VOTING AGREEMENT
This VOTING AGREEMENT, dated as of February 2, 2011 (this "Agreement"), is
entered into by and among Fund Holdings LLC, a Florida limited liability company
("Holdings"), Xxxxx X. Xxxxxxxx, III ("ELK"), Bonds MX, LLC, a Delaware limited
liability company ("Bonds MX"), Xxxxxx Xxxxx ("Xxxxx"), Xxxxxxx Venture Partners
III, LLC ("LVP III" and, collectively with Holdings, ELK, Bonds MX and Xxxxx,
the "Stockholders"), GFINET, Inc., a Delaware corporation ("GFI"), Oak
Investment Partners XII, Limited Partnership, a Delaware limited partnership
("Oak" and, collectively with GFI, the "Investors"), and Beacon Capital
Strategies, Inc., a Delaware corporation ("Seller").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, each of the
Investors is executing and delivering a Unit Purchase Agreement, dated as of the
date hereof, by and among Xxxxx.xxx Group, Inc., a Delaware corporation (the
"Company"), and the Investors (the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, the Investors are purchasing
an aggregate of $9,000,000 of the Company's securities (the "Transaction"); and
WHEREAS, concurrently with the execution of this Agreement, the Company,
Seller and Xxxxx.xxx MBS, Inc., a Delaware corporation ("Buyer"), are executing
and delivering an Asset Purchase Agreement, dated as of the date hereof (the
"Asset Purchase Agreement");
WHEREAS, pursuant to the Asset Purchase Agreement, Buyer is acquiring
substantially all of the assets of Seller in exchange for shares of the
Company's Series C Preferred Convertible Stock (the "Asset Acquisition");
WHEREAS, as a condition to their execution and delivery of the Purchase
Agreement and the Asset Purchase Agreement and consummation of the Transaction
and the Asset Acquisition, the Investors and Seller, respectively, are requiring
the Stockholders to enter into this Agreement, and the Stockholders wish to
induce the Investors and Seller to execute and delivery the Purchase Agreement
and the Asset Purchase Agreement and consummate the Transaction and the Asset
Acquisition.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:
1. Definitions.
(a) For purpose of this Agreement, the following terms shall have the
meanings set forth below:
"Common Stock" means the Company's shares of common stock, par value
$0.0001 per share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Person" means any individual, corporation (including not-for-profit),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, governmental entity or authority or
other entity of any kind or nature.
"Securities Act" means the Securities Act of 1933, as amended.
"Series D Preferred" means the Company's Series D Convertible Preferred
Stock, par value $0.0001 per share.
"Shares" means, with respect to any Stockholder, (i) all issued and
outstanding shares of the Common Stock owned of record or beneficially by such
Stockholder as of the date of this Agreement; (ii) all issued and outstanding
shares of the Series D Preferred owned of record or beneficially by such
Stockholder as of the date of this Agreement; and (iii) all additional shares of
Common Stock and Series D Preferred that such Stockholder purchases or otherwise
acquires beneficial ownership of (including pursuant to the exercise of any
options or other securities) during the period from the date of this Agreement
through the termination of this Agreement pursuant to Section*8.
"Voting Shares" means, with respect to any Person, all issued and
outstanding Shares owned of record or beneficially by such Person or over which
such Stockholder exercises voting power, in each case, as of the record date for
persons entitled (i)*to receive notice of, and to vote at, at any annual or
special meeting of the stockholders of the Company called for the purpose of
voting on the matters referred to in Section*3, or (ii)*to take action by
written consent of the stockholders of the Company with respect to the matters
referred to in Section*3. Any shares of capital stock of the Company that such
Person purchases or over which such Person exercises voting power during the
period from the date of this Agreement through the date of termination of this
Agreement pursuant to Section*8 shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Voting Shares on the
date hereof.
(b) For purposes of this Agreement, capitalized terms used and not
defined herein shall have the respective meanings ascribed to them in the
Purchase Agreement.
2. Representations of the Stockholders.
(a) Each Stockholder hereby represents and warrants to each of the
Investors and Seller as follows:
(i) Such Stockholder has all requisite power and authority
necessary to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
(ii) This Agreement has been duly executed and delivered by such
Stockholder and, assuming due execution and delivery of this Agreement by
the other parties hereto, constitutes a valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether
such enforcement is considered in a proceeding at law or in equity).
(iii)Such Stockholder's Shares represent all shares of capital
stock of the Company beneficially owned by such Stockholder as of the date
hereof.
(iv) Other than as set forth in this Agreement, such Stockholder's
Shares are now owned by such Stockholder free and clear of all voting
agreements or arrangements whatsoever or proxies granted to any third
party(ies), in each case that could, individually or in the aggregate,
reasonably be expected to prevent, restrict or otherwise impair the
ability of such Stockholder to perform its obligations under this
Agreement.
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(v) Such Stockholder understands and acknowledges that the
Investors and Seller are entering into the Purchase Agreement and the
Asset Purchase Agreement, respectively, in reliance upon the foregoing
representations and warranties and such Stockholder's execution, delivery
and performance of this Agreement.
3. Agreements to Vote Shares.
(a) During the period commencing on the date hereof and continuing until
the termination of this Agreement in accordance with its terms, each Stockholder
agrees to:
(i) appear (in person or by proxy) at any annual or special
meeting of the stockholders of the Company at which the Authorized Share
Increase will or may be considered, in each case, for the purpose of
obtaining a quorum;
(ii) vote (in person or by proxy), or execute a written consent or
consents if stockholders of the Company are requested to vote their shares
by written consent, all of such Stockholder's Voting Shares:
(A) in favor of the Authorized Share Increase;
(B) against: (1) any and all proposals contrary to the
Authorized Share Increase; and (2)*any action, proposal, transaction
or agreement which could reasonably be expected to result in a
breach or failure (x) by the Company to perform its obligations
under Section 4(l) of the Purchase Agreement or (y) by such
Stockholder to perform its obligations under this Agreement; and
(C) otherwise in support of the Authorized Share Increase
and of the Company's performance of its obligations under Section
4(l) of the Purchase Agreement.
