VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of the
17th day of December, 1997, by and among the parties indicated on the signature
pages hereof (such persons being referred to herein as the "Stockholders" and
individually as a "Stockholder").
W I T N E S S E T H:
WHEREAS, Electronic Transmission Corporation, a Delaware corporation (the
"Company"), and Special Situations Private Equity Fund, L.P. and Special
Situations Cayman Fund, L.P. (collectively, the "Funds") have on even date
herewith entered into that certain Securities Purchase Agreement (the "Purchase
Agreement") pursuant to which the Funds have agreed to purchase an aggregate of
three million (3,000,000) shares (the "Shares") of the Company's common stock,
par value $.001 per share (the "Common Stock").
WHEREAS, the First Closing, as defined in the Purchase Agreement, has
occurred on even date herewith, with the Funds purchasing an aggregate of
2,447,719 Shares;
WHEREAS, the Second Closing, as defined in the Purchase Agreement, requires
the issuance of an additional 552,281 Shares, which the Company does not have
presently available for issuance as all authorized shares of Common Stock are
either outstanding or reserved for issuance;
WHEREAS, as a condition precedent to the Second Closing, the Company has
agreed to increase its authorized shares of Common Stock from 15,000,000 to
20,000,000 shares and to effect a one-for-three or one-for-four reverse stock
split (collectively, the "Amendments") by amending its Certificate of
Incorporation to incorporate the Amendments; and
WHEREAS, under the General Corporation Laws of the State of Delaware,
stockholder approval is required to amend the Certificate of Incorporation to
include the Amendments; and
WHEREAS, the Stockholders, in accordance with the provisions of Section
6(h) of the Purchase Agreement and to facilitate the amendment of the
Certificate of Incorporation to include the Amendments, desire to vote, and
restrict the voting of, any and all shares of the Common Stock of the Company
now or hereafter owned beneficially by them as a unit to the extent described
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, the parties hereto
hereby agree as follows:
1. VOTING OF SHARES. During the term of this Agreement, each Stockholder
agrees to vote all of the shares of Common Stock, and any other securities of
the Company having voting rights, now or hereafter owned by such Stockholder and
to which such Stockholder is entitled to vote for the Amendments.
2. DEPOSIT OF AGREEMENT. A counterpart of this Agreement shall be
deposited with the Company at its principal office and shall be subject to the
same right of examination by a stockholder of the Company, in person or by agent
or attorney, as are the books and records of the Company.
The Stockholders, excluding the Funds, acknowledge that upon such deposit,
this Agreement shall be specifically enforceable.
3. TERM OF AGREEMENT. This Agreement shall expire upon the earlier of
the conclusion of any special or annual meeting of stockholders called by the
Board of Directors of the Company at which the Amendments are voted upon and
approved by the stockholders of the Company or the expiration of two years from
the date of this Agreement. At any time prior to the expiration of this
Agreement pursuant to this Paragraph 3, the parties hereto may extend the
duration of this Agreement for as many additional periods as they desire. Upon
such expiration, this Agreement shall terminate and be of no further force and
effect.
4. OTHER MATTERS. Nothing contained in this Agreement shall require any
Stockholder to vote his shares of Common Stock as a unit with respect to any
matter other than matters expressly contemplated by this Agreement. The voting
of shares pursuant to this Agreement may be effected in any manner permitted by
applicable law.
5. AMENDMENTS. This Agreement sets forth the entire understanding of the
parties hereunto with respect to the subject matter hereof and may be amended
only by an instrument in writing executed by all parties.
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
Paragraph 3 hereof. Each Stockholder, excluding the Funds, further acknowledges
that he is aware that the Funds, in reliance upon this Agreement, have made a
substantial financial commitment to the Company pursuant to the Purchase
Agreement.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Each Stockholder irrevocably
consents to the exclusive jurisdiction of the United States Federal Courts
located in New York County, New York, in any suit or proceeding based on or
arising under this Agreement.
10. COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, all of which shall collectively constitute one and the
same instrument.
11. FURTHER ASSURANCES. Each Stockholder, excluding the Funds, shall
execute and deliver all certificates, agreements and other documents as the
Funds may reasonably request and shall otherwise promptly, fully and diligently
cooperate with the Funds and any other necessary persons with respect to the
exercise by the Funds of any of their respective rights hereunder.
-2-
12. SPECIFIC PERFORMANCE. Because each Stockholder, excluding the Funds,
agrees that the Funds' remedies at law for the failure of such Stockholders to
comply with the provisions of this Agreement would be inadequate and that such
failure would not be adequately compensable in damages, each Stockholder,
excluding the Funds, agrees that the covenants and agreements contained in this
Agreement may be specifically enforced.
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of
the date first above written.
STOCKHOLDER:
/s/ L. Xxxx Xxxxxx
---------------------------------------
L. XXXX XXXXXX
STOCKHOLDER:
/s/ Anneal X. Xxxxxx
---------------------------------------
ANNEAL X. XXXXXX
STOCKHOLDER:
/s/ Xxxx Xxxxxx
---------------------------------------
XXXX XXXXXX
STOCKHOLDER:
/s/ Xxxxxx Xxxxxx
---------------------------------------
XXXXXX XXXXXX
STOCKHOLDER:
STERLING NATIONAL CORPORATION
By: /s/ L. Xxxx Xxxxxx
------------------------------------
L. Xxxx Xxxxxx
-3-
STOCKHOLDER:
STERLING NATIONAL TRUST
By: /s/ L. Xxxx Xxxxxx
------------------------------------
L. Xxxx Xxxxxx
STOCKHOLDER:
HANNAH FAMILY TRUST
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Trustee
STOCKHOLDER:
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
XXXXXXX XXXXXXXX
STOCKHOLDER:
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
STOCKHOLDER:
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
-4-
SCHEDULE 1
List of Individual Holders of Common Stock
of Electronic Transmission Corporation
Name Shares
---- ------
L. Xxxx Xxxxxx 2,048,800
Anneal X. Xxxxxx 500,000
Xxxx Xxxxxx 250,107
Xxxxxx Xxxxxx 250,107
Sterling National Corporation 6,224
Sterling National Trust 515,334
Hannah Family Trust 738,313
Xxxxxxx Xxxxxxxx 100,000
Special Situations Private Equity Fund, L.P. 1,631,812
Special Situations Cayman Fund, L.P. 815,907
