VOTING AND SUPPORT AGREEMENT dated as of January 23, 2008 by and among GSI COMMERCE, INC. and THE STOCKHOLDERS SIGNATORY HERETO
Exhibit
2.2
dated
as of January 23, 2008
by
and among
GSI
COMMERCE, INC.
and
THE
STOCKHOLDERS SIGNATORY HERETO
TABLE
OF
CONTENTS
ARTICLE
I
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS
|
Section
1.01
|
Organization,
Qualification
|
1
|
|
Section
1.02
|
Authority
Relative to this Agreement
|
2
|
|
Section
1.03
|
No
Violation
|
2
|
|
Section
1.04
|
Ownership
of Shares
|
3
|
|
Section
1.05
|
Absence
of Litigation
|
3
|
|
Section
1.06
|
Intermediary
Fees
|
4
|
|
Section
1.07
|
Opportunity
to Review; Reliance
|
4
|
ARTICLE
II
COVENANTS
OF THE STOCKHOLDERS
|
Section
2.01
|
Transfer
of the Shares
|
4
|
|
Section
2.02
|
Voting
Arrangements
|
5
|
|
Section
2.03
|
No
Proxies for or Encumbrances on Shares
|
5
|
|
Section
2.04
|
Appraisal
Rights
|
6
|
|
Section
2.05
|
No
Solicitation of Transactions
|
6
|
|
Section
2.06
|
No
Solicitations of Employees
|
7
|
|
Section
2.07
|
Certain
Events
|
7
|
|
Section
2.08
|
Shares
Not Subject to Voting Provisions
|
7
|
ARTICLE
III
COMPANY
CAPITAL STRUCTURE
ARTICLE
IV
GENERAL
PROVISIONS
|
Section
4.01
|
Notices
|
8
|
|
Section
4.02
|
Interpretation
|
8
|
|
Section
4.03
|
Enforcement
|
8
|
|
Section
4.04
|
Assignment
|
9
|
|
Section
4.05
|
Parties
in Interest
|
9
|
|
Section
4.06
|
Governing
Law
|
9
|
|
Section
4.07
|
Waiver
of Jury Trial
|
9
|
|
Section
4.08
|
Counterparts
|
9
|
|
Section
4.09
|
Amendment
and Waiver
|
9
|
|
Section
4.10
|
Miscellaneous
|
9
|
[Remainder
of Page Intentionally Left Blank]
VOTING
AND SUPPORT AGREEMENT dated as of January 23, 2008 (this “Agreement”), by and
among GSI COMMERCE, INC., a Delaware corporation (“Parent”) and each
of
the parties identified on Schedule I hereto
(each, a “Stockholder” and,
collectively, the “Stockholders”), as
stockholders of E-DIALOG, INC., a Delaware corporation (“Company”).
WHEREAS,
Parent is entering into an Agreement and Plan of Merger dated as of the date
hereof (as amended from time to time, the "Merger Agreement";
capitalized terms used but not defined in this Agreement have the meanings
attributed to such terms in the Merger Agreement), with Company, Dolphin
Acquisition Corporation, a Delaware corporation (“Acquisition Sub”) and
the Stockholders’ Representative (as defined therein), pursuant to which
Acquisition Sub shall merge with and into Company (the "Merger");
and
WHEREAS,
each Stockholder is, as of the date hereof, the record and beneficial owner
of
the number of shares of Common Stock, Series A Convertible Preferred Stock,
Series B Convertible Preferred Stock, Series C Convertible Preferred Stock
or
Series C-1 Convertible Preferred Stock, par value $0.01 per share of Company,
set forth on Schedule
I hereto (the “Existing
Shares” and
together with any shares of Common Stock, Series A Convertible Preferred Stock,
Series B Convertible Preferred Stock, Series C Convertible Preferred Stock
and
Series C-1 Convertible Preferred Stock of Company acquired by the Stockholder
after the date of this Agreement, whether upon the exercise of options or
warrants to purchase shares of Company Stock or otherwise, the “Shares”);
and
WHEREAS,
as a condition to the willingness of Parent to enter into the Merger Agreement
and as an inducement and in consideration therefor, the Stockholders have agreed
to enter into this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE
I
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS
Each
Stockholder, severally and not jointly, hereby represents and warrants (with
respect to such Stockholder only and not with respect to any other Stockholder)
to Parent in respect of such Stockholder as follows:
Section
1.01 Organization,
Qualification.
