1
Exhibit 10.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered
into as of July 30, 1999, by and among ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation (the "Company"), the holders of the Company's Series A Preferred
Stock (the "Series A Stock") listed on the Schedule of Investors attached as
Schedule A hereto (the "Investors"), and the holders of Common Stock of the
Company (the "Founders") listed on the Schedule of Founders attached as
Schedule B hereto. The Company, the Founders and the Investors are individually
each referred to herein as a "Party" and are collectively referred to herein as
the "Parties." The Company's Board of Directors is referred to herein as the
"Board."
WITNESSETH:
WHEREAS, the Company and certain of the Investors have
entered into that certain Series A Preferred Stock Purchase Agreement of even
date herewith (the "Purchase Agreement"), which provides for, among other
things, the purchase by the Investors of shares of the Series A Stock;
WHEREAS, the Company and Let's Talk Cellular & Wireless,
Inc., a Florida corporation and a Founder ("LTC"), are parties to a license
agreement and a binding Letter of Intent with the Company which provide for,
among other things, the purchase of shares of Common Stock of the Company by
LTC, the license by LTC of certain technology to the Company and the provision
of certain services for the Company by LTC (collectively, the "LTC
Agreements");
WHEREAS, the Company and H.I.G. Brickellbay, Inc., a Cayman
Islands corporation ("HIG"), are parties to a Common Stock Purchase Agreement
of even date herewith (the "Common Stock Purchase Agreement") which provides
for, among other things, the purchase by HIG of shares of Common Stock of the
Company;
WHEREAS, the Company's Certificate of Incorporation provides
that (a) holders of shares of the Company's Series A Stock, voting together as
a class, shall elect four (4) members of the Board (the "Series A Directors"),
and (b) holders of shares of Common Stock and the holders of shares of Series A
Stock, voting together as a class, shall be entitled to elect the three (3)
remaining members of the Board ("Common Directors"); and
WHEREAS, to induce certain Investors to enter into the
Purchase Agreement and purchase shares of Series A Stock thereunder, to induce
HIG to enter the Common Stock Purchase Agreement and to induce LTC to enter
into the LTC Agreements and purchase shares of Common Stock of the Company
thereunder, the Company and the Founders desire to enter into this Agreement
with such Investors; and
NOW, THEREFORE, in consideration of the foregoing premises
and certain other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1
2
1. Agreement to Vote. Each Investor, as a holder of Series A
Stock, hereby agrees on behalf of itself and any transferee or assignee of any
such shares of the Series A Stock, to hold all of the shares of Series A Stock
registered in its name (and any securities of the Company issued with respect
to, upon conversion of, or in exchange or substitution of the Series A Stock,
and any other voting securities of the Company subsequently acquired by such
Investor) (hereinafter collectively referred to as the "Investor Shares")
subject to, and to vote the Investor Shares at a regular or special meeting of
stockholders (or by written consent) in accordance with, the provisions of this
Agreement. Each Founder, as a holder of Common Stock of the Company, hereby
agrees on behalf of itself and any transferee or assignee of any such shares of
Common Stock, to hold all of such shares of Common Stock and any other
securities of the Company acquired by such Founder in the future (and any
securities of the Company issued with respect to, upon conversion of, or in
exchange or substitution for such securities) (the "Founder Shares") subject
to, and to vote the Founder Shares at a regular or special meeting of
stockholders (or by written consent) in accordance with, the provisions of this
Agreement.
2. Board Size. The holders of Investor Shares and Founder
Shares shall vote at a regular or special meeting of stockholders (or by
written consent) such shares that they own (or as to which they have voting
power) to ensure that the size of the Board shall be set and remain at seven
(7) directors; provided, however, that such Board size may be subsequently
increased or decreased pursuant to an amendment of this Agreement in accordance
with Section 15 hereof.
3. Election of Directors.
(a) In any election of directors of the Company to elect
the Common Directors, the Parties holding shares of Series A Stock or Common
Stock shall each vote at any regular or special meeting of stockholders (or by
written consent) such number of shares of Series A Stock or Common Stock then
owned by them (or as to which they then have voting power) as may be necessary
to elect one (1) director nominated by Let's Talk Cellular & Wireless and two
(2) directors that are employees of the Company, one of which directors shall
be the Company's chief executive officer and the other of which shall be ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ for so long as ▇▇. ▇▇▇▇▇▇▇▇▇ is an employee of the Company and
thereafter shall be an individual designated by the Company's chief executive
officer.
