EXHIBIT 2.4
VOTING AGREEMENT
THIS VOTING AGREEMENT dated January 4, 2002 by and between
Micronetics Wireless, Inc., a Delaware corporation ("Micro"), and
certain stockholders of Enon Microwave, Inc., a Massachusetts
corporation ("Enon"), listed on the signature page hereof (each, a
"Principal Stockholder") (the Agreement").
W I T N E S S E T H:
WHEREAS, Micro and Enon propose to enter into an Agreement of
Merger on substantially the terms set forth in Section 1 hereof
(the Proposed Merger Agreement"), pursuant to which a subsidiary
of Micro shall be merged with and into Enon (the "Proposed
Merger"), with Enon or such subsidiary surviving the Merger as a
wholly owned subsidiary of Micro; and
WHEREAS, each Principal Stockholder is the record holder and
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the Exchange Act")) of such
number of shares of the outstanding Common Stock of Enon ( Enon
Common Stock") as set forth on Schedule I hereto (the Shares").
WHEREAS, each Principal Stockholder, in the aggregate
representing more than two thirds of the outstanding shares of Enon
Common Stock, has determined that the Proposed Merger is in the
best interests of Enon and its stockholders, and intends to endorse
and vote in favor of the Proposed Merger; and
WHEREAS, as an essential condition and inducement to Micro to
prepare and enter into the Proposed Merger Agreement and in
consideration therefor, the Principal Stockholders have agreed to
enter into the Agreement;
NOW, THEREFOR, in consideration of the foregoing, and the
mutual covenants and agreements contained herein, and for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Proposed Merger. Micro and each of the Principal
Stockholders agree that the consideration for the Proposed Merger
(the Proposed Merger Consideration") shall be the following:
(a) Ninety Percent (90%) of the net revenues
(sales) of Enon for calendar year 2001, minus
(b) current and long-term liabilities of Enon at
December 31, 2001 and certain other adjustments, including, but not
limited to:
(i) Enon's liabilities to Acquisition
Services, Inc. for its services related to the Proposed Merger;
(ii) a warranty reserve of Fifteen Thousand
Dollars ($15,000);
(iii) estimated and unpaid legal fees of Enon
relating to the Proposed Merger;
(iv) estimated and unpaid accounting fees of
Enon relating to an audit of Enon's Fiscal Year 2001 financial
statements;
(v) a five percent (5%) of the amount of
accounts receivable of Enon at December 31, 2001;
(vi) a fifteen percent (15%) of the amount of
inventory of Enon at December 31, 2001;
(vii) accrued and unpaid state and federal
income taxes for Enon for 2001;
(viii) $20,000 as a credit for any liability
associated with a license for accelerometers; and
(ix) the estimated and unpaid cost of any
environmental cleanup or report of Enon.
(c) The Proposed Merger Consideration shall be
payable:
(i) $750,000 by delivery of 182,500 shares of
Common Stock of Micro; and
(ii) the balance in cash.
(d) The Proposed Merger Agreement shall include
other terms and conditions standard in agreements of this type,
including, but not limited to, (i) a one year part-time consulting
agreement for Harold S. Maddix providing for compensation of
$75,000; (ii) a one year employment agreement for Don F. Kilduff,
providing for annual compensation similar to his current salary and
benefits plus incentive compensation to be negotiated in good faith
between Mr. Kilduff and Richard S. Kalin, President of Micro; (iii)
leaving at least $50,000 in cash at Enon at the closing of the
Proposed Merger; and (iv) an agreement for the surviving
corporation to enter into a two year lease to occupy the premises
owned by the Enon Nominee Trust on the same terms and conditions as
currently in place.
2. Voting Agreement.
2.1 Each Principal Stockholder shall cause all shares of
Enon Common Stock owned by him on the record date for a proposed
special meeting of Enon stockholders to be held, pursuant to
notice, to consider and vote upon the adoption of the Proposed
Merger Agreement and approval of the Proposed Merger (the Proposed
Stockholders Meeting") or as to which he has or may exercise the
right to vote or to direct the manner of voting to be voted at the
Proposed Stockholders' Meeting or at any other meeting of Enon's
stockholders or in connection with any other action, including
action by written consent, of Enon's stockholders relating to the
Agreement or the Proposed Merger:
(a) to adopt the Proposed Merger Agreement and to
approve the Proposed Merger, and in favor of any other action that
could reasonably be expected to facilitate the Proposed Merger; and
(b) against any action or proposal that could
reasonably be expected to result in the failure of any of the
conditions to the obligations of the parties to the Proposed Merger
Agreement with respect to the Proposed Merger or otherwise prevent,
interfere with or delay the consummation of the Proposed Merger.
