EXHIBIT 9.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 14, 2002 (this "Agreement"), among
NETWORD, INC., a Delaware corporation ("Netword"), and the individuals and
other parties listed on Schedule A attached hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS Netword, Webspeak Acquisition Corp., a Delaware corporation
and a direct wholly owned subsidiary of Netword ("Merger Sub"), and Home
Director, Inc., a Delaware corporation ("HD"), propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may
be amended or supplemented, the "Merger Agreement") providing for the
merger of Merger Sub with and into HD upon the terms and subject to the
conditions set forth in the Merger Agreement (the "Merger");
WHEREAS each Stockholder owns the number of HD Shares set forth
opposite such Stockholder's name on Schedule A hereto (such shares,
together with any other HD Shares acquired by such Stockholder before or
after the date hereof and during the term of this Agreement (including
through the exercise of any stock options, warrants or similar instruments
or through the purchase and conversion of Units in the Rights Offering (as
such terms and other capitalized terms used but not otherwise defined
herein are defined in the Merger Agreement), being collectively referred to
herein as the "Subject Shares"); and
WHEREAS as a condition to its willingness to enter into the Merger
Agreement, Netword has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements set forth herein, the parties
hereto agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to
Netword as follows:
(a) Organization; Authority; Execution and Delivery; Enforceability.
Such Stockholder, to the extent it is an entity, has all requisite company
or corporate, and to the extent it is not an entity, all other power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. To the extent that such Stockholder is an entity other
than an individual, such Stockholder is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization.
The execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly executed and delivered by such
Stockholder and, assuming due authorization, execution and delivery by
Netword and the other Stockholders, constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms subject to applicable laws relating to
bankruptcy, insolvency, reorganization, moratorium or receivership and to
general principles of equity. To the knowledge of such Stockholder, no
consent, approval, order or authorization of, action by or in respect of,
or registration, declaration or filing with, any Governmental Entity is
required by or with respect to such Stockholder in connection with the
execution and delivery of this Agreement by such Stockholder or the
consummation by such Stockholder of the transactions contemplated hereby.
No trust of which such Stockholder is a trustee requires the consent of any
beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby, except for such
consents which have been obtained prior to the date hereof.
(b) The Subject Shares. Such Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set
forth opposite its name on Schedule A hereto, free and clear of any liens
or encumbrances. Such Stockholder does not own of record any HD Shares
other than the Subject Shares set forth opposite its name on Schedule A
hereto, and does not beneficially own any shares of capital stock of HD
other than Subject Shares. Except as described in paragraph (c) of this
Section 1, each Stockholder has the sole right to vote the Subject Shares
set forth opposite its name on Schedule A hereto, and none of such Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares as
contemplated herein.
SECTION 2. Representations and Warranties of Netword. Netword hereby
represents and warrants to each Stockholder as follows: Netword has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Netword and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Netword. This Agreement has been duly executed and
delivered by Netword and, assuming due authorization, execution and
delivery by each Stockholder, constitutes a legal, valid and binding
obligation of Netword, enforceable against Netword in accordance with its
terms. No consent, approval, order or authorization of, action by or in
respect of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Netword in connection with the
execution and delivery of this Agreement by Netword or the consummation by
Netword of the transactions contemplated hereby, except for such filings
under the Securities Act and/or the Exchange Act as may be required in
connection with this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby.
SECTION 3. Covenants of Each Stockholder. Each Stockholder, severally
and not jointly, covenants and agrees during the term of this Agreement as
follows:
(a) At any meeting of the stockholders of HD called to vote upon
the Merger or the Merger Agreement or at any adjournment thereof or in
any other circumstances upon which a vote, consent, adoption or other
approval (including by written consent solicitation) with respect to
the Merger or the Merger Agreement is sought, such Stockholder shall,
including by executing a written consent solicitation if requested by
Netword, vote (or cause to be voted) the Subject Shares in favor of
the adoption by HD of the Merger Agreement and the approval of the
terms thereof and of the Merger and each of the other transactions
contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of HD or at any
adjournment thereof or in any other circumstances upon which a vote,
consent, adoption or other approval (including by written consent
solicitation) is sought, such Stockholder shall vote (or cause to be
voted) all of the Subject Shares of such Stockholder against, and
shall not consent to (and shall cause not to be consented to) any of
the following (or any agreement to enter into, effect, facilitate or
support any of the following): (i) any Acquisition Proposal or
transaction or occurrence which if proposed and offered to HD or its
stockholders (or any of them) would be an Acquisition Proposal or (ii)
any amendment of HD's Certificate of Incorporation (including the
Certificate of Designations of each of the Series A Preferred, Series
B Preferred and Series C Preferred) or Bylaws or other proposal
(including an Acquisition Proposal), action or transaction involving
HD or any of its subsidiaries or any of its stockholders, which
amendment or other proposal, action or transaction would reasonably be
expected to prevent, impede, interfere with, hinder or delay the
consummation of the Merger or any of the other transactions
contemplated by the Merger Agreement (collectively, "Frustrating
Transactions"). For the avoidance of doubt, nothing in this Section
3(b) shall be construed to prohibit, restrict or otherwise limit the
Stockholders from voting in favor of an amendment to the Certificate
of Incorporation of HD to effect the HD Split.
