EXHIBIT 99.5
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 18, 2003, between NCSN, Inc., a
Delaware corporation (the "Buyer"), and Xxxxxxx X. Xxxxx, Xx. (the
"Stockholder").
Recitals
A. The Buyer and Student Advantage, Inc. (the "Company"), a Delaware
corporation in which the Stockholder holds, beneficially and of record,
approximately 75,630 shares of common stock of the Company, constituting
approximately 14% of the outstanding Company capital stock, are executing a
Purchase and Sale Agreement, dated as of the date hereof (the "Purchase
Agreement"), which provides for, among other things, the purchase by the Buyer
of certain assets of the Company. Capitalized terms not otherwise defined in
this Agreement shall have the respective meanings set forth in the Purchase
Agreement.
B. In accordance with Section 271 of the Delaware General Corporation Law,
the vote of not less than a majority of the outstanding shares of stock of the
Company entitled to vote thereon ("Voting Stock") is required to adopt the
Purchase Agreement and approve the sale of the Acquired Assets to the Buyer.
C. In order to induce the Buyer to enter into the Purchase Agreement and
for other good and valuable consideration, the Stockholder is entering into this
Agreement pursuant to which the Stockholder agrees to vote the Sozzi Shares (as
hereinafter defined) in favor of the adoption and approval of the Purchase
Agreement and the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Buyer and the Stockholder hereby agree as follows:
1. Agreement to Vote. The Stockholder covenants and agrees to vote, at all
meetings of the stockholders of the Company (including the Special Meeting),
however called, and in all actions by written consent of the stockholders of the
Company at any time during the term of this Agreement, all Voting Stock (whether
now owned or hereafter acquired) which such Stockholder beneficially owns
(within the meaning of Rule 13(d)(3) promulgated under the Securities and
Exchange Act of 1934) and/or has the right to vote in his discretion
(collectively, the "Sozzi Shares"):
(a) in favor of the Purchase Agreement and all transaction
contemplated thereunder; and
(b) against any other sale or other business combination between the
Company and any person or entity or any other action or agreement that would
result in the breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Purchase Agreement or which
would result in any of the conditions to the Company's obligations under the
Purchase Agreement not being fulfilled.
2. Additional Agreements of the Stockholder. The Stockholder hereby
covenants and agrees, that during the term of this Agreement, he shall not (i)
sell, transfer, pledge, hypothecate, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, pledge, hypothecation,
encumbrance, assignment or other disposition of the Sozzi Shares, except to the
Buyer, or (ii) grant any proxies or powers of attorney, deposit any such shares
into a voting trust or enter into a voting agreement with respect to any of such
shares, or any interest in any of the foregoing, except to the Buyer or in
accordance with this Agreement unless the transferee, proxy, attorney, trustee
or parties to the voting agreement, as the case may be, agree to be bound by the
provisions hereof.
3. Stockholder's Representations. The Stockholder represents and warrants
to the Buyer that: (i) the Stockholder is the sole, beneficial and record owner,
with sole voting power, of approximately 75,630 shares of Voting Stock and that
such shares constitute all of the outstanding voting securities of the Company
owned of record or beneficially by such Stockholder (other than the shares
underlying options or warrants to purchase Voting Stock and conversion rights
with respect thereto); (ii) the Stockholder possesses full power and authority
to enter into and carry out his obligations under this Agreement; (iii) the
execution and delivery of this Agreement does not, and carrying out his
obligations under this Agreement will not, conflict with or result in the
violation of any agreement (written or oral), judgment, decree, law or
regulation applicable to the Stockholder; and (iv) there are no outstanding
rights or obligations granted by the Stockholder relating to the ownership,
voting or disposition of any of the voting securities covered by this Agreement.
4. Shareholder Capacity. Nothing in this Agreement shall limit or restrict
the Stockholder in acting in his capacity as a director of the Company and
exercising his fiduciary duties and responsibilities, it being understood that
this Agreement shall apply to the Stockholder solely in his capacity as a
stockholder of the Company and shall not apply to the Stockholder's actions,
judgments or decisions as a director of the Company.
