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EXHIBIT 2.4
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VOTING AGREEMENT
BY AND AMONG
VENTURI PARTNERS, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF SEPTEMBER 30, 2004
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VOTING AGREEMENT
This
Voting Agreement (this "AGREEMENT") is made and entered into as
of
September 30, 2004 by and among VENTURI
PARTNERS, INC., a Delaware corporation
(the "COMPANY"), and the parties identified
as "Stockholders" on the signature
pages hereto.
PRELIMINARY STATEMENTS
The
Company, VTP, Inc., Venturi Technology Partners, LLC, Comsys
Information Technology Services, Inc.,
Comsys Holding, Inc. and certain
stockholders of Holding have entered into
an Agreement and Plan of Merger dated
as of July 19, 2004 (as the same may be
amended from time to time, the "MERGER
AGREEMENT"), pursuant to which, upon the
terms and subject to the conditions
thereof, VTP, Inc. will be merged with and
into Comsys Holding, Inc. and Comsys
Holding, Inc. will be the surviving entity
(the "MERGER").
As a
condition to the consummation of the transactions contemplated by
the
Merger Agreement, various stockholders of
the Company and of Holding have
required that the Company and certain
parties who are, or who as a result of the
Merger will become, stockholders of the
Company, and the Company and such
parties are willing to, enter into a voting
agreement with respect to
nominations to the board of directors of
the Company at and after the
effectiveness of the Merger.
Capitalized terms used but not defined herein have the meanings
given in
the Merger Agreement.
Now,
therefore, for good, valuable and binding consideration, the
receipt
and sufficiency of which are hereby
acknowledged, the parties hereto, intending
to be legally bound hereby, agree as
follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section
1.1. Definitions.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations
promulgated under the Exchange Act.
"AGREEMENT" has the meaning given in the preamble to this
Agreement.
"BOARD OF
DIRECTORS" means the board of directors of the Company.
"BYLAWS"
means the Bylaws of the Company as in effect from time to time.
"CLOSING"
has the meaning given in the Merger Agreement.
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"COMMISSION" means the Securities and Exchange Commission or any
other
Federal agency at the time administering
the Securities Act.
"COMMON
STOCK" means the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY" has the
meaning given in the preamble to this Agreement.
"DIRECTOR"
means a member of the Board of Directors.
"EXCHANGE
ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission
thereunder, all as the same shall be
in effect at the time.
"GROUP B
DIRECTOR" means Willis, a Wachovia Director or a director who
was
selected by the Group B Subcommittee of the
Nominating Committee of the Board of
Directors for election to, or to fill a
vacancy or newly created directorship
on, the Board of Directors pursuant to this
Agreement or Section 3.2 of the
Bylaws.
"GROUP B
SUBCOMMITTEE" means a subcommittee of the Nominating Committee
of
the Board of Directors comprised solely of
the Independent Wachovia Directors
serving on the Nominating Committee.
"HOLDING"
means Comsys Holding, Inc., a Delaware corporation.
"INDEPENDENT WACHOVIA DIRECTOR" means any Wachovia Director who
meets the
definition of independent director under
applicable rules and listing standards
of the principal securities exchange or
market on which the Common Stock is
listed or approved for trading.
"JUNIOR
STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the
title "Junior Stockholders" and any
Affiliate thereof to which a Junior
Stockholder transfers any shares of Common
Stock and which has agreed in writing to be
bound by the terms of this
Agreement.
"MAJOR
STOCKHOLDER" means any Wachovia Stockholder or Venturi
Stockholder
that owned, at the Effective Time, directly
or beneficially as part of the
Stockholder Group of which it is a part,
greater than 10% of the then
outstanding Common Stock, as such ownership
is reflected on the applicable
Schedules to this Agreement.
"MERGER"
has the meaning given in the preliminary statements to this
Agreement.
"MERGER
AGREEMENT" has the meaning given in the preliminary statements
to
this Agreement.
"NOMINATING COMMITTEE" means the Nominating Committee of the Board
of
Directors established pursuant to and in
accordance with the Bylaws.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the
rules and regulations of the Commission
thereunder, as the same shall be in
effect at the time.
"SHARES"
means shares of Common Stock.
"SPECIAL
VOTING PERIOD" means the period commencing immediately after
the
Effective Time (as defined in the
Certificate of Incorporation) and ending on
the third anniversary of the Effective
Time.
"STOCKHOLDER" means Willis or any Wachovia Stockholder, Junior
Stockholder
or Venturi Stockholder.
"STOCKHOLDER GROUP" means each of the following three groups of
Stockholders: (a) the Stockholders
comprising the Wachovia Stockholders shall be
one Stockholder Group, (b) the Stockholders
comprising the Junior Stockholders
shall be one Stockholder Group and (c) the
Stockholders comprising the Venturi
Stockholders shall be one Stockholder
Group.
"STOCKHOLDER REPRESENTATIVE" has the meaning given in Section
4.18.
"STOCKHOLDERS" means, collectively, Willis, the Wachovia
Stockholders, the
Junior Stockholders and the Venturi
Stockholders.
"VENTURI
STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the
title "Venturi Stockholders."
