EXHIBIT 10.51
VOTING AGREEMENT
This Voting Agreement is entered into as of ____________________ ___ ,
1998 (the "Agreement"), by and among Galacticomm Technologies, Inc., a Florida
corporation ("Galacticomm"), and the Company Shareholders (as defined below).
RECITALS
Galacticomm, First Equity Corporation of Florida, Inc. and Security
Capital Trading, Inc. (the "Representatives"), are entering into an underwriting
agreement, (the "Underwriting Agreement"), dated _________________ ___, 1998. As
an inducement to the Representatives to enter into the Underwriting Agreement,
the Company Shareholders have agreed to enter into this Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS
(a) Capitalized terms that are used but not otherwise defined
in this Agreement will have the meanings given to them in the Underwriting
Agreement.
(b) For the purposes of this Agreement, the following terms
will have the meanings set forth below:
(i) An "Affiliate" of Galacticomm is a person that
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with Galacticomm.
(ii) A Person will be deemed the "Beneficial Owner," and
to have "Beneficial Ownership" of, and to "Beneficially Own," any securities as
to which such Person is or may be deemed to be the beneficial owner pursuant to
Rule 13d-3 and 13d-5 under the Exchange Act, as such rules are in effect on the
date of this Agreement, as well as any securities as to which such Person has
the right to become a Beneficial Owner (whether such right is exercisable
immediately or only after the passage of time or the occurrence of conditions)
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants, options or other acquisition
rights or otherwise.
(iii) "Bankruptcy and Equity Exception" means an
exception to enforceability of an obligation because of the application of (A)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights; and (B) general equity principles.
(iv) "Company Shareholders" means the Persons named on
SCHEDULE 1 to this Agreement.
(v) "Control" (including the terms "controlling,"
"controlled by" and "under common control with", with respect to the
relationship between or among two or more Persons, means the possession,
directly or indirectly or as trustee or executor, of the power to direct or
cause the direction of the affairs or management of a Person, whether through
the ownership of voting
securities, as trustee or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body governing
the affairs of such Person.
(vi) "Closing Date" means the Closing Date for the sale
of the Firm Securities pursuant to the Underwriter Agreement.
(vii) "Legal Requirement" means any statute, ordinance,
code, law, rule, regulation, order or other requirement, standard or procedure
enacted, adopted or applied by any governmental entity, including judicial
decisions applying common law or interpreting any other Legal Requirement or any
agreement entered into with a governmental entity in resolution of a dispute or
otherwise.
(viii) "Lien" means any lien, security interest, pledge,
charge, claim, option, right to acquire, restriction on transfer, voting
restriction or encumbrance of any nature.
(ix) "Person" when used with reference to a person for
whose account securities are to be sold in reliance upon this rule includes, in
addition to such persons, all of the following persons:
(A) any relative or spouse of such person, or
any relative of such spouse, any one of whom
has the same home as such person;
(B) any trust or estate in which such person or
any of the persons specified in paragraph
1(b)(ix)(A) of this Section collectively own
ten percent or more of the total beneficial
interest as of which any of such persons
serve as trustee, executor or in any similar
capacity; and
(C) any corporation or other organization (other
than Galacticomm) in which such persons or
any of the persons specified in paragraph
1(b)(ix)(A) of this Section are the
beneficial owners of collectively ten
percent or more of any class of equity
securities or ten percent or more of the
equity interest.
(x) "Shares" means shares of voting capital stock of
Galacticomm.
