VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 17, 2001,
among the undersigned stockholders (the "Stockholders") of PeoplePC Inc., a
Delaware corporation (the "Company"), and SOFTBANK Capital Partners LP
("SOFTBANK Capital"). Except as otherwise provided herein, capitalized terms
that are used but not otherwise defined herein shall have the meaning assigned
to such terms in the Stock Purchase Agreement (as defined below).
WHEREAS, contemporaneously with the execution of this Agreement, the
Company and SOFTBANK Capital have entered into a Stock Purchase Agreement (the
"Stock Purchase Agreement"), providing for, among other things, the sale by the
Company and the purchase by SOFTBANK Capital and certain affiliated or
designated investors of an aggregate of 6,400,000 shares of the Company's Series
B Preferred Stock, par value $0.0001 per share ("Series B Stock").
WHEREAS, the Stock Purchase Agreement contemplates that within 30
calendar days of the consummation of the sale and purchase of the shares of
Series B Stock under the Stock Purchase Agreement the Company will file a proxy
statement with the Securities and Exchange Commission (the "SEC") relating to,
and the Stock Purchase Agreement provides that the board of directors of the
Company (the "Board") will call, a special meeting (the "Special Meeting") of
the stockholders of the Company at which such special meeting the Board will
submit to such stockholders a proposal that such stockholders authorize and
approve (i) the issuance (the "Issuance") of shares of the Company's Common
Stock, par value $0.001 per share (the "Common Stock"), upon the conversion of
shares of the Series B Stock and (ii) an amendment to the Company's 2000 Stock
Plan to increase the number of shares of Common Stock reserved for issuance
thereunder by a certain number of shares that, when added to the shares
currently reserved for issuance thereunder, shall equal 20% of the sum of (A)
the aggregate number of outstanding shares of Common Stock immediately following
the Closing Date, (B) the aggregate number of shares of Common Stock reserved
for issuance upon the exercise of options or other rights to purchase shares of
Common Stock that are outstanding as of the Closing, and (C) the aggregate
number of shares of Common Stock issuable upon conversion of the Series B Stock
(the exact number of shares to be determined prior to the filing of the proxy
statement with the SEC) (the "Stock Plan Amendment"); and
WHEREAS, as an inducement to SOFTBANK Capital's willingness to enter
into the Stock Purchase Agreement and the transactions contemplated thereby, the
Stockholders wish to agree (i) to deliver to SOFTBANK Capital an irrevocable
proxy to Vote (as defined in Section 2 hereof) the Shares (as defined in Section
1 hereof) and any other such shares of capital stock of the Company so as to
authorize and approve the Issuance and the Stock Plan Amendment and (ii) not to
transfer or otherwise dispose of any of the Shares, or any other shares of
capital stock of the Company acquired hereafter and prior to the Special
Meeting.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Stockholders. Each of the Stockholders represents
and warrants to SOFTBANK Capital that (a) such Stockholder lawfully owns
beneficially (as such term is defined in Rule 13d-3 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) and of record each of the shares
of Common Stock set forth opposite such Stockholder's name on Exhibit A hereto
(such Stockholder's "Shares") free and clear of all liens, claims, charges,
security interests or other encumbrances and, except for this Agreement and the
Stock Purchase Agreement, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which such
Stockholder is a party relating to the pledge, disposition or Voting of any
shares of capital stock of the Company and there are no Voting trusts or Voting
agreements with respect to such Shares, except as disclosed on Exhibit A hereto,
(b) such Stockholder does not beneficially own (as such term is used in Rule
13d-3 of the Exchange Act) any shares of Common Stock other than such Shares and
does not have any options, warrants or other rights to acquire any additional
shares of capital stock of the Company or any security exercisable for or
convertible into shares of capital stock of the Company, (c) such Stockholder
has full power and authority and has taken all actions necessary to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder, (d) this Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of such Stockholder
enforceable against such Stockholder in accordance with its terms (except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles), (e) other than
filings under the Exchange Act, no notices, reports or other filings are
required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
such Stockholder from, any court, tribunal, governmental agency or authority, in
connection with the execution and delivery of this Agreement by such
Stockholder, and (f) the execution, delivery and performance of this Agreement
by such Stockholder does not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, violate, conflict with or constitute
a breach of, or a default under, the certificate of incorporation or by-laws of
such Stockholder or any or their comparable governing instruments.
2. Voting Agreement.
(a) Each of the Stockholders agrees to Vote such Stockholder's
Shares (i) in favor of authorization and approval of the Issuance and the Stock
Plan Amendment at the Special Meeting at which such matters are considered and
at every adjournment or postponement thereof, and (ii) against any action or
agreement that would compete with, impede, interfere with or tend to discourage
the Issuance or inhibit the timely consummation thereof. Each of the
Stockholders further agrees, at SOFTBANK Capital's request, to deliver to
SOFTBANK Capital an irrevocable proxy substantially in the form of
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Exhibit B hereto (each, a "Proxy"). The Proxy shall be irrevocable during the
term of this Agreement to the extent permitted under Delaware law. For purposes
of this Agreement, "Vote" shall include voting in person or by proxy in favor of
or against any action, otherwise consenting or withholding consent in respect of
any action or taking other action in favor of or against any action. "Voting"
shall have a correlative meaning.
