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EXHIBIT 10.1
VOTING AGREEMENT
This Voting Agreement ("Agreement"), dated as of April 26, 2000, is
made by and among E2Enet, Inc., a Delaware corporation ("E2E"), Northwood
Capital Partners LLC, a New York limited liability company ("Northwood
Capital"), Northwood Ventures LLC, a New York limited liability company
("Northwood Ventures" and, together with Northwood Capital, "Northwood"),
Xxxxxxxx X. Xxxxxxx, individually ("Ledecky"), and each of the other
shareholders of Xxxxxxx.xxx, Incorporated, a Delaware corporation ("Buyline"),
listed on the signature pages hereto (each, a "Shareholder" and, collectively,
the "Shareholders").
PRELIMINARY STATEMENTS
Concurrently with the execution of this Agreement, E2E, Northwood,
Ledecky (collectively, the "Investors") and Buyline entered into a Stock
Purchase Agreement (the "Purchase Agreement"), pursuant to which the Investors
acquired shares of common stock, par value $0.00001 per share ("Common Stock"),
of Buyline.
The Shareholders, Ledecky and Northwood own the number of shares of
Common Stock set forth opposite their respective names on Exhibit A hereto (such
shares set forth on Exhibit A being referred to as the "Shares"), which Shares
represent 86.9% of the issued and outstanding Common Stock. Also set forth on
Exhibit A for the Shareholders, Ledecky and Northwood is a description of all
present options, warrants and other rights to acquire shares of Common Stock.
To induce the Investors to enter into the Purchase Agreement, the
Shareholders have agreed, upon the terms and subject to the conditions set forth
herein, to appoint E2E as their true and lawful proxy, to vote the Shares owned
by them in favor of the election of any person nominated by E2E to be on the
Board of Directors (the "Board") of Buyline (except as set forth in Section 3
below), and to vote on all other matters to the extent necessary for E2E to have
at least twenty-five percent (25%) of the voting power on any matter submitted
to a shareholder vote.
To further induce E2E to enter into the Purchase Agreement, Ledecky and
Northwood have agreed, upon the terms and subject to the conditions set forth
herein, to appoint E2E as their true and lawful proxy, to vote the Shares owned
by them in favor of the election of any person nominated by E2E to be on the
Board of Buyline (except as set forth in Section 3 below), and to vote on all
other matters to the extent necessary for E2E to have at least twenty-five
percent (25%) of the voting power on any matter submitted to a shareholder vote.
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For good and valuable consideration, the receipt, sufficiency, and
adequacy of which are hereby acknowledged, the parties to this Agreement agree
as follows:
1. Representations and Warranties of the Shareholders, Ledecky
and Northwood. Each Shareholder and each of Ledecky and Northwood, as to itself
and to its Shares only, represents and warrants that:
(a) It owns, or is otherwise able to direct the voting of, the
Shares set forth next to its name on Exhibit A hereto, free and clear of any
restrictions on voting, and has the right to vote the same free of any such
encumbrance (other than any general fiduciary obligation imposed by law).
(b) The execution, delivery and performance of this Agreement by it
does not (i) conflict with or violate any trust or other agreement or instrument
to which or by which it is a party or is bound, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to it or by
which its Shares are bound or affected, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of its Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which it is a party or by which it or its Shares is
or are bound or affected.
(c) The execution, delivery and performance of this Agreement by it
does not and will not require any consent, approval, authorization or permit of
any foreign, federal, state, or local regulatory body.
2. Agreements with Respect to the Shares.
(a) Voting. Subject to subsection (b) of this Section 2, each
Shareholder and each of Ledecky and Northwood agrees during the term of this
Agreement to appoint E2E as its true and lawful proxy and attorney-in-fact with
full power of substitution, to vote those Shares owned and eligible to vote and
any other shares of Common Stock of which at the time of such vote it is able to
direct the voting (and any other voting securities of Buyline issued or
exchanged with respect to all such shares upon any reclassification,
recapitalization, reorganization, stock split, stock dividend or any other
change in Buyline's capital structure) for:
i) the election (or removal) of the nominees designated
by E2E to serve as directors on the Board and, in the event
of a vacancy on the Board created by the death, resignation
or removal of such director, to vote for the election of
nominees designated by E2E; and,
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ii) on all other matters, to the extent necessary for E2E to
have at least twenty-five percent (25%) of the voting power
on any matter submitted to a shareholder vote or as E2E
otherwise reasonably deems necessary for Buyline to be
considered a "controlled subsidiary" of E2E for purposes
of the Investment Company Act of 1940, as amended, and as
in effect from time to time.