(a) Such
Stockholder, if he or she is an individual, has all legal capacity to enter
into
this Agreement, to carry out his or her obligations hereunder and to consummate
the transactions contemplated hereby.
(b) Such
Stockholder, if it is a corporation or other legal entity, (i) is duly
organized, validly existing and, if applicable, in good standing under the
laws
of the jurisdiction of its incorporation or formation and has the requisite
power and authority and all necessary governmental approvals to own, lease
and
operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or, if
applicable, in good standing or to have such power, authority and governmental
approvals would not prevent or delay consummation of the transactions
contemplated by this Agreement or otherwise prevent or delay such Stockholder
from performing its obligations under this Agreement.
Section
1.02 Authority Relative
to this
Agreement. Such
Stockholder has all necessary right, power and authority to execute and deliver
this Agreement, to perform such Stockholder's obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery
of
this Agreement by such Stockholder, if it is a corporation or other legal
entity, and the performance of its obligations hereunder have been duly and
validly authorized by all necessary corporate (or equivalent) action and no
other corporate (or equivalent) proceedings on the part of such Stockholder
are
necessary to authorize this Agreement. This Agreement has been duly
and validly executed and delivered by such Stockholder and, assuming due
authorization, execution and delivery by Parent, constitutes a legal, valid
and
binding obligation of such Stockholder, enforceable against such Stockholder
in
accordance with its terms.
Section
1.03 No Violation.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance by such Stockholder of such Stockholder's obligations hereunder
will
not, conflict with, or result in any violation of, or constitute a default
(with
or without notice or lapse of time, or both) under, or give rise to a right
of,
or result by its terms in the termination, amendment, cancellation or
acceleration of any obligation or the loss of a material benefit under, or
to
increased, additional, accelerated or guaranteed rights or entitlements of
any
Person under, or create any obligation to make a payment to any other Person
under, or result in the creation of a lien on, or the loss of, any of the
properties or assets of such Stockholder (including, without limitation, such
Stockholder’s Shares) pursuant to: (i) if such Stockholder is not an individual,
any provision of its certificate of incorporation, bylaws or similar
organizational documents; or (ii) except as otherwise set forth in Section
4 of
Company’s Amended and Restated Stockholders’ Agreement dated as of December 21,
2001 by and among Company and the stockholders of Company party thereto, as
amended (the “Stockholders’
Agreement), any
Contract to which such Stockholder is a party or by which any of his or its
properties or assets is bound or any order or Legal Requirement applicable
to
such Stockholder or his or its properties or assets.
(b) No
consent, approval, order, authorization or Permit of, or registration,
declaration or filing with or notification to, any Governmental Entity or any
other
Person
(each, a “Consent”) is required
by or with respect to such Stockholder in connection with the execution and
delivery of this Agreement by such Stockholder or the performance by such
Stockholder of such Stockholder's obligations hereunder except where the failure
to obtain any such Consent would not prevent or delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or delay such
Stockholder from fully performing its obligations under this
Agreement.
