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EXHIBIT 2(k)(ix)
VOTING AGREEMENT
THIS VOTING AGREEMENT made as of August 30, 1995, among NETTECH, INC.,
a North Carolina corporation (the "Company"), Southeast Interactive Technology
Fund I, LLC, a North Carolina limited liability company (the "Investor"), and
the stockholders of the Company listed on Schedule A hereto (collectively the
"Stockholders").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and the Investor have entered into a Series A
Convertible Stock Purchase Agreement dated the date hereof (the "Stock Purchase
Agreement") in connection with the sale and purchase of securities of the
Company;
WHEREAS, as a condition precedent to its execution and delivery of the
Stock Purchase Agreement, the Investor has required that the Company and the
Stockholders enter into this Agreement, and the Company and the Stockholders
are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants hereinafter contained, the parties hereto agree as follows:
1. Board of Directors. Provided that the Investor owns at least
five percent (5%) of the issued and outstanding capital stock of the Company on
an as-converted basis, the Stockholders and the Investor agree to vote a
sufficient number of shares of the Company's voting capital stock ("Stock")
owned by them or hereafter acquired by them at any time, and otherwise use
their respective best efforts, as stockholders of the Company, to fix and
maintain the number of members of the Company's board of directors ("Board of
Directors") at no more than five (5) and to elect in any subsequent election of
the Board of Directors one member of the Board of Directors designated by the
Investor. The Investor shall furnish written notice to the Stockholders, no
later than five (5) days following receipt of notice of any meeting at which or
action pursuant to which Directors are to be elected, of the name of the person
designated by him to serve as a Director. In the absence of such notice, the
Director then serving and previously designated by the Investor shall be
re-elected. At any time following the date on which the Investor owns at least
five percent (5%) of the issued and outstanding capital stock of the Company on
an as-converted basis, the Stockholders shall use their best efforts at the
request of the Investor to call a special meeting of the shareholders of the
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Company for the purpose of electing the representative of the Investor in the
event he has not been so elected or to remove a director or directors in the
event the number of members of the Board exceeds five (5). The obligation of
the Stockholders to use their respective best efforts to elect a representative
of the Investor is subject to the Investor's first having voted a sufficient
number of his shares of the Company's voting capital stock to elect his
representative.
2. Compensation Committee. The Board of Directors of the Company
shall appoint a compensation committee of the Board (the "Compensation
Committee"). The Compensation Committee (i) shall include the director elected
pursuant to Section 1 hereof and (ii) shall have at least 50% of its members
consist of "outside directors," which term shall mean directors who are not
officers or employees of the Company. The Compensation Committee shall be
delegated full responsibility for administering the Stock Option Plan of the
Company as provided in Section 2 of the Stock Option Plan. In addition, the
Company will not, without approval of the Compensation Committee, (i) pay
bonuses to or institute a bonus compensation plan that covers any employees who
are also shareholders holding more than 10% of the Company's capital stock or
(ii) increase the salary of any employees who are also shareholders holding
more than 10% of the Company's capital stock.
3. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the occurrence of any of the following events:
(a) the expiration of ten (10) years from the date of the
execution of this Agreement, or
(b) at such time as the Investor owns less than five (5%) of
the issued and outstanding voting capital stock of the Company on an
as-converted basis, or
(c) upon an initial public offering of stock of the
Company in which the selling price (before deducting commissions and expenses)
is at least $3.00 per share, or
(d) upon a merger of the Company after which the shareholders
of the Company immediately prior to the merger hold less than fifty percent
(50%) of the outstanding capital stock of the surviving corporation and in
which the consideration received by the Investor is at least $3.00 per share.
Termination of this Agreement shall not affect any rights or
obligations accruing prior thereto.
4. Notices. All notices hereunder shall be in writing and shall
be given by personal delivery or by registered or certified
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mail (postage prepaid and return receipt requested) addressed, in the case of
the Shareholders as set forth on Schedule A hereto, in the case of the
Investor, as set forth in Schedule B hereto, or, in the case of the Company, to
its then principal address, or such other address as any party may designate to
the other parties hereto in accordance with the aforesaid procedure. All
notices shall be deemed to have been given as of the date of personal delivery
or as of the date of deposit in the United States mail, as the case may be.
5. Assignment; Binding Effect. This Agreement shall be binding
on the parties hereto and their respective heirs, executors, legal
representatives, successors and assigns; provided that the shares of Stock
owned by a party to this Agreement shall not be transferred (except to the
Company or another party to this Agreement) unless the transferee enters into a
written agreement containing substantially the same provisions as are set forth
herein with respect to the shares so transferred, upon which event such
transferee shall become a party to this Agreement.
6. Legends. All certificates for shares of capital stock held by
the Stockholders, the Investor and any successors or assigns shall bear a
legend specifically referring to this Agreement (or similar agreement of a
subsequent transferee).
7. Amendment. This Agreement may not be changed or amended,
except by written instrument executed by the Company, the Stockholders, and the
Investor, nor may any provision of this Agreement be waived except by written
instrument signed by the party making such waiver, acting as aforesaid in the
case of the Stockholders or the Investor.
8. Entire Agreement. This Agreement contains the sole and entire
understanding of the parties with respect to its subject matter and all prior
negotiations, discussions, commitments and understanding heretofore had between
them with respect thereto are merged herein.
9. Counterparts. This Agreement may be executed in more than one
counterpart, each of which shall be deemed to be an original and which,
together, shall constitute one and the same instrument.
10. Applicable Law. This Agreement shall be construed in
accordance with the law of the State of North Carolina.
11. Invalid Provision. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and the Agreement shall be construed in all respects as if such valid
or unenforceable provisions were omitted.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
NETTECH, INC.
By:
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Xxxxxxx X. Xxxxxx
President
ATTEST:
________________
_____ Secretary
[CORPORATE SEAL]
SOUTHEAST INTERACTIVE TECHNOLOGY FUND, I
By: (SEAL)
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, Manager
STOCKHOLDERS:
_________________________________ (SEAL)
Xxxxx Xxxxxxx
_________________________________ (SEAL)
Xxxxxx Xxxxxxx
_________________________________ (SEAL)
Xxxxxxx X. Xxxxxx
_________________________________ (SEAL)
Xxxxxx Xxxxxxx
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Schedule A
Shareholders and Addresses for Notice
Xxxxx Xxxxxxx
00000 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxxx
00000 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx
0000 Xxx Xxxx
Xxxxxxx, XX 00000
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Schedule B
Address for Notice for the Investor
Southeast Interactive Technology Fund I, LLC
0000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
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