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PRO NET LINK CORP. SHAREHOLDER
AND VOTING AGREEMENT
August 8, 2000
Exhibit 10.5
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TABLE OF CONTENTS
PAGE
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1. Shares Subject to Agreement. ................................ 1
2. Board of Directors............................................ 2
(a) Voting Duties. ............................ 2
(b) Designation and Election of Directors....... 2
(c) Vacancies .................................. 2
(d) Number of Directors ........................ 2
3. Directors. .................................................. 2
4. Appointment of Proxy.......................................... 3
(a) Appointment and Instructions................ 3
(b) Irrevocability. ........................... 3
(c) Duration of Proxy .......................... 3
5. Rights of Shareholders. ..................................... 3
6. Restriction on Transfer. .................................... 3
7. Legends. .................................................... 3
8. Termination. ................................................. 4
9. Specific Performance. ....................................... 4
10. Governing Law; Jurisdiction .................................. 4
11. Interpretation. ............................................. 4
12. Complete Agreement; Amendment. .............................. 5
13. Successors and Assigns. ..................................... 5
14. Invalid or Void Provisions. ................................. 5
15. Notices. .................................................... 5
16. Further Assurances. ......................................... 5
17. Counterparts. ............................................... 5
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PRO NET LINK CORP.
SHAREHOLDER AND VOTING AGREEMENT
This SHAREHOLDER AND VOTING AGREEMENT (the "VOTING AGREEMENT") is
entered into as of August 8, 2000, by, between and among PRO NET LINK CORP., a
Nevada corporation (the "COMPANY"), GLOBALNET VENTURE PARTNERS, INC., a Delaware
corporation (the "OFFICERS' CO."), XXXX XXXXXX COLLARDEAU ("JPC"), COMMERCE
CONSULTING, LLC, a Delaware limited liability company of which JPC is the sole
member ("CCL"), XXXXX XXXXXXX ("GZ"; and together with JPC, the "FOUNDERS"), and
XXXXXXX XXXXXXX ("FV"; the Officers' Co., CCL, JPC, GZ and FV are referred to
herein as the "SHAREHOLDERS").
RECITALS
WHEREAS, Xxxx X. Xxxx and Xxxxx Xxxxxx are principals of the Officers'
Co.;
WHEREAS, the Company, Xxxx X. Xxxx, Xxxxx Xxxxxx and the Officers' Co.
are parties to an Agreement, dated on even date herewith (the "AGREEMENT"),
whereunder Xxxx X. Xxxx and Xxxxx Xxxxxx are to serve as officers and directors
of the Company;
WHEREAS, the Company and the Officers' Co. are parties to an Option
Agreement, dated of even date herewith (the "OPTION AGREEMENT"), whereunder the
Company has granted to the Officers' Co. the option to purchase shares of the
Common Stock, $0.001 par value, of the Company (this "COMMON STOCK") as
consideration for the services of Xxxx X. Xxxx and Xxxxx Xxxxxx as officers and
directors of the Company;
WHEREAS, the Founders currently hold shares of the Common Stock; and
WHEREAS, the Amended and Restated Articles of Incorporation of the
Company (the "ARTICLES") provide that the Company has a Board of Directors (the
"BOARD"; each member thereof a "DIRECTOR") consisting of such number of
Directors as is determined by resolution of the Board, but in no event fewer
than one Director nor more than fifteen Directors; and the size of the Board
currently is set at 3 pursuant to an action taken by the Board.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Shares Subject to Voting Agreement. Each Shareholder agrees that any
voting shares of the stock of the Company it currently owns or hereafter
acquires (the "SHARES") will be subject hereto and to the proxy described
herein.
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2. Board of Directors.
(a) Voting Duties. Each Shareholder shall vote or execute such
written consents with respect to their Shares as may be necessary to elect
Directors as provided herein.
(b) Designation and Election of Directors. On all matters
relating to the election of the Board (by vote or written consent), the
Shareholders agree to vote all Shares held by them so as to elect Directors to
the Board as follows:
(i) all of the individuals nominated by JPC; and
(ii) during the Term (as defined in the Agreement),
(A) for so long as the Officers' Co. holds a beneficial
ownership interest in at least 75% of the maximum number of
shares of the stock of the Company previously held, at any
time, by the Officers' Co., two individuals nominated by the
Officers' Co., and (B) for so long as the Officers' Co. holds
a beneficial ownership interest in at least 50% of the maximum
number of shares of the stock of the Company previously held,
at any time, by the Officers' Co., one individual nominated by
the Officers' Co. (the "EXECUTIVE MANAGEMENT DIRECTORS");
provided, that upon termination of the Agreement, any
Executive Management Directors shall resign from the Board and
the Officers' Co. shall no longer be entitled to nominate any
Executive Management Directors under this Voting Agreement.