(b) Limitations. The proxy granted in subsection (a) above may be
exercised by E2E upon five (5) days' prior written notice to the Shareholders,
Ledecky and Northwood of its intent to exercise such voting rights. The
Shareholders' proxy granted in subsection (a) above may be exercised only if
Buyline is current in all payments due under that certain Noncompetition
Agreement of even date hereof between Xxxxxxxx Xxxxxxxxx and Buyline and under
that certain Promissory Note of even date hereof by Buyline in favor of
LightMedia Interactive Corporation ("LightMedia"). E2E may exercise the
Shareholder's proxy as it relates to Section 2(a)(ii) above only to the extent
necessary after E2E exercises its proxy to vote shares held by Northwood and
Ledecky.
3. Board of Buyline. Notwithstanding the foregoing, by execution
hereof, each Shareholder and Investor agrees to vote all of its shares of Common
Stock for the election of Xxxxxxxx Xxxxxxxxx to the Board (or instead, upon the
request of E2E, Xx Xxxxx), until the earlier of (x) the date that the
Shareholders, in one or more transactions, whether or not related, have sold or
transferred more than 50% of the shares of Common Stock collectively owned by
them as of the date hereof, (y) the date that the shares of Common Stock held by
the Shareholders collectively represent less than 20% of the aggregate number of
shares of Buyline issued and outstanding or (z) the termination of this
Agreement.
4. No Voting Trusts. Each Shareholder and each of Ledecky and Northwood
hereby revokes any and all proxies and voting instructions with respect to the
Shares previously given by it or him, and agrees that it or he will not, nor
will he or it permit any entity under its or his control to, deposit any of its
or his Shares in a voting trust or subject any of its or his Shares to any
arrangement with respect to the voting of such Shares inconsistent with this
Agreement.
5. Limitation on Sales. During the term of this Agreement, each
Shareholder and each of Ledecky and Northwood agrees not to sell, assign,
transfer, lend, tender, pledge, hypothecate, exchange, encumber or otherwise
dispose of or impair its or his Shares unless, in connection therewith, it or he
retains voting rights with respect to its or his Shares or the person or entity
which obtains such voting rights becomes a party to, or agrees to be subject to
the terms of, this Agreement.
6. Specific Performance. Each Shareholder and each of Ledecky and
Northwood acknowledges that it will be impossible to measure in money the damage
to E2E if it or he
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fails to comply with the obligations imposed by this Agreement, and that, in the
event of any such failure, E2E will not have an adequate remedy at law or in
damages. Accordingly, each Shareholder and each of Ledecky and Northwood agrees
that injunctive relief or any other equitable remedy, in addition to any
remedies at law or damages, is the appropriate remedy for any such failure and
will not oppose the granting of any such remedy on the basis that E2E has an
adequate remedy at law. Each Shareholder and each of Ledecky and Northwood
agrees not to seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with E2E's seeking or obtaining such equitable
relief.
7. Term of Agreement; Termination. The term of this Agreement shall
commence on the date hereof and shall terminate by the mutual, written agreement
of the parties or on the ten (10) year anniversary of the date hereof. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; provided, however, that, such termination shall not relieve any party
from liability for any uncured breach of this Agreement occurring prior to such
termination.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter of this Agreement
and supersedes all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to E2E, to:
E2Enet, Inc.
c/o U.S. Viewing Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Northwood, to:
Northwood Ventures LLC
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Ledecky, to:
Xx. Xxxxxxxx X. Xxxxxxx
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to a Shareholder, to:
Such Shareholder at the address or facsimile number
set forth for such Shareholder on Exhibit A attached
hereto.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
the principles of conflict of laws thereof.
