EXHIBIT 10.5
FORM OF VOTING
AGREEMENT
VOTING AGREEMENT, dated as of August
5, 2005 (this “ Agreement ”), by and among
Modtech Holdings, Inc., a Delaware corporation (the “
Company ”), and
(the “ Stockholder ”).
WHEREAS, the Company and Amphora
Limited (the “ Investor ) entered into a Securities
Purchase Agreement, dated as of December 30, 2004 (the “
Existing Securities Purchase Agreement ”),
pursuant to which, among other things, the Company issued and sold
to the Investor and the Investor agreed to purchase (i) $25,000,000
in principal amount of senior secured convertible notes of the
Company (the “ Notes ”), which Notes are
convertible into the Company’s common stock, $.01 par value
per share (the “ Common Stock ”) and (ii)
warrants to purchase shares of Common Stock;
WHEREAS, the Company, the Investor
and certain other parties are entering into a new Securities
Purchase Agreement, dated as of the date hereof (the “
Securities Purchase Agreement ”), pursuant to which,
among other things, the Company shall issue and sell to the
Investor and the Investor agrees to purchase (i) shares of Common
Stock and (ii) warrants to purchase shares of Common
Stock;
WHEREAS, as a condition to the
willingness of the Investor to enter into the Securities Purchase
Agreement and to consummate the transactions contemplated thereby
(collectively, the “ Transaction ”), the
Investor has required that the Stockholder agree, and in order to
induce the Investor to enter into the Securities Purchase
Agreement, the Stockholder has agreed, to enter into this Agreement
with respect to all the Common Stock now owned and which may
hereafter be acquired by the Stockholder and any other securities,
if any, which Stockholder is currently entitled to vote, or after
the date hereof becomes entitled to vote, at any meeting of the
stockholders of the Company (the “ Other Securities
”);
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT OF THE
STOCKHOLDER
SECTION 1.01. Voting
Agreement . The Stockholder hereby agrees that at any meeting
of the stockholders of the Company, however called, and in any
action by written consent of the Company’s stockholders, the
Stockholder shall vote the Common Stock and the Other Securities:
(a) in favor of the Stockholder Approval (as defined in the
Existing Securities Purchase Agreement) as described in Section
4(v) of the Existing Securities Purchase Agreement, which
Stockholder Approval relates to the Transaction; and (b) against
any proposal or any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the
Transaction Documents (as defined in the Existing Securities
Purchase Agreement) or which could result in any of the conditions
to the Company’s obligations under the Transaction Documents
not being fulfilled. The Stockholder acknowledges receipt and
review of a copy of
the Existing Securities Purchase Agreement and
the other Transaction Documents. The obligations of the Stockholder
under this Section 1.01 shall terminate immediately following the
occurrence of the Stockholder Approval of the Transaction or,
subject to the survival of Section 1.01(a) pursuant to Section 3.02
below, 90 days after the execution of this Agreement, whichever
occurs first.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
The Stockholder hereby represents
and warrants to the Company as follows:
SECTION 2.01. Authority Relative
to this Agreement . The Stockholder, if an individual, has the
capacity, and if not an individual, has all the necessary power and
authority to execute and deliver this Agreement, to perform his
obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholder and constitutes a legal, valid and
binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except (a) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
now or hereafter in effect relating to, or affecting generally, the
enforcement of creditors’ and other obligees’ rights
and (b) where the remedy of specific performance or other forms of
equitable relief may be subject to certain equitable defenses and
principles and to the discretion of the court before which the
proceeding may be brought.
SECTION 2.02. No Conflict .
(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder
shall not, (i) conflict with or violate any federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or
decree applicable to the Stockholder or by which the Common Stock
or the Other Securities owned by