(c) Vacancies. If any vacancy shall occur in any of the Board
seats held by Directors elected pursuant to this Section 2, all parties hereto
shall take all necessary actions, including the holding of a meeting of the
Shareholders if required, to ensure the composition of the Board remains as set
forth herein. The Shareholders shall not vote to remove any member of the Board
elected in accordance with the aforesaid procedure, other than in the event of a
Directors' commission of a felony or breach of fiduciary duty.
(d) Number of Directors. Effective the date hereof, the number
of Directors authorized to sit on the Board shall be seven. Upon the written
request of JPC, the Shareholders shall vote to reduce or enlarge the number of
Directors authorized to sit on the Board in accordance with such request;
provided, that all Shareholders agree that the number of Directors authorized to
sit on the Board shall at all times be sufficient for the election of nominees
of the Officers' Co. under Section 2(b)(ii).
3. Directors. Effective the date hereof, (i) the Executive Management
Directors shall be Xxxx Xxxx and Xxxxx Xxxxxx and (ii) the other Directors shall
be (A) JPC, GZ and FV, each of whom is currently serving as a Board Member, (B)
Xxxxx Xxxxxxxx and (C) one additional Director to be nominated by JPC in
accordance with the above.
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4. Appointment of Proxy.
(a) Appointment and Instructions. In consideration of the
covenants of the parties, pursuant to Nevada Revised Statutes Section 78.355 and
in order to secure the performance by the Shareholders of their respective
duties and obligations under Section 2, each of the Shareholders hereby
constitutes, appoints and instructs whoever shall serve from time to time as the
Secretary of the Company such person's true and lawful proxy, to vote or execute
such written consents with respect to its Shares, and take such other actions
with respect to its Shares, as may be necessary solely to elect or remove
Directors as provided herein. The parties hereto hereby deem such proxy to be
"coupled with an interest."
(b) Irrevocability. The proxy given hereby shall be
irrevocable during the term hereof and supersedes any other proxy any
Shareholder previously may have given with respect to the voting of its Shares
for the Board. In no event shall this proxy be deemed effective for any purpose
other than as may be necessary to maintain the composition of the Board as
provided herein.
(c) Duration of Proxy. The proxy given hereby shall remain in
effect for a period of seven years. The parties hereto agree, upon the
expiration of such seven-year period, to give a new proxy substantially
identical to the proxy given hereunder so as to carry out the provisions of
this Voting Agreement.
5. Rights of Shareholders. Except as provided herein, each Shareholder
shall exercise the full rights of a shareholder with respect to the Shares owned
by it.
6. Restriction on Transfer. During the term hereof, the Officers' Co.
will not transfer (whether voluntarily or involuntarily) any Shares unless (i)
such Shares are transferred in a transaction through a securities broker in the
public markets under Rule 144 of the Securities Act of 1933, as amended; or (ii)
the Board shall have consented in writing to the transfer of such Shares,
subject to such terms and conditions as the Board shall impose, in the good
faith exercise of its sole discretion, upon such transfer. Unless the Board
specifically consents thereto in writing, no party hereto shall transfer its
Shares in accordance with clause (ii) of the foregoing (and any such transfer
shall be void) unless the transferee of such Shares shall execute a written
agreement whereby such transferee agrees to become a party to and be bound by
all the provisions hereof, and to grant the irrevocable proxy created hereby.
Where any transfer is violative of the foregoing, the Company shall not permit
the transfer of any of the Shares on its books or issue a new certificate
representing any of the Shares.
7. Legends. Each Shareholder agrees that the certificates representing
its Shares (the "CERTIFICATES") will be endorsed with a legend (the "LEGEND") in
form substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS CONTAINED IN A VOTING AGREEMENT DATED AS
OF AUGUST 8, 2000, AND ANY TRANSFER OF OWNERSHIP OR VOTING
RIGHTS WITH RESPECT TO SUCH SHARES MUST BE MADE IN COMPLIANCE
WITH SUCH VOTING AGREEMENT, A COPY OF WHICH IS ON FILE AT THE
OFFICE OF THE SECRETARY OF THE ISSUER.
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Before issuing such Certificates, the Company will place such required Legend on
the Certificates. The Company agrees that, during the term hereof, it will not
remove, and will not permit to be removed (upon registration of transfer,
reissuance or otherwise), the Legend from any such Certificate and will place or
cause to be placed the Legend on any new Certificate issued to represent Shares
theretofore represented by a Certificate carrying the Legend; provided, that the
Company shall permit the Legend to be removed in any transfer described in
clause (i) of Section 6.
8. Termination. This Voting Agreement will commence upon the execution
hereof by each of the parties and shall continue in full force and effect
for a period of 15 years (the "Initial Term"). The parties agree to extend the
term of this Voting Agreement for an additional 15 years within the two-year
period immediately preceeding the expiration of the Initial Term.
