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,
licen