(d) Jurisdiction; Venue; Jury Trial. Each party hereby submits to
the jurisdiction of the federal courts of the District of Columbia and agrees
to be served with legal process from any of such courts. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection that
it may have, whether now or in the future, to the laying of venue in, or to the
jurisdiction of, any and each of such courts for the purpose of any such suit,
action, proceeding or judgment and further waives any claim that any such suit,
action, proceeding or judgment has been brought in an inconvenient forum. Each
party, to the extent
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permitted by law, further waives any right to have a jury participate in any
suit filed by another party hereto with respect to any dispute relating hereto.
(e) Rules of Construction. The descriptive headings in this
Agreement 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. Words
used in this Agreement, regardless of the gender and number specifically used,
shall be deemed and construed to include any other gender, masculine or
feminine, or neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word "including" is not limiting, and
the word "or" is not exclusive.
(f) Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, transferees or assignees and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, but all such counterparts together shall constitute but one
instrument.
(h) Assignment. No party hereto shall assign its rights and
obligations under this Agreement or any part thereof, nor shall any party assign
or delegate any of its rights or duties hereunder without the prior written
consent of the other parties, and any assignment made without such consent shall
be void; provided, that the rights and obligations of E2E hereunder may be
assigned to and assumed by any affiliate of E2E, including, without limitation,
U.S. Technologies Inc. Except as otherwise provided herein, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(i) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
(j) Extension; Waiver. Any party to this Agreement may (a) extend
the time for the performance of any of the obligations or other acts of any of
the other parties to this Agreement, (b) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document, certificate, or writing delivered pursuant to this Agreement by any
other party, or (c) waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof. Any agreement
on the part of any party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party.
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(k) Legal Fees; Costs. If any party to this Agreement institutes any
action or proceeding, whether before a court or arbitrator, to enforce any
provision of this Agreement, the prevailing party therein shall be entitled to
receive from the losing party reasonable attorneys' fees and costs incurred in
such action or proceeding, whether or not such action or proceeding is
prosecuted to judgment.
(l) Severability. The provisions of this Agreement are severable
and, if any provision of this Agreement is determined to be invalid or
unenforceable by any court of competent jurisdiction, such provision (in any
other jurisdiction) and the other provisions hereof (in any jurisdiction) shall
not be rendered otherwise invalid or unenforceable and such provision shall be
deemed to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification shall render it legal, valid and
enforceable, then this Agreement shall be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.
(m) Fiduciary Duty as Director. Each of the parties hereto
acknowledges and agrees that none of the provisions herein set forth shall be
deemed to restrict or limit any fiduciary duty that any of the undersigned may
have as a member of the Board or as an executive officer of Buyline; provided
that, no such duty shall excuse the undersigned from performing any obligations
as herein provided and otherwise complying with the terms and conditions of this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this Voting
Agreement as of the date first written above.
E2ENET, INC.
By: /s/ C. Xxxxxxx Xxxxx
----------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: President
NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
NORTHWOOD VENTURES LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXXX X. XXXXXXX
By:
----------------------------------------
Xxxxxxxx X. Xxxxxxx
XXXXXXXXX TRUST
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
Name:
XXXXXXXX XXXXXXXXX
/s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------------
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EXHIBIT A
HOLDINGS OF BUYLINE SECURITIES AS OF THE DATE HEREOF
Northwood Capital Partners LLC
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Number of Shares of Common Stock: 345,000
Northwood Ventures LLC
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Number of Shares of Common Stock: 3,105,000
Xx. Xxxxxxxx X. Xxxxxxx
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Number of Shares of Common Stock: 1,725,000
E2Enet, Inc.
c/o U.S. Viewing Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Number of Shares of Common Stock: 21,334,704
Xx. Xxxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Number of Shares of Common Stock: 25,000
Xxxxxxxxx Trust
c/o Xx. Xxxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Number of Shares of Common Stock: 8,736,850
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