Notwithstanding any provision in this Voting Agreement to the contrary, this
Voting Agreement may be terminated at any time upon the written consent of the
parties hereto.
9. Specific Performance. Each of the parties hereto hereby declares
that it is impossible to measure in money the damages which will accrue to a
party hereto or to its heirs, personal representatives or assigns by reason of a
failure to perform any of the obligations hereunder, and agrees that the terms
hereof shall be specifically enforceable. If any party hereto or its heirs,
personal representatives or assigns institutes any action or proceeding to
specifically enforce the provisions hereof, any person or entity against whom
such action or proceeding is brought hereby waives the claim or defense therein
that such party or such personal representative has an adequate remedy at law,
and such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
10. Governing Law; Jurisdiction. This Voting Agreement will be governed
by and construed in accordance with the laws of the State of Nevada applicable
to agreements made and to be performed entirely within Nevada by residents of
Nevada. The parties hereto agree that any disagreement or dispute arising
directly, indirectly, or otherwise in connection with, out of, related to, or
from this Voting Agreement, any breach hereof, or any transaction covered
hereby, or any proceeding brought by a party to enforce any right, assert any
claim, or obtain any relief whatsoever in connection with this Voting Agreement,
shall be brought by such party and resolved exclusively within the State of New
York. Accordingly, the parties hereto consent and submit to the exclusive
personal jurisdiction of the federal and state courts located within the State
of New York, U.S.A. The parties hereto further agree that any such action or
proceeding brought by a party to enforce any right, assert any claim, or obtain
any relief whatsoever in connection with this Voting Agreement shall be brought
by such party exclusively in the federal or state courts located within the
State of New York.
11. Interpretation. References herein to Articles, Sections or other
subdivisions are to the appropriate subdivisions of this Voting Agreement unless
otherwise stated. The words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Voting Agreement as a whole and not to any
particular Article, Section, Exhibit, Schedule or other subdivision unless
otherwise stated.
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12. Complete Agreement; Amendment. This Voting Agreement and the
Operative Agreements (as defined in the Agreement), and any other agreements
ancillary thereto, contain and are intended as a complete statement of the
arrangements between the parties hereto with respect to the matters provided for
herein and supersede any previous agreements or understandings between the
parties with respect to such matters. This Voting Agreement may be amended and
any term hereof may be waived only by a writing signed by each of the parties
hereto. No waivers of any breach hereof extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of any
other party hereto or with respect to any subsequent breach.
13. Successors and Assigns. This Voting Agreement will be binding on
and will inure to the benefit of the respective executors, administrators,
heirs, successors and assigns of the parties.
14. Invalid or Void Provisions. If any provision hereof is deemed
invalid, illegal, or unenforceable, such provision will be deemed amended to
conform to applicable law so as to be valid, legal and enforceable; if such
provision cannot be amended without altering the intention of the parties, it
will be stricken and the remainder hereof will remain in full force and effect.
15. Notices. Except as otherwise set forth herein, any notice required
or permitted hereunder will be given in writing and will be conclusively deemed
effectively given upon personal delivery, after transmission by facsimile
telecopier with confirmation of successful transmission, one day after deposit
with an internationally recognized express courier for overnight delivery, with
written verification of receipt, or five days after deposit in the United States
mail, by certified mail, postage prepaid, return receipt requested, addressed
(i) if to the Company, as set forth below the Company's name on the signature
page hereof, and (ii) if to a Shareholder, at such Shareholder's address as set
forth below its name on the signature page hereof, or at such other address as
the Company or the Shareholder may designate by ten days' advance written notice
similarly given to the other parties hereto in accordance with the terms of this
Section 15.
16. Further Assurances. Each party will execute, acknowledge and
deliver all further documents reasonably requested by any other party, and will
take all other actions consistent with the terms hereof that reasonably may be
requested by such party, for the purpose of carrying out the transactions
contemplated hereby. Without limitation of the foregoing, each of the
Shareholders will execute such further documents as are recommended (in order to
accomplish the provisions of this Voting Agreement) by Nevada counsel to the
Company.
17. Counterparts. This Voting Agreement may be executed in any number
of counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date first above written.
PRO NET LINK CORP.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
By:/s/ Xxxx Xxxxxx Collardeau
------------------------------------
Name: Xxxx Xxxxxx Collardeau
Title: President
/s/ Xxxx Xxxxxx Collardeau
------------------------------------
Xxxx Xxxxxx Collardeau
c/o Pro Net Link Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
c/o Pro Net Link Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
GLOBALNET VENTURE PARTNERS, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
By:/s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx, Esq.
Title: Principal
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/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
c/o Pro Net Link Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
COMMERCE CONSULTING, LLC
By: /s/ Xxxx Xxxxxx Collardeau
----------------------------------
Name: Xxxx Xxxxxx Collardeau
Title: Sole Member
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