EXHIBIT 9
NEXTNET, INC.
VOTING AGREEMENT
This Voting Agreement (the "AGREEMENT") is made as of the 21st day of
September, 1998, by and among NextNet, Inc., a Delaware corporation (the
"COMPANY") Racotek, Inc., a Delaware corporation ("RACOTEK"), Xxxxx Xxxxxxxxx,
Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxx and Xxxx
Xxxxx (the "FOUNDERS"), and the holders of shares of Series B Preferred Stock
listed on EXHIBIT A (collectively, the "INVESTORS" and individually, the
"INVESTOR").
RECITALS
The Company and the Investors have entered into a Series B Preferred Stock
Purchase Agreement (the "SERIES B PURCHASE AGREEMENT") of even date herewith
pursuant to which the Company desires to sell to the Investors and the Investors
desire to purchase from the Company shares of the Company's Series B Preferred
Stock. In addition, the Company and Racotek have entered into a Series A
Preferred Stock Purchase Agreement (the "SERIES A PURCHASE AGREEMENT") of even
date herewith pursuant to which the Company desires to sell to Racotek and
Racotek desires to purchase from the Company shares of the Company's Series A
Preferred Stock. A condition to the Investors' obligations under the Series B
Purchase Agreement and a condition to Racotek's obligations under the Series A
Purchase Agreement is that the Company, Racotek the Founders and the Investors
enter into this Agreement for the purpose of setting forth the terms and
conditions pursuant to which Racotek, the Investors and the Founders shall vote
their shares of the Company's voting stock in favor of certain designees to the
Company's Board of Directors.
The Company's Amended and Restated Certificate of Incorporation provides as
follows: the holder of each share of Preferred Stock shall have the right to
one vote for each share of Common Stock into which such Preferred Stock could
then be converted, and with respect to such vote, such holder shall have full
voting rights and powers equal to the voting rights and powers of the holders of
Common Stock, and shall be entitled to notice of any stockholders' meeting in
accordance with the bylaws of the Company, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. In addition, so long as twenty
five percent (25%) of the number of shares of Series B Preferred Stock remain
outstanding and the total number of outstanding shares of capital stock held by
the holders of Series B Preferred Stock represents at least fifteen percent
(15%) of the Company's then outstanding capital stock, the holders of the
Series B Preferred Stock shall be entitled, voting together as a separate
class, to elect two (2) directors of the Company at each annual election of
directors. From and after the date that less than twenty five percent (25%)
of the number of shares of Series B Preferred Stock remain outstanding or the
total number of outstanding shares of capital stock held by the holders of
Series B Preferred Stock represents less than fifteen percent (15%) of the
Company's then outstanding capital stock,
the holders of Series B Preferred Stock shall be entitled, voting together as
a separate class, to elect one director of the Company at each annual
election of directors (the "SERIES B DIRECTORS"). As long as twenty-five
percent (25%) of the number of shares of Series A Preferred Stock remain
outstanding and the number of then outstanding shares of Series A Preferred
Stock represents greater than fifteen percent (15%) of the Company's then
outstanding capital stock, the holders of Series A Preferred Stock shall be
entitled, voting together as a separate class, to elect one (1) director of
the Company at each annual election of director (the "SERIES A DIRECTOR").
The holders of Common Stock shall be entitled, voting together as a separate
class, to elect two (2) directors (the "COMMON DIRECTORS") of the Company at
each annual meeting of directors. The holders of Preferred Stock and Common
Stock voting together as a single class shall have the right to elect any
remaining directors (the "INDEPENDENT DIRECTORS").
The Company, Racotek, the Investors and the Founders each desire to
facilitate the voting arrangements set forth in this Agreement, and the sale and
purchase of shares of Series B Preferred Stock to the Investors pursuant to the
Series B Purchase Agreement and the sale and purchase of shares of Series A
Preferred Stock to Racotek pursuant to the Series A Purchase Agreement, by
agreeing to the terms and conditions set forth herein.
