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EXHIBIT 9.1
PAN WORLD CORPORATION
VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
November 2, 1999 by and among Pan World Corporation., a Nevada corporation (the
"COMPANY") and holders of Pan World Common Stock whose names appear on the
Signature Page hereto (the "MAJOR COMMON STOCKHOLDERS") effective as of and
contingent upon the closing of the Merger (as defined in Paragraph A below).
RECITALS
A. Tribeworks, Inc., a California corporation ("TRIBEWORKS"), and
Tribeworks Acquisition Corp., a California corporation and wholly-owned
subsidiary of the Company ("MERGER SUB"), have entered into an Agreement and
Plan of Merger dated as of August 19, 1999 (the "MERGER AGREEMENT"), which
provides for the merger (the "MERGER") of Merger Sub with and into Tribeworks.
B. Pursuant to the Merger Agreement, the holders of Tribeworks Series A
Preferred Stock and the holders of Tribeworks Common Stock have agreed to
convert such shares of Tribeworks Series A Preferred Stock and shares of
Tribeworks Common Stock, as applicable into shares of the Company Common Stock
(on the terms and conditions set forth in the Merger Agreement).
C. A condition to the parties' obligations under the Merger Agreement is
that the Company and the Major Common Stockholders enter into this Agreement for
the purpose of setting forth the terms and conditions pursuant to which the
Major Common Stockholders shall vote their shares of the Company's Common Stock
in favor of certain designees to the Company's Board of Directors. The Company
and the Major Common Stockholders each desire to facilitate the voting
arrangements set forth in this Agreement by agreeing to the terms and conditions
set forth below.
AGREEMENT
The parties agree as follows:
1. ELECTION OF DIRECTORS. At each annual meeting of the stockholders of
the Company, or at any meeting of the stockholders of the Company at which
members of the Board of Directors of the Company are to be elected, or whenever
members of the Board of Directors are to be elected by written consent, the
Major Common Stockholders agree to vote or act with respect to their shares so
as to elect:
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(a) Duncan Kennedy
(b) Patrick Soquet
(c) Gilbert Amar
(d) Thomas Williams
2. NO REVOCATION. The voting agreements contained herein are coupled with
an interest and may not be revoked during the term of this Agreement.
3. REMOVAL OF DIRECTORS. In the event of any vacancy on the Board of
Directors, the Major Common Stockholders will vote to fill such vacancy by
person(s) to be designated by Duncan Kennedy. In the event that Duncan Kennedy
resigns from the position of Director from the Company, then, the Major Common
Stockholders will vote to fill such vacancy by a person ("Kennedy Nominee") to
be nominated by Duncan Kennedy, and thereafter, the Major Common Stockholders
will vote to fill any such vacancy on the Board of Directors by such person as
shall be designated by the Kennedy Nominee or any successor(s) to the Kennedy
Nominee on the Board of Directors.
4. LEGENDS. Each certificate representing shares held by a Major Common
Stockholder or their respective transferees, successors or assigns shall be
endorsed by the Company with a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND
AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
5. TERMINATION.
5.1 TERMINATION EVENT. This Agreement shall terminate upon the
earlier of:
(a) the consummation of the Company's initial public offering on
a firm commitment underwriting basis pursuant to a registration statement under
the Securities Act of 1933, as amended; or
(b) a sale of all or substantially all of the assets of the
Company or a consolidation or merger of the Company with or into any other
corporation or corporations in which the holders of the Company's outstanding
shares immediately before such consolidation or merger do not, immediately after
such consolidation or merger retain stock representing a majority of the voting
power of the surviving corporation of such consolidation or merger,
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provided that this Section 5.1 shall not apply to a merger effected exclusively
for the purpose of changing the domicile of the Company.
5.2 REMOVAL OF LEGEND. At any time after the termination of this
Agreement in accordance with Section 5.1, any holder of a stock certificate
legended pursuant to Section 4 may surrender such certificate to the Company for
removal of the legend, and the Company will duly reissue a new certificate
without the legend.
6. NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTOR. None of the
parties hereto and no officer, director, stockholder, partner, employee or agent
of any such party makes any representation or warranty as to the fitness or
competence of the nominee of any party hereunder to serve on the Board of
Directors of the Company by virtue of such party's execution of this Agreement
or by the act of such party in voting for such nominee pursuant to this
Agreement.
7. AMENDMENTS; WAIVERS. Any term hereof may be amended or waived
with the written consent of the Company and holders of the majority of the total
aggregate number of shares of Common Stock held by the Major Common Stockholders
as of the time of amendment hereof; provided, however, in no event may the terms
of this Agreement be amended prior to the fifth anniversary hereof.
8. NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address as set forth below or as subsequently modified by
written notice.
9. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
10. GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
12. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
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13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supersedes all other written or oral agreements existing between the parties
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of the date and year first written above.
THE COMPANY:
Pan World CORPORATION
By: /s/ Duncan Kennedy
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Name: Duncan Kennedy
Title: President
MAJOR COMMON STOCKHOLDERS
/s/ Daniel L. Hodges
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Daniel L. Hodges
5505 N. Indian Trail
Tucson, AZ 85759
/s/ Jennifer L. Worden
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Jennifer L. Worden
9055 E. Catlina Hwy., No. 5206
Tucson, AZ 85749
/s/ Duncan Kennedy
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Duncan Kennedy
1620 Montgomery Street, Suite 120
San Francisco, CA 94111
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SIGNATURE PAGE TO VOTING AGREEMENT
DATED NOVEMBER 2, 1999
MAJOR COMMON STOCKHOLDERS
Keepsake SPRL
Avenue Eugene Demolder 38
1030 Brussels
Belgium
By: /s/ Patrick Soquet
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Name: Patrick Soquet
Title: Manager
/s/ Gilbert Amar
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Gilbert Amar
1620 Montgomery Street, Suite 120
San Francisco, CA 94111
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