Exhibit 4.1 SHAREHOLDER VOTING AGREEMENT
THIS AGREEMENT is made and entered into as of the date of the closing
of the Securities Purchase Agreement dated November 6, 2001, by and between
iVideoNow, Inc., a Delaware corporation (the "Company"), and the persons
identified on the signature page(s) to this Agreement (the "Shareholders") and
is for the mutual benefit of such Shareholders.
WHEREAS, the Shareholders will receive shares of the common stock of
the Company pursuant to the Securities Purchase Agreement dated November 6,
2001; and
WHEREAS, pursuant to Section 218(c) of the Delaware General Corporation
Law, the Shareholders deem it to be in their mutual best interest to act
together in matters concerning the operation of the Company by concentrating
their power and rights with respect to their Shares in the manner hereinafter
set forth; and
WHEREAS, the Shareholders desire to appoint Xxxxx X. Xxxxxxx, an
individual resident of the state of Florida ("Xx. Xxxxxxx"), as their agent with
full powers of attorney in connection with any vote of the holders of shares of
the Company's $0.001 par value common stock.
NOW THEREFORE, in consideration of the premises, the respective
commitments and undertakings of the Shareholders set forth in this Agreement,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Shareholders agree as follows:
1. Voting Agreement. Each Shareholder hereby agrees, on behalf of such
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Shareholder and any person to whom such Shareholder transfers any shares of the
Company's stock owned by such Shareholder, to vote all shares of Company stock
now or hereafter owned by such Shareholder ("Shares") and take such other
actions as are reasonably necessary to ensure that the Shares are voted
consistent with the judgment and direction of Xx. Xxxxxxx and to that end to
take such other actions as Xx. Xxxxxxx may from time to time direct with respect
to other matters related to the operation of the Company.
2. Appointment of Agent. Each Shareholder, on behalf of such
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Shareholder and any person to whom such Shareholder transfers any shares of the
Company's stock owned by such Shareholder, hereby appoints as his agent and
grants power of attorney to Xx. Xxxxxxx with respect to all rights and powers of
such Shareholder arising in connection with votes of the common stock of the
Company.
3. Conditional Irrevocable Proxies. To secure each Shareholder's
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obligation to vote that Shareholder's Shares in accordance with the provisions
of this Agreement, each Shareholder hereby appoints Xx. Xxxxxxx as his true and
lawful proxy, with full power of substitution, to vote all Shares, in such
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proxy's sole discretion, if and only if such Shareholder fails to comply with
the provisions of section 1. The proxies and powers granted by each Shareholder
pursuant to this section 3 are coupled with an interest and are given to secure
the performance of such Shareholder's duties under this Agreement. Such proxies
will be irrevocable for the term of this Agreement and will survive the death,
incompetency and disability of any Shareholder or other holder of such
Shareholder's Shares and the merger and dissolution of any Shareholder that is a
trust, corporation or other entity.
4. Transfer of Shares. No Shares shall be transferred unless and until
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the transferee executes an instrument acknowledging and agreeing that the Shares
being acquired are subject to the restrictions and/or irrevocable proxies set
forth in this Agreement.
5. Legend. Each certificate evidencing Shares owned by any Shareholder
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and subject to the provisions of sections 1, 2 and 3 of this Agreement and each
certificate issued in exchange for or upon the transfer of any such Shares
during the term of this Agreement will be stamped or otherwise imprinted with a
legend (the "Legend") in substantially the following form or to the following
effect:
"The securities represented by this certificate are
subject to a Shareholder Voting Agreement by and among the
original holder of such securities and other shareholders
of the issuer of such securities and to an irrevocable
proxy granted pursuant to such agreement. A copy of such
agreement will be furnished without charge by Xx. Xxxxx X.
Xxxxxxx, an individual resident of the state of Florida,
upon such holder's written request."
6. Registration. If the Company proposes to register any Shares held by
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any of the Shareholders, the Shareholders agree that the Shares held by all
Shareholders shall be included in such registration statement and, to the extent
all Shares held by each Shareholder cannot be so included for whatever reason,
the Shareholders agree that each Shareholder shall have the right to include in
the registration statement such number of Shares that are commensurate with the
Shareholder's proportionate ownership relative to the ownership of all
Shareholders (taking into account only restricted Shares held by each
Shareholder).
7. Term. This Agreement shall terminate and cease to be effective, and
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the Legend will be removed from all certificates at the earliest of
(a) December 31, 2002;
(b) the death of Xx. Xxxxxxx or his complete resignation from
serving as either an officer or director of the Company; or
(c) the determination that Xx. Xxxxxxx is incompetent or
incapacitated made by the unanimous consent of the Shareholders, other
than Xx. Xxxxxxx, after consultation with a licensed physician who has
examined Xx. Xxxxxxx.
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8. Miscellaneous Provisions.
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(a) Binding Effect. This Agreement shall constitute a valid and
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binding agreement among the Shareholders and any subsequent holders of
Shares now or hereafter owned by the Shareholders and their respective
successors and assigns.
(b) Remedies. Each Shareholder shall be entitled to specific
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enforcement of the rights of the Shareholders under this Agreement, to
recover damages by reason of any breach of any provision hereof and to
exercise all other rights existing in their favor. The Shareholders
agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any
Shareholder may, in his sole discretion, apply to any court of law or
equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(c) Severability. Whenever possible, each provision of this
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Agreement will 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 will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(d) Entire Agreement. This Agreement embodies the complete agreement
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and understanding among the Shareholders with respect to the subject
matter hereof and supersedes and preempts any prior understandings,
agreements or representations, by or among the Shareholders, written or
oral, which may have related to the subject matter hereof in any way.
(e) Counterparts. This Agreement may be executed on separate
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counterparts, each of which will be an original and all of which taken
together will constitute one and the same Agreement.
(f) Governing Law. All questions concerning this Agreement will be
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governed by and interpreted in accordance with the internal law, not
the law of conflicts, of the state of Florida.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph.
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx (Print Name)
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Print Name) (Print Name)
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(Print Name) (Print Name)
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(Print Name) (Print Name)
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(Print Name) (Print Name)
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