Section
1.04 Ownership of
Shares. As
of the date hereof, such Stockholder is, and at all times during the Agreement
Period (as hereinafter defined) will be, a record and beneficial owner of such
Stockholder’s Existing Shares. As of the date hereof, such
Stockholder’s Existing Shares together constitute all of the shares of Company
Stock beneficially owned by such Stockholder. Such Stockholder has,
and at all times during the Agreement Period will have, with respect to such
Stockholder’s Shares, except as otherwise set forth in Section 4 of the
Stockholders’ Agreement, (i) the sole power, directly or indirectly, to vote or
dispose of such Shares, and as such, has, and at all times during the Agreement
Period will have, the complete and exclusive power to, (x) issue (or cause
the
issuance of) instructions with respect to the matters set forth in Article
II,
(y) agree to all matters set forth in this Agreement and (z) demand and waive
appraisal or dissent rights. As of the date hereof, with respect to
such Stockholder, except as set forth opposite such Stockholder’s name on Schedule I, such
Stockholder’s Existing Shares are issued and outstanding and entitled to be
voted at any and all Company Stockholder Meetings (as hereinafter defined)
which
include members of the same class of Company Stock, and such Stockholder does
not beneficially own any other Company Securities. Except as
otherwise set forth in the Stockholders’ Agreement, such Stockholder’s Existing
Shares and all other Shares of Company Stock of which such Stockholder acquires
beneficial ownership during the Agreement Period, shall at all times be free
and
clear of liens, proxies, powers of attorney, voting trusts, options, rights
of
first offer or refusal or agreements (other than any liens or proxies created
by
this Agreement). Such Stockholder is the beneficial owner of, and has
good and valid title to, the number of Existing Shares set forth next to such
Stockholder’s name on Schedule I, free and
clear of all liens, other than those arising under the Stockholders’
Agreement. Except as set forth in Section 4 of the Stockholders’
Agreement, there are no agreements or arrangements of any kind, contingent
or
otherwise, to which such Stockholder is a party obligating such Stockholder
to
Transfer (as hereinafter defined), or cause to be Transferred, any of such
Stockholder’s Shares. Except pursuant to the Merger Agreement, and
except as set forth in Section 4 of the Stockholders’ Agreement, no Person has
any contractual or other right or obligation to purchase or otherwise acquire
any of such Stockholder’s Shares. Company has no contractual or other
right or obligation to pay the Merger Consideration to which Stockholder is
otherwise entitled under the Merger Agreement to any other Person.
Section
1.05 Absence of
Litigation. With
respect to such Stockholder, as of the date hereof, there is no action, suit,
investigation or proceeding pending against, or, to the knowledge of such
Stockholder, threatened against or affecting, such Stockholder or any of its
or
his properties or assets (including, without limitation, such Stockholder’s
Shares) that could reasonably be expected to impair the ability of such
Stockholder to perform his or its obligations hereunder or to consummate the
transactions contemplated hereby and by the Merger Agreement on a timely
basis.
Section
1.06 Intermediary
Fees. No
investment banker, broker, finder or other intermediary is, or shall be,
entitled to a fee or commission in respect of this Agreement based on any
arrangement or agreement made by or on behalf of such Stockholder in this
Agreement or otherwise in his or her capacity as a stockholder of
Company.
Section
1.07 Opportunity to Review;
Reliance. Such
Stockholder has had the opportunity to review this Agreement and the Merger
Agreement with counsel of such Stockholder's own choosing. Such
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon such Stockholder's execution, delivery and
performance of this Agreement.
ARTICLE
II
COVENANTS
OF THE STOCKHOLDERS
Each
Stockholder, severally and not
jointly, hereby agrees as follows (with respect to such Stockholder only and
not
with respect to each other Stockholder):
Section
2.01 Transfer of the
Shares. During
the period beginning on the date of this Agreement and ending on the earliest
of
(w) the Effective Time, (x) March 31, 2008, (y) the agreement of the parties
hereto to terminate this Agreement, and (z) the termination of the Merger
Agreement in accordance with its terms (the “Agreement Period”),
each Stockholder hereby irrevocably and unconditionally agrees that at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the holders of Company Stock, however called (each, a “Company Stockholders
Meeting”), or in connection with any written consent of the holders of
Company Stock, such Stockholder shall:
(a) be
present, in person or represented by proxy, or otherwise cause all such
Stockholder’s Shares to be counted for purposes of determining the presence of a
quorum at such meeting (to the fullest extent that such Shares may be counted
for quorum purposes under applicable law);
(b) vote
(or cause to be voted) or deliver a written consent (or cause a written consent
to be delivered) with respect to no less than half such Stockholder’s Existing
Shares, in each case, to the fullest extent that such Shares are entitled to
be
voted at the time of any vote or action by written consent:
(i) in
favor of the (A) approval and adoption of the Merger Agreement, the Merger
and
each of the other actions contemplated by the Merger Agreement; and (B) without
limitation of the preceding clause (A), approval of any proposal to adjourn
or
postpone the Company Stockholders Meeting to a later date if there are not
sufficient votes for approval and adoption
of
the Merger Agreement on the date on which the Company Stockholders Meeting
is
held; and
(ii) other
than in respect of the Merger Agreement and the transactions contemplated
thereby, against (A) any action or agreement that would reasonably be expected
to impede, hinder, interfere with, or prevent or delay or adversely affect
the
consummation of the transactions contemplated by the Merger Agreement, (B)
any
Acquisition Proposal and any action in furtherance thereof, or (C) any action,
proposal, transaction or agreement that would reasonably be expected to result
in a breach of any covenant of Company under the Merger Agreement or of such
Stockholder under this Agreement (collectively, “Frustrating Transactions”).
