EXHIBIT 10.2
VOTING AGREEMENT
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This Voting Agreement (this "Agreement") is made as of the 3rd day of
December, 1998, by and among Xxx.Xxx Inc., a Delaware corporation (the
"Company"), Xxxxxx Entertainment Inc., a Tennessee corporation ("Xxxxxx"), The
Xxxxx X. Xxxx Separate Property Trust u/d/t 8/2/95 (the "Trust"), SOFTBANK
Technology Ventures IV L.P. ("SOFTBANK Ventures"), SOFTBANK Technology Advisors
Fund L.P. ("SOFTBANK Advisors"), and SOFTBANK Holdings Inc. ("SOFTBANK
Holdings") (each of Xxxxxx, the Trust, SOFTBANK Ventures, SOFTBANK Advisors, and
SOFTBANK Holdings are referred to herein individually as a "Stockholder" and,
collectively, as the "Stockholders").
RECITALS
WHEREAS, the Company has acquired SpeedServe Inc. ("SpeedServe") by
way of the merger (the "Merger") of SpeedServe with and into a wholly owned
subsidiary of the Company;
WHEREAS, prior to the Merger, Ingram was the principal stockholder of
SpeedServe;
WHEREAS, it was a condition to the Merger that Xxxxx X. Xxxxxx ("Xxxxx
Xxxxxx") be elected to the Company's Board of Directors (the "Board") and that
the parties hereto enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, the parties hereto mutually agree as follows:
1. Board Representation.
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1.1 Designation of Xxxxxx Representative to the Board of
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Directors. During the term of this Agreement as set forth in Section 7, the
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Board of Directors, so long as it is consistent with the Board's fiduciary
duties, shall nominate Xxxxx Xxxxxx and recommend that the stockholders of the
Company vote in favor of Xxxxx Xxxxxx for election to the Board at each annual
or special meeting of stockholders at which directors are to be elected, or in
connection with any consent actions in lieu of such meeting, and the
Stockholders shall vote all of their shares of Stock in favor of his election to
the Board. Nothing herein shall be deemed to require Xxxxx Xxxxxx to accept such
nomination or election; provided, however that if Xxxxx Xxxxxx does not accept
such nomination or election, this Agreement shall terminate at such time.
1.2 Definition of "Stock." For purposes of this Agreement, the
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term "Stock" shall mean all shares of voting securities of the Company then
issued and outstanding including, without limitation, all shares of Common Stock
and Series A Convertible Participating Preferred Stock.
1.3 Failure to Vote per Agreement. In the event that any
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Stockholder
1.
shall fail to vote its shares of Stock in favor of the election of Xxxxx Xxxxxx
to the Board as set forth in Section 1.1 above, such Stockholder shall be deemed
immediately upon the existence of such a breach to have granted to Xxxxxx a
proxy to its shares of Stock to ensure that such shares will be voted for the
election of Xxxxx Xxxxxx. Each of the Stockholders acknowledges that each proxy
deemed to be granted hereby, including any successive proxy if need be, is given
to secure the performance of a duty, is coupled with an interest, and shall be
irrevocable until the duty is performed.
2. Certain Resignations or Removals. Other than for cause, only
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Xxxxxx shall have the right to request the resignation or removal of Xxxxx
Xxxxxx. In such event, Xxxxx Xxxxxx shall immediately resign or be subject to
removal by a vote of the Stockholders and the Stockholders shall vote all of
their shares of Stock entitled to vote in favor of such removal. If Xxxxx Xxxxxx
shall fail to resign if requested to do so by Xxxxxx or if grounds exist to
remove Xxxxx Xxxxxx for cause, then any Stockholder shall have the right to call
a special meeting of stockholders for the purpose of removing such director and
the Stockholders shall vote all their shares of Stock entitled to vote at such
meeting in favor of removal.
3. [Reserved]
4. Notice of Certain Board Meetings. Xxxxxx shall receive prior
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notice, consistent with the notice provided members of the Board pursuant to the
Company's Bylaws, of any meeting of the Board at which it is proposed that a
vacancy on the Board be filled unless such notice shall have been waived in
accordance with the Delaware General Corporation Law.
