EXHIBIT 2.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of January 30, 2003, among
▇▇▇▇ Environmental & Infrastructure, Inc., a Louisiana corporation ("Parent"),
Envirogen, Inc., a Delaware corporation (the "Company"), and the undersigned
shareholders of the Company (the "Shareholders").
WHEREAS, concurrently with the execution of this Agreement, the Company,
Parent and Tonic Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement
and Plan of Merger (as it may be hereafter amended from time to time, the
"Merger Agreement"), which provides that Merger Sub shall merge (the "Merger")
with and into the Company pursuant to the terms and conditions of the Merger
Agreement and sets forth certain representations, warranties, covenants and
agreements of the parties thereto in connection with the Merger and the other
transactions contemplated therein (the "Merger Transactions"); and
WHEREAS, the Shareholders are the record holders of shares of Common
Stock, par value $0.01 per share ("Company Common Stock"), of the Company; and
WHEREAS, in order to induce the Company, Parent and Merger Sub to enter
into the Merger Agreement, the Shareholders wish to agree (i) to vote the shares
of Company Common Stock and any other shares of capital stock of the Company
held by them so as to facilitate the consummation of the Merger Transactions,
(ii) except as provided in this Agreement, not to transfer or otherwise dispose
of any of the shares of Company Common Stock or any other shares of capital
stock held by them, or any other shares of capital stock of the Company acquired
by them hereafter and prior to the Effective Time (as defined in the Merger
Agreement), and (iii) to deliver to Parent a proxy (which shall be irrevocable
during the term of this Agreement to the fullest extent permissible under
Delaware law) to vote the shares of Company Common Stock and any other shares of
capital stock held by them, and any other shares of capital stock of the Company
acquired by them hereafter and prior to the Effective Time.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Shareholders. Each of the Shareholders represents
and warrants to the Company, Parent and Merger Sub that (a) such Shareholder
lawfully owns beneficially (as such term is defined in the Securities Exchange
Act of 1934, as amended (the "1934 Act")) and of record the number of
outstanding shares of Company Common Stock set forth opposite such Shareholder's
name on Exhibit A (such Shareholder's "Shares") free and clear of all liens,
claims, charges, security interests or other encumbrances and, except for this
Agreement and the Merger Agreement, there are no options (other than options
described in the Disclosure Memorandum (as defined in the Merger Agreement) or
annexes thereto), warrants or other rights, agreements, arrangements or
commitments of any character to which such
Shareholder is a party relating to the pledge, disposition or voting of any
shares of capital stock of the Company and there are no voting trusts or voting
agreements with respect to such Shares, (b) such Shareholder does not
beneficially own any shares of Company Common Stock or any other shares of
capital stock of the Company other than such Shares and, except for such Shares
or as described in the Disclosure Memorandum, does not have any options,
warrants or other rights to acquire any additional shares of capital stock of
the Company or any security exercisable for or convertible into shares of
capital stock of the Company, (c) such Shareholder has full power and authority
to enter into, execute and deliver this Agreement and to perform fully such
Shareholder's obligations hereunder, and (d) this Agreement has been duly
executed and delivered by such Shareholder, constitutes the legal, valid and
binding obligation of such Shareholder, and is enforceable against such
Shareholder in accordance with its terms.
2. Agreement to Vote Shares. Each of the Shareholders agrees that
during the term of this Agreement it will vote such Shareholder's Shares and any
New Shares (as defined in Section 6 hereof), and will cause any holder of record
of such Shares or New Shares to vote such Shareholder's Shares and New Shares:
(a) in favor of adoption of the Merger Agreement and in favor of consummation of
the Merger Transactions at every meeting of the shareholders of the Company at
which such matters are considered and at every adjournment thereof and in
connection with any written consent of the shareholders of the Company, (b)
against any action or agreement that would compete with, impede, interfere with
or attempt to discourage the Merger Transactions, or inhibit the timely
consummation of the Merger Transactions, (c) against any action or agreement
that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under the
Merger Agreement and (d) against any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of the Company or its subsidiaries that could compete
with, impede, interfere with or attempt to discourage the Merger Transactions or
inhibit the timely consummation of the Merger Transactions. Each Shareholder
agrees to deliver to Parent upon request a proxy substantially in the form
attached hereto as Exhibit B, which proxy shall be irrevocable during the term
of this Agreement to the fullest extent permitted under Delaware law.
3. No Voting Trusts. Each of the Shareholders agrees that they will
not, nor will they permit any entity under their control to, deposit any of
their Shares or any New Shares held by them in a voting trust or subject any of
their Shares or any New Shares held by them to any arrangement with respect to
the voting of such Shares or New Shares that could result in a shareholder's
vote or action by consent of the shareholders of the Company in opposition to or
in competition with the consummation of the Merger Transactions.