AGREEMENT
The parties agree as follows:
1. ELECTION OF DIRECTORS.
1.1 BOARD REPRESENTATION. Until the date on which less than twenty
five percent (25%) of the number of Series B Preferred Stock remain outstanding
or the Investors hold less than fifteen percent (15%) of the Company's then
outstanding capital stock (not including any capital stock issuable upon
exercise of outstanding options or warrants of the Company) (the "THRESHOLD
DATE"), the Investors agree to vote or act with respect to their shares of
Series B Preferred Stock so as to elect as a Series B Director an individual
designated by JAFCO America Ventures, Inc. (or its affiliates) (the "JAFCO
ENTITIES"), the designee of which shall be Xxxxx Xxxxxxxxx. Until the Threshold
Date, the Investors agree to vote or act with respect to their shares so as to
elect as a Series B Director an individual designated by Doll Capital Management
(the "DOLL CAPITAL ENTITIES"), the designee of which shall be Xxxxx Xxxx. From
and after the Threshold Date, the Investors agree to vote or act with respect to
their shares of Series B Preferred Stock so as to elect as a Series B Director,
an individual designated by the JAFCO Entities. During the term of this
Agreement, the Founders agree to vote or act with respect to their shares of
Common Stock so as to elect the Company's then-current Chief Executive Officer
as a Common Director; PROVIDED, HOWEVER, that until such time as a Chief
Executive Officer is appointed, the Founders agree to vote or act with respect
to their shares of Common Stock so as to elect Xxxxxxxx Xxxxxx as a Common
Director. During the term of this Agreement, the Founders agree to vote or act
with respect to their shares of Common Stock so as to elect a designee of the
holders of a majority of the outstanding shares of Common Stock as a Common
Director, the designee of which shall be Xxxxx Xxxxxxxxx. Racotek, as the sole
holder of Series A Preferred Stock, agrees to elect Xxxxxx Xxxxxxxx as the
Series A Director. During the
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term of this Agreement, the parties to this Agreement agree to vote or act with
respect to their shares so as to elect as the Independent Directors individuals
with relevant experience in the Company's industry, which persons shall be
unanimously designated by the Company's Board of Directors, one of which shall
initially be Xxx Xxxxx. However, if the JAFCO Entities, the Doll Capital
Entities, the Founders or Racotek designate a person to serve as a director
other than Xxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxx Xxxxxxxxx or Xxxxxx Xxxxxxxx, as
the case may be, then the person so designated shall be subject to the
reasonable approval of a majority of the directors of the Company then serving
in such capacity, which directors shall not include the director or directors of
the Company that is, or was, serving as the previous designee of the JAFCO
Entities, the Doll Capital Entities, the Founders or Racotek on the Company's
Board of Directors, as the case may be.
1.2 APPOINTMENT OF DIRECTORS. In the event of the resignation,
death, removal or disqualification of a director selected by the JAFCO Entities,
the Doll Capital Entities, the Founders or Racotek, as the case may be, the
JAFCO Entities, the Doll Capital Entities, the Founders or Racotek, as the case
may be, shall promptly nominate a new director, and, after written notice of the
nomination has been given by the JAFCO Entities, the Doll Capital Entities, the
Founders and/or Racotek, as the case may be, to the other parties (and, with
respect to a nominee designated by the JAFCO Entities, the Doll Capital
Entities, the Founders and/or Racotek, such nominee has been approved by the
Company's directors as provided in Section 1.1 above), each Investor, Founder
and Racotek shall vote its shares of capital stock of the Company to elect such
nominee to the Board of Directors as provided in Section 1.1.
1.3 REMOVAL. The JAFCO Entities, the Doll Capital Entities, the
Founders or Racotek, as the case may be, may remove its designated director at
any time and from time to time, with or without cause (subject to the Bylaws of
the Company as in effect from time to time and any requirements of law), in
their sole discretion, and after written notice to each of the parties hereto of
the new nominee to replace such director (and, with respect to a nominee of the
JAFCO Entities, the Doll Capital Entities, the Founder and/or Racotek, after
such nominee has been approved by the Company's directors in accordance with
Section 1.1 above), each Investor, Founder and Racotek shall promptly vote its
shares of capital stock of the Company to elect such nominee to the Board of
Directors as provided in Section 1.1.