Section
2.02 Voting
Arrangements. Each
Stockholder,
revoking (or causing to be revoked) any proxies that he or it has heretofore
granted, hereby irrevocably appoints Parent as attorney-in-fact and proxy for
and on behalf of such Stockholder, for and in the name, place and stead of
such
Stockholder, to take the following actions for the sole purpose of fulfilling
such Stockholder’s obligations under Section 2.01(b) above: (a) attend any and
all Company Stockholder Meetings; (b) vote, express consent or dissent or issue
instructions to the record holder to vote no less than half such Stockholder’s
Existing Shares in accordance with the provisions of Section 2.01(b) at any
such
meeting; and (c) grant or withhold, or issue instructions to the record holder
to grant or withhold, consistent with the provisions of Section 2.01, all
written consents with respect to no less than half of such Stockholder’s
Existing Shares. The foregoing proxy shall be deemed to be a proxy
coupled with an interest and is irrevocable (and as such shall survive and
not
be affected by the death, incapacity, mental illness or insanity of such
Stockholder) until the end of the Agreement Period. Each Stockholder
authorizes such attorney and proxy to substitute any other Person to act
hereunder, to revoke any substitution and to file this proxy and any
substitution or revocation with the Secretary of the Company. Each Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 2.02 is
given in connection with and granted in consideration of and as an inducement
to
Parent entering into the Merger Agreement and that such irrevocable proxy is
given to secure the obligations of the Stockholder under Section
2.01. The irrevocable proxy set forth in this Section 2.02 is
executed and intended to be irrevocable, subject, however, to automatic
termination upon the termination of the Agreement Period. Parent
covenants and agrees with each Stockholder that Parent will exercise the
foregoing proxy consistent with the provisions of Section
2.01. Nothing in this Section 2.02 shall in any way (i) limit the
authority and power of any Stockholder to attend any Company Stockholders
Meeting and to vote (or cause to be voted) or deliver a written consent (or
cause a written consent to be delivered) with respect to proposals not included
within the scope of or prohibited by Section 2.01(b) or (ii) grant any authority
or power to Parent to take any action not expressly included within the scope
of
the proxy granted by this Section 2.02 (including without limitation the taking
of any action to elect or remove members of the board of directors of the
Company).
Section
2.03 No Proxies for or
Encumbrances on Shares.
(a) Except
pursuant to the terms of this Agreement or as agreed in writing by Parent,
during the Agreement Period, such Stockholder shall not (nor permit any Person
under such Stockholder’s control to), without the prior written consent of
Parent, directly or indirectly, (1) grant any proxies, powers of attorney,
rights of first offer or refusal or enter into any voting trust, (2) sell
(including, without limitation, short sell), assign, transfer, tender, pledge,
encumber, grant a participation interest in, hypothecate or otherwise dispose
of
(including, without limitation, by gift) (each, a “Transfer”),
(3) otherwise
permit any liens to be created on, or 4) enter into any Contract (including,
without limitation, any derivative, hedging or other agreement), option or
other
arrangement (including, without limitation, any profits sharing arrangement)
or
understanding with respect to the direct or indirect Transfer of, any
Shares. Such Stockholder shall not, and shall not permit any of
its Representatives to, seek or solicit any such Transfer or any such Contract,
option or other arrangement or understanding. Without limiting the
foregoing, such Stockholder shall not, and such Stockholder shall not
permit any Person under such Stockholder’s control or any of its or their
respective Representatives to, take any other action that would make any
representation or warranty of such Stockholder contained herein untrue or
incorrect in any material respect or in any way restrict, limit or interfere
in
any material respect with the performance of such Stockholder’s obligations
hereunder. Without limiting the foregoing, such Stockholder also
agrees not to engage in any transaction with respect to any of such
Stockholder’s Shares with the primary purpose of depriving Parent of the
intended benefits of this Agreement.
