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EXHIBIT 1
STOCKHOLDERS' VOTING AGREEMENT
THIS STOCKHOLDERS' VOTING AGREEMENT (the "Agreement") dated as of May
25, 2001 ("Effective Date"), is being entered into by and between RMS Limited
Partnership ("RMS"), a Nevada limited partnership, and Jotter Technologies,
Inc. ("Jotter") ("Jotter" together with RMS are the "Shareholders" and
individually a "Shareholder").
WITNESSETH
WHEREAS, Section (xiv) of that certain Securities Purchase Agreement
("Purchase Agreement"), dated June 5, 2001, by and among SAFLINK Corporation
("SAFLINK"), a Delaware corporation, and certain purchasers, provides that the
Shareholders shall have agreed to vote at SAFLINK's next shareholder meeting
in favor of (a) approving the Series E Preferred Stock and warrant financing;
(b) approving the SAFLINK Corporation 2000 Stock Incentive Plan; and (c)
approving the Reverse Stock Split (as defined in the Purchase Agreement) (the
"Shareholder Proposals");
WHEREAS, as of the date hereof, Jotter owns of record 6,770,115 shares
of common stock, par value $0.01, of SAFLINK ("Common Stock") and RMS owns of
record 11,927,312 shares of Common Stock;
WHEREAS, Jotter desires to vote in tandem with and in like manner as
and as directed by RMS (or its designee) for the election of directors of
SAFLINK and on all other matters which may be presented at any meeting of the
shareholders of SAFLINK or with respect to which the consent of the
shareholders of SAFLINK is sought; and
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this agreement, the parties hereto hereby agree as
follows:
1. Tandem Voting. Jotter (on behalf of itself and each Affiliate of such
Shareholder that may acquire such Voting Shares on or after the date hereof)
agrees to vote in tandem with and in like manner as and as directed by RMS (or
its designee) for the election of directors of SAFLINK and on all other
matters which may be presented at any meeting of the shareholders of SAFLINK
or with respect to which the consent of the shareholders of SAFLINK is sought.
RMS shall provide written notice to Jotter on or prior to the time of a vote
for the election of directors of SAFLINK or on any other matters which may be
presented at any meeting of the shareholders of SAFLINK or as to which the
consent of the shareholders of SAFLINK is sought. Such notice shall state how
such Shareholder shall vote on such matter or the consent required of such
Shareholder.
2. Termination.
(a) Notwithstanding Sections 2(b) or 2(c) below, this Agreement
shall terminate on the date that the principal and interest on the $1.0
million promissory note issued to RMS, pursuant to the Loan Agreement, dated
November 13, 2000, as amended May 29, 2001, is paid in full.
(b) In the event that (i) more than 50% (fifty percent) of the
issued and outstanding Common Stock is sold to any Person or "group", as such
term is defined under the Securities Exchange Act of 1934, as amended, other
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than any of the Shareholders, (ii) SAFLINK sells substantially all of its
assets to any Person, other than to an Affiliate or (iii) SAFLINK merges with
any Person, other than with an Affiliate, then in each case this Agreement
shall terminate as of the date of consummation of any such transaction.
(c) In the event that any Shareholder ceases to hold at least
50% (fifty percent) of the Common Stock (including any Common Stock which may
be received upon conversion or exchange of any other security of SAFLINK) that
such Shareholder holds on the date hereof, then this Agreement shall terminate
with respect to such Shareholder and such Shareholder shall be released from
all obligations hereunder. If, by the operation of the this Section 3(c), only
one Shareholder shall be bound by the terms and conditions of this Agreement,
then this Agreement shall terminate as of such date.
3. Notice Provisions. All notices or communications required to be
given by any Person pursuant to this Agreement shall be effected in writing
either by personal delivery or by registered or certified mail, postage
prepaid with return receipt requested to the addresses indicated below:
If to RMS:
RMS Limited Partnership
000 Xxxx Xxxxxxx Xxxxxx
XX Xxx 000
Xxxx, XX 00000
Attn: C. Xxxxxx Xxxxxx
With a copy to:
Xxxxxx X. Xxxx, Xx., Esq.
Xxxxx & XxXxxxxx, Suite 900
000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
If to Jotter:
Jotter Technologies, Inc.
