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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made on this 27th day of March,
1998, by and among U.S. OnLine Communications, Inc., a Delaware corporation
("Company"), U.S. OnLine Communications, L.L.C., a Washington limited liability
company ("L.L.C."), Xxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"),
and Aspen Online Investments, LLC ("Aspen"). L.L.C., Barlow, Solomon, and Aspen
are collectively referred to in this Agreement as the "Shareholders."
R e c i t a l s
A. The Shareholders are entering into this Agreement in connection with a
private placement of securities of the Company (the "Private Placement") as
described in the Company's Private Placement Memorandum dated March 13, 1998
(the "Memorandum"). Unless otherwise defined in this Agreement, all capitalized
terms are as defined in the Memorandum.
B. Following the closing of that certain Asset Acquisition Agreement by and
between L.L.C. and the Company, at the First Closing, the Shareholders will own
shares of common stock of the Company ("Shares") constituting a majority of the
outstanding Shares, assuming certain warrants are not exercised.
C. The parties desire to enter into this Agreement to help ensure specific
representation on the Board of Directors of the Company.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Voting Agreement. Each Shareholder agrees to vote all of the Shareholder's
Shares (including Shares now owned, hereafter acquired, or authorized to vote by
proxy), to effect the election of persons designated as provided below to the
Company's Board of Directors (whether at a special meeting, at an annual
meeting, or to fill a vacancy):
1.1 Prior to any initial public offering ("IPO") of the common stock of the
Company, Aspen shall have the right to designate two (2) persons to be elected
to the Board of Directors of the Company; provided, however, that following
closing of the IPO, Aspen shall have the right to designate one (1) person to be
elected to the Board of Directors.
1.2 L.L.C. shall have the right to designate one (1) person to be elected
to the Board of Directors before and after any IPO.
2. Affiliates. Each Shareholder agrees to cause any affiliates controlled by
the Shareholder to vote any Shares held by such person (including Shares now
owned, hereafter acquired, or authorized to vote by proxy) to effect the
election of persons designated as provided in Section 1 above.
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3. Company's Efforts. The Company shall, at its expense, use its best
reasonable best efforts (including, without limitation, the solicitation of
proxies) to effect the election of the persons designated as provided in Section
1 above.
4. Removal. On all matters relating to the removal of directors of the
Company, each Shareholder agrees to vote the Shareholder's Shares, and to cause
any affiliate controlled by the Shareholder to vote any Shares held by such
person, (including Shares now owned, hereafter acquired, or authorized to vote
by proxy) to ensure that no director of the Company may be removed from the
Company's Board of Directors without cause, except upon the prior authorization
or request, by vote or written consent, of the party that, pursuant to Section 1
of this Agreement, designated the director sought to be removed. Upon removal of
a director for cause, the party that designated such director shall have the
right to designate a replacement director in accordance with Section 1 of this
Agreement.
5. Change in Size of Board. The parties agree to take all actions necessary to
prevent a change in the size of the Board of Directors of the Company.
6. Term. This Agreement shall be effective upon consummation of the final
closing of the Private Placement and shall terminate upon the earlier of: (a)
the written agreement of all Shareholders (including assignees) who hold Shares
at the time the parties seek to terminate the Agreement or (b) three (3) years
from the date of this Agreement.
7. Miscellaneous.
7.0.1 Legend Requirement. During the term of this Agreement, all
certificates evidencing the Shares held by the Shareholders shall bear the
following legend (in addition to any other legends required by law or
agreement):
THESE SHARES ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING
AGREEMENT, AS MAY BE AMENDED, A COPY OF WHICH WILL BE FURNISHED BY THE
COMPANY TO A HOLDER OR PURCHASER HEREOF UPON WRITTEN REQUEST.
7.0.2 Specific Enforcement. The parties acknowledge and agree that the
parties would be irreparably damaged in the event that any of the provisions of
this Agreement were not performed or were otherwise breached. Accordingly, it is
agreed that each party to this Agreement is entitled to an injunction to prevent
breaches of this Agreement, and to specific enforcement of the terms and
provisions of this Agreement, in addition to any other remedy to which the
parties may be entitled at law or in equity.
7.1 Assignment. This Agreement shall inure to the benefit of and be binding
upon
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the respective executors, administrators, heirs, successors, and assigns of the
parties.
7.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware excluding those laws that
direct the application of the laws of another jurisdiction.
7.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original (including signatures
sent by facsimile), but all of which together shall constitute one and the same
instrument.
7.4 Notices. Notice to parties shall be sent to the addresses listed on the
execution page. Any notice required or permitted under this Agreement shall be
given in writing and shall be conclusively deemed effectively given: (a) upon
delivery if delivered personally or by courier, (b) when actually received, as
evidenced by written or printed acknowledgment of receipt, if delivered by telex
or facsimile, or (c) five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid.
7.5 Enforceability; Severability; Further Assurances. The parties agree
that each provision of this Agreement shall be interpreted so as to be effective
and valid under applicable law. If any provision of this Agreement shall
nevertheless be held to be prohibited by or invalid under applicable law, (a)
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, and (b) the parties shall, to the extent
permissible by applicable law, amend this Agreement, or enter into a voting
trust agreement under which the Shares shall be transferred to the voting trust
created thereby, so as to make effective and enforceable the intent of this
Agreement. The parties shall take all other actions and sign such other
documents as shall be reasonably necessary to make effective and enforceable the
intent of this Agreement.
7.6 Costs of Enforcement. If any party to this Agreement seeks to enforce
his, her or its rights under this Agreement by legal proceedings, the
non-prevailing party shall pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' fees, including
any such fees incurred upon appeal.
7.7 Entire Agreement; Amendment. This Agreement contains the entire
agreement of the parties with regard to its subject matter and supersedes any
and all prior negotiations, oral discussions, correspondence, understandings and
agreements between the parties regarding its subject matter. This Agreement may
be amended or modified only by a written instrument executed by each of the
Shareholders (including assignees) who hold Shares at the time the parties seek
to amend the Agreement.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of
the date first above written.
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COMPANY: U.S. ONLINE COMMUNICATIONS, INC.
By:
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Xxxxxx X. Xxxxxxx
Chief Executive Officer
Address:
U.S. OnLine Communications, Inc.
0000 Xxxxx Xxxxx Xxxx.
Xxxxxx, XX 00000
Tel:(000) 000-0000
Fax:(000) 000-0000
L.L.C.: U.S. ONLINE COMMUNICATIONS, L.L.C.
A Washington limited liability
By:
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Xxxxxx X. Xxxxxxx
Chief Executive Officer
Address:
U.S. OnLine Communications, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Tel:(000) 000-0000
Fax:(000) 000-0000
XXXXXX: XXXXXX X. XXXXXX,
an Individual
Xxxxxx X. Xxxxxx
Address:
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Tel:
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Fax:
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SOLOMON: XXXXXX X. XXXXXXX,
an Individual
Xxxxxx X. Xxxxxxx
Address:
U.S. OnLine Communications, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Tel:(000) 000-0000
Fax:(000) 000-0000
ASPEN: ASPEN ONLINE INVESTMENTS, LLC
By:
Its:
Address:
Aspen Onlline Investments, LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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