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EXHIBIT B
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), dated as of September 12, 1999
(the "Agreement"), is by and between Internet America, Inc., a Texas corporation
("Internet America"), XXX.Xxx, Incorporated, a Texas corporation ("PDQ"), the
undersigned shareholders of Internet America (the "Internet America
Shareholders") and the undersigned shareholders of PDQ (the "PDQ Shareholders").
The Internet America Shareholders and the PDQ Shareholders are referred to
collectively as the "Shareholders."
WITNESSETH:
WHEREAS, the Internet America Shareholders are the record and beneficial
owners of shares of common stock, par value $0.01 per share, of Internet America
and the PDQ Shareholders are the record and beneficial owners of shares of
common stock, par value $0.01 per share, of PDQ, (such shares together with any
other common stock and any other securities of the Company or PDQ having any
voting rights now or hereafter owned by the Shareholders are referred to as the
"Shares"); and
WHEREAS, Internet America, GEEK Houston II, Inc., a Texas corporation and
wholly-owned subsidiary of Internet America ("Merger Sub"), PDQ and certain
shareholders of PDQ have entered into that certain Agreement and Plan of Merger
dated as of the same date hereof (the "Merger Agreement"), pursuant to which,
among other things, Merger Sub will merge with and into PDQ, with PDQ surviving
as a wholly owned subsidiary of Internet America (the "Merger") (all capitalized
terms used herein without definition have the meanings ascribed to them in the
Merger Agreement); and
WHEREAS, a condition to closing the Merger Agreement is that Internet
America's shareholders and PDQ's shareholders approve and adopt the Merger
Agreement and the Merger.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and confessed, the parties hereto
agree as follows:
1. Voting of Shares.
(a) Internet America Shareholders. During the term of this
Agreement, each Internet America Shareholder agrees that: (i) such
Internet America Shareholder will not sell or transfer any of the Shares
or any interest therein to any person other than another Internet
America Shareholder, provided, however that each Internet America
Shareholder may sell or transfer up to 5% of such Internet America
Shareholder's Shares to any person, and (ii) at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting)
of Internet America's shareholders, however called, or in connection
with any written consent of Internet America's shareholders, such
Internet America Shareholder will appear at the meeting or otherwise
cause the Shares to be counted as present for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the
Shares (A) in favor of the adoption of the Merger Agreement and the
approval of all other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance thereof and
hereof, and (B) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of Internet America under the Merger
Agreement. Each Internet America Shareholder further agrees not to enter
into any agreement or understanding with any person or entity the effect
of which would be inconsistent with or violative of any provision
contained in this Section 1(a).
(b) PDQ Shareholders. During the term of this Agreement, each PDQ
Shareholder agrees that: (i) such PDQ Shareholder will not sell or
transfer any of the Shares or any interest therein to any person other
than another PDQ Shareholder and (ii) at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of PDQ's
shareholders, however called, or in connection with any written consent
of PDQ's shareholders, such PDQ Shareholder will appear at
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the meeting or otherwise cause the Shares to be counted as present for
purposes of establishing a quorum and vote or consent (or cause to be
voted or consented) the Shares (A) in favor of the adoption of the
Merger Agreement and the approval of all other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof, and (B) against any action or agreement
that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
Internet America under the Merger Agreement. Each PDQ Shareholder
further agrees not to enter into any agreement or understanding with any
person or entity the effect of which would be inconsistent with or
violative of any provision contained in this Section 1(b).
2. Representations and Warranties.
(a) Each Shareholder represents and warrants that he or it is the
sole and beneficial owner of that number of Shares set forth next to
such Shareholder's name on Schedule 1, attached hereto, except as
otherwise set forth on Schedule 1. On the date hereof, such Shares
constitute all of the shares of common stock of the Company or PDQ, as
appropriate, owned of record or beneficially owned by such Shareholder.
Such Shareholder has sole voting power, sole power to issue instructions
with respect to the Shares set forth next to such Shareholder's name on
Schedule 1 and sole power of disposition of such Shares, in each case
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement.
(b) Each Shareholder has full power and authority to execute,
deliver and perform this Agreement, and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered
by each Shareholder, and constitutes the legal, valid and binding
obligations of each Shareholder, enforceable against each Shareholder in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
(c) Neither the execution, delivery or performance of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (a) conflict with, or result in a violation or breach of the terms,
conditions or provisions of, or constitute a default under, any
organizational document of a Shareholder or any agreement, indenture or
other instrument under which a Shareholder is bound or to which the
Shares are subject, or (b) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or public,
governmental or regulatory agency or body having jurisdiction over a
Shareholder or the Shares.
3. Term of Agreement. This Agreement shall terminate and be of no
further force or effect automatically without any action by any party
hereto upon the earlier of (a) the termination of the Merger Agreement and
(b) the Effective Time of the Merger.
4. Other Matters. The voting of shares pursuant to this Agreement may
be effected in any manner permitted by applicable law, including, but not
limited to, written consent of shareholders.
5. Amendments. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof and may be amended
only by an instrument in writing executed by all parties hereto.
6. Headings. The paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7. Parties Bound. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors,
heirs, devisees, personal and legal representatives and assigns, including
without limitation any transferee of shares of common stock subject to this
Agreement.
