EXHIBIT 10.2
AGREEMENT
This Agreement (the "Agreement") is entered into as of the 14th day of
August, 2003, by IPOF Fund, LP, an Ohio limited partnership ("IPOF"), David
Dadante, an individual resident of Ohio and the general partner of IPOF
("Dadante", and together with IPOF and any other persons or entities with which
he may constitute a "group", as defined in and pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall be referred to
herein as the "IPOF Group"), and Innotrac Corporation, a Georgia corporation
(the "Company").
WHEREAS, the IPOF Group is currently the beneficial owner of 2,362,788
shares of the Company's Common Stock, which represents approximately 20.57% of
the shares of such class outstanding.
WHEREAS, Mr. Dadante is the general partner of IPOF and holds voting
power and dispositive power over any shares of Common Stock beneficially owned
by IPOF.
WHEREAS, the Company is a party to that certain Rights Agreement dated
as of December 31, 1997 between it and SunTrust Bank, as amended (the "Rights
Agreement"), which provides that any person or group which is the beneficial
owner of 15% of more of the outstanding Common Stock shall be deemed to be an
Acquiring Person (as defined in the Rights Agreement), unless the so-called
"inadvertent acquisition" exception in Section 1(a) of the Agreement is
applicable.
WHEREAS, the Board of Directors has determined in good faith to amend
the Rights Agreement so as to exclude the IPOF Group from the definition of
Acquiring Person unless and until the IPOF Group becomes the beneficial owner of
more than 25% of the Company's outstanding Common Stock, as set forth in
Amendment No. 2 to the Rights Agreement ("Amendment No. 2").
WHEREAS, the Company and the IPOF Group desire to establish in this
Agreement certain conditions of the IPOF Group's relationship with the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth in this Agreement, the parties hereby agree as follows:
1. Dadante and IPOF represent and warrant that (1) the first and
second recitals of this Agreement are true and correct, (2)
the IPOF Group crossed the 15% beneficial ownership threshold
under the Rights Agreement inadvertently, and was completely
without knowledge of the existence of the Rights Agreement
until on or about July 30, 2003, (3) the shares of Common
Stock beneficially owned by the IPOF Group are and will be
held in the ordinary course of business and are not and will
not be held for the purpose of or with the effect of changing
or influencing the control of the Company, and (4) they are
aware
of the existence of the Rights Agreement and agree to comply
with all aspects of the Agreement in the future.
2. Term. The term (the "Term") if this Agreement shall commence
on the date hereof and shall continue until the date on which
the IPOF Group beneficially owns less than fifteen percent
(15%) of the Company's outstanding Voting Securities. For
purposes of this Agreement, the term "Voting Securities" shall
mean any securities entitled to vote generally on matters
required to be presented for a vote by the shareholders of the
Company, or any direct or indirect rights or options to
acquire any such securities or any securities convertible or
exercisable into or exchangeable for such securities.
3. Voting and Standstill Provisions.
3.01 Restrictions on Voting Securities. For the Term of this
Agreement, the IPOF Group agrees that any and all of the Voting Securities
beneficially owned by the IPOF Group that represent more than 15% of the
Company's outstanding Voting Securities shall be voted by the IPOF Group in
proportion to the vote(s) cast by all of the other shareholders of the Company
who beneficially own Voting Securities other than the IPOF Group.
