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EXHIBIT 4.4
NETGEAR INC.
STOCKHOLDERS' VOTING AGREEMENT
This Agreement dated as of March 10, 2000 is entered into by and among
NETGEAR Inc., a Delaware corporation (the "Company"), the persons and entities
listed on Exhibit A hereto (individually, a "Purchaser" and collectively, the
"Purchasers"), and Nortel Networks NA Inc., a Delaware corporation ("Nortel
Networks"). The Purchasers and Nortel Networks are sometimes referred to in this
Agreement collectively as the "Stockholders."
Recitals:
1. Nortel Networks owns certain outstanding shares of the Series A
Convertible Participating Preferred Stock of the Company;
2. The Purchasers are purchasing, concurrently herewith, certain shares
of capital stock of the Company pursuant to the Series B Convertible
Participating Preferred Stock Purchase Agreement of even date herewith (the
"Purchase Agreement"); and
3. The Purchasers and Nortel Networks wish to provide for their
continuing representation on the Board of Directors of the Company in the manner
set forth below.
In consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of shares of capital stock of the Company
pursuant to the Purchase Agreement, and for other valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Voting of Shares.
(a) In any and all elections of directors of the Company (whether at
a meeting or by written consent in lieu of a meeting), each Stockholder shall
vote or cause to be voted all Shares (as defined in Section 2 below) owned by
him or it, or over which he or it has voting control, and otherwise use his or
its respective best efforts, so as to fix the number of directors of the Company
at seven (7) and to elect (i) one representative of the Company, who shall be
the Company's Chief Executive Officer, (ii) two members designated by Pequot
Private Equity Fund II, L.P. ("Pequot") and (iii) four members designated by
Nortel Networks. The directors initially designated pursuant to clause (ii)
above are Xxxxxx X. Xxxx and Xxx XxXxxx, and the directors initially designated
by Nortel Networks are Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxx and Xxxxxxx
Xxxxxx. Pequot and Nortel Networks shall notify the Secretary of the Company of
their respective designees within 30 calendar days of receipt of notice of each
election of directors. Any director designated by Pequot or Nortel Networks may
only be removed upon being designated for removal by Pequot or Nortel Networks,
respectively, and the Board of Directors of the Company and the parties hereto
will act and use their best efforts to remove promptly any director so
designated for removal. If any director designated by Pequot, or Nortel Networks
dies, resigns, is removed or otherwise ceases to serve, or in the event of a
vacancy in any such position, as a member of the Board of Directors of the
Company for any reason, the Company shall give notice to Pequot or Nortel
Networks, as the case may be, and such party shall promptly
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designate a successor and notify the Board of Directors of the Company of its
selection, and the Board of Directors of the Company and the parties hereto
shall act promptly to fill the vacancy with such designee.
(b) Except as provided above, Pequot shall not vote to remove any
director designated by Nortel Networks, and Nortel Networks shall not vote to
remove any director designated by Pequot, except for bad faith or willful
misconduct.
2. Shares. "Shares" shall mean and include any and all shares of common
stock and/or shares of capital stock of the Company, by whatever name called,
which carry voting rights (including voting rights which arise by reason of
default) and shall include any such shares now owned or subsequently acquired by
a Stockholder, however acquired, including without limitation stock splits and
stock dividends.
3. Termination. This Agreement shall terminate in its entirety on the
earliest of (a) the tenth anniversary of the date of this Agreement, (b) the
closing of the Company's initial firm commitment public offering of shares of
Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), resulting in at least
$25,000,000 of gross proceeds to the Company at a concurrent valuation of the
Company of not less than $300,000,000, or (c) the Sale of the Corporation (as
defined in the Company's Certificate of Incorporation).
4. No Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with Section 7(e) hereof. Nothing in this
Section 4 shall be construed as limiting the provisions of Section 3 or 7(e)
hereof.
5. Restrictive Legend. All certificates representing Shares owned or
hereafter acquired by the Stockholders or any transferee of the Stockholders
bound by this Agreement shall have affixed thereto a legend substantially in the
following form:
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Stockholders' Voting
Agreement, as amended from time to time, by and among the registered
owner of this certificate and certain other stockholders of the
corporation, a copy of which is available for inspection at the
offices of the Secretary of the corporation."