2. RACOTEK AGREEMENT TO VOTE. During the term of this Agreement and
unless otherwise provided in the Company's Amended and Restated Certificate of
Incorporation (the "CERTIFICATE"), in any Change of Control Transaction, as such
term is defined below, Racotek agrees to vote the shares of the Company's
capital stock now or hereafter owned by it to approve or not to approve such
Change of Control Transaction in the same manner and in the same proportion as
the holders of 66 2/3% of the Company's outstanding shares of capital stock not
held by Racotek, in the aggregate, voted their shares on such matter. For
purposes of this Section 2, a "CHANGE OF CONTROL TRANSACTION" shall mean:
(i) the acquisition of the Company by another entity by means of any transaction
or series of related transactions (including, without limitation, any
reorganization, merger or consolidation, or transfer of outstanding equity
shares, but excluding any merger effected exclusively for the purpose of
changing the domicile of the Company); or (ii) a sale of all or substantially
all of the assets of the Company, UNLESS the
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Company's stockholders of record as constituted immediately prior to such
acquisition or sale will, immediately after such acquisition or sale (by virtue
of securities issued as consideration for the Company's acquisition or sale or
otherwise) hold at least 50% of the voting power of the surviving or acquiring
entity in approximately the same relative percentages after such acquisition or
sale as before such acquisition or sale.
Notwithstanding the foregoing, Racotek shall not be obligated to vote the
securities of the Company owned by it in favor of a Change of Control
Transaction in the manner required by this Section 2 UNLESS the Board of
Directors of the Company approved the Change of Control Transaction and Racotek
shall receive consideration equal to at least $10.00 per share (as adjusted for
stock dividends, combinations, splits, recapitalizations and the like) for each
share of the Company's capital stock then held by Racotek upon the consummation
of such Change of Control Transaction.
3. ADDITIONAL REPRESENTATIONS AND COVENANTS.
3.1 NO REVOCATION. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
3.2 CHANGE IN NUMBER OF DIRECTORS. Racotek, the Founders and the
Investors will not vote for any amendment or change to the Certificate of
Incorporation or Bylaws providing for the election of more or less than six (6)
directors, or any other amendment or change to the Certificate of Incorporation
Bylaws inconsistent with the terms of this Agreement.
3.3 LEGENDS. Each certificate representing shares of the Company's
capital stock held by Racotek, Founders or Investors or any assignee of Racotek,
the Founders or Investors shall bear the following legend:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND
AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
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4. TERMINATION.
4.1 TERMINATION EVENTS. This Agreement shall terminate upon the
earlier of:
(a) The consummation of the Company's initial public offering of
shares of its Common Stock; provided that all shares of the Company's Preferred
Stock are converted into Common Stock prior to or in connection with such
offering; or
(b) The sale, conveyance, disposal, or encumbrance of all or
substantially all of the Company's property or business or the Company's merger
into or consolidation with any other corporation (other than a wholly-owned
subsidiary corporation) or if the Company effects any other transaction or
series of related transactions in which more than fifty percent (50%) of the
voting power of the Company is disposed of, PROVIDED that this Section 4.1(b)
shall not apply to a merger effected exclusively for the purpose of changing the
domicile of the Company; or
(c) Ten (10) years from the date hereof.
4.2 REMOVAL OF LEGEND. At any time after the termination of this
Agreement in accordance with Section 4.1, any holder of a stock certificate
legended pursuant to Section 4.3 may surrender such certificate to the Company
for removal of the legend, and the Company will duly reissue a new certificate
without the legend.
5. MISCELLANEOUS.
5.1 SUCCESSORS AND ASSIGNS. 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.
5.2 AMENDMENTS AND WAIVERS. Any term hereof may be amended or waived
only with the written consent of the Company, the Founders that hold at least a
majority (50%) of the Common Stock held by all Founders, and holders of at least
66 2/3% of the Series A and B Preferred Stock, voting together as a single
class. Any amendment or waiver effected in accordance with this Section 5.2
shall be binding upon the Company, the holders of Series B Preferred Stock,
Racotek and any Founder, and each of their respective successors and assigns.
5.3 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or ten
(10) days after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, and addressed to the party to be notified at such
party's address or fax number as set forth on the signature page or on EXHIBIT A
hereto, or as subsequently modified by written notice.
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5.4 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
5.5 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.
5.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
5.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.8 ADDITION OF INVESTORS. Notwithstanding anything to the contrary
contained herein, if the Company shall issue additional shares of its Series B
Preferred Stock pursuant to the Purchase Agreement, any purchaser of such shares
of Series B Preferred Stock may become a party to this Agreement by executing
and delivering an additional counterpart signature page to this Agreement and
shall be deemed an "Investor" hereunder.