(b) SOFTBANK Capital and, if applicable, its designees agree to
Vote such Stockholder's Shares subject to any Proxy, as well as any shares of
capital stock beneficially owned by SOFTBANK Capital (to the extent such shares
of capital stock have the right to Vote at the Special Meeting) (i) in favor of
authorization and approval of the Issuance and the Stock Plan Amendment at the
Special Meeting at which such matters are considered and at every adjournment or
postponement thereof, and (ii) against any action or agreement that would
compete with, impede, interfere with or tend to discourage the Issuance and the
Stock Plan Amendment or inhibit the timely consummation thereof.
3. No Voting Trusts. Each of the Stockholders agrees that it will not,
nor will it permit any entity under its control to, deposit any of its Shares or
New Shares (as defined in Section 7 hereof) in a Voting trust or subject any of
its Shares or New Shares to any arrangement with respect to the Voting of such
Shares or New Shares other than agreements entered into with SOFTBANK Capital.
4. No Proxy Solicitations. Each of the Stockholders agrees that such
Stockholder will not, nor will such Stockholder permit any entity under such
Stockholder's control, (a) to solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) in opposition to or in competition with the consummation of authorization
and approval of the Issuance and the Stock Plan Amendment by the stockholders of
the Company or otherwise encourage or assist any party in taking or planning any
action which would compete with, impede, interfere with or tend to discourage
such authorization and approval of the Issuance or inhibit the timely
consummation of such authorization and approval of the Issuance in accordance
with the terms of the Stock Purchase Agreement, (b) to directly or indirectly
encourage, initiate or cooperate in a stockholders' Vote or action by consent of
the Company's stockholders in opposition to or in competition with the
consummation of such authorization and approval of the Issuance and the Stock
Plan Amendment, or (c) to become a member of a "group" (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of the
Company for the purpose of opposing or competing with the consummation of such
authorization and approval of the Issuance and the Stock Plan Amendment;
provided, that the foregoing shall not restrict any director of the Company from
taking any action in such director's capacity as such, that such director
reasonably believes after consultation with legal counsel is necessary to
satisfy such director's fiduciary duty to stockholders of the Company.
5. No Limitation on Discretion as Director. Nothing in this Agreement
shall be deemed to apply to, or to limit in any manner, the discretion of any of
the Stockholders with respect to any action to be taken (or omitted) by such
Stockholder in the Stockholder's fiduciary capacity as a director or officer of
the Company; provided,
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however, it is agreed and understood by the parties to this Agreement that the
obligations, covenants and agreements of such Stockholder contained in this
Agreement are separate and apart from the Stockholder's fiduciary duties as a
director or officer of the Company and no fiduciary obligations that Stockholder
may have as a director or officer of the Company shall countermand the
obligations, covenants and agreements of Stockholder, in his capacity as a
stockholder of the Company, contained in this Agreement.
6. Transfer and Encumbrance. On or after the date hereof and during the
term of this Agreement, each of the Stockholders agrees not to transfer, sell,
offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Shares or New Shares (as defined in Section 7).
7. Additional Purchases. Each of the Stockholders agrees that such
Stockholder will not purchase or otherwise acquire beneficial ownership (as such
term is used in Rule 13d-3 of the Exchange Act) of any shares of Common Stock
after the execution of this Agreement ("New Shares"), nor will any Stockholder
voluntarily acquire the right to Vote or share in the Voting of any shares of
Common Stock other than the Shares, unless such Stockholder votes such shares as
provided in Section 2 and agrees to deliver to SOFTBANK Capital immediately
after such purchase or acquisition an irrevocable proxy substantially in the
form attached hereto as Exhibit B with respect to such New Shares. Each of the
Stockholders also severally agrees that any New Shares acquired or purchased by
him or her shall be subject to the terms of this Agreement to the same extent as
if they constituted Shares.
8. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
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,
the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto 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 the
other party has an adequate remedy at law. Each party hereto agrees that it will
not seek, and agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such equitable
relief.
9. Entire Agreement; Amendment; Waiver. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
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10. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to SOFTBANK Capital:
SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Administrative Member
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
If to a Stockholder, to the address or telecopy number set forth for
such Stockholder on the signature page hereof:
With a copy to:
People PC, Inc.,
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Xxx X. Xxxxxxxx
Facsimile: (000) 000-0000
or to such other Persons on addresses as may be designated in writing by the
party to receive such notice as provided above.
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11. Miscellaneous.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN,
AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THAT WOULD OTHERWISE APPLY THEREUNDER.
