EXHIBIT 10.36
VOTING AGREEMENT
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 here