5. Covenant to Vote. Each of the Stockholders shall appear in
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person or by proxy at any annual or special meeting of stockholders for the
purpose of obtaining a quorum and shall vote the shares of Stock owned by such
Stockholder entitled to vote, either in person or by proxy, at any annual or
special meeting of stockholders of the Company called for the purpose of voting
on the election of directors or by consensual action of stockholders with
respect to the election of directors, in favor of the election of the directors
nominated in accordance with Sections 1.1 hereof. In addition, each Stockholder
shall appear in person or by proxy at any annual or special meeting of
stockholders for the purpose of obtaining a quorum and shall vote the shares of
Stock owned by such Stockholder and entitled to vote upon any other matter
submitted to a vote of the Stockholders of the Company in a manner so as to be
consistent and not in conflict with, and to implement, the terms of this
Agreement.
6. No Voting or Conflicting Agreements. No Stockholder shall grant
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any proxy or enter into or agree to be bound by any voting trust with respect to
the Stock held by such Stockholder nor shall any Stockholder enter into any
stockholder agreements or arrangements of any kind with any person with respect
to the Stock 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). The foregoing prohibition includes, but is
not limited to, agreements or arrangements with respect to the acquisition,
disposition or voting of shares of Series A Convertible Participating Preferred
Stock and Common Stock held by such Stockholders to the extent such agreements
or arrangements are inconsistent with the provisions of this Agreement. No
Stockholder shall act, for any reason, as a member of a group or in concert
2.
with any other persons in connection with the acquisition, disposition or voting
of shares of the Company's capital stock in any manner which is inconsistent
with the provisions of this Agreement.
7. Term. This Agreement will terminate upon the earlier of (i) the
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closing of an underwritten public offering covering the offer and sale of Common
Stock of the Company in which the per share price to the public is at least
$30.799 per share (as adjusted for stock splits, recapitalizations and the like)
and the net cash proceeds to the Company (after underwriting discounts,
commissions and fees) are at least $30,000,000; (ii) the occurrence of the
merger or consolidation of the Company into, or the sale of all or substantially
all of the Company's assets to another corporation, unless the stockholders of
the Company shall own at least 51% of the capital stock of such other
corporation immediately after such merger, consolidation or sale; (iii) the date
on which Xxxxxx'x ownership of the Common Stock of the Company drops below 50%
of the number of shares (as such number may be adjusted to account for stock
splits and reverse stock splits) of Common Stock of the Company acquired by
Xxxxxx in connection with the Merger; or (iv) upon the death of Xxxxx Xxxxxx or
any disability which renders him unable to serve as a director of the Company.
8. Injunctive Relief. It is acknowledged that it will be impossible
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to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
9. Successors and Assigns. Except as otherwise expressly provided
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herein, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. If any
Stockholder or any transferee of any Stockholder shall acquire any securities of
the Company which are entitled to voting rights, whether upon exercise,
conversion or otherwise, in any manner, whether by operation of law or
otherwise, such securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
10. Governing Law. Regardless of the place of execution, this
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Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, applicable to agreements made and to be wholly performed in
such State, without regard to the conflicts-of-law principles thereof.
11. Headings. Section headings are inserted herein for convenience
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only and do not form a part of this Agreement.
12. Entire Agreement; Amendment. This Agreement contains the entire
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agreement among the parties hereto with respect to the matters contemplated
herein, supersedes all prior written agreements and negotiations and oral
understandings, if any, and may not be
3.
discharged except by performance and may not be amended or supplemented except
by an instrument in writing signed by the Company and each other party hereto.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Further Assurances. Each of the parties hereto agrees to execute
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such further instruments and to take such further action as may reasonably be
requested by any other party hereto to carry out the intent of this Agreement.
4.
VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
"COMPANY"
XXX.XXX INC.
By: __________________________________
Xxxxx X. Xxxx
President
"STOCKHOLDERS"
THE XXXXX X. XXXX SEPARATE PROPERTY
TRUST, u/d/t/ 8/2/95
By: __________________________________
Xxxxx X. Xxxx
Trustee
SOFTBANK TECHNOLOGY VENTURES IV L.P.
By: STV IV LLC
Its General Partner
By: __________________________________
Xxxxxx Xxxxx Xxxxxxx
General Partner
SOFTBANK TECHNOLOGY ADVISORS FUND L.P.
By: STV IV LLC
Its General Partner
By: __________________________________
Xxxxxx Xxxxx Xxxxxxx
General Partner
5.
SOFTBANK HOLDINGS INC.
By: __________________________________
Name:
Title:
XXXXXX ENTERTAINMENT INC.
By: __________________________________
Name:
Title:
6.
