EXHIBIT 10.2
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VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into this 23rd day
of June, 2004, by and among Kinderhook Partners, LP (the "Purchaser"),
ImproveNet, Inc. (the "Company") and the parties listed on the signature pages
hereto (each individually, a "Shareholder" and collectively the "Shareholders").
RECITALS
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A. Each Shareholder owns certain outstanding shares of the Common Stock
of the Company;
B. The Purchaser is purchasing, concurrently herewith, certain shares
of Common Stock of the Company pursuant to a subscription agreement of even date
herewith (the "Subscription Agreement");
C. The Purchaser and the Shareholders wish to provide for certain
representation rights on the Board of Directors of the Company and certain other
rights in the manner set forth below.
AGREEMENT
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In consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of shares of Common Stock pursuant to the
Subscription Agreement, and for other valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Voting of Shares.
(a) So long as the Purchaser owns at least 50% of the shares
of Common Stock initially purchased under the Subscription Agreement, then in
any and all elections of directors of the Company (whether at a meeting or by
written consent in lieu of a meeting) Purchaser may designate a nominee to the
Company's Board of Directors. Each Shareholder shall vote or cause to be voted
all shares of stock now or hereafter owned by such Shareholder (the "Shares"),
or over which he, she or it has voting control in favor of electing the one
nominee designated by the Purchaser to the Company's Board of Directors.
(b) At any time that Purchaser may designate a nominee for
election to the Company's Board of Directors as set forth in Section 1(a) above,
Purchaser shall provide written notice to the Company at a time sufficiently
prior to each such elections of directors of the Company for which Purchaser
desires to have its nominee recommended for election, to allow the Company to
properly place the name of the nominee for consideration at such election. The
Company agrees to nominate and recommend for election as a director the
individual designated pursuant to Section 1(a).
(c) If at any time the composition of the Board of the
Directors does not reflect the terms of this Section 1, the Purchaser may give
notice to the Company, and upon receipt of such notice the Company shall
promptly take all action necessary or appropriate, including, without
limitation, calling a special meeting of the stockholders of the Company and/or
soliciting stockholder consents, to reconstitute the Board of Directors in
accordance with the provisions hereof.
(d) In the event of the resignation, death, removal or
disqualification of a director designated by the Purchaser, the Purchaser shall
promptly nominate a new director and, after written notice of the nomination has
been provided by the Company, the Shareholders and the Purchaser will vote their
Shares entitled to vote thereon to elect such nominee to the Board of Directors.
2. No Voting or Conflicting Agreements. No Purchaser or
Shareholder shall enter into any stockholder agreements or arrangements of any
kind with any person with respect to their Shares inconsistent with the
provisions of this Agreement (whether or not such agreements and arrangements
are with other stockholders of the Company that are not parties to this
Agreement).
3. Termination. This Agreement shall terminate in its entirety
when the Purchaser no longer owns at least 50% of the shares of Common Stock
initially purchased under the Subscription Agreement.
4. No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked, except by an amendment to this
Agreement.
5. Transfers of Rights. Any transferee to which Shares are
transferred by a Shareholder, whether voluntarily or by operation of law, shall
be bound by the obligations imposed upon the transferor under this Agreement,
and shall be entitled to the rights granted to the transferor under this
Agreement, to the same extent as if such transferee were an original party to
this Agreement in the same capacity as the transferor.
6. General.
(a) Severability. The provisions of this Agreement are
severable, so that the invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other term or
provision of this Agreement, which shall remain in full force and effect.
(b) Specific Performance. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each party hereto shall be entitled to specific performance of the
agreements and obligations of the Company and the Shareholders hereunder and to
such other injunctive or other equitable relief as may be granted by a court of
competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to the conflicts of law principles thereof. The parties hereto
agree to submit to the exclusive jurisdiction of the federal and state courts of
the State of New York located in the Southern District of New York with respect
to the breach or interpretation of this Agreement or the enforcement of any and
all rights, duties, liabilities, obligations, powers, and other relations
between the parties arising under this Agreement.
(d) Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally, mailed by first class certified or registered mail, postage prepaid
and return receipt requested, by facsimile or delivered by overnight delivery,
addressed to a party at its address set forth on the signature pages hereto.
Notices that are delivered personally shall be deemed received upon personal
delivery, or if delivered by facsimile or by overnight delivery, one business
day after being sent, or if by mail, three (3) business days after deposit in
the United States mail.
(e) Complete Agreement; Amendments. No amendment, modification
or termination of any provision of this Agreement shall be valid unless in
writing and signed by (i) the Company, (ii) the holders of a majority of the
voting power of the Shares then held by the Shareholders, and (iii) the holders
of a majority of the voting power of the Shares then held by the Purchaser.
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall constitute one Agreement binding on all the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date set forth in the first paragraph hereof.
COMPANY:
IMPROVENET, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: CEO
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Address:
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PURCHASER:
KINDERHOOK PARTNERS, LP
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Partner
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Address:
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SHAREHOLDERS:
HAYJOUR FAMILY LIMITED PARTNERSHIP,
An Arizona Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxx and
Xxxx Xxxxxx
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Name: Xxxxxxx X. Xxxxxx and
Xxxx Xxxxxx
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Title: General Partner
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Address:
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FARSI FAMILY TRUST
By: /s/ Xxxxxxxx X. Farsi
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Name: Xxxxxxxx X. Farsi
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Title: Trustee
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Address:
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AHMAD FAMILY TRUST
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Trustee
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Address:
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