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EXHIBIT 10.21
NEXTWAVE TELECOM INC. SPECIAL VOTING AGREEMENT
THIS SPECIAL VOTING AGREEMENT (this "Voting Agreement") is entered into
effective as of October 29, 1996 (the "Effective Date") by and among NextWave
Telecom Inc., a Delaware corporation (the "Company"), Xxxxxx Network Systems,
Inc. ("HNS") and the Series A Stockholders of the Company whose names appear on
the signature pages to this Voting Agreement (individually, a "Stockholder" and
collectively, the "Stockholders") with reference to the following facts:
WHEREAS, the Stockholders hold shares of the Company's Series B Common
Stock and/or shares of the Company's Series A Common Stock which convert, upon
the occurrence of certain events, into shares of Series B Common Stock.
Pursuant to the terms of the Restated Certificate, holders of Series B Common
Stock have the right to elect a number of Directors of the Company equal to the
total number of Directors of the Company less the number of Directors to be
elected by the holders of Series A Common Stock.
WHEREAS, the Company is negotiating the terms of a Strategic Supply and
Development Agreement ("Strategic Supply Agreement") with HNS, which provides
for the supply and financing by HNS of up to $1 billion of code division
multiple access infrastructure equipment to the Company and its affiliates. In
connection with the Strategic Supply Agreement, HNS is purchasing convertible
promissory notes having an aggregate purchase price of $50 million, which are
convertible into shares of Series B Common Stock at a conversion price of $5.00
per share.
WHEREAS, the Company and the Stockholders desire to provide for the
voting of the Stockholders' shares of Series B Common Stock, whether now owned
or hereafter acquired, in accordance with the terms hereof to induce HNS to
execute the Strategic Supply Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Representation on Board of Directors.
1.1 Election of Directors. Each Stockholder agrees, for the
duration of this Voting Agreement, to vote, at any meeting of stockholders at
which directors are elected in person or by proxy, all shares of Series B
Common Stock owned by it in favor of the election, as a director of the
Company, one representative designated by HNS or any affiliate, so long as HNS
or any affiliate holds at least Ten Million Dollars ($10,000,000) aggregate
principal amount of the Company's convertible notes or at least two million
(2,000,000) shares of Series B Common Stock (including securities convertible
or exchangeable for shares of Series B Common Stock), as adjusted for stock
splits, stock dividends, recapitalizations and the like. If necessary, the
Stockholders will cause the Board of Directors to increase the size of the
Board so that the
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number of authorized directors to be elected by the holders of Series B Common
Stock is sufficient to accommodate the election of the HNS designee, taking
into account incumbent directors and any obligations on the part of the
Stockholders to vote their shares in favor of the election of representatives
of other persons.
1.2 Resignation. In the event the member of the Board of Directors
designated by HNS resigns or otherwise ceases to be a member of the Board of
Directors for any reason, in the event such vacancy is filled by the vote of
the Company's stockholders, each Stockholder agrees that it will vote its
shares and otherwise use its best efforts to cause the vacancy to be filled by
a designee chosen by HNS during the term of this Voting Agreement.
1.3 Termination. This Voting Agreement shall remain in effect
until such time as the earlier to occur of (a) HNS' failure to satisfy the
conditions of Section 1.1 hereof or (b) three (3) years from the Effective
Date.
2. Confidential Information. HNS acknowledges and agrees that the
Board may designate a committee of the Board of Directors which shall be
delegated the responsibility of receiving and reviewing information provided
by third parties under non-disclosure or other confidential agreements and
other information obtained from third parties which contains competitive or
other sensitive marketing or pricing data. HNS agrees that its Board designee
will not be a member of such committee, will not have access to such
information, and will not seek the right to inspect any such written
information; provided that HNS' Board Designee will be informed of, will have
access to, and will be permitted to consider and act upon, any information and
data referred to in this paragraph to the extent required to permit such Board
Designee to perform his fiduciary duties as a member of the Board of Directors
of the Company.
3. Miscellaneous.
3.1 Binding Agreement. This Voting Agreement shall be binding
upon and inure to the benefit of the respective heirs, executors,
administrators, assigns, transferees and successors in interest of the parties
hereto.
3.2 Final Agreement. This Voting Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the stockholder voting rights. This
Voting Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
3.3 Governing Law. This Voting Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed wholly
within Delaware.
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3.4 Counterparts. This Voting Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument. This Voting Agreement may be executed via facsimile with original
signatures to follow via overnight courier.
3.5 Severability. Should any one or more of the provisions of this
Voting Agreement be determined by an arbitrator or court of proper jurisdiction
to be illegal or unenforceable, then such illegal or unenforceable provision
shall be modified by the proper court or arbitrator to the extent necessary and
possible to make such provision enforceable, and such modified provision and
all other provisions of this Voting Agreement shall be given effect separately
from the provision or portion thereof determined to be illegal or unenforceable
and shall not be affected thereby.
3.6 Mandatory Arbitration. In the event of any dispute regarding the
meaning, instruction, or intent of this Voting Agreement, or of any matter of
performance, fact, law, background, circumstance, or other matter of any kind
whatsoever relating to this Voting Agreement, the parties stipulate and agree
that such dispute shall be submitted at the written election of any party to
binding arbitration in the State of Delaware, conducted in accordance with the
commercial rules of the American Arbitration Association ("AAA") in effect as
of the Effective Date of this Voting Agreement. One arbitrator agreed upon by
the parties shall be appointed, or if the parties cannot agree upon one
arbitrator, the AAA will provide a list of three arbitrators with appropriate
expertise and each party may strike one. The remaining arbitrator will serve as
the arbitrator. Such appointment shall be made within 30 days after the
election to arbitrate. Discovery shall be available to the parties subject to
the approval and control of the arbitrator. The decision by the arbitrator
shall be final and binding on all parties, and may be entered in any court of
competent jurisdiction for enforcement. Each of the parties to this Voting
Agreement shall keep confidential all information furnished to it pursuant to
or in connection with any arbitration proceeding. Unless provided to the
contrary herein, all costs of the arbitration and the fees of the arbitrator
shall be allocated between the parties as determined by the arbitrator, it
being the intention of the parties that the prevailing party in such a
proceeding be made whole with respect to its expenses.
3.7 Assignment. The rights under this Voting Agreement shall not be
assignable nor the duties delegable by any party without the written consent of
the other parties; and nothing contained in this Voting Agreement, express or
implied, is intended to confer upon any person or entity, other than the
parties hereto and their successors in interest and permitted assignees, any
rights or remedies under or by reason of this Voting Agreement unless so
stated to the contrary. Notwithstanding the foregoing, this Voting Agreement
shall be binding on each party's heirs, successors and assigns.
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Exhibit 10.21
IN WITNESS WHEREOF, the parties hereto each executed this Special
Voting Agreement as of the date first written above.
COMPANY: NEXTWAVE TELECOM INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Its: CEO & President
[Signature Page 1 to Special Voting Agreement]
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