4. No Proxy Solicitations. Each of the Shareholders agrees that such
Shareholder will not, nor will such Shareholder permit any entity under such
Shareholder's control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the ▇▇▇▇ ▇▇▇)
in opposition to or competition with the consummation of the Merger Transactions
or otherwise encourage or assist any party in taking or planning any action
which would compete with, impede, interfere with or attempt to discourage the
Merger Transactions or inhibit the timely consummation of the Merger
Transactions, (b) directly or indirectly encourage, initiate or cooperate in a
shareholders' vote or action by consent of Parent's shareholders in opposition
to or in competition with the consummation of the Merger
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Transactions, or (c) become a member of a "group" (as such term is used in
Section 13(d) of the ▇▇▇▇ ▇▇▇) with respect to any voting securities of Parent
for the purpose of opposing or competing with the consummation of the Merger
Transactions.
5. Transfer and Encumbrance. On or after the date hereof and during the
term of this Agreement, each of the Shareholders agrees not to transfer, sell,
offer, exchange, pledge or otherwise dispose of or encumber any of such
Shareholder's Shares or New Shares, except for a sale thereof to Parent or
Merger Sub or tenders of such Shares into a tender offer by Parent or Merger Sub
for Company Common Stock, unless the transferee agrees in written form
satisfactory to Parent to be bound by the terms of this Agreement.
6. Additional Purchases. Each of the Shareholders agrees that such
Shareholder will not purchase or otherwise acquire beneficial ownership of any
shares of Company Common Stock or any other capital stock of the Company after
the execution of this Agreement ("New Shares"), nor will any Shareholder
voluntarily acquire the right to vote or share in the voting of any shares of
Company Common Stock or any other capital stock of the Company other than the
Shares, unless such Shareholder agrees to deliver to Parent immediately after
such purchase or acquisition an irrevocable proxy in the form attached hereto as
Exhibit B with respect to such shares. Each of the Shareholders also severally
agrees that any New Shares acquired or purchased by such Shareholder shall be
subject to the terms of this Agreement to the same extent as if they constituted
Shares.
7. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any such failure,
the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party hereto agrees that it will
not seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such equitable
relief.
8. Entire Agreement. This Agreement-supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all the parties hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
9. Notice. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be deemed given if in writing
and delivered personally or sent by registered or certified mail (return receipt
requested) or overnight courier (providing proof of delivery), postage prepaid,
or by facsimile (which is confirmed):
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If to Parent or Merger Sub:
▇▇▇▇ Environmental & Infrastructure, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, Arata, McCollam, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ Environmental & Infrastructure, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
Envirogen, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One ▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Shareholders:
At their respective addresses set forth on Exhibit A hereto
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
10. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of
Delaware applicable to agreements executed in and solely to be performed within
such state.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable
by a court of competent jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or unenforceability and the
remainder of the provision held invalid or unenforceable and the application of
such provision to persons or circumstances, other than the party as to which it
is held invalid, and the remainder of this Agreement, shall not be affected.
(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall terminate automatically upon the
termination of the Merger Agreement or upon the Effective Time of the Merger.
This Agreement shall not otherwise be terminable.
(e) Each party hereto shall execute and deliver such additional
documents as may be necessary or desirable to effect the transactions
contemplated by this Agreement.
(f) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference shall
be derived therefrom.
(g) The obligations of the Shareholders set forth in this
Agreement shall not be effective or binding upon any Shareholder until after
such time as the Merger Agreement is executed and delivered by the Company,
Parent and Merger Sub, and the parties agree that there is not and has not been
any other agreement, arrangement or understanding between the parties hereto
with respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
ENVIROGEN, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
(Shareholder)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: Partner, Warburg Pincus & Co.
-----------------------------------
Title: General Partner
-----------------------------------
INDIVIDUAL SHAREHOLDERS:
Signature: /s/ ▇▇▇▇▇▇▇ ▇. Schowenderdt
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇ ENVIRONMENTAL &
INFRASTRUCTURE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
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EXHIBIT A
Name and Address
of Shareholder Number of Shares
-------------- ----------------
Warburg, ▇▇▇▇▇▇ Ventures, L.P. 1,015,873
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 174,604
▇▇▇▇ ▇▇▇ #▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 134,122
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 61,708
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 10,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9,800
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,817
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ 584
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
FORM OF PROXY
The undersigned, for consideration received, hereby appoints ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and each of them my proxies, with power of
substitution and resubstitution, to vote all shares of Common Stock, par value
$0.01 per share, of Envirogen, Inc., a Delaware corporation (the "Company"),
owned by the undersigned at the Special Meeting of Shareholders of the Company
to be held on March 19, 2003 commencing at 10:00 a.m. at the Company's offices
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and at any
adjournment thereof IN FAVOR OF adoption of the Agreement and Plan of Merger,
dated as of January 30, 2003 (the "Merger Agreement"), among the Company, ▇▇▇▇
Environmental & Infrastructure, Inc. ("Parent") and Tonic Acquisition
Corporation, IN FAVOR OF consummation of the Merger Transactions, and AGAINST
any action or agreement that would compete with, impede, interfere with or
attempt to discourage the Merger Transactions or inhibit the timely consummation
of the Merger Transactions or any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation of the Company under the Merger Agreement or any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiary. This proxy is coupled with an interest, revokes all prior proxies
granted by the undersigned and is irrevocable until such time as the Voting
Agreement, dated as of January 30, 2003 among certain shareholders of the
Company, including the undersigned, Parent, and the Company, terminates in
accordance with its terms.
Dated as of: January 30, 2003
______________________________________
(Shareholder)