Att: Xxxxx Xxxxxxxxxxx
4. Owner of Shares. Each party to this Agreement may deem and treat the
person in whose name shares of securities are registered in the stock books of
SAFLINK as the owner thereof for all purposes, including without limitation,
for giving of notices under this Agreement.
5. Legend. A copy of this Agreement shall be filed with the Secretary of
SAFLINK and shall be kept at its principal executive office. Upon the
execution of this Agreement, each of the parties thereto shall cause each
certificate representing shares of voting securities now or hereafter owned by
it to carry a legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS
OF THIS STOCKHOLDERS' VOTING AGREEMENT, DATED AS OF MAY __, 2001. A COPY OF
SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY.
6. Complete Agreement. This is the complete agreement between the
parties with respect to the subject matter hereof and supersedes all prior
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negotiations and agreements with respect thereto. There are no
representations, warranties, covenants, conditions, terms, agreements,
promises, understandings, commitments or other arrangements with respect to
the subject matter hereof other than those expressly set forth herein.
7. Governing Law. This agreement shall be governed by, construed under
and enforced in accordance with the laws of the State of Delaware without
regard to any conflict of law principles thereof.
8. Binding Agreement; Successors. This agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and each of
their respective successors, assigns, heirs and other representatives.
9. Headings. The section headings herein are for reference purposes
only and shall not affect in any way, the meaning or interpretation of this
agreement, nor are they deemed to constitute a part of this Agreement.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
11. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable and
actual attorneys' fees (including any such fees incurred in connection with
enforcement of any judgments) in addition to its or his costs and expenses and
other available remedies.
12. Waiver; Amendment. Any waiver of an provision or breach of this
Agreement must be in writing, executed by the waving party. No waiver of any
provision or breach of this Agreement shall be a waiver of any other provision
or breach of this Agreement or any subsequent breach. Any amendment or
modification of this Agreement must be in writing and executed by all of the
parties hereto.
13. Specific Performance. Each of the parties hereto acknowledges that
money damages would be both incalculable and an insufficient remedy for any
breach of this Agreement by a party hereto and that any such breach would
cause the other party hereto irreparable harm. Accordingly, each party hereto
agrees that in the event of any actual or threatened beach of this Agreement
by any party hereto, the other parties hereto shall be entitled to specific
performance. Such remedy shall not be the exclusive remedy for any breach of
this Agreement, but shall be in addition to all other remedies available at
law or equity to such party.
14. Interpretation of Agreement. This Agreement shall be construed in
its entirety, with no emphasis or meaning being given to the headings or
captions utilized in this Agreement or the placement of the various
provisions.
15. Definitions. The following capitalized terms shall have the
meanings set forth below:
(a) "Affiliate" means, with respect to any specified
Person, (i) any other Person directly or indirectly controlling or controlled
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by or under direct or indirect common control with such specified Person or
(ii) any other Person that owns, directly or indirectly, 5% or more of such
specified Person's voting stock or any executive officer or director of any
such specified Person or other Person or, with respect to any natural Person,
any Person having a relationship with such Person by blood, marriage or
adoption not more remote than first cousin. For the purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of this Agreement, no Shareholder
shall be deemed to be an Affiliate of any other Shareholder.
(b) "Person" means any individual, corporation, limited
liability company, partnership, joint venture, association, trust, or
unincorporated organization.
(c) "Voting Shares" shall mean shares of SAFLINK's Common
Stock, Options, Preferred Stock or any other voting securities of SAFLINK held
on or after the Effective Date by any Shareholder or its Affiliate, plus all
voting securities hereinafter attributable to such shares or received or
receivable in respect thereof by way of stock splits or stock dividends,
recapitalization or liquidation of the SAFLINK or merger or consolidation of
the SAFLINK with any other corporation or organization.
16. Assignment. RMS may assign the terms and conditions of this
Agreement to any Affiliate that holds Voting Shares.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
Jotter Technologies, Inc.
By: /s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
President
RMS: Limited
Partnership
By: Xxxxxxx
Xxxxxxx, Inc.
Its: Managing
General Partner
By: /s/ C. Xxxxxx Xxxxxx, Xx.
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Name:
Title:
ACKNOWLEDGMENT OF STOCKHOLDERS' VOTING AGREEMENT
SAFLINK Corporation hereby acknowledges the existence of the foregoing
Stockholders' Voting Agreement.
SAFLINK Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
