EXHIBIT 4.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made and entered into as of
July 1, 1999, by and among SecurFone America, Inc., a Delaware corporation
(the "Company"), Montpilier Holdings, Inc., a Nevada corporation
("Montpilier"), and the undersigned stockholders of the Company (each, an
"IXATA Stockholder" and collectively, the "IXATA Stockholders").
RECITALS:
A. Montpilier and the IXATA Stockholders are referred to below
individually as a "Stockholder" and collectively as the "Stockholders."
B. As of the date of this Agreement, the Stockholders are the legal
and beneficial owners of the number of shares of the Company's common stock,
$0.01 par value per share ("Stock"), listed opposite their respective names
on SCHEDULE I attached hereto.
C. This Agreement is being executed and delivered in connection with
the purchase by the Company of all of the outstanding capital stock of IXATA,
Inc., a California corporation ("IXATA"), pursuant to that certain Stock
Purchase Agreement, of even date herewith, by and among the Company, IXATA
and the Stockholders (the "IXATA Purchase Agreement").
D. The Stockholders believe that it is in their mutual best interest
(i) that qualified persons serve the Company as members of its Board of
Directors (the "Board of Directors") to provide advice as to the Company's
management, policies, administration and development and (ii) to make
provision for the voting of the Stock and any other class of capital stock of
the Company entitled to vote (together with the Stock, the "Voting Stock")
held by the Stockholders and certain other matters concerning the governance
of the Company.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises set forth below and in the IXATA Purchase Agreement, and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. SCOPE AND TERM OF AGREEMENT.
1.1 SCOPE OF AGREEMENT. This Agreement shall govern (i) the voting
of all shares of Voting Stock of which any Stockholder is now or in the
future becomes the legal or beneficial owner, including, without limitation,
any shares of Voting Stock acquired upon the exercise of any stock options
issued by the Company, and (ii) all action taken by any of the Stockholders
with respect to the appointment or election of directors of the Company. For
purposes of this Agreement, the term "beneficial owner" has the meaning
assigned to it in Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended, and the regulations promulgated thereunder.
1.2 EFFECT OF TRANSFER OF SHARES. Subject to Section 4.4 below, in
the event that any Stockholder voluntarily or involuntarily transfers, sells,
assigns, exchanges, gifts, pledges or otherwise disposes of any of his, her
or its shares of Voting Stock to any person or entity other than a Permitted
Transferee (as defined below), the acquirer of said shares shall not thereby
acquire any rights under
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this Agreement and shall not be considered a "Stockholder" hereunder. For
purposes of this Agreement, a "Permitted Transferee" means any of the
following: (i) the Company; (ii) any other Stockholder; (iii) a lineal
descendant of the transferring Stockholder, if such transferring Stockholder
is a natural person; (iv) to the estate of the transferring Stockholder, if
such transferring Stockholder is a natural person, upon his or her death; (v)
to a trust created by or on behalf of the transferring Stockholder, if such
transferring Stockholder is a natural person and the primary beneficiaries of
the trust are any one or more of the transferring Stockholder, his or her
spouse, his or her lineal descendants and their spouses and any organization
described in Section 2055(a) of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder; (vi) if the transferring
Stockholder is a trust, to any one or more beneficiaries of such trust who
are described in clause (v) of this sentence (determined as if the settler of
the trust was the transferring Stockholder); or (vii) if the transferring
Stockholder is not a natural person, to any one or more stockholders,
partners, members or other owners of such entity. For purposes of this
Agreement, a Permitted Transferee shall acquire all of the rights and
obligations of the transferring Stockholder with respect to the transferred
shares of Voting Stock.
1.3 TERM OF AGREEMENT. This Agreement will terminate upon the first
to occur of: (i) the mutual written agreement of all of the Stockholders to
terminate this Agreement; (ii) the death or dissolution of the last of the
IXATA Stockholders having any rights or obligations under this Agreement;
(iii) the sale or 80% or more of the outstanding capital stock of SecurFone;
(iv) the IXATA Stockholders cease to collectively own at least 25% of the
outstanding Voting Stock on a fully diluted basis; or (v) the fifth
anniversary of the date of this Agreement.
2. BOARD OF DIRECTORS.
2.1 COMPOSITION OF THE BOARD OF DIRECTORS. Notwithstanding anything
to the contrary in the certificate of incorporation or by-laws of SecurFone
as in effect from time to time, and subject to applicable law, each of the
Stockholders agrees to take, or cause any persons or entities under his, her
or its control to take, all necessary or desirable actions within his, her or
its control (whether as a director, member of a committee of the Board of
Directors or officer of the Company and including, without limitation, voting
all shares of Voting Stock under his, her or its direction or control and, to
the extent permitted by the certificate of incorporation or by-laws of the
Company, each as then in effect, executing and delivering any written
consents of stockholders and calling special stockholders' meetings) to
ensure that:
(a) The Board of Directors shall at all times consist of six
members, three of whom shall by designated by Montpilier from time to
time (collectively, the "Montpilier Designees") and three of whom shall
be designated by the vote or consent of a majority of the shares of
Stock held by the IXATA Stockholders from time to time (collectively,
the "IXATA Designees").