"WACHOVIA
DIRECTOR" means (a) a director of the Company who was so
designated as a Wachovia Designee by
Holding to serve on the Board of Directors
pursuant to Section 6.15(a) of the Merger
Agreement, (b) any director of the
Company who was nominated for election as a
director of the Company by the
Wachovia Stockholders or (c) any director
who was nominated by the Wachovia
Stockholders to fill a vacancy that was
held immediately prior to such vacancy
by a Wachovia Director or a newly created
directorship on the Board of Directors
for which the Wachovia Stockholders would
have the right to recommend an
additional nominee pursuant to this
Agreement or Section 3.2 of the Bylaws.
"WACHOVIA
STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the
title "Wachovia Stockholders" and
any Affiliate thereof to which a Wachovia
Stockholder transfers any shares of
Common Stock and which has agreed in
writing to be bound by the terms of this
Agreement.
"WILLIS"
means Michael T. Willis.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1.
Representations and Warranties of the Company. The Company
hereby represents and warrants to the other
parties hereto as follows: The
Company has all requisite corporate power
and authority to enter into this
Agreement and to consummate the
transactions
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contemplated hereby. The execution and
delivery by the Company of this
Agreement, and the consummation by the
Company of the transactions contemplated
hereby, have been duly authorized by all
necessary corporate action on the part
of the Company. This Agreement has been
duly executed and delivered by the
Company and constitutes a valid and binding
obligation of the Company,
enforceable against the Company in
accordance with its terms. No consent,
approval, order or authorization of, or
registration, declaration or filing
with, any court, administrative agency or
commission or other governmental
authority or instrumentality, domestic or
foreign, is required by, or with
respect to, the Company in connection with
the execution and delivery of this
Agreement by the Company or the
consummation by the Company of the transactions
contemplated hereby. The execution and
delivery of this Agreement by the Company
and the consummation of the transactions
contemplated hereby by the Company does
not conflict with, or result in a breach
of, any law or regulation of any
governmental authority applicable to the
Company or any material agreement to
which the Company is a party.
Section
2.2. Representations and Warranties of the Stockholders.
(a) Each Stockholder that is not a natural person, severally and
not
jointly, hereby represents and warrants, as
to itself only and not as to any
other Stockholder, to the other parties
hereto as follows:
(i) Authority. The Stockholder has all requisite corporate,
partnership or limited liability company
power and authority to enter into this
Agreement and to consummate the
transactions contemplated hereby. The execution
and delivery by the Stockholder of this
Agreement, and the consummation by the
Stockholder of the transactions
contemplated hereby, have been duly authorized
by all necessary corporate, partnership or
limited liability company action on
the part of the Stockholder. This Agreement
has been duly executed and delivered
by the Stockholder and constitutes a valid
and binding obligation of the
Stockholder, enforceable against the
Stockholder in accordance with its terms.
No consent, approval, order or
authorization of, or registration, declaration or
filing with, any court, administrative
agency or commission or other
governmental authority or instrumentality,
domestic or foreign, is required by,
or with respect to, the Stockholder in
connection with the execution and
delivery of this Agreement by the
Stockholder or the consummation by the
Stockholder of the transactions
contemplated hereby. The execution and delivery
of this Agreement by the Stockholder and
the consummation of the transactions
contemplated hereby by the Stockholder does
not conflict with, or result in a
breach of, any law or regulation of any
governmental authority applicable to the
Stockholder or any material agreement to
which the Stockholder is a party.
(ii) Shares. As of the Effective Time, the Stockholder is the
record and beneficial owner of the number
of Shares set forth across from such
Stockholder's name on Schedule
2.2(a)(ii).
(b) Each Stockholder that is a natural person, severally and
not
jointly, hereby represents and warrants, as
to itself only and not as to any
other Stockholder, to the other parties
hereto as follows:
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(i) Authority. The Stockholder has all requisite power and
authority to enter into this Agreement and
to consummate the transactions
contemplated hereby. The execution and
delivery by the Stockholder of this
Agreement, and the consummation of the
transactions contemplated hereby, have
been duly authorized by all necessary
action on the part of the Stockholder and
does not conflict with, or result in a
breach of, any law or regulation of any
governmental authority applicable to any
the Stockholder or any material
agreement to which such the Stockholder is
a party. This Agreement has been duly
executed and delivered by the Stockholder
and constitutes a valid and binding
obligation, enforceable against the
Stockholder in accordance with its terms.
(ii) Shares. As of the Effective Time, the Stockholder is the
record and beneficial owner of the number
of Shares set forth across from such
Stockholder's name on Schedule
2.2(b)(ii).
ARTICLE III
CORPORATE GOVERNANCE; CERTAIN CORPORATE ACTIONS
Section
3.1. Voting of Shares; Company Actions.
(a) From and after the date hereof and until the termination of
the
Special Voting Period, each Stockholder
shall vote all Shares owned or
controlled by such Stockholder, and shall
take all other necessary or desirable
actions within such Stockholder's control
(including, if permitted, attendance
at meetings in person or by proxy for
purposes of obtaining a quorum and, if
permitted, execution of written consents in
lieu of meetings), so that the
composition of the Board of Directors and
the manner of selecting members
thereof shall be as set forth in Article
Fifth of the Company's Certificate of
Incorporation, Section 3.2 of the Bylaws
and this Article III, and to otherwise
effectuate the provisions of this
Agreement.
