FORM
OF
VOTING
AGREEMENT AND IRREVOCABLE PROXY
THIS
VOTING AGREEMENT AND IRREVOCABLE PROXY (this “Agreement”), is
made and entered into as of May 10, 2005 among the individuals listed on the
signature page hereto (each a “Stockholder” and
collectively, the “Stockholders”) and
Hermes Acquisition Company I LLC, a Delaware limited liability company
(“Hermes”).
W I
T N E S S E T
H
WHEREAS, each
Stockholder is the record and beneficial owner of the number of shares of common
stock of Cenuco, Inc., a Delaware corporation (the “Company”), set
forth opposite such Stockholder’s name on Exhibit
A (such
shares, and any other voting or equity securities of the Company hereafter
acquired by any Stockholder prior to the termination of this Agreement (whether
by way of purchase, gift, stock dividend or distribution, recapitalization,
reclassification, combination, exchange of shares, merger or other transaction)
being referred to collectively as the “Shares”);
WHEREAS, in
accordance with the terms of that certain Merger Agreement, dated March 16,
2005, as amended as of May 10, 2005. by and among the Company, Hermes Holding
Company, Inc. (“Merger
Sub”) and
Hermes (including all exhibits and schedules thereto, the “Merger
Agreement”), the
Company and Hermes intend to close the Merger (as defined, along with certain
other capitalized terms, in the Merger Agreement) (the “Transaction”);
WHEREAS, Hermes
desires to have each Stockholder, and each Stockholder desires, in order to
induce Hermes to proceed with closing the Transaction, to agree to vote in favor
of approving certain matters set forth below (collectively, the “Additional
Matters”) that
are presented to the Company’s stockholders and that are necessary or desirable
in connection with the Transaction; and
WHEREAS,
the
Additional Matters shall include (a) the amendment of the Company’s Amended and
Restated Certificate of Incorporation, as amended, to increase its authorized
common stock and to change the name of the Company to “Lander Co., Inc.” or such
other name as is designated by Hermes, and (b) the issuance of shares of common
stock, par value $.001 per share (the “Common
Stock”) of the
Company representing 65% of the outstanding shares of common stock after such
issuance upon conversion of the shares of preferred stock of the Company issued
in connection with the Merger and (c) such other matters as may be submitted to
a vote of the Company’s stockholders as described in the Company’s Proxy
Statement to be sent to its stockholders relating to the Transaction and such
Additional Matters (the “Proxy
Statement”).
WHEREAS, this
Agreement is intended to be binding on each Stockholder as permitted by Section
218 of the Delaware General Corporation Law.
NOW,
THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties hereby agree as
follows:
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Section
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Voting
of Shares.
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Each
Stockholder covenants and agrees that until the Termination Date (as defined
below), at the meeting of the Company’s stockholders or any adjournment thereof
to consider the Transaction and the Additional Matters, however called, and in
any action by written consent of the stockholders of the Company to consider the
Transaction and the Additional Matters, each Stockholder will vote, or cause to
be voted, all of such Stockholder’s shares of Common Stock in favor of the
Transaction and the Additional Matters as described in and in accordance with,
the terms and conditions set forth in this Agreement, the Merger Agreement and
the Proxy Statement.
(a)
Each
Stockholder hereby irrevocably grants
to and appoints Hermes, and any individual designated in writing by Hermes, as
such Stockholder’s proxy and attorney-in-fact (with full power of substitution),
for and in such Stockholder’s name, place and stead, to vote such Stockholder’s
shares of Common Stock at any meeting of the stockholders of the Company, or any
adjournment thereof, called with respect to any of the matters specified in, and
in accordance and consistent with, this Section 1, or to act by written consent
with respect to such matters, and against any actions or approval that would
compete or be inconsistent with or could serve to interfere with, delay,
discourage, adversely affect or inhibit the timely consummation and approval of
the Transaction and the Additional Matters. Each Stockholder understands and
acknowledges that Hermes is entering into the Merger Agreement in reliance upon
each Stockholder’s execution and delivery of this Agreement. Each Stockholder
hereby affirms that the irrevocable proxy
set forth in this Section 1(b) is given in connection with the Transaction and
the Additional Matters, and that such irrevocable proxy is
given to secure the performance of the duties of each Stockholder under this
Agreement. Except as otherwise provided for herein, each Stockholder hereby
affirms that the irrevocable proxy is
coupled with an interest and may
under no circumstances be revoked.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
(b)
Each
Stockholder hereby revokes any and all previous proxies granted with respect to
any of the shares of Common Stock owned by such Stockholder and shall not
hereafter, until this Agreement terminates, grant or purport to grant any other
proxy or power of attorney with respect to any of the shares of Common Stock or
enter into any agreement (other than this Agreement), arrangement or
understanding with any Person, directly or indirectly, to vote, grant any proxy
or give instructions with respect to the voting of any of the shares of Common
Stock covering the subject matter hereof. Notwithstanding anything stated to the
contrary, the foregoing shall not prohibit any Stockholder from granting proxies
in connection with the annual meeting of the Company’s stockholders with respect
to voting on matters other than the matters that are the subject matter of this
Agreement.
