VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT dated as of the ___ day of _______ 1997, between
EarthWeb, Inc., a Delaware corporation (the "Corporation"), Global Network
Partners LLC, a Delaware limited liability company ("GNP") and those certain
shareholders of the Corporation who are signatories to this Agreement (the
"Optionees"). Reference is made to that certain 1996 Amended and Restated Stock
Plan (the "Stock Plan"), dated as of October 25, 1996, adopted by the
Corporation, providing for, among other things, the issuance of Options (as
defined in the Stock Plan) to selected key employees of the Corporation to
acquire shares of the Corporation. Pursuant to the provisions in the granting
agreements with respect to the Options which require that the Optionees, upon
any exercise of their Options, enter into this Voting Trust Agreement, the
Corporation, GNP and each of the undersigned Optionees hereby enter into this
Voting Trust Agreement subject to the terms set forth below. Defined terms used
herein and not otherwise defined are used herein with the meanings defined in
the Stock Plan.
The parties hereto agree as follows:
1. Voting Agreement. (a) Each Optionee does hereby make, constitute and
appoint GNP and each of GNP's officers and employees, such Optionee's true and
lawful attorneys, for such Optionee and in such Optionee's name, place and
stead, to act as such Optionee's proxy in respect of all of the shares of Common
Stock of the Corporation owned by such Optionee as a result of the exercise of
Options ("Shares"), including, without limitation, the right, on such Optionee's
behalf, to demand the call by any proper
officer of the Corporation pursuant to the provisions of its certificate of
incorporation or by-laws (as amended to the date of such action as proxy) and as
permitted by law, of a meeting of its shareholders and at any such meeting of
shareholders, annual, general or special, to vote for the transaction of any and
all business that may come before such meeting or at any adjournment thereof,
including, without limitation, the right to vote for directors of the
Corporation, the sale of all or any part of the assets of the Corporation and/or
the liquidation and dissolution of the Corporation; giving and granting to such
Optionee's said attorneys full power and authority to do and perform each and
every act and thing whether necessary or desirable to be done in and about the
premises, as fully as such Optionee might or could do if personally present with
full power of substitution, appointment and revocation, hereby ratifying and
confirming all that such Optionee's said attorneys shall do or cause to be done
by virtue hereof. This proxy is given to GNP and to its officers and employees
in connection with, and in order to carry out the provisions contained in, this
Agreement and is thereby coupled with an interest. This Proxy shall not be
revocable or revoked by such Optionee and shall be binding upon each such
Optionee and such Optionee's successors and assigns.
(b) Each Optionee agrees, and the Corporation will immediately place,
the following legend upon each certificate representing Shares:
The shares of Common Stock of the Corporation represented by this
certificate are subject to that certain Voting Trust Agreement
among the Corporation and certain of its shareholders and are
subject to the terms and provisions thereof.
2. Transfers of Shares. During the term of this Agreement, no Optionee
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shall directly or indirectly sell, pledge, mortgage, hypothecate, give,
transfer, create a security
interest in or lien on, place in trust (voting or otherwise) (except for this
Agreement), assign or in any other way encumber or dispose of any of the Shares
now or hereafter at any time owned by such Optionee, or any interest therein, or
the stock certificate or certificates representing any Shares, or any voting
trust certificate or certificates issued with respect to Shares (collectively, a
"Transfer of Interest"), except as expressly permitted by this Agreement. In
furtherance of the foregoing provision, each Optionee hereby instructs the
Corporation to deliver all certificates representing Shares to GNP, to hold
pursuant to the terms of this Agreement. Prior to the consummation of any
Transfer of Interest expressly permitted by this Agreement, other than pursuant
to a registered public offering under the Securities Act of 1933, as amended
(the "1933 Act"), the Corporation shall have received an opinion of counsel,
which opinion and counsel shall be reasonably satisfactory to the Corporation,
that such Transfer of Interest does not require registration under the 1933 Act
or any applicable state securities laws. Any Transfer of Interest effected, or
purported or attempted to be effected, by an Optionee not in accordance with the
terms and conditions of this Agreement, or to a person below 18 years of age, or
who has been adjudged incompetent or insane, or to a person prohibited by law
from holding Shares, shall be void and shall not bind the Corporation, and the
Corporation shall not give effect on its books to any such transfer or purported
transfer.
3. Buyback of Shares. The Corporation shall have the right to purchase
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any Shares held by an Optionee upon the termination of such Optionee's
employment with the Corporation as follows:
(a) Termination for Cause. If an Optionee is terminated for cause,
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such Optionee will, and hereby agrees to, sell all his or her Shares to the
Corporation at a
per share price equal to the per share price paid by such Optionee for
such Shares (the "Option Price").
(b) Termination Other Than For Cause. Should an Optionee's
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employment with the Corporation terminate for any reason other than cause, such
Optionee will, and hereby agrees to, sell all his or her Shares to the
Corporation at a price equal to the greater of (i) the Option Price or (ii) the
book value of the Shares (as determined by the Corporation's then most recent
financial statements).
(c) Procedure for Purchase. The closing of the purchase of such
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shares pursuant to Sections 3(a) and (b) shall occur immediately upon such
Optionee's termination of employment or, in the event Optionee purchases Shares
after his or her termination of employment, on the date of such purchase by
Optionee. Each Optionee hereby agrees and instructs GNP to deliver all Shares
subject to this Section 3 to the Corporation upon the occurrence of such
termination. The Corporation shall (i) in the event of a purchase pursuant to
Section 3(a), pay the Option Price within one year of the delivery of the
respective Shares and (ii) in the event of a purchase pursuant to Section 3(b),
pay the appropriate purchase price within 90 days of the delivery of the
respective Shares.
4. Injunctive Relief. Each Optionee acknowledges that the remedy at law
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for any breach by it of the provisions of this Agreement will be inadequate and
that GNP or the Corporation shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damage to GNP as a
result of any such breach.
5. Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed given if delivered personally or mailed by
registered or
certified mail (return receipt requested) to the parties at the following
address (or at such other address or addresses as shall be specified by like
notice):
if to the Corporation, at:
EarthWeb, Inc
Attn: Xxxxxx Xxxxxx
0 Xxxx Xxxxxx
XX,XX 00000
if to GNP, at:
Global Network Partners, LLC
Attn: Xxxxxx Xxxxxx
0 Xxxx Xxxxxx
XX,XX 00000
with a copy, in each case, to:
Xxxxxxxx & Xxxxxxxx LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
if to an Optionee, at the address directly below
his or her signature to this Agreement.
6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
7. Binding Nature; Termination. This Agreement shall be binding upon,
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and inure to the benefit of, the parties hereto and their respective successors
and assigns, including any transferees of Shares owned by the Optionees. This
Agreement shall terminate, and be without further force and effect, upon the
earlier to occur of (a) ten (10) years from the date of this Agreement and (b)
the date which is six months after the consummation by the Corporation of an
underwritten public offering of Common Stock
registered under the 1933 Act pursuant to which the Corporation realizes
proceeds in excess of $10,000,000.
8. Counterparts. This Agreement may be executed in two or more number of
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separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
EarthWeb, Inc.
By _____________________________
Global Network Partners LLC
By: ____________________________
[Optionees signature attached]