3. Covenants.
3.1 No Principal Stockholder shall, without the prior
written consent of Micro:
(a) Except for the sale to Micro pursuant to the
Agreement, the Principal Stockholders shall not sell, transfer,
hypothecate, or otherwise dispose of any shares of Enon Common
Stock (including the Shares) or enter into any agreement or solicit
or consider any proposals with respect to any such sale, transfer,
hypothecation or disposition;
(b) agree or consent to relinquish or limit any
right which he has or may exercise to vote or to direct the manner
of voting of any shares of Enon Common Stock (including the
Shares); or
(c) enter into any agreement, commitment or
arrangement by which any other person would acquire any right to
vote or to direct the manner of voting any shares of Enon Common
Stock (including the Shares).
3.2 No Principal Stockholder shall make in such capacity
any public statement or take a public position adverse to or
inconsistent with the approval and recommendation of the Proposed
Merger.
3.3 No Principal Stockholder shall cause Enon to
undertake any merger, consolidation, recapitalization, stock
dividend or distribution, stock issuance or other change in its
corporate or capital structure which would, in the reasonable
judgment of Micro, have the effect of diluting Micro's rights
hereunder. In the event that any of the foregoing transactions
shall nevertheless occur, the Principal Stockholders shall execute
an amendment to the Agreement making such adjustments in the number
of the Shares subject to the Agreement.
3.4 The Principal Stockholders shall cause Enon to
negotiate and execute the Proposed Merger Agreement with Micro
providing for the Proposed Merger of Enon with a subsidiary of
Micro on terms and conditions to be determined by Enon and Micro as
outlined in Section 1 hereof, including, without limitation, the
payment of the Proposed Merger Consideration. In preparation for
the Proposed Merger, the Principal Stockholders shall cause Enon to
furnish Micro with all such information and documents as it may
reasonably require in connection with its review of the business
and operations of Enon.
3.5 From and after the date hereof to and including (i)
the closing date of the Proposed Merger, or (ii) the date on which
the Agreement is terminated pursuant to Section 6 hereof, the
Principal Stockholders shall cause Enon (A) to operate its
business, and the businesses of Enon's subsidiaries, only in the
usual, regular and ordinary manner; (B) not to declare, pay or make
any dividend or other distribution or payment in respect of shares
of Enon Common Stock; (C) not, without the written consent of
Micro, to make, or allow any subsidiary of Enon to make, any
significant capital investment other than in the ordinary course of
business or enter into any extraordinary transaction; (D) not to
change the number of authorized or outstanding shares of stock of
Enon Common Stock as set forth in subsection 3.6 hereof, except for
shares issued upon exercise of presently outstanding options or
warrants, if any; (E) not to issue, grant, sell or pledge any
shares of or right of any kind to acquire any shares of Enon Common
Stock or any subsidiary of Enon other than, in the case of Enon,
shares issued upon the exercise of currently outstanding options or
warrants, if any, and (F) not, directly or indirectly, to
encourage, initiate or, except as required by Principal Stockholder
fiduciary obligations to the other stockholders of Enon, engage in
transactions or negotiations with, or provide any information to,
any corporation, partnership, person or other entity or group,
other than Micro and its subsidiaries, concerning any merger, sale
of substantial assets or similar transaction involving Enon or any
subsidiary or division of Enon.
3.6 The authorized capital stock of Enon consists solely
of 2,000,000 shares of Enon Common Stock, of which 1,067,817.5
shares are issued and outstanding. As of the date hereof, no
shares of Enon Common Stock are reserved for issuance upon the
exercise of currently outstanding options under either Enon's
Incentive Stock Option Plan or any other Stock Option Plan or
otherwise. In addition, there are no outstanding warrants to
purchase any shares of Enon's Common Stock. All of the outstanding
shares of Common Stock are duly authorized, validly issued, fully
paid and nonassessable, with no personal liability attaching to the
ownership thereof. Other than as stated in this subsection, Enon
has no outstanding options, warrants, calls, rights or commitments
or any other agreements of any character obligating it to issue any
shares of Enon Common Stock or any securities convertible into or
evidencing the right to purchase any shares of Enon Common Stock.
3.7 None of the Principal Stockholders has incurred any
obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other like payments in
connection with the Agreement, the transactions contemplated
hereby, or the Proposed Merger between Enon and a subsidiary of
Micro other than to Acquisition Services, Inc.