(c) Each
Stockholder agrees to use such Stockholder’s best efforts to encourage the other
stockholders of the Company to vote to approve the Transaction and the
Additional Matters.
(d)
Each
Stockholder hereby agrees to timely furnish to the Company such information
concerning such Stockholder and such Stockholder’s Affiliates (other than the
Company and any of its Subsidiaries) as the Company may from time to time
reasonably request in writing for inclusion in the Proxy Statement.
Section
2
Transfer
of Shares. Each
Stockholder covenants and agrees that until the termination of this Agreement,
such Stockholder will not directly or indirectly, (a) offer for sale, sell,
assign, transfer (including by purchase, interspousal disposition pursuant to a
domestic relations proceeding or otherwise by operation of law), pledge,
encumber or otherwise dispose of any of the shares of Common Stock owned by such
Stockholder, (b) deposit any shares of Common Stock into a voting trust or enter
into a voting agreement or arrangement with respect to any shares of Common
Stock or grant any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer (including by purchase, interspousal disposition pursuant
to a domestic relations proceeding or otherwise by operation of law) or other
disposition of any shares of Common Stock unless the transferee (i) enters into
an agreement with Hermes, satisfactory to Hermes, containing provisions
substantially similar to this Agreement and (ii) notifies Hermes of such
transfer or (d) take any action that would make any of such Stockholder’s
representations or warranties in this Agreement untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing his
obligations under this Agreement..
Section
3
Stockholder
Representations. Each
Stockholder, severally and not jointly, represents to Hermes that (a) on the
date hereof, such Stockholder is the record and beneficial owner (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
the shares of Common Stock set forth next to such Stockholder’s name on
Exhibit
A and that
such Stockholder has sole voting power, without restrictions, with respect to
all of the shares of Common Stock set forth next to such Stockholder’s name on
Exhibit
A; and (b)
such Stockholder has the right, power and authority to execute and deliver this
Agreement and to perform such Stockholder’s obligations under this Agreement,
and this Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and legally binding agreement of such Stockholder,
enforceable in accordance with its terms; and such execution, delivery and
performance by such Stockholder of this Agreement will not (i) conflict with,
require a consent, waiver or approval under, or result in a breach of or default
under, any of the terms of any contract, commitment or other agreement to which
such Stockholder is bound; (ii) violate any order, writ, injunction decree or
statute, or any rule or regulation, applicable to such Stockholder or any of the
properties or assets of such Stockholder or (iii) result in the creation of, or
impose any obligation on such Stockholder to create, any lien, charge or other
encumbrance of any nature whatsoever upon the shares of Common Stock owned by
such Stockholder; and (c) the shares of Common Stock set forth next to such
Stockholder’s name on Exhibit
A are now
and will at all times during the term of this Agreement be held by such
Stockholder, or by a nominee or custodian for the account of such Stockholder,
free and clear of all pledges, liens, proxies, claims, shares, security
interests, preemptive rights and any other encumbrances whatsoever with respect
to the ownership, transfer or voting of such shares of Common Stock; and there
are no outstanding options, warrants or rights to purchase or acquire, or other
agreements relating to, such shares of Common Stock other than this Agreement.
Section
4
Termination. This
Agreement shall terminate upon the earlier to occur of (a) the day following the
close of the meeting of stockholders of the Company to consider the Transaction
and the Additional Matters, or any adjournment thereof, or (b) any termination
of the Merger Agreement in accordance with its terms or (c) the mutual written
agreement of Hermes and each of the Stockholders or (d) December 31, 2006.