5. Amendments and Waivers. The Buyer and the Stockholder may mutually
amend or waive any provision of this Agreement at any time. No amendment or
waiver of any provision of this Agreement shall be valid unless the same shall
be in writing and signed by both the Buyer and the Stockholder. No waiver by
either party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
6. Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the body making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision
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that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
7. Specific Performance. The Stockholder acknowledges that a breach of the
provisions of this Agreement by the Stockholder would cause irrevocable injury
to the Buyer and could not adequately be compensated by money damages.
Accordingly, the Buyer shall be entitled, in addition to any other right or
remedy available to it to an injunction restraining a breach or a threatened
breach of this Agreement and to specific performance of any such provision of
this Agreement, in either case without bond or other security, and the
Stockholder will not take any action, directly or indirectly, in opposition to
the moving party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity.
8. Governing Law; Consent to Jurisdiction. This Agreement and any disputes
hereunder shall be governed by and construed in accordance with the laws of the
State of New York. The Stockholder and the Buyer hereby consent to the personal
jurisdiction of the United States District Court for the Eastern District of New
York and of any of the courts of the State of New York in New York County, in
any action, suit or proceeding arising under this Agreement. The Stockholder and
the Buyer agree to bring any such action, suit or proceeding only in such
courts. The Stockholder and the Buyer agree further that service of process or
notice in any such action, suit or proceeding shall be effective if given in the
manner set forth in Section 11 hereof.
9. Waiver of Jury Trial. To the extent permitted by applicable law, each
party hereto hereby irrevocably waives all rights to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the transactions
contemplated hereby or the actions of any party hereto in the negotiation,
administration, performance and enforcement of this Agreement.
10. Remedies Cumulative. The remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion by any party hereto of any other
rights or the seeking of any other remedies against the other party hereto.
11. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and delivered by hand or sent by a
nationally recognized overnight courier service or certified mail, return
receipt requested, in each case postage or delivery fee prepaid. Any notice,
request, demand, claim or other communication hereunder shall be deemed duly
delivered upon receipt thereof, in each case to the intended recipient as
follows: (a) if to the Buyer to: NCSN, Inc., Chelsea Piers, Xxxx 00, Xxx Xxxx,
XX 00000, Telecopy: 000-000-0000, Attention: President, and NCSN, Inc., Chelsea
Piers, Xxxx 00, Xxx Xxxx, XX 00000, Telecopy: 000-000-0000, Attention: General
Counsel, with a copy to: Xxxxx Xxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000, Telecopy: 000-000-0000, Attention: Xxxxx X. Xxxxx, Esq., and (b) if to
the Stockholder to: Xxxxxxx X. Xxxxx, Xx., c/o Student Advantage, Inc., 000
Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Telecopy: 000-000-0000, with a copy to: Shack
Xxxxxx Xxxx & Xxxxxxxx P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Telecopy:
000-000-0000, Attention: Xxxxxx Xxxx.
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12. Either party may give any notice, request, demand, claim, or other
communication hereunder using any other means (including expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim or other communication shall be deemed to
have been duly given unless and until it actually is received by the party for
whom it is intended. Either party may change the address to which notices,
requests, demands, claims and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set forth.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Parties Bound. This Agreement and the rights and obligations hereunder
may not be assigned by the Stockholder without the consent of the Buyer, and any
assignment without such consent shall be null and void. All rights and authority
granted herein by the Stockholder shall survive the death or incapacity of the
Stockholder. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, personal representatives,
successors and assigns. Subject to Section 2, this Agreement shall also inure to
and be binding upon any transferee of Voting Stock or other voting securities of
the Company (or of any interest therein, including the power to vote or share
voting power) from the Stockholder, except a transferee acquiring said
securities in a public offering or via a public sale. If the Stockholder
effectuates any transfer to which the preceding sentence applies, he shall, as a
condition to such transfer, first obtain an agreement in writing from such
transferee to be bound by all of the terms and provisions of this Agreement with
the same force and effect as if such transferee were (and such transferee shall
be considered) the "Stockholder" for all purposes of this Agreement as of the
date hereof.
15. Headings. The headings in this Agreement are for purposes of reference
only and shall not be considered in construing this Agreement.
16. Entire Agreement. This Agreement contains the entire understanding of
the parties, and supersedes all prior discussions and understandings of the
parties, respecting the subject matter hereof.
17. Termination. This Agreement shall terminate in all respects upon the
earlier of (a) the time of the Closing and (b) the termination of the Purchase
Agreement pursuant to the terms thereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
NCSN, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Secretary & General Counsel
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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