3.8 To the best knowledge of the Principal Shareholders,
none of the written information and documents furnished or to be
furnished by or on behalf of any of the Principal Stockholders or
Enon to Micro in connection with the execution and delivery of the
Agreement, consummation of the transactions contemplated hereby or
negotiation and execution of the Proposed Merger Agreement relating
to the Proposed Merger, including, without limitation, Enon's
financial statements for the two years prior to the nine month
period ended September 30, 2001, is or will be false or misleading
or contains or will contain any material misstatement of fact or
omits or will omit to state any material fact required to be stated
to make the statements therein not misleading.
3.9 None of the Principal Stockholders has any plans,
proposal, applications or work product of any kind or nature
relating to the business of Enon which is not the sole property of
Enon, free and clear of any claims of any nature.
4. Acknowledgments. Each of the Principal Stockholders
expressly acknowledges that:
(a) he will receive a benefit from Micro commencing
the preparation of the Proposed Merger Agreement, conducting its
due diligence in connection with the Proposed Merger and the
consummation of the Proposed Merger; and
(b) Micro is relying upon the agreements,
covenants, representations and warranties of the Principal
Stockholders set forth in the Agreement as an inducement for it to
prepare and enter the Proposed Merger Agreement and to effect the
Proposed Merger.
5. Representations and Warranties. Each Principal
Stockholder hereby represents and warrants to Micro as follows:
(a) such Principal Stockholder owns beneficially
and of record all of the shares of Enon Common Stock set forth
opposite his name on Schedule I free and clear of all liens or any
restriction with respect to the voting or disposition thereof
(except as set forth on Schedule I and except for any such
restriction provided in the Agreement and other than restrictions
of general applicability imposed by federal or state securities
laws), and has the sole right to vote such shares at the Proposed
Stockholders' Meeting;
(b) such Principal Stockholder has the power and
authority to execute and deliver the Agreement and to assume and
perform his obligations hereunder;
(c) the Agreement has been duly executed and
delivered by such Principal Stockholder and is his legally valid
and binding obligation, enforceable against him in accordance with
its terms, subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) equitable
principles limiting the availability of specific performance,
injunctive relief and other equitable remedies;
(d) the execution and delivery of the Agreement do
not, and the performance by such Principal Stockholder of his
obligations hereunder will not, create any lien upon any shares of
Enon Common Stock owned by him or violate, conflict with, result in
any breach of, or constitute a default under any agreement,
indenture, instrument, lien, law or order to which he is a party or
is subject or which is or purports to be binding upon him or his
assets; and
(e) no consent of, notice to, any person is
required as to such Principal Stockholder in connection with his
execution and delivery of the Agreement or the performance of his
obligations hereunder.
6. Termination. The obligations of the parties hereto shall
terminate upon the effectiveness of the Proposed Merger subject to
the performance and satisfaction of all such obligations prior to
or at the closing of such Proposed Merger or, if the Proposed
Merger does not become effective, at the time of termination of the
Proposed Merger Agreement in accordance with the provisions
thereof, unless such termination is contested by Micro in good
faith in a proceeding in a court of competent jurisdiction, in
which case the Agreement shall remain in full force and effect
until the resolution of such proceeding by an order that is final
beyond appeal determines the effectiveness and time of such
termination; provided that the provisions of Sections 4 and 5 and
any claim of any party hereto of a breach of any representation,
warranty, covenant or other provision hereof by any other party
hereto shall survive such termination.
7. Limitation of Authority. Except as expressly provided
herein, no provision hereof shall be deemed to create any
partnership, joint venture or joint enterprise or association
between the parties hereto, or to authorize or to empower any party
hereto to act on behalf of, obligate or bind any other party
hereto.
8. Notices. Any notice or demand required or permitted to
be given or made hereunder to or upon any party hereto shall be
deemed to have been duly given or made for all purposes if (a) in
writing and sent by (i) messenger or an overnight courier service
against receipt, or (ii) certified or registered mail, postage
paid, return receipt requested, or (b) sent by telegram, telecopy,
telex or similar electronic means, provided that a written copy
thereof is sent on the same day by postage-paid first-class mail,
to such party at the following address:
to Micro at: President
Micronetics Wireless, Inc.
26 Hampshire Drive
Hudson, NH 03051
with a copy to: Richard S. Kalin, Esq.
Kalin & Associates, P.C.
One Penn Plaza - Suite 1425
New York, NY 10119
Fax: (212) 239-8401
to a Principal Stockholder: See Schedule I
with a copy to: Marc Frey, Esq.
Tinti, Quinn, Grover & Frey, P.C.
222 Essex Street
Salem, MA 01970
Fax: (978) 745-3369
or such other address as either party hereto may at any time, or
from time to time, direct by notice given to the other party in
accordance with this section. The date of giving or making of any
such notice or demand shall be, in the case of clause (a)(i), the
date of the receipt; in the case of clause (a)(ii), five business
days after such notice or demand is sent; and, in the case of
clause (b), the business day next following the date such notice or
demand is sent.