6. Transfers of Rights. Any transferee to whom Shares are transferred by
a Stockholder, whether voluntarily or by operation of law, shall be bound by the
voting obligations imposed upon the transferor under this Agreement, to the same
extent as if such transferee were a Stockholder hereunder and no Stockholder
shall transfer any Shares unless the transferee agrees in writing to be bound by
this Agreement.
7. Business Charter. The Company's current business charter is to
provide a full range of networking equipment for the home and small office
through global distribution. To sustain itself as a successful enterprise in the
future, the Company intends to expand its product line with more intelligent
devices offering more capabilities for the home and small office
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market. It intends to develop additional marketing/sales direct and channel
relationships and additional OEM and sourcing relationships.
8. Corporate Opportunity. The parties hereto recognize that Nortel
Networks may compete with the Company in its current or future business
endeavors and acknowledge that nothing in this Agreement should be construed to
prevent such competition or bar Nortel Networks from pursuing corporate
opportunities in any area of business.
9. Bylaws. The parties hereto agree that the Company's Bylaws shall be
amended to reflect the provisions of this Agreement and any amendment to the
Bylaws which is inconsistent with the terms of this Agreement shall require the
affirmative vote of the holders of a majority of the voting power of all of the
then outstanding shares of Series A Preferred Stock and Series B Preferred
Stock, voting as separate classes.
10. General.
(a) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement, each
Stockholder shall be entitled to specific performance of the agreements and
obligations of the Stockholders hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without giving effect to
any choice or conflict of law provision or rule (whether of the State of
California or any other jurisdiction) that would cause the application of laws
of any other jurisdiction.
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being send by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 0000 Xxxxx Xxxxxxx Xxxxxxx, XX SC1-06, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: President, or at such other address
or addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxx X. Xxxxxxxxx, Esq., Xxxx Xxxx Xxxx &
Freidenrich LLP, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000; or
If to Nortel Networks, at 0000 Xxxxx Xxxxxxx Xxxxxxx, XX SC2-05, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Law Department, or at such other address or
addresses as may have been furnished to the other parties hereto in writing by
Nortel Networks; or
If to a Purchaser, at his or its address set forth on Exhibit A, or at
such other address or addresses as may have been furnished to the Company in
writing by such Purchaser, with a copy
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to E. Xxx Xxxx, Esq., Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, unless otherwise indicated on Exhibit A.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) Complete Agreement; Amendments. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings
relating to such subject matter. No amendment, modification or termination of,
or waiver under, any provision of this Agreement shall be valid unless in
writing and signed by (i) Nortel Networks and (ii) Purchasers holding a majority
of the voting power of the Shares then held by all of the Purchasers (giving
effect to the conversion into common stock of all securities convertible
thereinto, provided that this Agreement may be amended with the consent of less
than all of the Purchasers only in a manner which affects all Purchasers in the
same fashion), and any such amendment, modification, termination or waiver shall
be binding on all parties hereto; provided that the consent of a party shall not
be required for any amendment, modification or termination of, or waiver under,
any provision of this Agreement if such party is not adversely affected thereby.
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(h) Section Headings. The section headings are for the convenience
of the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
NETGEAR INC.
By: /s/ XXXXXXX XX
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Name: Xxxxxxx Xx
Title: Chief Executive Officer
NORTEL NETWORKS NA INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: Assistant Secretary
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PEQUOT PRIVATE EQUITY FUND II, L.P.
By: Pequot Capital Management, Inc.,
Investment Manager
By:
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Pequot Capital Management, Inc.
[Stockholders' Voting Agreement - Signature Page]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
NETGEAR INC.
By:
------------------------------------------
Name: Xxxxxxx Xx
Title: Chief Executive Officer
NORTEL NETWORKS INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
PEQUOT PRIVATE EQUITY FUND II, L.P.
By: Pequot Capital Management, Inc.,
Investment Manager
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Pequot Capital Management, Inc.
[Stockholders' Voting Agreement - Signature Page]
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EXHIBIT A
Purchasers
Pequot Private Equity Fund II, L.P.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Chief Financial Officer
Pequot Capital Management, Inc.
