Execution Copy
XXXXXXXX.XXX INCORPORATED
STOCKHOLDERS' VOTING AGREEMENT
This Agreement dated as of October 18, 2000 is entered into by and
among the persons and entities listed on Exhibit A hereto (individually, a
"Purchaser" and collectively, the "Purchasers"), and MicroStrategy
Incorporated ("MSTR"). The Purchasers and MSTR are sometimes referred to in
this Agreement collectively as the "Stockholders."
Recitals:
1. MSTR owns certain outstanding shares of the Class B Common Stock, par
value $0.001 per share ("Class B Common Stock"), of Xxxxxxxx.xxx
Incorporated, a Delaware corporation (the "Company");
2. The Purchasers are purchasing, concurrently herewith, certain shares of
capital stock of the Company pursuant to the Series A Preferred Stock
Purchase Agreement of even date herewith (the "Purchase Agreement"); and
3. The Purchasers, including Aether Capital LLC ("Aether"), and MSTR 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 five and to elect (i) one member designated by Aether (by action
of the holders of a majority of the Shares held by Aether) and (ii) four
members designated by MSTR (by action of MSTR). The director initially
designated by Aether is Xxxxx X. Xxxx, the directors initially designated by
MSTR are Xxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxx Xxxx and Xxxx X. Xxxxx.
(b) 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 remove with or without cause any director
designated pursuant to Section 1(a) hereof who does not take such actions as may
be necessary to elect a compensation committee of the Board of Directors of the
Company
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consisting of three members and to elect (i) one member designated by Aether (by
action of a majority of the Shares held by Aether) and (ii) two members
designated by MSTR (by action of MSTR), one of which shall not be an employee of
MSTR. The director initially designated by Aether is Xxxxx X. Xxxx and the
directors initially designated by MSTR are Xxxx X. Xxxxxxxx and Xxxxxxx X.
Xxxxxx.
(c) The Purchasers shall not vote to remove any director designated by
MSTR, and MSTR shall not vote to remove any director designated by the
Purchasers, except for bad faith or willful misconduct.
2. Shares. "Shares" shall mean and include any and all shares of Series A
Preferred Stock, Class A Common Stock, Class B 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 upon the
earlier of (a) the closing of the Company's initial firm-commitment
underwritten 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 $30,000,000 of net proceeds to the Company
at a minimum price to the public of $10.00 per share (subject to appropriate
adjustment for stock splits, stock dividends, recapitalizations and other
similar events), and (b) a merger or consolidation of the Company with or
into any other corporation or corporations in which the holders of the
Company's outstanding shares immediately before such merger or consolidation
do not immediately after such merger or consolidation, retain stock
representing a majority of the voting power of the surviving corporation of
such merger or consolidation or stock representing a majority of the voting
power of a corporation that wholly owns, directly or indirectly, the
surviving corporation of such merger or consolidation.
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 3 or 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, the Company and certain other
stockholders of the Company, a copy of which is
available for inspection at the offices of the
Secretary of the Company."
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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. 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
Purchaser 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 internal laws of the State of Delaware (without reference
to the conflicts of law provisions thereof).
(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 a Purchaser, at his or its address set forth in Schedule A
hereto, or at such other address or addresses as may have been furnished to
the other parties hereto in writing by such Purchaser; or
If to MSTR, at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: President and General Counsel, or at such other address or
addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxxx X. Xxxx, Esq., Xxxx and Xxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
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.
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No amendment or termination of, or waiver under, any provision of this Agreement
shall be valid unless in writing and signed by (i) MSTR and (ii) Purchasers
holding at least 66 2/3% 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,
and any right hereunder may be waived, 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, termination or waiver shall be binding on all parties
hereto; and provided that the consent of a party shall not be required for any
amendment 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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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
MICROSTRATEGY INCORPORATED
By: /s/ Xxxx X. Xxxxx
----------------------
Name: Xxxx X. Xxxxx
----------------------
Title: Chief Financial Officer
--------------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
AETHER CAPITAL LLC
By: Aether Systems, Inc.
By: /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
----------------------
Title: Chief Executive Officer
--------------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
SNOWDON LTD. PARTNERSHIP
By: Nevis LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxx
---------------------------
Title: President of Nevis LLC
------------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
VALHALLA CAPITAL L.P.
By: Valhalla Capital Management LLC
By: /s/ Xxxxx Xxxxx
--------------------
Name: Xxxxx Xxxxx
--------------------
Title: Managing Member
------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
NEW VENTURE PARTNERS IV, L.P.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
-----------------------------
Title: General Partner
------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
By: /s/ Xxx X. Xxxxx
--------------------
Name: Xxx X. Xxxxx
--------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxxx
---------------------------
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[Counterpart signature page to Stockholders' Voting Agreement]
Executed as of the date first written above.
By: /s/ Xxxxx Xxxxx
--------------------
Name: Xxxxx Xxxxx
--------------------
By: /s/ Xxxxxx Xxxxx
--------------------
Name: Xxxxxx Xxxxx
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