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STOCKHOLDERS VOTING AGREEMENT
THIS STOCKHOLDERS VOTING AGREEMENT (this "Agreement") dated as of
October 15, 1999 (the "Effective Date"), is by and among NexGen Technologies,
L.L.C., a Maryland limited liability company ("NexGen"), 3Com Corporation, a
Delaware corporation ("3Com"), Telcom-ATI Investors, L.L.C., a Delaware limited
liability company ("Telcom") and Reuters MarketClip Holdings Sarl, a limited
liability company formed under the laws of Switzerland ("Reuters"). Each of
NexGen, 3Com, Telcom and Reuters is referred to as a "Voting Party," and
collectively they are referred to as "Voting Parties." Capitalized terms used
but not defined herein shall have the respective meanings assigned to such terms
in the form of Certificate of Incorporation of the Company attached as Exhibit A
to the Merger Agreement, which will be effective upon the effectiveness of the
Merger (the "Certificate of Incorporation").
RECITALS
WHEREAS, the Voting Parties, Pyramid Ventures, Inc., a Delaware
Corporation ("Pyramid"), Transettlements, Inc., a Georgia corporation
("Transettlements") Xxxx X. Ein and J. Xxxxxx Xxxxx, Xx. (the Voting Parties,
Pyramid, Transettlements, Ein and Xxxxx, together the "Members") are parties to
the Amended and Restated Limited Liability Company Agreement, dated as of
October 29, 1998, as amended (the "LLC Agreement"), of Aether Technologies
International, L.L.C., a Delaware limited liability company (the "LLC");
WHEREAS, the Members entered into a Plan of Conversion, dated as of
October 15, 1999 (the "Plan of Conversion"), which provides that immediately
prior to the closing of the Company's initial public offering of Common Stock
(the "IPO") (i) the LLC shall be converted into a corporation by the Members
contributing their interests in the LLC (the "Contributions") to the Company in
exchange for shares of common stock, par value $.01, in the Corporation ("Common
Stock") pursuant to the terms and conditions of an Agreement and Plan of
Contribution in the form attached as Exhibit A to the Plan of Conversion, and
(ii) immediately thereafter the LLC will be merged (the "Merger") with and into
the Company pursuant to an Agreement and Plan of Merger in the form attached as
Exhibit B to the Plan of Conversion;
WHEREAS, as a result of the Contributions and Merger, each Voting Party
will beneficially own the number of shares of Common Stock set forth opposite
such Voting Party's name on Exhibit A to this Agreement;
WHEREAS, the LLC Agreement contemplates, and the parties hereto have
agreed, that following conversion of the LLC to the Company in accordance with
the Plan of Conversion, certain rights, privileges and obligations set forth in
the LLC Agreement with respect to the ownership and governance of the LLC will,
to the extent and upon the terms and subject to the conditions set forth herein,
arise with respect to the ownership and governance of the Company.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties agree as follows:
1. Board of Directors. This Agreement shall not become effective
unless and until the Merger is completed. From and after the date of the Merger
and until the provisions of this Section 1 cease to be effective, each of the
Voting Parties shall vote, or cause the vote of, all shares of Common Stock and
other voting securities of the Company over which such Voting Party has voting
control, and will take all other necessary or desirable actions within its
control (whether in its capacity as a stockholder or officer of the Company or
otherwise) in order to ensure that the size of the Board of Directors (the
"Board") shall be no more than ten (10) and no less than seven (7) and to cause
the election to the Board of:
(a) Two (2) representatives designated by NexGen, who
initially shall be Xxxxx Xxxx and Xxxx Xxx;
(b) Two (2) representatives designated by Telcom, who
initially shall be Xxxxx Xxxxxxx and Xxxxxxxx Xxxxx;
(c) One (1) representative designated by 3Com, who initially
shall be Xxxxxx Xxxxxxx;
(d) One (1) representative designated by Reuters, who
initially shall be Xxxxx Xxxxx; and
(e) Commencing on the date of the first annual meeting of
Stockholders of the Company, if the Board of Directors
consists of up to nine (9) members, (1) representative
jointly designated by NexGen and Telcom; and if the
Board of Directors consists of at least ten (10) or
eleven (11) members, two (2) representatives jointly
designated by NexGen and Telcom.
2. Vacancies. In the event that any director who is designated by a
Voting Party as provided in Section 1 above for any reason ceases to serve as a
member of the Board during his or her term of office, the parties hereto shall
cause the resulting vacancy to be filled by a representative designated as
provided in Section 1 by the respective entity who designated the vacating
representative. Each of the Voting Parties shall attend in person or by duly
executed proxy, and vote its shares of the voting stock of the Company in
accordance with this Agreement at, each annual meeting of the stockholders of
the Company and each special meeting of the stockholders of the Company
involving the election of directors of the Company.