[Signature Page Follows]
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The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
NEXTNET, INC.
By: \s\ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, President
Address:
11173 Meg Xxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
RACOTEK, INC.
By: \s\ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: President and CEO
Address:
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
FOUNDERS:
\s\ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
\s\ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
\s\ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
\s\ J. Xxxx Xxxx
J. Xxxx Xxxx
\s\ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
\s\ Xxxxx Xxxxx
Xxxxx Xxxxx
\s\ Xxxx Xxxxx
Xxxx Xxxxx
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH
NR. 3 & CO. BETEILIGUNGS KG NR. 2
By: SVM Star Ventures Management-
gesellschaft mbH No. 3
By: \s\ Xx. Xxxx Xxxxx
Xx. Xxxx Xxxxx
Address:
Xxxxxxxxxxxxx 0
X-00000 Xxxxxx, Xxxxxxx
Facsimile: 49-89-419-43030
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
SVE STAR VENTURES ENTERPRISES NO. VII, A
GERMAN CIVIL LAW PARTNERSHIP (with
limitation of liability)
By: SVM Star Ventures Management-
gesellschaft mbH No. 3
By: \s\ Xx. Xxxx Xxxxx
Xx. Xxxx Xxxxx
Address:
Xxxxxxxxxxxxx 0
X-00000 Xxxxxx, Xxxxxxx
Facsimile: 49-89-419-43030
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
STAR SEED ENTERPRISES, A GERMAN CIVIL LAW
PARTNERSHIP (with limitation of
liability)
By: Star-Seed Managementgesellschaft mbH
By: \s\ Xx. Xxxx Xxxxx
Xx. Xxxx Xxxxx
Address:
Xxxxxxxxxxxxx 0
X-00000 Xxxxxx, Xxxxxxx
Facsimile: 49-89-419-43030
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
DOLL TECHNOLOGY INVESTMENT FUND, A CALIFORNIA
LIMITED PARTNERSHIP
By: Doll Technology Investment Management,
LLC, its General Partner
By: \s\ Xxxxx X. Xxxx
Name: Xxxxx R. Doll
Address:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
DOLL TECHNOLOGY AFFILIATES FUND, L.P.
By: Doll Technology Investment Management,
LLC, its General Partner
By: \s\ Xxxxx X. Xxxx
Name: Xxxxx R. Doll
Address:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
INVESTORS:
DOLL TECHNOLOGY SIDE FUND, L.P.
By: Doll Technology Investment Management,
LLC, its General Partner
By: \s\ Xxxxx X. Xxxx
Name: Xxxxx R. Doll
Address:
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTORS:
JAFCO Co., Ltd.
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Attorney-in-fact
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
JAFCO G-6 (A) Investment Enterprise
Partnership
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Attorney-in-fact
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
JAFCO G-6 (B) Investment Enterprise
Partnership
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Attorney-in-fact
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
JAFCO G-7 (A) Investment Enterprise
Partnership
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Attorney-in-fact
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
JAFCO G-7 (B) Investment Enterprise
Partnership
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Attorney-in-fact
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
JAFCO G USIT Fund III, L.P.
By: \s\ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Chairman
JAFCO America Ventures, Inc.
Its Executive Partner
Address:
JAFCO America Ventures, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
INVESTORS:
XXX XXXXX
By: \s\ Xxx Xxxxx
Xxx Xxxxx
Address:
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
PURCHASERS:
____________________________________
Dovrat, Xxxxx & Co., Ltd.
____________________________________
Horizon Fund Ltd.
____________________________________
Dovrat, Xxxxx-Skies Fund 92' Ltd.
____________________________________
Dovrat, Xxxxx-Rainbow Fund, Ltd.
____________________________________
Canada Israel Opportunity Fund L.P.
_____________________________________
The Canada-Israel Opportunity Fund II
____________________________________
Dovrat, Xxxxx Founders Group,
Limited Partnership
Address:
Dovrat, Xxxxx & Xx.
Xxxxx Xxxxxxxx Xxxxxx #00
Xxx Xxxx 00000
ISRAEL
SIGNATURE PAGE TO VOTING AGREEMENT