(c) Other than in accordance with the terms of this Agreement,
such Stockholder shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"),
or consent to any Transfer of, any Subject Shares or any interest
therein or enter into any contract, option or other arrangement
(including any profit sharing or other derivative arrangement) with
respect to the Transfer of, any Subject Shares or any interest therein
to any person other than pursuant to the Merger Agreement or (ii)
enter into any voting arrangement, whether by proxy, voting agreement
or otherwise, in connection with, directly or indirectly, any
Acquisition Proposal or otherwise with respect to the Subject Shares.
Such Stockholder shall not commit or agree to take any action
inconsistent with the foregoing. Notwithstanding any other provision
of this Agreement, each Stockholder may Transfer all or a portion of
such Stockholder's Subject Shares to any other person if such
transferee expressly agrees in writing to be bound by all of the
provisions of this Agreement.
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(d) From and after the date of this Agreement, each Stockholder
shall not, and shall not authorize or permit any of its subsidiaries
or any of its or their directors, officers, employees, investment
bankers, financial advisors, attorneys, accountants or other
representatives to, directly or indirectly, (i) solicit, initiate,
encourage (including by way of furnishing information), or take any
other action designed to facilitate, any inquiries or the making of
any proposal that constitutes a Frustrating Transaction, (ii) enter
into any agreement with respect to any Frustrating Transaction or
(iii) participate in any discussions or negotiations regarding a
Frustrating Transaction.
SECTION 4. Further Assurances. Each Stockholder will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Netword
may reasonably request for the purpose of effectuating the matters covered
by this Agreement.
SECTION 5. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by
operation of law or otherwise, including such Stockholder's heirs,
guardians, administrators or successors. In the event of any stock split,
stock dividend, merger, reorganization, recapitalization or other change in
the capital structure of HD affecting the HD Shares, or the acquisition of
additional HD Shares or other voting securities of HD by any Stockholder,
the number of Subject Shares listed on Schedule A hereto beside the name of
such Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional HD Shares or other
voting securities of HD issued to or acquired by such Stockholder.
SECTION 6. Assignment. Except as permitted under Section 3(c), neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties hereto without the prior written consent
of the other parties hereto, except that Netword may assign, in its sole
discretion, any of or all its rights, interests and obligations under this
Agreement to any direct or indirect wholly owned subsidiary of Netword, but
no such assignment shall relieve Netword of its obligations under this
Agreement. Any purported assignment in violation of this Section 6 shall be
void. Subject to the preceding sentences of this Section 6, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and assigns.
SECTION 7. Termination. This Agreement shall terminate upon the
earlier of (a) the Effective Time, (b) the termination of the Merger
Agreement in accordance with its terms, or (c) any amendment to the Merger
Agreement that would reasonably be likely to have a material adverse effect
on Netword, Merger Sub, HD or the HD Stockholders, including without
limitation any amendment to the Merger Agreement that extends the
Termination Date (as defined in the Merger Agreement) beyond December 31,
2002. No such termination of this Agreement shall relieve any party hereto
from any liability for any breach of this Agreement prior to termination.
SECTION 8. General Provisions. (a) Amendments. This Agreement may not
be amended except by an instrument in writing signed by each of the parties
hereto.