(b) Such Stockholder
shall not request that Company register the Transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any of such
Stockholder’s Shares, unless such Transfer is made in compliance with this
Agreement. Such Stockholder hereby authorizes Parent to
direct Company to prevent the Transfer of any of such Stockholder’s Shares on
the books of Company in violation of this Agreement.
Section
2.04 Appraisal
Rights. Such
Stockholder hereby irrevocably waives and agrees not to exercise any
rights such Stockholder may have as to appraisal, dissent or any similar or
related matter with respect to any of such Stockholder’s Shares that may arise
with respect to the Merger or any of the transactions contemplated by the Merger
Agreement, including, without limitation, under Section 262 of the Delaware
General Corporation Law. Notwithstanding anything herein to the
contrary, once the Requisite Stockholder Approval (as defined in the Merger
Agreement) has been obtained, such Stockholder agrees that such Stockholder
will
not rescind any vote or written consent delivered with respect to the Merger
Agreement or the transactions contemplated thereby, unless the Merger Agreement
is terminated in accordance with its terms.
Section
2.05 No Solicitation
of Transactions.
(a) Such
Stockholder shall not, and shall not permit any representative of such
Stockholder to, directly or indirectly: (i) solicit proxies or become a
“participant” in a “solicitation” (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with
respect to a Frustrating Transaction or otherwise encourage or assist any Person
in taking or planning any action that would compete with, restrain or otherwise
serve to interfere with or inhibit the timely consummation of the Merger
in
accordance
with the terms of the Merger Agreement; (ii) initiate a vote or action by
written consent in lieu of a Company Stockholders’ Meeting; or (iii) become a
member of a “group” (as defined under Section 13(d) of the Exchange Act and the
rules and regulations thereunder) with respect to any voting securities of
the
Company, as applicable, with respect to any Frustrating
Transaction.
(b) Such
Stockholder shall not, and shall not permit any Representative of such
Stockholder to, directly or indirectly: (i) solicit, initiate, participate
in,
knowingly encourage or otherwise facilitate, directly or indirectly, any
inquiries relating to, or the making of, any Acquisition Proposal; or (ii)
engage in any negotiations concerning, or provide any information or data to,
or
have any discussions with, any Person relating to any Acquisition
Proposal.
Section
2.06 No Solicitations
of
Employees Such
Stockholder agrees that for a period commencing on the date hereof and ending
two (2) years following the Effective Time, neither such Stockholder nor any
of
its affiliates (other than publicly traded companies) shall, directly or
indirectly, solicit for employment, otherwise solicit the services of or employ
any of the persons listed on Schedule II hereto
and shall not cause, encourage or influence any such solicitation by an
affiliate which is a publicly traded company; provided, however,
that this
Section 2.06 shall not restrict the solicitation or employment by such
Stockholder or any of its affiliates of any such person whose employment is
terminated by Company or such subsidiary of Company without cause or who
terminates his employment for good reason in accordance with his employment
contract with Company provided in each case the solicitation of such person
occurs after the date of such termination.
Section
2.07 Certain
Events. Such
Stockholder agrees to notify Parent promptly in writing of (a) the number of
any
additional shares of Company Stock, options to purchase shares of Company Stock
or other Company Securities, if any, acquired by such Stockholder after the
date
hereof, and (b) with respect to the subject matter contemplated by Section
2.05,
any such inquiries, offers or proposals which are received by, any such
information or data which is requested from, and any such negotiations or
discussions which are sought to be initiated or continued with, such
Stockholder.