3.02 Restrictions on Certain Actions by the IPOF Group. During the
Term, or if earlier through August 6, 2006, the IPOF Group covenants that it
will not, and will cause each of its Affiliates and Associates not to, singly or
as part of a partnership, limited partnership, syndicate or other group (as
those terms are used in Section 13(d)(3) of the Exchange Act), directly or
indirectly:
(a) acquire beneficial ownership of more than 25% of the Company's
outstanding shares of Common Stock;
(b) make, or in any way participate in any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the Exchange
Act), solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Voting Securities or become a
"participant" in any "election contest" (as such terms are defined or used in
Rule 14a-11 under the Exchange Act) with respect to the Company;
(c) form, join or encourage the formation of, any new "person"
within the meaning of Section 13(d)(3) of the Exchange Act with respect to any
Voting Securities;
(d) deposit any Voting Securities into a voting trust or, other
than as set forth in this Agreement, subject any such Voting Securities to any
arrangement or agreement with respect to the voting thereof;
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(e) initiate, propose or otherwise solicit shareholders for the
approval of one or more shareholder proposals with respect to the Company as
described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce
any other person to initiate any shareholder proposal;
(f) seek election to or seek to place a representative on the
Board of Directors of the Company or, except with the approval of management of
the Company, seek the removal of any member of the Board of Directors of the
Company;
(g) act to seek or control, disrupt or influence the management,
policies, or affairs of the Company; or
(h) instigate or encourage any third party to do any of the
foregoing.
4. Transfer Restrictions.
The IPOF Group covenants that it will comply with the conditions of
rule 144 promulgated under the Securities Act of 1933, as amended, to the
extent and for so long as such provisions are applicable to the IPOF Group.
Any transfers by members, partners or other such Affiliates or Associates
of the IPOF Group of shares received by such persons from the IPOF Group or its
Affiliates or Associates as a distribution shall be aggregated for the purposes
of calculating such transfer limitations for a period of two years after the
date of the distribution.
5. Miscellaneous.
5.01 Enforcement. The IPOF Group, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would
occur if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
the parties will be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they may be entitled at law or in equity.
5.02 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the transactions
contemplated by such parties and may be amended only by an agreement in writing
executed by both parties.
5.03 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of
the parties that they would have executed the remaining provisions without
including any that may be declared unenforceable. Notwithstanding the
foregoing, in the event Amendment No. 2 to the Rights Agreement is found by a
court of competent jurisdiction to be unenforceable and if the Company so
requests, the IPOF Group will sell shares of Common Stock such that it owns
less than 15% of the total shares of Common
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Stock then outstanding as soon as practicable, but in any event within one year
from the date that the Company so requests.
5.04. Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
5.05. Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties, and each such
executed counterpart will be an original instrument.
5.06. Notices. All notice, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, facsimile transmission or
air courier guaranteeing overnight delivery:
(a) if to the Company, to:
Innotrac Corporation
6655 Sugarloaf Parkway
Duluth, Georgia 30097-4916
Attention: Mr. David L. Gamsey
Telephone: (678) 584-4020
Facsimile: (678) 584-8978
with copies to:
David A. Stockton, Esquire
Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309
Telephone: (404) 815-6444
Facsimile: (404) 541-3402
or to other such person or address as the Company shall furnish to the IPOF
Group in writing;
(b) if to the IPOF Group, to
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c/o Mr. David Dadante
25381 Chatworth Drive
Euclid, Ohio 44117
Telephone: (216) 486-0972
with copies to:
Steven L. Wasserman, Esquire
Chernett Wasserman Yarger Pasternak LLC
The Tower at Erieview
1301 East 9th Street, Suite 3300
Cleveland, Ohio 44114
Telephone: (216) 737-5000
Facsimile: (216) 737-0011
or to other such persons or address as the IPOF Group shall furnish to the
Company in writing.
All notices, requests, demands and other communications shall be deemed to have
been duly given; at the time of delivery by hand, if personally delivered; five
(5) business days after having been deposited in the mail, postage pre-paid, if
mailed; when answered back, if telexed; when received acknowledged. If by
facsimile; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
5.07. Successors and Assigns. this Agreement shall inure to the
benefit of any successor or assign of the Company.
5.08. Governing Law. This Agreement will be governed and construed
and enforced in accordance with the laws of the State of Georgia, without
giving effect to the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
INNOTRAC CORPORATION
By: /s/ David L. Gamsey
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Its: CFO
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DAVID DADANTE, an individual
/s/ David Dadante
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David Dadante
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IPOF FUND, LP
By: /s/ David Dadante
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David Dadante, General Partner
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