(b) The initial Montpilier Designees shall be the current
directors of SecurFone, namely Xxxxxxx X. Grand, Xxxx X. Xxxxxxxxx and
Xxxxxx X. Xxxx.
(c) The initial IXATA Designees shall be Xxxx Xxxxxxxx, Xxxxxx
X. Xxxxxxx and Xxxx Xxxxx.
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(d) Any vacancy on the Board of Directors as so composed shall
be filled only by: (i) Montpilier if the vacancy results from the
death, disability, resignation or removal of any of the Montpilier
Designees; and (ii) by the vote or consent of a majority of the shares
of Stock held by the IXATA Stockholders if the vacancy results from the
death, disability, resignation or removal of any of the IXATA
Designees.
(e) A Montpilier Designee may only be removed by Montpilier,
and an IXATA Designee may only be removed by the vote or consent of a
majority of the shares of Stock held by the IXATA Stockholders.
2.2 AGREEMENT OF THE COMPANY. The Company agrees that it will not
give effect to any vote cast or other action taken by any Stockholder with
respect to any matter submitted to a vote of the stockholders of the Company
unless such vote or action is in accordance with the terms of this Agreement.
3. REMEDIES.
3.1 SPECIFIC PERFORMANCE. The parties agree that the failure of any
party to observe the obligations provided by this Agreement will result in
irreparable damage to the non-defaulting parties and that any non-defaulting
party may seek specific performance of such obligations in any federal or
state court permitted by Section 3.2 below.
3.2 SUBMISSION TO JURISDICTION; CONSENT TO SERVICE OF PROCESS;
VENUE. Each of the parties agrees and consents to the jurisdiction of the
Chancery Court of the State of Delaware or the United States District Court
for the State of Delaware, and waives any objection based on venue or FORUM
NON CONVENIENS with respect to any action instituted, and agrees that any
dispute concerning this Agreement or any of the transactions described in
this Agreement may be heard only in the courts described above. Each of the
parties consents to the service of any process in any such action by delivery
of such process by certified U.S. mail to the addresses of the parties
determined in accordance with Section 4.1 hereof, as well as by any other
means of service permitted by applicable law.
4. MISCELLANEOUS PROVISIONS.
4.1 NOTICES.
(a) All notices, demands or other communications required or
permitted to be given or made under this Agreement will be in writing
and (i) delivered personally, (ii) sent by pre-paid, first class,
certified or registered mail, return receipt requested, (iii) by
priority overnight national express courier service, or (iv) by
facsimile transmission (followed by a hard copy by U.S. mail or
priority overnight delivery), to the intended recipient at its address
or facsimile number set out below. The addresses and facsimile numbers
of the parties for purposes of this Agreement are:
(i) If to SecurFone: SecurFone America, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxx X. Xxxxxxxxx
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With a copy to: Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
(ii) If to any Stockholder: The address thereof set forth opposite
his, her or its name on SCHEDULE I
----------
(b) Any notice, demand or communication will be deemed to have
been duly given (i) on receipt if delivered personally, (ii) three
business days after mailing, (iii) the business day after delivery to a
national overnight courier service, or (iv) if given by confirmed
facsimile, immediately if received by recipient during its normal
business hours on a business day or, if not, at the beginning of
recipient's business on the next business day. In proving receipt it
will be sufficient to show that the envelope containing the
communication was duly addressed, stamped and posted (or that the
envelope was delivered to the national overnight courier service), or
that receipt of a facsimile was confirmed by the recipient.
(c) Any party may change the address or facsimile number to
which notices, demands or other communications to such parties will be
given or made by giving notice thereof to the other parties hereto in
the manner provided above.
4.2 AMENDMENT. No change in, modification of or amendment to this
Agreement will be valid unless it is in writing and signed by each party to
this Agreement.
4.3 WAIVER. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but only if
such waiver is evidenced by a writing signed by that party. No failure on the
part of any party hereto to exercise, and no delay in exercising any right,
power or remedy created under this Agreement, will operate as a waiver
thereof, nor will any single or partial exercise of any right, power or
remedy by any such party preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. No waiver by any party
hereto of any breach of or default in any term or condition of this Agreement
will constitute a waiver of or assent to any succeeding breach of or default
in the same or any other term or condition hereof.
4.4 ASSIGNMENT. No Stockholder may assign any of his, her or its
rights or obligations under this Agreement to any person or entity other than
a Permitted Transferee without the written consent of all of the other
Stockholders. The Company may not assign any of its obligations hereunder
other than pursuant to a merger of which it is the surviving corporation.
4.5 BENEFIT AND BURDEN. This Agreement will inure to the benefit of
the Stockholders, any Permitted Transferees or permitted assignees thereof
and the Company, and shall be binding upon the parties to this Agreement and
their respective Permitted Transferees, heirs, beneficiaries, legatees,
distributees, estates, executors, administrators, personal representatives,
successors and permitted assigns, as the case may be.
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4.6 GOVERNING LAW. The validity and effect of this Agreement will be
governed by and construed and enforced in accordance with the laws of the
State of Delaware.