(b) Notices. All notices, requests, clauses, demands and other
communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (with confirmation)
or sent by overnight or same-day courier (providing proof of delivery)
to Netword in accordance with Section 10.2 of the Merger Agreement and
to the Stockholders at their respective addresses set forth on
Schedule A hereto (or at such other address for a party as shall be
specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections or Schedules, such reference shall be to a Section or
Schedule to this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
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Agreement. The term "or" is not exclusive. The definitions contained
in this Agreement are applicable to the singular as well as the plural
forms of such terms. Any agreement or instrument defined or referred
to herein or in any agreement or instrument that is referred to herein
means such agreement or instrument as from time to time amended,
modified or supplemented. References to a person are also to its
permitted successors and assigns.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall be considered one
and the same agreement and shall become effective when one or more
counterparts have been signed and delivered by each of the parties
hereto. The effectiveness of this Agreement shall be conditioned upon
the execution and delivery of the Merger Agreement by each of the
parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the
parties hereto with respect to the subject matter of this Agreement
and (ii) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.
(g) No Recourse. Notwithstanding anything that may be expressed
or implied in this Agreement, Netword and Merger Sub covenant, agree
and acknowledge that no recourse under this Agreement shall be had
against any current or future director, officer, employee, general or
limited partner, member, affiliate or assignee of any Stockholder or
any of the foregoing, whether by the enforcement of any assessment or
by any legal or equitable proceeding, or by virtue of any statue,
regulation or other applicable law, it being expressly agreed and
acknowledged that no personal liability whatsoever shall attach to, be
imposed on or otherwise incurred by any current or future officer,
agent or employee of any Stockholder or any current or future member
of any Stockholder or any current or future director, officer,
employee, partner, member, affiliate or assignee of any of the
foregoing, as such for any obligation of a Stockholder under this
Agreement for any claim based on, in respect of or by reason of such
obligations or their creation.
SECTION 9. Stockholder Capacity. No person executing this Agreement
who is or becomes during the term hereof a director or officer of HD makes
any agreement or understanding herein in his or her capacity as such
director or officer. Each Stockholder signs solely in his or her capacity
as the record holder and beneficial owner of, or the trustee of a trust
whose beneficiaries are the beneficial owners of, such Stockholder's
Subject Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in its capacity as an officer or director of HD.
SECTION 10. Enforcement. Each of the parties hereto agrees that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties
hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any Delaware state court or any Federal
court located in the State of Delaware, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of
the parties hereto (a) consents to submit itself to the personal
jurisdiction of any Delaware state court or any Federal court located in
the State of Delaware in the event any dispute arises out of or under or
relates to this Agreement or any of the transactions contemplated hereby,
(b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (c)
agrees that it will not bring any action, suit or proceeding arising out of
or under or relating to this Agreement or any of the transactions
contemplated hereby in any court other than any Delaware state court or any
Federal court located in the State of Delaware and (d) waives any right to
trial by jury with respect to any action, suit or proceeding arising out of
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or under or relating to this Agreement or any of the transactions
contemplated hereby in any Delaware state court or any Federal court
located in the State of Delaware, and hereby further and unconditionally
waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
[Remainder of Page Intentionally Blank, Signature Page Follows]
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IN WITNESS WHEREOF, Netword has caused this Agreement to be signed by its
officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
NETWORD, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: President
STOCKHOLDERS:
XXXXXXX XXXXX INTELLECTUAL XXXXXXX XXXXX VENTURES, INC.
CAPITAL COMPANY LLC
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------- ------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx
Title Title: President
CISCO SYSTEMS, INC. MOTOROLA, INC.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxx
Title: Sr. VP & Asst. Secretary Title: Sr. VP & Treasurer
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxx
----------------------- -----------------------
Xxxxxx Xxxxxx Xxxxxx Xxxx
/s/ Xxxxx Xxxxx
---------------------
Xxxxx Xxxxx
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SCHEDULE A
----------
Stockholder Number of HD Shares
----------- ----------------------
Xxxxxxx Xxxxx Ventures, Inc. 3,166,667 shares of
000 Xxxxxxx Xxxxxx Series A Preferred
New York, N.Y. 10022
Xxxxxxx Xxxxx Intellectual Capital Company LLC 28,500,000 shares of
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Series A Preferred
New York, N.Y. 10022
Motorola, Inc. 9,999,999 shares of
0000 X. Xxxxxxxxx Xxxx Series B Preferred
Xxxxxxxxxx, XX 00000
Cisco Systems, Inc 10,000,000 shares of
000 Xxxx Xxxxxx Xxxxx Series C Preferred
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx 771,824 shares of HD
c/o Home Director, Inc. Common
0000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxx, XX 00000
Xxxxx Xxxxx 100,872 shares of HD
c/o Home Director, Inc. Common
0000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxx, XX 00000
Xxxxxx Xxxx 155,980 shares of HD
c/o Home Director, Inc. Common
0000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxx, XX 00000
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