(b) In any election of directors of the Company to elect
the Series A Directors, the Parties holding shares of Series A Stock shall each
vote at any regular or special meeting of stockholders (or by written consent)
such number of shares of Series A Stock then owned by them (or as to which they
then have voting power) as may be necessary to elect two (2) directors
nominated by HIG Capital Management and two (2) directors nominated by
Brentwood Venture Capital; in each case for so long as such Investor or its
affiliates own at least fifty percent (50%) of the Common Stock issued or
issuable upon conversion of the Series A Stock purchased by such Investor
pursuant to the Purchase Agreement.
4. Removal. Any director of the Company may be removed from
the board in the manner allowed by law and the Company's Certificate of
Incorporation and Bylaws, but
2
3
with respect to a director designated pursuant to subsections 3(a) and 3(b)
above, only upon the vote or written consent of the stockholders entitled to
designate such director.
5. Legend on Share Certificates. Each certificate
representing any Shares shall be endorsed by the Company with a legend reading
substantially as follows:
"The Shares evidenced hereby are subject to a Voting
Agreement (a copy of which may be obtained upon written
request from the issuer), 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."
6. Covenants of the Company. The Company agrees to use its
best efforts to ensure that the rights granted hereunder are effective and that
the Parties hereto enjoy the benefits thereof. Such actions include, without
limitation, the use of the Company's best efforts to cause the nomination and
election of the directors as provided above. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all of the provisions of this
Agreement and in the taking of all such actions as may be necessary,
appropriate or reasonably requested by the holders of a majority of the
outstanding voting securities held by the Parties hereto assuming conversion of
all outstanding securities in order to protect the rights of the Parties
hereunder against impairment.
7. No Liability for Election of Recommended Directors.
Neither the Company, the Founders, the Investors, nor any officer, director,
stockholder, partner, employee or agent of such Party, makes any representation
or warranty as to the fitness or competence of the nominee of any Party
hereunder to serve on the Company's Board 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.
8. Grant of Proxy. Should the provisions of this Agreement be
construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and are irrevocable for the term of this Agreement.
9. Specific Enforcement. It is agreed and understood that
monetary damages would not adequately compensate an injured Party for the
breach of this Agreement by any Party, that this Agreement shall be
specifically enforceable, and that any breach or threatened breach of this
Agreement shall be the proper subject of a temporary or permanent injunction or
restraining order. Further, each Party hereto waives any claim or defense that
there is an adequate remedy at law for such breach or threatened breach.
10. Execution by the Company. The Company, by its execution
in the space provided below, agrees that it will cause the certificates
evidencing the shares of Common Stock and Series A Stock to bear the legend
required by Section 5 herein, and it shall supply, free of charge, a copy of
this Agreement to any holder of a certificate evidencing shares of capital
stock of the Company upon written request from such holder to the Company at
its principal office.
3
4
The parties hereto do hereby agree that the failure to cause the certificates
evidencing the shares of Common Stock and Series A Stock to bear the legend
required by Section 5 herein and/or failure of the Company to supply, free of
charge, a copy of this Agreement as provided under this Section 5 shall not
affect the validity or enforcement of this Agreement.
11. Captions. The captions, headings and arrangements used in
this Agreement are for convenience only and do not in any way limit or amplify
the terms and provisions hereof.
12. Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be sent prepaid registered or certified
mail, return receipt requested, addressed to the other Party at the address
shown below or at such other address for which such Party gives notice
hereunder. Such notice shall be deemed to have been given three (3) days after
deposit in the mail.
13. Term. This Agreement shall terminate and be of no further
force or effect upon (a) the Company's sale of its Common Stock in a firm
commitment underwritten public offering at a market valuation of at least
$100,000,000 immediately prior to effectiveness of the Company's registration
statement and pursuant to a registration statement on Form S-1 or Form SB-2
under the Securities Act of 1933, as amended, the public offering price of
which is not less than $15,000,000 in the aggregate), (b) the acquisition of
the Company by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation) that results in the transfer of fifty percent (50%) or more of
the outstanding voting power of the Company or a sale of all or substantially
all of the assets of the Company, or (c) the written consent of the holders of
a majority of the then outstanding Founders Shares and the holders of a
majority of the then outstanding Preferred Shares.