2. REPRESENTATIONS AND WARRANTIES OF GALACTICOMM. Galacticomm
represents and warrants to each of the Company Shareholders that:
(a) Galacticomm has all requisite corporate power and
authority and has taken all corporate action necessary in order to execute and
deliver, and to perform its obligations under, this Agreement; and
(b) this Agreement has been duly executed and delivered by
Galacticomm and is a valid and binding agreement of Galacticomm enforceable
against Galacticomm in accordance with its terms, subject to the Bankruptcy and
Equity Exception.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHAREHOLDERS. Each of
the Company Shareholders severally represents and warrants to Galacticomm that:
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(a) such Company Shareholder Beneficially Owns the number of Shares
set forth on SCHEDULE 1;
(b) each record holder of any Shares Beneficially Owned by such
Company Shareholder is identified on SCHEDULE 1;
(c) such Company Shareholder, either alone or with one or more other
Company Shareholders, has (i) the right to vote, or to direct the voting of, the
Shares Beneficially Owned by such Company Shareholder and (ii) the right to
dispose, or to direct the disposition of, the Shares Beneficially Owned by such
Company Shareholder;
(d) such Company Shareholder has all requisite power and authority
(corporate or otherwise) and has taken all action (corporate or otherwise)
necessary in order to execute and deliver, and to perform its obligations under,
this Agreement;
(e) this Agreement has been duly executed and delivered by such
Company Shareholder and is a valid and binding agreement of such Company
Shareholder enforceable against such Company Shareholder in accordance with its
terms, subject to the Bankruptcy and Equity Exception;
(f) no notices, reports or other filings are required to be made by
such Company Shareholder with, and no consents, registrations, approvals,
permits or authorizations are required to be obtained by such Company
Shareholder from, any Governmental Entity or any other Person, in connection
with the execution, delivery and performance of this Agreement by such Company
Shareholder, except those that the failure to make or obtain is not,
individually or in the aggregate, reasonably likely to prevent, delay or impair
the ability of such Company Shareholder to perform such Company Shareholder's
obligations under this Agreement; and
(g) the execution, delivery and performance of this Agreement by such
Company Shareholder do not, and the consummation by such Company Shareholder of
the transactions contemplated hereby will not, constitute or result in (i) a
breach or violation of, or a default under (in the case of any Company
Shareholder that is not a human being), the articles or certificate of
incorporation or the bylaws of such Company Shareholder or any comparable
governing instruments or (ii) a breach or violation of, or a default under, or
the acceleration of any obligations of or the creation of a Lien on the assets
of such Company Shareholder (with or without notice, lapse of time or both)
pursuant to, any instrument or agreement binding on such Company Shareholder or
to which such Company Shareholder is subject or any Legal Requirement to which
such Company Shareholder is subject, except, in the case of clause (ii) above,
for any breach, violation, default, acceleration, creation or change that,
individually or in the aggregate, is not reasonably likely to prevent, delay or
impair the ability of such Company Shareholder to perform such Company
Shareholder's obligations under this Agreement.
4. AGREEMENT TO VOTE SHARES. In the event that a vote of shareholders
of Galacticomm shall be taken upon (a) any liquidation of Galacticomm, or (b)
any business combination in which Galacticomm is not the surviving corporation
or any sale of all or substantially all of its assets (which combination or sale
occurs during the two year period immediately following the Closing Date), the
Company Shareholders shall, during the two year period immediately following the
Closing Date, vote all Shares Beneficially Owned by them in the same proportion
as the votes cast by non-Affiliates voting shares of the same class or series
with respect to the matters indicated in paragraphs 4(a) and 4(b) hereof on
which a vote of the shareholders is taken.
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5. NO VOTING TRUSTS OR TRANSFERS. Each Company Shareholder will not,
and will not permit any record holder of Shares to, (a) deposit any shares
Beneficially Owned by such Company Shareholder in a voting trust or subject any
Shares to any arrangement with respect to the voting of such Shares other than
this Agreement or any other agreement entered into in connection with the
Underwriting Agreement; or (b) except with respect to options or other rights to
purchase Shares that have been granted by a Company Shareholder to the third
parties identified in the Principal Shareholders section of the Company's
prospectus dated ____________ ___, 1998, sell, assign, pledge, xxxxx x Xxxx on
or otherwise transfer any of its interest in any Shares to any Person unless
such transferee agrees in writing to be bound by this Agreement to the same
extent as such Company Shareholder.
6. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH AND SUBJECT TO THE LAWS OF THE STATE OF FLORIDA, WITHOUT REFERENCE TO
CONFLICTS OF LAWS PRINCIPLES.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably submit
to the jurisdiction of the courts of the State of Florida and the federal court
of the United States of America located in the State of Florida solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in such courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties irrevocably agree that all claims with respect to such action or
proceeding will be heard and determined in such a Florida state or federal
court. Each party consents to and grants any such court jurisdiction over the
person of such party and over the subject matter of such dispute and agrees that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in paragraph (c) of this Section or in such
other manner as may be permitted by law will be valid and sufficient service
thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH (b).