Section
2.08 Shares Not Subject
to Voting
Provisions. For
the avoidance of doubt, to the extent such Stockholder’s Shares are not subject
to the provisions of this Article II, this Agreement shall not restrict such
Stockholder from voting or consenting with respect to such Shares in such
Stockholder’s discretion.
ARTICLE
III
COMPANY
CAPITAL STRUCTURE
Each
of Xxxx Xxxxx and Xxxx XxxXxxx hereby represent and warrant that such Person
is
not aware of any inaccuracy in the representations and warranties in Section
3.2
of the Merger Agreement.
ARTICLE
IV
GENERAL
PROVISIONS
Section
4.01 Notices. All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by overnight courier service,
by telecopy or by registered or certified mail (postage prepaid, return receipt
requested) (i) to the Stockholders at the address indicated on the signature
pages hereto and (ii) to the respective parties listed below at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 4.01):
if
to Parent:
GSI
Commerce, Inc.
000
Xxxxx Xxxxxx
Xxxx
xx Xxxxxxx, XX 00000
Attention:
General Counsel
Facsimile
No.: (000) 000-0000
with
a copy to (which shall not constitute notice):
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. Xxxxxxx
Section
4.02 Interpretation. The
table of contents and headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation
of
this Agreement. The respective parties hereto and their attorneys
have negotiated this Agreement and the language hereof will not be construed
for
or against either party, as drafter. A reference to a section,
schedule, or an exhibit will mean a section in, or schedule or exhibit to,
this
Agreement unless otherwise explicitly set forth.
Section
4.03 Enforcement. The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement were not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity. If any
term or other provision of this Agreement is invalid, illegal, or incapable
of
being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement will nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby are not affected in any manner materially adverse to any party
hereto. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the
parties hereto agree that the body making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration or area
of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or
provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall
be
enforceable as so modified.
Section
4.04 Assignment. This
Agreement shall not be assigned by operation of law or otherwise.
Section
4.05 Parties in
Interest. This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their respective successors and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section
4.06 Governing
Law. This
Agreement will be governed in all respects, including validity, interpretation,
and effect, by the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined exclusively in the United States
District Court for the Southern District of New York.
Section
4.07 Waiver of Jury
Trial. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
AND
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY
PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
Section
4.08 Counterparts. This
Agreement may be executed (i) in one or more partially or fully executed
counterparts, each of which will be deemed an original and will bind the
signatory, but all of which together will constitute the same instrument, and
(ii) by facsimile.
Section
4.09 Amendment
and
Waiver. Except
as may otherwise be provided in this Agreement, any provision of this Agreement
may be amended or modified by the parties hereto during the Agreement Period,
if
and only if such amendment or modification is in writing and signed on behalf
of
each of the parties hereto. No provision of this Agreement may be
waived, except by written consent of the party or parties against which
enforcement of the waiver is sought. Any waiver of any term or condition shall
not be construed as a waiver of any subsequent breach or a subsequent waiver
of
the same term or condition, or a waiver of any other term or condition of this
Agreement.
Section
4.10 Miscellaneous. This
Agreement and the documents referred to in this Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
IN
WITNESS WHEREOF, the parties have
duly executed this Agreement as of the day and year first above
written.
|
GSI
COMMERCE, INC.
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
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|
Name:
|
Xxxxxxx
X. Xxxx
|
||
|
Title:
|
Executive
Vice President, Finance and CFO
|
||
[Signature
Page to Voting and Support Agreement]
|
ONELIBERTY
VENTURES 2000, L.P.
|
|||
|
By:
|
OneLiberty
Partners 2000, LLC
|
||
|
its
General Partner
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Name:
|
|||
| Title: | |||
|
Address:
|
|||
|
ONELIBERTY
ADVISORS FUND 2000, L.P.
|
|||
|
By:
|
OneLiberty
Partners 2000, LLC
|
||
|
its
General Partner
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Name:
|
|||
| Title: | |||
|
Address:
|
|||
|
ONELIBERTY
FUND IV, L.P.