Section
5
Further
Assurances. Each
Stockholder from time to time will execute and deliver, or cause to be executed
and delivered, all further appointments, documents and instruments and use his
best efforts to take, or cause to be taken, all actions reasonably requested by
Hermes to consummate and make effective the transactions contemplated by this
Agreement.
Section
6
Miscellaneous.
(a)
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect thereto,
including, without limitation, the Voting Agreement and Irrevocable Proxy, dated
March 16, 2005, between Steven Bettinger and Hermes. This Agreement may not be
amended, modified or rescinded except by an instrument in writing signed by each
of the parties hereto.
(b)
If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable law in a
mutually acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
(c)
The
headings in this Agreement are inserted for convenience only, and shall not
constitute a part of this Agreement or be used to construe or interpret any of
its provisions. The parties have participated jointly in the negotiation and
drafting of this Agreement. If a question of interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provision of this Agreement. The word “include”
or “including” means include or including, without limitation. The use of a
particular pronoun herein will not be restrictive as to gender or number but
will be interpreted in all cases as the context may require.
(d)
This
Agreement shall be governed by and construed in accordance with the General
Corporation Law of Delaware and the other internal laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware. To the fullest extent permitted by law (a) each party irrevocably
subjects itself to the exclusive jurisdiction of the federal and state courts
located in New York County, New York, for the purposes of any action, suit or
proceeding (collectively, “Action”)
arising out of this Agreement or any transaction contemplated hereby, (b) each
party agrees to commence any Action relating to this Agreement or any
transaction contemplated hereby exclusively in the federal or state courts
located in New York County, New York, (c) each party agrees that service of any
process, summons, notice or document to such party’s respective address set
forth in, and served in the manner provided in paragraph (g) of this Section 6,
shall be effective service of process for any Action with respect to any matters
to which it has submitted to jurisdiction as set forth in this paragraph, and
(d) each party irrevocably and unconditionally waives any objection to the
laying of venue of any Action arising out of this Agreement or the transactions
contemplated hereby in the federal and state courts located in New York County,
New York, and irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that (i) it or he or its or his assets is (are) immune
from jurisdiction of any such court or from any legal process commenced in such
court, and (ii) the Action in any such court is brought in an inconvenient
forum, that the venue of such Action is improper, or that this Agreement, or the
subject matter hereof or thereof, may not be enforced in or by such
court.
(e)
Each
Stockholder acknowledges that it will be impossible to measure in money the
damage to Hermes if such Stockholder 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, Hermes will not have an adequate remedy at law or
damages. Accordingly, each Stockholder 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 Hermes has an adequate remedy at law. Each Stockholder agrees
that such Stockholder will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with Hermes’s seeking or
obtaining such equitable relief
(f)
If any
legal action or any other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any provision of this Agreement, the
prevailing party or parties shall be entitled to recover reasonable attorneys’
fees and other costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
(g)
All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be deemed to have been given if sent by registered or
certified mail, first class postage prepaid, return receipt requested, or by
overnight courier, to the addresses of the parties set forth below or such other
future address as may be specified by a party by notice to the other party. Such
communications may also be given by personal delivery, by facsimile or by
regular mail, but shall be effective only if and when actually
received.
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If
to Hermes, at: |
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c/o
Lander Co., Inc. |
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One
Palmer Square, Suite 330 |
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Princeton,
NJ 08542 |
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Attn:
Mark I. Massad |
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Facsimile
No.: 609-924-7250 |
If to any
Stockholder, at the address set forth opposite such Stockholder’s name on
Exhibit A hereto.
(h) This
Agreement may be executed in two or more original or facsimile counterparts,
each of which shall be deemed an original and all of which together shall
constitute but one and the same instrument. Facsimile signatures on this
Agreement shall be valid and effective for all purposes.
(i)
All
covenants and agreements contained in this Agreement shall be binding upon and
inure to the benefit of the respective successors, heirs and assigns of the
parties hereto.
SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, each of the parties hereto has caused this Voting Agreement and
Irrevocable Proxy to be signed individually or by its respective duly authorized
officer as of the date first written above.
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HERMES ACQUISITION COMPANY
I LLC |
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By:___________________________________ |
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Name:_________________________________ |
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Title: Manager |
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STOCKHOLDERS: |
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