(c) NOTICES. All notices, requests, claims, demands and other
communications required or permitted to be given or made pursuant to this
Agreement will be in writing and will be deemed given
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(i) on the first business day following the date received, if delivered
personally or by telecopy (with telephonic confirmation of receipt by the
addressee), (ii) on the business day following timely deposit with an overnight
courier service, if sent by overnight courier specifying next day delivery and
(iii) on the first business day that is at least five days following deposit in
the mails, if sent by first class mail, to the parties at the following
addresses (or at such other address for a party as will be specified by like
notice):
if to the Company
Shareholders: As set forth on SCHEDULE 1
if to Galacticomm Technologies, Inc.: Galacticomm Technologies, Inc.
0000 X.X. 47 Avenue
Suite 101
Ft. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx, Chairman
Fax No.: (000) 000-0000
with a copy to: Xxxxx, Mandler, Croland, Bronstein,
Garbett, Stiphany & Xxxxxxxx, P.A.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
with a further copy
to the Represesntatives
as follows: First Equity Corporation of Florida
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Fax No.: (000) 000-0000
Security Capital Trading, Inc.
000 Xxxxxxx Xxxxxx, 00xx Floor
New York, New Yrk 10022
Attn: Xxx Xxxx
Fax No.: (000) 000-0000
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
(d) SEVERABILITY. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or its application to any Person or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (ii) the remainder of this Agreement and the application of such
provision to other Persons or circumstances will not be affected by such
invalidity or unenforceability, nor will
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such invalidity or unenforceability affect the validity or enforceability of
such provision, or the application thereof, in any other jurisdiction.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original and all of which
will together constitute the same agreement.
(f) TERMINATION. This Agreement will terminate (i) upon the mutual
written consent of all parties or (ii) five years after the Closing Date.
(g) CAPTIONS. All captions in this Agreement are for convenience of
reference only and are not part of this Agreement, and no construction or
reference will be derived therefrom.
(h) SPECIFIC PERFORMANCE. Each party acknowledges that it will be
impossible to measure in money the damage to the other party if such party fails
to comply with any of the obligations imposed by this Agreement, that each such
obligation is material and that, in the event of any such failure, the other
party will not have an adequate remedy at law or damages. Accordingly, each
party agrees that injunctive relief or any other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure
and will not oppose the granting of such relief on the basis that the other
party has an adequate remedy at law or in the form of damages. Each party agrees
that it will not seek and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party's seeking or obtaining such
equitable relief.
(i) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns and will not be assignable without the written consent of all
other parties hereto.
(j) ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including
any schedules hereto) supersedes all prior agreements, written or oral, among
the parties with respect to the subject matter hereof and contain the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provision hereof
may be modified or waived, except by an instrument in writing signed by all the
parties or, in the case of a waiver, each party granting such waiver. No waiver
of any provision hereof by any party will be deemed a waiver of any other
provision hereof by any such party, nor will any such waiver be deemed a
continuing waiver of any provision hereof by such party.
(k) FURTHER ASSURANCES. The parties will execute and deliver such
additional instruments and other documents and will take such further actions as
may be necessary or appropriate to effectuate, carry out and comply with all of
the terms of this Agreement and the transactions contemplated hereby.
(l) THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to confer upon any third party any rights or remedies of
any nature whatsoever under or by reason of this Agreement, except the
Representatives, including without limitation, as to Section 6(h) hereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
GALACTICOMM TECHNOLOGIES, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
----------------------------------
Xxxxx Xxxx
----------------------------------
Xxxxxxx Xxxxxxx
SCHEDULE 1
COMPANY SHAREHOLDERS
SHARES
SHAREHOLDER BENEFICIALLY OWNED
----------- ------------------
Xxxxx Xxxx 532,791
00000 X.X. 00 Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxxxx 572,864
00000 X.X. 0 Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