14. Manner of Voting. The voting of shares pursuant to this
Agreement may be effected in person, by proxy, by written consent, or in any
other manner permitted by applicable law.
15. Amendments and Waivers. Any term hereof may be amended
and the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the holders of a majority of the then outstanding voting
securities held by the Party or Parties for whose benefit such term has been
included. Any amendment or waiver so effected shall be binding upon the Parties
hereto.
16. Stock Splits, Stock Dividends, etc. In the event of any
issuance of shares of the Company's voting securities hereafter to any of the
Parties hereto (including, without limitation, in connection with any stock
split, stock dividend, recapitalization, reorganization, or the like), such
shares shall become subject to this Agreement and shall be endorsed with the
legend set forth in Section 5.
17. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any
4
5
provision of this Agreement shall be held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
18. Binding Effect. In addition to any restriction or
transfer that may be imposed by any other agreement by which any Party hereto
may be bound, this Agreement shall be binding upon the Parties, their
respective heirs, successors and assigns and to such additional individuals or
entities that may become stockholders of the Company and that desire to become
Parties hereto.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to conflicts of law principles thereof.
20. Entire Agreement. This Agreement is intended to be the
sole agreement of the Parties as it relates to this subject matter and does
hereby supersede all other agreements of the Parties relating to the subject
matter hereof.
21. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5
6
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
7
INVESTORS:
H.I.G. WIRELESS INTERNET, INC.
By: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
c/o ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
8
INVESTORS:
HIG WIRELESS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
c/o ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Brentwood Associates IX, LP
By: Brentwood IX Ventures, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Managing Member
------------------------------------
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
9
INVESTORS:
HIG WIRELESS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
c/o ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Brentwood Affiliates Fund III, LP
By: Brentwood IX Ventures, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Managing Member
------------------------------------
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
10
INVESTORS:
Accel VII L.P.
By: Accel VII Associates L.L.C.
Its General Partner
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
----------------------------------------
▇. ▇▇▇▇▇▇ Sednaoui
Managing Member
Accel Internet Fund III L.P.
By: Accel Internet Fund III Associates L.L.C.
Its General Partner
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
----------------------------------------
▇. ▇▇▇▇▇▇ Sednaoui
Managing Member
Accel Investors '99 L.P.
By: /s/ ▇. ▇▇▇▇▇▇ Sednaoui
----------------------------------------
▇. ▇▇▇▇▇▇ Sednaoui
General Partner
Addresses for Notices:
Accel Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:▇▇▇▇▇▇▇▇ ▇▇▇▇ Ranzetta and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
and
Accel Partners
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:▇. ▇▇▇▇▇▇ Sednaoui
Tel:(▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
11
INVESTORS:
G & H Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/
---------------------------------------
Name:
-------------------------------------
Title: Partner
------------------------------------
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
12
FOUNDERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LET'S TALK CELLULAR & WIRELESS, INC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
13
FOUNDERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LET'S TALK CELLULAR & WIRELESS, INC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
14
FOUNDERS:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LET'S TALK CELLULAR & WIRELESS, INC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
15
FOUNDERS:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LET'S TALK CELLULAR & WIRELESS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
--------------------------------
Title: CEO
-------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
16
FOUNDERS:
H.I.G. BRICKELLBAY, INC.
By: /s/
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGE TO ▇▇▇▇▇▇▇▇.▇▇▇, INC.
VOTING AGREEMENT
17
SCHEDULE A
LIST OF INVESTORS
H.I.G. WIRELESS INTERNET, INC.
BRENTWOOD ASSOCIATES IX, LP
BRENTWOOD AFFILIATES FUND III, LP
ACCEL VII L.P.
ACCEL INTERNET FUND III, L.P.
ACCEL INVESTORS '99 L.P.
G & H PARTNERS
18
SCHEDULE B
LIST OF FOUNDERS
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LET'S TALK CELLULAR & WIRELESS, INC.
H.I.G. BRICKELLBAY, INC.