EXHIBIT 9.1
VOTING AGREEMENT AND IRREVOCABLE PROXY
This VOTING AGREEMENT AND IRREVOCABLE PROXY (the "Agreement") is made
and entered into as of November 12, 1999, by and between InterPacket Group,
Inc., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx
("Xxxxxxxx").
RECITALS
X. Xxxxxxxx is the record holder and Beneficial Owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of 1,293,334 shares of the issued and outstanding common stock of the
Company (such shares, and all other shares of the capital stock of the Company
with respect to which Sudikoff is or may become the record holder and Beneficial
Owner of on or after the date hereof, are collectively referred to in this
Agreement as the "Shares").
B. The Company and Sudikoff have agreed that, to better facilitate the
Company=s private and public fund-raising efforts, it is in the best interests
of both parties for Sudikoff to enter into and be bound by the terms of this
Agreement. In that regard, Sudikoff has agreed to appoint a committee of the
Board of Directors of the Company (the "Voting Committee") as his attorney and
proxy in respect of the Shares, as further set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. GRANT OF PROXY; COVENANTS OF SUDIKOFF.
1.1 PROXY; OWNERSHIP OF SHARES. Sudikoff hereby irrevocably
appoints the Voting Committee as his attorney and proxy with full power of
substitution, to vote the Shares in such manner as the Voting Committee, in its
sole discretion by or through its duly authorized representative, shall deem
proper at any meeting of stockholders of the Company (whether annual or special
and whether or not an adjourned or postponed meeting) or consent in lieu of any
such meeting. This proxy and power of attorney is irrevocable and coupled with
an interest, shall not be terminated by any act of Sudikoff or by operation of
law, by lack of appropriate power or authority, or by the occurrence of any
other event or events, other than as described in Sections 1.2 or 3.1 below.
Sudikoff hereby revokes all other proxies and powers of attorney with respect to
the Shares which he may have heretofore appointed or granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by Sudikoff with respect thereto.
Sudikoff hereby represents and warrants that he is the record holder and
Beneficial Owner of the Shares.
1.2 DISPOSITION OR ENCUMBRANCE OF SHARES. Notwithstanding
anything contained herein to the contrary, Sudikoff may, in his sole discretion,
sell, transfer, tender, assign, hypothecate or otherwise dispose of, or create
or permit to exist any security interest or lien on (collectively, a
"Transfer"), the Shares. Upon a Transfer of any Shares whereby Sudikoff ceases
to be the record holder and Beneficial Owner of such Shares, if such Transfer is
to a third party purchaser that is not a member of Sudikoff's immediate family
and is not otherwise an affiliate of Sudikoff, as each such term is defined in
the Exchange Act, then the proxy granted under this Agreement shall terminate as
to such Shares only, and the remaining Shares shall continue to be subject to
the terms and conditions of this Agreement.
1.3 ADDITIONAL PURCHASES. Sudikoff agrees that any shares of
capital stock of the Company that Sudikoff purchases or with respect to which
Sudikoff otherwise becomes the record holder or Beneficial Owner of after the
execution of this Agreement shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
1.4 NO PARTICIPATION. Sudikoff covenants and agrees that,
during the term of this Agreement, (a) he will not directly or indirectly vote
any of the Shares and (b) he will not directly or indirectly influence any
member of the Voting Committee with respect to the manner in which the Shares
are voted by the Voting Committee, (c) he will not participate with the
executive officers of the Company in respect of any activity relating to
strategic planning, the review and consideration of material transactions or any
fundamental change in operations, (d) he will not attend any meetings of the
Board of Directors or any Committee thereof unless he is invited to attend such
meeting by the Board or such Committee (other than the Voting Committee,
meetings of which he shall not attend under any circumstances), as the case may
be, and (e) he will otherwise avoid active involvement in the day-to-day
business of the Company.
2. VOTING COMMITTEE. The Company covenants and agrees that it will take
all necessary actions to direct the Company=s Board of Directors to immediately
establish the Voting Committee and to appoint three (3) members of the Board to
such committee, all of whom shall be outside directors who are not members of
the Company's management or an affiliate of Sudikoff, as defined above. One of
such members shall be the representative of Pequot Capital or of any venture
capital fund not affiliated with the Company or Sudikoff serving on the Board
for so long as Pequot Capital or such fund, as the case may be, shall have a
representative serving on the Board and such representative shall be willing to
serve as a member of the Voting Committee. In that regard, the Voting Committee
shall act as proxy holder pursuant to the terms of this Agreement. The Voting
Committee shall be maintained by the Board of Directors through the term of this
Agreement. All votes by the Voting Committee with respect to the Shares may only
be made by the unanimous consent or resolution thereof, and any member of such
Committee may, on behalf thereof, vote the Shares pursuant to the proxy granted
hereunder in the manner specified by such consent or resolution. In the event
that the Voting Committee is unable to agree unanimously, the Voting Committee
shall cause such Shares to be present at any meeting of the Company's
shareholders but shall be recorded as abstentions.
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3. MISCELLANEOUS.
3.1 TERMINATION. This Agreement shall terminate and have no
further force and effect (a) on November 1, 2004 unless otherwise terminated at
an earlier date as a result of the Transfer by Sudikoff of Beneficial Ownership
of all of the Shares, (b) on the consummation of a change in control, which, for
purposes of this Agreement, shall be any transaction or series of related
transactions in which more than 50% of the voting stock of the Company is
acquired or (c) following the completion of the Company's initial public
offering, when, for a period of 180 consecutive days, the Shares constitute less
than 2% of the outstanding voting stock of the Company.
3.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
3.3 ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of all parties
hereto.
3.4 AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated, with
respect to any party hereto, except upon the execution and delivery of a written
agreement executed by all such parties. In that regard, the Company may not
amend, change, supplement, waive or otherwise modify or terminate any of the
terms of this Agreement without the unanimous approval or written consent of the
Board of Directors of the Company and the provisions of this sentence shall not
be waived or waivable by any party hereto.
3.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy or
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any courier service, such as Federal Express, providing proof of delivery.
All communications hereunder shall be delivered to the respective parties at the
following addresses and numbers:
If to Sudikoff:
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If to InterPacket InterPacket Group, Inc.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
Attn: General Counsel
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
3.6 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
3.7 SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
3.8 REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
3.9 NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
3.10 NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
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3.11 NO CONFLICTS. Each of Sudikoff and the Company severally
represents, warrants and covenants that he or it, as the case may be, has not
taken and will not take any action that conflicts with, violates or would
otherwise be inconsistent with the terms, conditions and restrictions set forth
in this Agreement.
3.12 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
3.13 DESCRIPTIVE HEADINGS. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
3.14 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
THE COMPANY: INTERPACKET GROUP, INC.
By: /s/ Xxx Xxxx
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Xxx Xxxx, Chief Executive Officer
SUDIKOFF:
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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