(b) Severability. In the event that any provision of the Agreement
is held to be illegal, invalid or unenforceable in a final, unappealable order
or judgment (each such provision, an "invalid provision"), then such provision
shall be severed from this Agreement and shall be inoperative and the parties
promptly shall negotiate in good faith a lawful, valid and enforceable provision
that is as similar to the invalid provision as may be possible and that
preserves the original intentions and economic positions of the parties as set
forth herein to the maximum extent feasible, while the remaining provisions of
this Agreement shall remain binding on the parties hereto. Without limiting the
generality of the foregoing sentence, in the event a change in any applicable
law, rule or regulation makes it unlawful for a party to comply with any of its
obligations hereunder, the parties shall negotiate in good faith a modification
to such obligation to the extent necessary to comply with such law, rule or
regulation that is as similar in terms to the original obligation as may be
possible while preserving the original intentions and economic positions of the
parties as set forth herein to the maximum extent feasible.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(d) Termination. This Agreement shall terminate upon the earliest
to occur of (i) the date on which the Issuance and the Stock Plan Amendment are
effected, (ii) the termination of the Stock Purchase Agreement and (iii) the
date specified in a written agreement duly executed and delivered by SOFTBANK
Capital and each of the Stockholders.
(e) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(f) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(g) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LP
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
THE STOCKHOLDERS:
SOFTBANK TECHNOLOGY VENTURES IV LP
By: SOFTBANK Technology Ventures IV LLC
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title:
----------------------------------
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxxx Xxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
(fax) 000-000-0000
SOFTBANK TECHNOLOGY ADVISORS FUND LP
By: SOFTBANK Technology Ventures IV LLC
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title:
----------------------------------
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxxx Xxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
(fax) 000-000-0000
[Signature Page to the Voting Agreement
XXXX XXXXX
/s/ Xxxx Xxxxx
--------------------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
XXX XXXXXX
/s/ Xxx Xxxxxx
--------------------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
--------------------------------
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
(EXHIBIT A)
THE COMPANY
LIST OF STOCKHOLDERS
NAME NUMBER OF SHARES
---- ----------------
SOFTBANK Technology Ventures IV LP 17,642,350
SOFTBANK Technology Advisors Fund LP 334,654
SOFTBANK Capital Partners LP 11,550,865
SOFTBANK Capital LP 11,352,300
SOFTBANK Capital Advisors Fund LP 326,037
Xxxx Xxxxx 19,821,334
Xxxxx Xxxxxx 3,220,000
Xxx Xxxxxx 5,180,000
(EXHIBIT B)
FORM OF PROXY
The undersigned, for consideration received, hereby appoints [insert
names of SOFTBANK Capital designees] and each of them the undersigned's proxies,
with power of substitution and resubstitution, (i) to vote all shares of Common
Stock, par value $0.001 per share, of PeoplePC Inc., a Delaware corporation (the
"Company"), owned by the undersigned (the "Shares") as of the date hereof at the
special meeting of the holders of Common Stock of the Company to be held as soon
as practicable after the date hereof and at any adjournment or postponement
thereof FOR authorization and approval of (A) the issuance (the "Issuance") of
shares of the Company's Common Stock upon the conversion of shares of the
Company's Series B Preferred Stock, par value $0.0001 per share, and (B) and
(ii) an amendment to the Company's 2000 Stock Plan to increase the number of
shares of Common Stock reserved for issuance thereunder by a certain number of
shares that, when added to the shares currently reserved for issuance
thereunder, shall equal 20% of the sum of (A) the aggregate number of
outstanding shares of Common Stock immediately following the Closing Date, (B)
the aggregate number of shares of Common Stock reserved for issuance upon the
exercise of options or other rights to purchase shares of Common Stock that are
outstanding as of the Closing, and (C) the aggregate number of shares of Common
Stock issuable upon conversion of the Series B Stock (the exact number of shares
to be determined prior to the filing of the proxy statement with the SEC) (the
"Stock Plan Amendment") and AGAINST any action or agreement that would compete
with, impede, interfere with or tend to discourage such authorization and
approval of the Issuance or Stock Plan Amendment or inhibit the timely
consummation of such authorization and approval of the Issuance or Stock Plan
Amendment, and (ii) to withhold consents with respect to such Shares for any
action or agreement that would compete with, impede, interfere with or tend to
discourage such authorization and approval of the Issuance or Stock Plan
Amendment or inhibit the timely consummation of the authorization and approval
of the Issuance or Stock Plan Amendment. This proxy is coupled with an interest,
revokes all prior proxies granted by the undersigned and is irrevocable until
such time as the Voting Agreement, dated as of December 14, 2001, among certain
stockholders of the Company, including the undersigned, and SOFTBANK Capital,
terminates in accordance with its terms.
Dated_______________ __, 2001
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(Signature of Stockholder)
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(Signature of Stockholder)
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[others]