(b) From and after the date hereof, the Company shall take all
necessary or desirable actions within its
control (including calling special
board and stockholder meetings) to
effectuate the provisions of this Agreement.
Section
3.2. Composition of the Board of Directors.
(a) Election of Michael Willis. During the Special Voting
Period,
for so long as he is the Chief Executive
Officer of the Company, the Company
shall nominate Michael Willis to serve as a
Director of the Company, and include
Mr. Willis as a nominee in its proxy
statement to be distributed to stockholders
in connection with the annual meeting of
stockholders. In the event the
nomination rights set forth in this
provision are not permitted by applicable
Nasdaq rules, or if the Company's Common
Stock is not then traded on the Nasdaq
National Market, the comparable
requirements of the principal securities
exchange or market on which the Company's
Common Stock is then listed or
approved for trading, the Nominating
Committee will then have the exclusive
delegated authority of the Board to fill
the directorship contemplated hereby.
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(b) Nomination Rights. The following provisions shall apply
during
the Special Voting Period and in each case
to the extent permitted by applicable
law and by applicable rules and listing
standards of the principal securities
exchange or market on which the Common
Stock is listed or approved for trading:
Prior to each annual meeting of
stockholders of the Company during the Special
Voting Period, the Wachovia Stockholders
and, if they fail to do so, the Group B
Subcommittee will, subject to the
procedures and qualification requirements set
forth in this Agreement, have the right to
designate nominees for directors to
be elected by the stockholders at such
annual meeting as follows:
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<CAPTION>
NUMBER OF DIRECTOR DESIGNEES
WACHOVIA STOCKHOLDERS HAVE
SIZE OF WHOLE BOARD
THE RIGHT TO DESIGNATE
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<C>
9
4
10
5
11
5
12
6
13
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(c) Vacancies and Newly Created Directorships. Subject to the
procedures and qualification requirements
of Section 3.2 of the Bylaws, the
Wachovia Stockholders shall have the right
to recommend to the Group B
Subcommittee nominees to fill any vacancy
on the Board, or any committee
thereof, that was held immediately prior to
such vacancy by a Wachovia Director,
and to fill any newly created directorship
for which the Wachovia Stockholders
would have the right to designate an
additional nominee pursuant to paragraph
(b) above. The Group B Subcommittee shall
have the exclusive delegated authority
of the Board to fill any such vacancy.
Subject to its fiduciary duties, the
Group B Subcommittee shall fill such
vacancy with the Wachovia Stockholder
nominee and, absent a recommendation from
the Wachovia Stockholders, the Group B
Subcommittee shall fill any such vacancy
with a nominee of its choosing. In the
event the Group B Subcommittee fails to
fill any such vacancy or newly created
directorship pursuant to the procedures and
qualification requirements of
Section 3.2 of the Bylaws, the Nominating
Committee will then have the exclusive
delegated authority of the Board to fill
such vacancy or newly created
directorship until the next annual meeting
of stockholders, and the person so
chosen will not be considered a Wachovia
Director and will not be required to
meet the qualification requirements of
paragraph (d) below.
(d) Qualification Requirements. The Wachovia Stockholders will
not
have the right to designate nominees for
election as directors and the Group B
Subcommittee will not have the right to
fill a vacancy or newly created
directorship for a Wachovia Director
unless, after giving effect to the election
of such nominees or the filling of such
vacancies or newly
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created directorships, there would be at
least three (3) Independent Wachovia
Directors, one of whom meets the definition
of Audit Committee Independent
Director set forth in the Bylaws; provided,
however, that if the size of the
Board is 12 or 13, there must be at least
four (4) Independent Wachovia
Directors.
(e) Procedures. The Wachovia Stockholders shall inform the
Company
in writing of its recommended nominees for
election of directors to the Board of
Directors by delivering written notice
thereof not less than forty (40) days
prior to the mailing of the Company's proxy
statement to be distributed to
stockholders in connection with the annual
meeting of stockholders; provided,
that the Company shall give the Wachovia
Stockholders at least sixty (60) days
prior written notice of such mailing date.
The notice to the Company shall also
contain such information relating to such
nominees as is required to be
disclosed in a proxy statement or other
filings required to be made by the
Company in connection with the solicitation
of proxies for election of directors
pursuant to Section 14 of the Exchange Act
and the rules and regulations
promulgated thereunder, and from which the
Board can determine that the
qualification requirements set forth in
paragraph (d) above have been satisfied;
provided, however, that if any such notice
does not contain such information,
the Wachovia Stockholders shall provide
such information within five business
days after written request therefor.
(f) Dissolution. The Group B Subcommittee shall be dissolved, if
at
all, in accordance with Section
3.2(b)(ii)(G) of the Bylaws.
Section 3.3.
Nomination Rights Following Expiration of the Special Voting
Period. Upon expiration of the Spec