3. Application of Agreement to After-Acquired-Shares. All of the
provisions of Section 1 shall apply to all voting securities issued by the
Company that are held by the Voting Parties, whether the voting securities are
issued by the Company before or after the Effective
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Date, and all voting securities issued as a replacement for the Shares or with
respect to the Shares as a result of any stock dividend, stock split or other
similar event.
4. Nontransferability. Each party hereby agrees that the
obligations and covenants contained herein are unique to the original parties
hereto and that no party may donate, transfer, sell, assign, pledge, hypothecate
or otherwise dispose (other than to an agent, wholly-owned subsidiary or other
person or entity that such party controls, is controlled by, or is under common
control with, either directly or indirectly (an "Affiliate")), any of its
rights and obligations under this Agreement. Any transfer not effected in
accordance with this Section 4 shall be null and void.
5. No Heightened Duties. Each party hereby acknowledges and agrees
that no fiduciary duty, duty of care, duty of loyalty or other heightened duty
shall be created or imposed upon any party to any other party, the Company or
any other stockholder of the Company, by reason of this Agreement and/or any
right or obligation hereunder.
6. Amendments; Waivers. Any term hereof may be amended or waived
only by the written consent of each of the Voting Parties who, subject to
Section 13, is still a party to this Agreement. Any amendment or waiver not
effected in accordance with this Section 6 shall be null and void and
non-binding upon the Voting Parties and their respective successors and assigns.
No waivers of any breach of this Agreement extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of such
party or any other party hereto with respect to any subsequent breach.
7. Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed delivered on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or confirmed
fax, or forty-eight (48) hours after being deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, to the following addresses:
(i) at the addresses set forth on such parties signature page, or (ii) at such
other address as such Voting Parties shall have furnished to the Company in
writing.
8. Severability. If one or more provisions of or obligations under
this Agreement are held to be invalid, illegal, or unenforceable under
applicable law, then such provision or obligation shall be excluded from this
Agreement, and the remaining provisions of and obligations under this Agreement
shall be enforceable in full in accordance with their terms.
9. 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
Delaware, without giving effect to principles of conflicts of law.
10. Counterparts. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one agreement.
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11. Successors and Assigns. Subject to Section 4 above, 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.
12. Specific Performance. The parties hereby acknowledge that it is
impossible to measure in money the damages which will accrue to a party hereto
or to its heirs, personal representatives, or assignees by reason of a party's
failure to perform its obligations under this Agreement and therefore agree
that, in addition to and without limiting any remedies available at law, each of
the parties hereto shall have full equitable remedies available to such party.
13. Termination.
(a) This Agreement shall terminate and the obligations of
the Voting Parties to vote their respective shares of
voting securities shall cease upon the earlier to occur
of:
(i) termination of the Merger Agreement in
accordance with its terms;
(ii) the closing of (A) a merger or consolidation of
the Company with or into any other corporation
(other than a wholly-owned subsidiary
corporation) in which all of the voting power of
the Company is disposed of, (B) the sale of all
or substantially all the assets or business of
the Company, or (C) any other transaction or
series of related transactions in which all of
the voting power of the Company is disposed of;
or
(iii) written consent of each of the Voting Parties
who, subject to this Section 13, is still a
party to this Agreement.
(b) A Voting Party will lose its right to designate: (i) one
representative to the Board under Section 1 if such
Voting Party is the beneficial owner of less than 60% of
the Shares owned by it at the time of the IPO as set
forth on Exhibit A; and (ii) one representative to the
Board under Section 1 if such Voting Party is the
beneficial owner of less than 30% of the Shares owned by
it at the time of the IPO as set forth on Exhibit A, in
each case determined as of the applicable record date.
(c) A Voting Party will no longer have any rights or
obligations under this Agreement and will cease to be a
party hereto when it, and all of its Affiliates, lose
the right to designate any representative to the Board
under Section 1.
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14. Entire Agreement. This Agreement contains the parties' entire
understanding and agreement with respect to its subject matter, and any and all
conflicting or inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their representatives that are
not incorporated in this Agreement shall be null and void and are merged into
this Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the Voting Parties have entered into this
Stockholders Voting Agreement as of the Effective Date.