9. Amendment. Except as otherwise provided herein, no
amendment of the Agreement shall be valid or effective, unless in
writing and signed by or on behalf of the parties hereto.
10. Waiver. No course of dealing or omission or delay on the
part of any party hereto in asserting or exercising any right
hereunder shall constitute or operate as a waiver of any such
right. No waiver of any provision hereof shall be effective,
unless in writing and signed by or on behalf of the party to be
charged therewith. No waiver shall be deemed a continuing waiver
or waiver in respect of any other or subsequent breach or default,
unless expressly so stated in writing.
11. Governing Law. The Agreement shall be governed by, and
interpreted and enforced in accordance with, the Laws of the State
of New Hampshire without regard to principles of choice of law or
conflict of laws.
12. Jurisdiction. Each of the parties hereto hereby
irrevocably consents and submits to the jurisdiction of the Courts
of the State of New Hampshire and the United States District Court
for Massachusetts in connection with any proceeding arising out of
or relating to the Agreement or the transactions contemplated
hereby, waives any objection to venue in New Hampshire or such
District, and agrees that service of any summons, complaint, notice
or other process relating to such proceeding may be effected in the
manner provided by clause (a)(ii) of Section 8.
13. Remedies. In the event of any actual or prospective
breach or default by any party hereto, the other party shall be
entitled to equitable relief, including remedies in the nature of
rescission, injunction and specific performance. All remedies
hereunder are cumulative and not exclusive, and nothing herein
shall be deemed to prohibit or limit any party from pursuing any
other remedy or relief available at law or in equity for such
actual or prospective breach or default, including the recovery of
damages.
14. Severability. The provisions hereof are severable and in
the event that any provision of the Agreement shall be determined
to be invalid or unenforceable in any respect by a court of
competent jurisdiction, the remaining provisions hereof shall not
be affected, but shall, subject to the discretion of such court,
remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of
the parties hereto, amended and limited to the extent necessary to
render the same valid and enforceable.
15. Counterparts. The Agreement may be executed in
counterparts, each of which shall be deemed an original and which
together shall constitute one and the same agreement.
16. Further Assurances. Each party hereto shall promptly
execute, deliver, file or record such agreements, instruments,
certificates and other documents and perform such other and further
acts as any other party hereto may reasonably request or as may
otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
17. Binding Effect. The Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The Agreement is not intended,
and shall not be deemed, to create or confer any right or interest
for the benefit of any person not a party hereto.
18. Assignment. The Agreement, and each right, interest and
obligation hereunder, may not be assigned by any party hereto
without the prior written consent of the other parties hereto, and
any purported assignment without such consent shall be void and
without effect.
19. Titles and Captions. The titles and captions of the
Sections of the Agreement are for convenience of reference only and
do not in any way define or interpret the intent of the parties or
modify or otherwise affect any of the provisions hereof.
20. Grammatical Conventions. Whenever the context so
requires, each pronoun or verb used herein shall be construed in
the singular or the plural sense and each capitalized term defined
herein and each pronoun used herein shall be construed in the
masculine, feminine or neuter sense.
21. References. The terms "herein," "hereto," "hereof,"
"hereby," and "hereunder," and other terms of similar import, refer
to the Agreement as a whole, and not to any Section or other part
hereof.
22. No Presumptions. Each party hereto acknowledges that it
has participated, with the advice of counsel, in the preparation of
the Agreement. No party hereto is entitled to any presumption with
respect to the interpretation of any provision hereof or the
resolution of any alleged ambiguity herein based on any claim that
any other party hereto drafted or controlled the drafting of this
Agreement.
23. Entire Agreement. The Agreement embodies the entire
agreement of the parties hereto with respect to the subject matter
hereof and supersedes any prior agreement, commitment or
arrangement relating thereto.
24. Tax-Free Reorganization. Notwithstanding anything to
the contrary in this Agreement, the obligations of the Principal
Stockholders pursuant to this Agreement are contingent upon the
Proposed Merger Agreement, and the transactions described therein,
qualifying as a tax-free reorganization pursuant to Section 368 of
the Internal Revenue Code.
IN WITNESS WHEREOF, the undersigned have duly executed the
Agreement as of the day and year first above written.
MICRONETICS WIRELESS, INC.
By: /s/Richard S. Kalin
Name: Richard S. Kalin
Title: President
/s/Harold S. Maddix
Harold S. Maddix
/s/Don F. Kilduff
Don F. Kilduff
/s/Kenneth J. McIlraith
Kenneth J. McIlraith