Exhibit 2.2
VOTING AGREEMENT
VOTING AGREEMENT ,
dated as of March 28, 2005 (this “Agreement”), by
and among FPL Group, Inc., a Florida corporation (“FPL
Group”), and the Persons listed on Schedule 1 hereto
(each, a “Shareholder” and, collectively, the
“Shareholders”).
WHEREAS , Gexa
Corp., a Texas corporation (the “Company”), FPL Group,
FRM Holdings, LLC (“Holdings”) and WPRM Acquisition
Subsidiary, Inc. (“Sub” and, together with FPL Group
and Holdings, the “FPL Parties”) propose to enter into
an Agreement and Plan of Merger, dated as of the date hereof (the
“Merger Agreement”), which provides for, among other
things, the merger of Sub with and into the Company (the
“Merger”);
WHEREAS , as of the
date hereof, the Shareholders are holders of record or Beneficially
Own (as defined herein) shares of common stock, par value $0.01 per
share (“Company Common Stock”), of the Company; and
WHEREAS , as a
condition to the willingness of the FPL Parties to enter into the
Merger Agreement, the FPL Parties have required that each
Shareholder agree, and in order to induce the FPL Parties to enter
into the Merger Agreement, each Shareholder has agreed, to enter
into this Agreement with respect to all of the shares of Company
Common Stock now held of record or Beneficially Owned and which may
hereafter be acquired by such Shareholder (collectively, the
“Shares”).
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
CERTAIN DEFINITIONS
Section 1.1
General . Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger
Agreement.
Section 1.2
Beneficial Ownership . For purposes of this Agreement,
“Beneficially Own” or “Beneficial
Ownership” with respect to any securities shall mean
“beneficial ownership” of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), including
pursuant to any agreement, arrangement or understanding, whether or
not in writing.
ARTICLE II
Section 2.1
Voting Agreement . Each of the Shareholders hereby
irrevocably and unconditionally agrees that during the term of this
Agreement as specified in Section 5.1, at any meeting of the
shareholders of the Company, however called, and in any action by
consent of the shareholders of the Company, each of the
Shareholders shall vote (or cause to be voted) the Shares held of
record (to the extent such Shareholder also has the right to vote
such Shares) or Beneficially Owned (to the extent such Shareholder
also has the right to vote such Shares) by
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such Shareholder in favor of the Merger, the
Merger Agreement (as amended from time to time) and the
transactions contemplated by the Merger Agreement. Each of the
Shareholders acknowledges receipt and review of a copy of the
Merger Agreement.
Section 2.2
Irrevocable Proxy; Appointment of Proxy . If any
Shareholder fails to comply with the provisions of Section 2.1
(as determined by FPL Group in its sole discretion), such
Shareholder hereby agrees that such failure shall result, without
any further action by such Shareholder, in the irrevocable
appointment of FPL Group, and any other individual who shall be
hereafter designated by FPL Group, as such Shareholder’s
attorney and proxy, with full power of substitution, to vote and
otherwise act (by written consent or otherwise) with respect to
such Shares at any meeting of the shareholders of the Company
(whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in
Section 2.1. THIS PROXY AND
POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND,
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND
BINDING ON ANY PERSON TO WHOM A SHAREHOLDER MAY TRANSFER ANY OF
SUCH SHAREHLOLDER’S SHARES IN BREACH OF THIS
AGREEMENT . Each Shareholder hereby revokes all other
proxies and powers of attorney with respect to such
Shareholder’s Shares that may have heretofore been appointed
or granted, and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall
not be effective) by any Shareholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive
the death or incapacity of any Shareholder and any obligation of
the Shareholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such
Shareholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDER
Each of the Shareholders hereby represents and
warrants, severally and not jointly, to the FPL Parties as
follows:
Section 3.1
Authority Relative to this Agreement . Such Shareholder has
all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. Where such Shareholder is a
corporation, partnership or other entity, the execution and
delivery of this Agreement by such Shareholder and the consummation
by such Shareholder of the transactions contemplated hereby have
been duly and validly authorized by the board of directors or other
governing body of such Shareholder, and no other proceedings on the
part of such Shareholder are necessary to authorize this Agreement
or to consummate such transactions. This Agreement has been duly
and validly executed and delivered by such Shareholder and,
assuming the due authorization, execution and delivery by the other
parties hereto, constitutes a legal, valid and binding obligation
of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, moratorium or other laws
affecting creditors’ rights generally or by general
principles governing the availability of equitable remedies.
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Section 3.2
No Conflict . (a) The execution and delivery of this
Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder shall not, (i) where such Shareholder
is a corporation, partnership or other entity, conflict with or
violate the organizational documents of such Shareholder, (ii)
conflict with or violate any agreement, arrangement, law, rule,
regulation, order, judgment or decree to which such Shareholder is
a party or by which such Shareholder (or the Shares held of record
or Beneficially Owned by such Shareholder) is bound or affected or
(iii) result in any breach of or constitute a default (or an event
that with notice or lapse or time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a
lien or encumbrance on any of the Shares held of record or
Beneficially Owned by such Shareholder pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such
Shareholder
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