3COM CORPORATION
By: /s/ XXXXXX XXXXXXX
---------------------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax No. 000-000-0000
NEXGEN TECHNOLOGIES, L.L.C.
By: /s/ XXXXX X. XXXX
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Member
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Fax No. 000-000-0000
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IN WITNESS WHEREOF, the Voting Parties have entered into this
Stockholders Voting Agreement as of the Effective Date.
TELCOM-ATI INVESTORS, L.L.C.
By: /s/ XXX X. XXXXXXX
-----------------------------
Name: Xxx X. Xxxxxxx
Title: General Counsel
Address: 000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax No. 000-000-0000
REUTERS MARKETCLIP HOLDINGS SARL
By: /s/ XXXXX XXXXX
-----------------------------
Name:
Title:
Address: c/o Reuters America, Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax No. 000-000-0000
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EXHIBIT A
---------
Shares of Common Stock
Voting Party Beneficially Owned
------------ ------------------
NexGen Technologies, L.L.C. 6,791,668
3Com Corporation 2,500,000
Telcom-ATI Investors, L.L.C. 5,151,948
Reuters MarketClip Holdings Sarl 2,828,055
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FIRST AMENDMENT TO STOCKHOLDERS VOTING AGREEMENT
This FIRST AMENDMENT TO STOCKHOLDERS VOTING AGREEMENT ("Amendment")
dated as of March 6, 2000 (the "Effective Date"), is by and among NexGen
Technologies, L.L.C., a Maryland limited liability company ("NexGen"), 3Com
Corporation, a Delaware corporation ("3Com"), Telcom-ATI Investors, L.L.C., a
Delaware limited liability company ("Telcom") and Reuters MarketClip Holdings
Sarl, a limited liability company formed under the laws of Switzerland
("Reuters"). Each of NexGen, 3Com, Telcom and Reuters is referred to as a
"Voting Party," and collectively they are referred to as "Voting Parties."
WHEREAS, the Voting Parties entered into a Stockholders Voting
Agreement ("Agreement") on October 12, 1999; and
WHEREAS, the Voting Parties find it necessary at this time to amend the
Agreement pursuant to Section 6 thereof.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties agree to amend the Agreement by replacing Section 1
thereto with the following:
1. Board of Directors. This Agreement shall not become effective
unless and until the Merger is completed. From and after the date of the Merger
and until the provisions of this Section 1 cease to be effective, each of the
Voting Parties shall vote, or cause the vote of, all shares of Common Stock and
other voting securities of the Company over which such Voting Party has voting
control, and will take all other necessary or desirable actions within its
control (whether in its capacity as a stockholder or officer of the Company or
otherwise) in order to ensure that the size of the Board of Directors (the
"Board") shall be no more than twelve (12) and no less than seven (7) and to
cause the election to the Board of:
(a) Two (2) representatives designated by NexGen, who initially
shall be Xxxxx Xxxx and Xxxx Xxx;
(b) Two (2) representatives designated by Telcom, who initially
shall be Xxxxx Xxxxxxx and Xxxxxxxx Xxxxx;
(c) One (1) representative designated by 3Com, who initially shall
be Xxxxxx Xxxxxxx;
(d) One (1) representative designated by Reuters, who initially
shall be Xxxxx Xxxxx; and
(e) Commencing on the date of the first annual meeting of
Stockholders of the Company, if the Board of Directors consists
of up to nine (9) members, (1) representative jointly designated
by NexGen and Telcom; and if the Board
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of Directors consists of at least ten (10) or eleven (11)
members, two (2) representatives jointly designated by NexGen
and Telcom.
2. The Agreement shall remain in full force and effect as amended
herein.
(Signature pages follow.)
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IN WITNESS WHEREOF, the Voting Parties have entered into this Amendment
as of the Effective Date.
3COM CORPORATION
By: /s/ XXXXXX XXXXXXX
--------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax No. 000-000-0000
NEXGEN TECHNOLOGIES, L.L.C.
By: /s/ XXXXX X. XXXX
--------------------------------
Name: Xxxxx X. Xxxx
Title: Member
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Fax No. 000-000-0000
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IN WITNESS WHEREOF, the Voting Parties have entered into this Amendment
as of the Effective Date.
TELCOM-ATI INVESTORS, L.L.C.
By: /s/ XXX X. XXXXXXX
--------------------------------
Name:
Title:
Address: 000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax No. 000-000-0000
REUTERS MARKETCLIP HOLDINGS SARL
By: /s/ XXXXX XXXXX
--------------------------------
Name:
Title:
Address: c/o Reuters America, Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax No. 000-000-0000
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