof. Any purported
disposition of the Shares (a "Transfer") in violation of the provisions of this
Agreement shall be void ab initio.
SECTION 4. SUCCESSORS AND ASSIGNS; RESTRICTIONS ON TRANSFER. Except as
otherwise expressly provided herein, this Agreement shall bind and inure to the
benefit of GVI LLC, each of the Stockholders and the respective successors or
heirs and personal representatives and permitted assigns of GVI LLC and each of
the Stockholders. This Agreement shall not be binding on any transferee of a
Stockholder that is an unrelated third person and purchases the Shares held by
such Stockholder in the public market through a broker. Each Stockholder further
agrees that it shall not Transfer any Shares to any person not a party to this
Agreement, other than in a public sale to an unrelated third party through a
broker, unless such person contemporaneously with such Transfer executes and
delivers to GVI LLC an agreement to be bound by the Stockholders' obligations
hereunder, whereupon such person shall have the same obligations as the
Stockholders under this Agreement.
SECTION 5. DURATION OF AGREEMENT. The obligations of each Stockholder
under this Agreement shall terminate one-year following the closing of the
Merger.
SECTION 6. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and all other prior and contemporaneous arrangements or
understandings with respect thereto.
SECTION 7. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person, duly sent by first class
registered or certified airmail, postage prepaid to such party at the address
set forth on the signature page hereof. All such notices, requests, consents and
communications shall be deemed to have been given (a) in the case of personal
delivery, on the date of such delivery, and (b) in the case of mailing, on the
fifth day following the date of such mailing.
SECTION 8. COUNTERPARTS; FACSIMILE. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement. This Agreement may be executed by any one or more parties hereto, by
the delivery of signature pages, by facsimile, provided that each party agrees
to provide the original of any such faxed documents at the request of any party.
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SECTION 9. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
on the date first above written.
GVI ACQUISITION, LLC
By: ______________________________
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
STOCKHOLDERS:
___________________________________
Address:
___________________________________
Address:
___________________________________
Address:
___________________________________
Address:
___________________________________
Address:
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