8. Irrevocability. All parties hereto agree and acknowledge that this
Agreement is not revocable at, upon or by reason of a unilateral decision
or death or dissolution of any party hereto; rather the parties agree and
acknowledge that this Agreement shall not terminate except pursuant to
Section 3 hereof.
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9. Notices. Whenever this Agreement requires or permits any consent,
approval, notice, request or demand from one party to another, the consent,
approval, notice, request or demand must be in writing to be effective,
shall be deemed delivered if either hand delivered in person sent by
telegram, telex, facsimile or overnight courier or shall be deemed given
three (3) days following deposit or by mail, and if mailed, shall be deemed
to have been given after it is enclosed in an envelope, properly stamped,
sealed and deposited in the depository of the United States postal service,
postage prepaid, mailed certified return receipt requested, addressed to
the party to be notified at the address set forth below, or such other
address as either party may have notified the other in writing:
If to the Company: Internet America, Inc.
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to PDQ: XXX.Xxx, Incorporated
00 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to a Shareholder: To the address set forth by such
Shareholder's name on Schedule 1, attached
hereto
10. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
11. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS
OF LAWS) OF THE STATE OF TEXAS.
12. Specific Performance. The Shareholders acknowledge that a refusal
by any Shareholder to consummate the transactions contemplated hereby will
cause irreparable harm to Internet America and to PDQ, for which there may
be no adequate remedy at law and for which the ascertainment of damages
would be difficult. Therefore, Internet America and PDQ shall be entitled,
in addition to, and without having to prove the inadequacy of, other
remedies at law, to specific performance of this Agreement, as well as
injunctive relief (without being required to post bond or other security).
13. Counterparts. This Agreement may be executed in any number of
identical counterparts, all of which shall collectively constitute on and
the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of
the date first above written.
INTERNET AMERICA, INC.
/s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx,
President and Chief Executive
Officer
/s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXX
------------------------------------
Xxxxxxx X. Xxxxx
/s/ XXXX XXXXX XXXXXXX III
------------------------------------
Xxxx Xxxxx Xxxxxxx III
/s/ X. XXXXXXX XXXXXX
------------------------------------
X. Xxxxxxx Xxxxxx
/s/ XXXX X. XXXXX
------------------------------------
Xxxx X. Xxxxx
/s/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx
/s/ XXXXXXX X. XXXX
------------------------------------
Xxxxxxx X. Xxxx
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B&G PARTNERSHIP, LTD.
/s/ XXXXXXX X. XXXX
------------------------------------
By: Xxxxxxx X. Xxxx, General Partner
XXX.XXX, INCORPORATED
/s/ XXXXXXX X. XXXXX
------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
/s/ XXXXXXX X. XXXXX
------------------------------------
Xxxxxxx X. Xxxxx, Xx.
/s/ XXXX X. XXXXXX
------------------------------------
X. X. Xxxxxx Family Partnership
By: Xxxx X. Xxxxxx, General Partner
/s/ XXXXXXX X. XXXXXX, XX.
------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ XXXX X. XXXXXXXX
------------------------------------
Xxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXX
------------------------------------
Xxxxxx X. Xxxx
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SCHEDULE 1 TO VOTING AGREEMENT
INTERNET AMERICA COMMON STOCK
NAME AND ADDRESS SHARES OWNED
---------------- ------------
Xxxxxxx X. Xxxxxx............................ 83,688 shares and options to purchase 225,000 shares
Internet America, Inc.
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxx X. Xxxxxx.............................. 128 shares and options to purchase 78,750 shares
Internet America, Inc.
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxx............................. 151,690 shares
Internet America, Inc.
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxx Xxxxx Xxxxxxx, III...................... options to purchase 53,944 shares
Internet America, Inc.
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
X. Xxxxxxx Xxxxxx............................ 1,000 shares and options to purchase 35,000 shares
Internet America, Inc.
000 X. Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxx X. Xxxxx................................ 422,811 shares and options to purchase 45,000 shares
Xxxxxxxx LLC
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxx Xxxxxx.................................. 21,999 shares and options to purchase 120,000 shares
Xxxxxxxx LLC
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxx.............................. Sole owner of 463,385 shares and options to purchase
00000 Xxxxx Xxxx Xxxxx Xxxxxx, Xxxxx 00000 45,000 shares joint owner of 464,678 shares held by a
limited partnership of which he is one of the general
partners.
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0
XXX XXXXXX XXXXX
NAME AND ADDRESS SHARES OWNED
---------------- ------------
1,996,374 shares and options to purchase 165,000
Xxxxxxx X. Xxxxx, Xx. ....................... shares
XXX.Xxx Incorporated
00 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
X. X. Xxxxxx Family Partnership.............. 1,834,689 shares
0000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx X. Xxxxxx, Xx. ...................... 255,114 shares and options to purchase 105,000 shares
XXX.Xxx, Incorporated
00 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxxxx............................. 303,231 shares and options to purchase 50,000 shares
XXX.Xxx, Incorporated
00 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxx X. Xxxx............................... 45,453 shares and options to purchase 100,000 shares
XXX.Xxx, Incorporated
00 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
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