4.7 PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained in this Agreement may be exercised and will be applicable and
binding only to the extent that they do not violate any applicable laws and
are intended to be limited to the extent necessary to render this Agreement
legal, valid and enforceable. If any term or part of this Agreement is held
to be illegal, invalid or unenforceable by a court of competent jurisdiction,
it is the intention of the parties that the remaining terms or partial terms
will constitute their agreement with respect to the subject matter of this
Agreement and all remaining terms or partial terms will remain in full force
and effect. To the extent legally permissible, any illegal, invalid or
unenforceable provision of this Agreement will be replaced by a valid
provision that will implement the commercial purpose of the illegal, invalid
or unenforceable provision.
4.8 INTEGRATION. This Agreement, including SCHEDULE I hereto, and
the IXATA Purchase Agreement set forth all of the promises, agreements,
conditions and understandings among the parties hereto with respect to the
subject matter hereof and thereof, and supersede and are intended to be an
integration of any and all prior agreements or understandings with respect
thereto.
4.9 EXECUTION IN COUNTERPARTS. This Agreement may be executed by any
one or more of the parties in any number of counterparts, each of which will
be deemed to be an original, but all such counterparts will together
constitute one and the same instrument. The execution of counterparts will
not be deemed to constitute delivery of this Agreement by any party.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first set forth above.
SECURFONE AMERICA, INC.
By: /S/ XXXX X. XXXXXXXXX
-------------------------------------
Its: Chief Executive Officer
MONTPILIER HOLDINGS, INC.
By: /S/ XXXXXXX X. GRAND
-------------------------------------
Its: President
THE IXATA STOCKHOLDERS:
Xxxxxxxx Family Trust dated August 3,
1989
By: /S/ XXXX XXXXXXXX
-------------------------------------
Xxxx Xxxxxxxx, Trustee
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Xxxxxxxx Family Trust dated April 11, 1996
By: /S/ XXXX XXXXX XXXXXXXX
--------------------------------------
Xxxx Xxxxx Xxxxxxxx, Trustee
By: /S/ XXXXXX X. XXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxx, individually
By: /S/ XXXX XXXXXXX
--------------------------------------
Xxxx Xxxxxxx, individually
By: /S/ XXXX XXXXXXXX
--------------------------------------
Xxxx Xxxxxxxx, individually
By: /S/ XXXXX XXXXXXXXXX
--------------------------------------
Xxxxx Xxxxxxxxxx, individually
By: /S/ XXX XXXXXXXX
--------------------------------------
Xxx Xxxxxxxx, individually
3324877 Canada Inc.
By: /S/ XXXX XXXXXXXXX
--------------------------------------
Xxxx Xxxxxxxxx
By: /S/ XXXX VALLINGDHAM
--------------------------------------
Xxxx Vallingdham, individually
By: /S/ XXXX X'XXXXXX
--------------------------------------
Xxxx X'Xxxxxx, individually
By: /S/ XXXXX XXXXXXX
--------------------------------------
Xxxxx Xxxxxxx, individually
By: /S/ XXXXXXX XXXXXXXX
--------------------------------------
Xxxxxxx Xxxxxxxx, individually
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SCHEDULE I
NAME/ADDRESS/TAX I.D. OF STOCKHOLDERS SHARES OF STOCK
------------------------------------- ---------------
Montpilier Holdings, Inc. 4,500,000
c/o Xxxxxxx X. Grand, Esq.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000X
Xxxxxxxxxx Xxxxx, XX 00000
Tax I.D. Number: 00-0000000
Xxxxxxxx Family Trust dated August 3, 1989 1,761,875
000 Xxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxx Xxxxx Xxxxxxxx, Trustee of the Xxxxxxxx Family Trust dated April 11, 1996 1,761,875
000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Tax I.D. Number: 00-0000000
Xxxxxx X. Xxxxxxx 516,250
0000 Xxxxx Xxxxxxxx
Xxx Xxxxxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxx Xxxxxxx 105,000
0000 Xxx Xxxxx
Xxx Xxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxx Xxxxxxxx 35,000
0000 X Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxxx Xxxxxxxxxx 87,500
0000 Xxxxxxxxx
Xxx Xxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxx Xxxxxxxx 45,000
000 X Xxxxxx, #00
Xxxxxx Xxxxx, XX 00000
Tax I.D. Number: ###-##-####
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3324877 Canada Inc. 135,000
c/o Xxxx Xxxxxxxxx, Groupe Encoure
0000 Xxxx Xx Xxxx
Xxxxxxxx, Xxxxxx H-4 TIE 3
Tax I.D. Number: 888565488 RC
Xxxx Vallingdham 28,125
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxx X'Xxxxxx 8,750
0000 Xxxxx Xxxxxxxxx #000
Xxx Xxxxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxxx Xxxxxxx 5,625
0000 Xxxxxx Xxx
Xxx Xxxxx, XX 00000
Tax I.D. Number: ###-##-####
Xxxxxxx Xxxxxxxx 10,000
4324 Place Xxxxxxx
Chomedy, Lavac
H 7W 1E 5
Tax I.D. Number: 000-000-000
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