4. Proxies.
Each Stockholder hereby revokes any and all prior proxies or
powers-of-attorney in respect of any of such Stockholder's Voting Shares
relating to the matters set forth in Section 3(a) and constitutes and appoints
each of the Investors and Seller or any nominee of any of the Investors or
Seller, with full power of substitution and resubstitution, at any time during
the term of this Agreement, as its true and lawful attorney and proxy (its
"Proxy"), for and in its name, place and stead, to vote each of such
Stockholder's Voting Shares as its Proxy, at every annual, special, adjourned or
postponed meeting of the stockholders of the Company, including the right to
sign its name (as stockholder) to any consent, certificate or other document
relating to the Company that Delaware law may permit or require, with respect to
any matter referred to in Section 3(a).
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM OF THIS AGREEMENT.
5. Expenses. Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by them or on
their behalf in connection with the transactions contemplated hereunder,
including fees and expenses of their own financial consultants, investment
bankers, accountants and counsel.
6. Specific Performance. Each party hereto acknowledges that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance herewith or were
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otherwise breached. Accordingly, each party hereto agrees that injunctive
relief or any other equitable remedy, in addition to remedies at law or in
damages, is the appropriate remedy for any such breach and will not oppose the
granting of such relief on the basis that the other party has an adequate remedy
at law or in damages. Each party hereto agrees that it will not seek, and agrees
to waive any requirement for, the securing or posting of a bond in connection
with any other party's seeking or obtaining such equitable relief.
7. Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the parties hereto and their respective
successors, assigns, heirs and devises, as applicable. This Agreement shall not
be assignable without the written consent of the other party hereto; provided
that Seller may assign its rights under this Agreement to one or more of its
stockholders in connection with its dissolution, liquidation and winding-up.
8. Termination. This Agreement will terminate automatically, without any
action on the part of any party hereto, on the earlier of (a)*at any time upon
the written consent of each of the Investors and Seller, and (b) on such date as
the Company has validly filed an amendment to its Certificate of Incorporation
reflecting the Authorized Share Increase and such Authorized Share Increase has
become effective.
9. Entire Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
10. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without regard to
the conflicts of laws provisions thereof.
11. Jurisdiction; Waiver of Venue. Each of the parties irrevocably agrees
that any legal action or proceeding arising out of or related to this Agreement
or for recognition and enforcement of any judgment in respect hereof brought by
any other party hereto or its successors or assigns may be brought and
determined in the Court of Chancery in and for New Castle County in the State of
Delaware (or, if such court lacks jurisdiction, any appropriate state or federal
court in New Castle County in the State of Delaware), and each of the parties
hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts
for itself and with respect to its property, generally and unconditionally, with
regard to any such action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any action, suit or proceeding relating thereto except in such courts). Each of
the parties agrees further to accept service of process in any manner permitted
by such courts. Each of the parties hereby irrevocably and unconditionally
waives, and agrees not to assert, by way of motion or as a defense, counterclaim
or otherwise, in any action or proceeding arising out of or related to this
Agreement or the transactions contemplated hereby, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
other than the failure lawfully to serve process, (ii) that it or its property
is exempt or immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise), (iii) to the fullest extent permitted by law, that (A)
the suit, action or proceeding in any such court is brought in an inconvenient
forum, (B) the venue of such suit, action or proceeding is improper or (C) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts and (iv) any right to a trial by jury.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given or made by a party hereto
only upon receipt by the receiving party at their addresses (if mailed) or
facsimile numbers (if delivered by facsimile) set forth on Exhibit A hereto, or
at such other address for a party as shall be specified by like notice.
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13. Severability. This Agreement shall be deemed severable; the invalidity
or unenforceability of any term or provision of this Agreement shall not affect
the validity or enforceability of the balance of this Agreement or of any other
term hereof, which shall remain in full force and effect. If any of the
provisions hereof are determined to be invalid or unenforceable, the parties
shall negotiate in good faith to modify this Agreement so as to affect the
original intent of the parties as closely as possible.
14. Waiver. The parties hereto may, to the extent permitted by applicable
law, subject to Section*15 hereof, (a)*waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (b)*waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such waiver
shall be valid only if set forth in a written instrument signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
15. Modification. No supplement, modification or amendment of this
Agreement, or grant of a waiver hereunder or in respect hereof, will be binding
unless made in a written instrument that is signed by all of the parties hereto
and that specifically refers to this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and shall become effective
when such counterparts have been signed by each of the parties and delivered to
the other parties, it being understood that all parties need not sign the same
counterpart.
17. Headings. All Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
FUND HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxxx, III
Name: Xxxxx X. Xxxxxxxx, III
Title: Manager
/s/Xxxxx X. Xxxxxxxx, III
XXXXX X. XXXXXXXX, III
BONDS MX, LLC
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Member Manager
XXXXXXX VENTURE PARTNERS III, LLC
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Member Manager
/s/Xxxxxx Xxxxx
XXXXXX XXXXX
GFI NET, INC.
By: /s/J. Xxxxxxxxxxx Xxxxxxxxx
Name: J. Xxxxxxxxxxx Xxxxxxxxx
Title: Exec. VP, Corp. Dev.
OAK INVESTMENT PARTNERS XII, LIMITED
PARTNERSHIP
By: Oak Associates XII, LLC,
its General Partner
By:/s/Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Managing Partner
BEACON CAPITAL STRATEGIES, INC.
By: /s/Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: CEO
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