|
|||
|
By:
|
OneLiberty
Partners 2000, LLC
|
||
|
its
General Partner
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Managing
Member
|
|||
|
Address:
|
|||
[Signature Page to Voting and
Support Agreement]
|
ONELIBERTY
ADVISORS FUND IV, L.P.
|
|||
|
By:
|
OneLiberty
Partners 2000, LLC
|
||
|
its
General Partner
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Managing
Member
|
|||
|
Address:
|
|||
|
COMMONWEALTH
CAPITAL VENTURES II, L.P.
|
|||
|
By:
|
Commonwealth
Venture Partners II,
|
||
|
L.P.,
its General Partner
|
|||
|
By:
|
/s/
Xxxxxxx XxXxxxxxx
|
||
|
General
Partner
|
|||
|
Address:
|
|||
|
CCV
II ASSOCIATES, L.P.
|
|||
|
By:
|
Commonwealth
Venture Partners II,
|
||
|
L.P.,
its General Partner
|
|||
|
By:
|
/s/
Xxxxxxx XxXxxxxxx
|
||
|
General
Partner
|
|||
|
Address:
|
|||
[Signature
Page to Voting and Support Agreement]
|
Xxxx
Xxxxx
|
||
|
/s/
Xxxx Xxxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
|
Xxx
Xxxxxx
|
||
|
/s/
Xxx Xxxxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
|
Xxxxxx
Xxxxxxx
|
||
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
|
Xxxxxx
Xxxxxxxx
|
||
|
/s/
Xxxxxx Xxxxxxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
|
Xxxx
Xxxxxxx
|
||
|
/s/
Xxxx Xxxxxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
|
Xxxx
XxxXxxx
|
||
|
/s/
Xxxx XxxXxxx
|
||
|
Address:
|
||
[Signature
Page to Voting and Support Agreement]
SCHEDULE
I
TO
VOTING AND SUPPORT
AGREEMENT
|
Common
|
Series
A
|
Series
B
|
Series
C
|
Series
C-1
|
Total
|
|
|
Xxxx
Xxxxx
|
2,416,399
|
456,349
|
297,620
|
-
|
-
|
3,294,837
|
|
Xxx
Xxxxxx
|
864,773
|
-
|
-
|
-
|
-
|
919,653
|
|
Xxxxxx
Xxxxxxx
|
568,750
|
-
|
-
|
-
|
-
|
568,750
|
|
Xxxxxx
Xxxxxxxx
|
575,000
|
-
|
-
|
-
|
-
|
575,000
|
|
Xxxx
Xxxxxxx
|
575,000
|
-
|
-
|
-
|
-
|
575,000
|
|
Xxxx
XxxXxxx
|
-
|
-
|
-
|
-
|
-
|
-
|
|
OneLiberty
Ventures 2000, LP
|
3,685,708
|
407,555
|
5,253,297
|
1,685,761
|
-
|
11,032,321
|
|
OneLiberty
Fund IV, LP
|
1,402,256
|
3,085,299
|
1,635,376
|
446,534
|
-
|
6,569,465
|
|
OneLiberty
Advisors Fund IV, LP
|
56,421
|
160,672
|
61,271
|
21,010
|
-
|
299,374
|
|
OneLiberty
Advisors Fund 2000, LP
|
193,783
|
21,077
|
276,246
|
79,434
|
-
|
570,540
|
|
CCV
II Assoc LP
|
1,941,075
|
3,501,493
|
2,359,152
|
1,052,460
|
-
|
8,854,180
|
|
Commonwealth
Capital Ventures II, LP
|
96,245
|
173,110
|
117,038
|
52,033
|
-
|
438,426
|
|
12,375,411
|
7,805,555
|
10,000,000
|
3,337,232
|
-
|
33,697,547
|
SCHEDULE
II
TO
VOTING AND SUPPORT
AGREEMENT
Xxxx
Xxxxx
Xxx
Xxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxxx
Xxxx
Xxxxxxx
Xxxx
XxxXxxx
