Exhibit 99.5
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as
of August 29, 2003 by and among Microserv, Inc., a Washington
corporation ("Microserv"), and the undersigned shareholders of Halifax
Corporation (collectively, the "Shareholders").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger (the
"Merger Agreement") by and among Halifax Corporation, a Delaware
corporation ("Halifax"), Microserv, the shareholders of Microserv who
are parties thereto (the "Selling Shareholders") and certain other
parties, Halifax has agreed to acquire Microserv through the
consummation of certain merger transactions (the "Merger") and other
related transactions, as more fully described in the Merger Agreement
(the Merger and such related transactions collectively referred to as
the "Transactions").
B. It is a condition to closing of the Transactions, pursuant to
the Merger Agreement, that the Shareholders enter into, execute and
deliver this Agreement.
C. The Shareholders are willing to enter into this Agreement to
induce the Selling Shareholders and Microserv to close the Transactions,
and the Shareholders acknowledge that the Selling Shareholders are
entitled to rely and will rely on this Agreement in completing such
closing.
NOW THEREFORE, intending to be legally bound, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings set forth in the Merger Agreement. As to each
of the Shareholders, the term "Shares" shall mean at any relevant time
all shares of voting capital stock of Halifax which such Shareholder at
that time has the power to vote for the election of directors (including
any such shares acquired by such Shareholder after the date hereof or
issued to such Shareholder with respect to, upon conversion of, or in
exchange or substitution therefor).
2. Election of Directors. Subject to Section 3 hereof, in any
election of directors of Halifax, each Shareholder shall vote at any
regular or special meeting of shareholders all of his, her or its Shares
to elect one director nominated by the Selling Shareholders and
recommended by the board of directors of Halifax pursuant to the Merger
Agreement. Any vote taken to remove any director elected pursuant to
this Section 2, or to fill any vacancy created by the resignation,
removal or death of a director elected pursuant to this Agreement, shall
also be subject to the provisions of this Section 2. The voting of the
Shares pursuant to this Agreement may be effected in person, by proxy,
or in any other manner permitted by applicable law.
3. Qualification of Nominee. The Selling Shareholders shall not
nominate any person if: (i) such individual is employed by, or has
investment interests, directly or indirectly, in, any material
competitor of Halifax (unless such investment constitutes less than two
percent (2%) of the equity ownership in a public company and at the time
of purchase has a fair market value of less than $50,000); (ii) such
individual is not reasonably experienced in business and financial
matters; (iii) such individual has been convicted of, or has pled nolo
contendere to, a felony; (iv) the election of such individual would
violate any law; or (v) any event required to be disclosed pursuant to
Item 401(f) of Regulation S-K of the Exchange Act has occurred with
respect to such individual.
4. Term. The obligations of the Shareholders hereunder shall
continue until such time as the Selling Shareholders fail to own
collectively greater than 50% of the aggregate number of Buyer Common
Shares issued on the Closing Date (as appropriately adjusted for any
combination, division or similar recapitalization affecting such Buyer
Common Shares).
5. Further Assurances; Intended Beneficiaries. The Shareholders
will not, by any voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be performed hereunder, but will
at all times in good faith assist in the carrying out of all of the
provisions of this Agreement and in the taking of all such actions as
may be necessary, appropriate or reasonably requested by the Selling
Shareholders through the Shareholder Representative in order to protect
the rights of the Selling Shareholders hereunder against impairment. The
Shareholders acknowledge and agree that the Selling Shareholders are
intended beneficiaries of this Agreement, and that the Selling
Shareholders shall have all rights to enforce the obligations of the
Shareholders hereunder.
6. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only
upon the written agreement or consent of the holders of a majority of
the Shares, and the Selling Shareholders, through their Shareholder
Representative.
(b) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors, assigns, heirs
and executors of the parties hereto.
(c) Notices. Notices required or permitted to be given
hereunder shall be in writing and shall be deemed to be received when
personally delivered or sent by overnight courier or registered mail,
return receipt requested, addressed to the address set forth adjacent
to each Shareholder's signature hereto (or at such other address as
each party furnishes by notice given in accordance with this
Section 5(c)).
(d) Governing Law. The corporate law of Virginia shall
govern all issues and questions concerning the relative rights of
Halifax and its shareholders. All issues and questions concerning the
construction, validity, interpretation and enforcement of this
Agreement shall be governed by, and construed in accordance with, the
laws of the Commonwealth of Virginia, without giving effect to any
choice of law or conflict of law rules or provisions (whether of
Virginia or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than Virginia.
(e) Specific Enforcement. It is agreed and understood that
monetary damages would not adequately compensate an injured Selling
Shareholder for the breach of this Agreement by any Shareholder, that
this Agreement shall be specifically enforceable, and that any breach
or threatened breach of this Agreement shall be the proper subject of a
temporary or permanent injunction or restraining order. Further, each
Shareholder hereto waives any claim or defense that there is an
adequate remedy at law for such breach or threatened breach.
(f) Attorneys Fees. In the event that any suit or action is
instituted under or in relation to this Agreement, including without
limitation to enforce any provision in this Agreement, the prevailing
party or parties in such dispute shall be entitled to recover from the
losing party or parties all reasonable fees, costs and expenses of
enforcing any right of such prevailing party under or with respect to
this Agreement, including without limitation reasonable fees and
expenses of attorneys and accountants, and including on any appeal.
(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
(h) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, including by facsimile, any
one of which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one and the
same Agreement.
[Signature page follows]
SIGNATURE PAGE TO HALIFAX CORPORATION VOTING AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Voting
Agreement effective as of the day and year first above written.
/s/ Hugh M. Foley
Hugh M. Foley
Address: 5250 Cherokee Avenue
Alexandria, VA 22312
/s/ Thomas J. Basile
Thomas J. Basile
Address: 5250 Cherokee Avenue
Alexandria, VA 22312
MICROSERV, INC.
By: /s/ Jonathan Scott
Name:
Title