Exhibit 99.6
SERIES A PREFERRED STOCK
VOTING AGREEMENT
This Voting Agreement, dated as of March 12, 2003 (this "Agreement"), is made by
and among Xxxxx Xxxxxxxxx, as purchaser representative ("Purchaser
Representative") and each of the stockholders of NOVATEL WIRELESS, INC., a
Delaware corporation (the "Company") identified on the signature pages hereto
(collectively, the "Stockholders" and each, individually, a "Stockholder").
WITNESSETH:
WHEREAS, the Company and certain purchasers (collectively, the "Purchaser") are
entering into a Securities Purchase Agreement, dated as of the date hereof (as
it may be amended from time to time, the "Purchase Agreement"; capitalized terms
used and not otherwise defined in this Agreement have the respective meanings
ascribed to such terms in the Purchase Agreement), pursuant to which the Company
has agreed to issue the Tranche I Notes, certain shares of Series B Preferred
Stock and certain warrants to purchase Common Stock;
WHEREAS, each Stockholder is the record or beneficial owner of the number of
shares of Series A Preferred Stock set forth on Schedule A hereto opposite such
Stockholder's name (all such shares of Series A Preferred Stock and any shares
of Series A Preferred Stock hereafter acquired by such Stockholder, including
upon exercise, exchange or conversion of any option or other convertible
security, the "Shares");
WHEREAS, as a condition to entering into the Purchase Agreement and incurring
the obligations set forth therein, Purchaser has required that the Stockholders
agree to enter into this Agreement; and
WHEREAS, the Stockholders wish to induce Purchaser to enter into the Purchase
Agreement and, therefore, the Stockholders are willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.1 Voting Agreement. Each Stockholder, in its capacity as such, hereby
agrees that, during the period commencing on the date hereof and continuing
until the termination of this Agreement as set forth in Section 4.1 (the
"Termination Date"), at any meeting of the stockholders of the Company, however
called, it will cause the Shares that such Stockholder beneficially owns to be
counted as present (or absent, if requested by Purchaser Representative) thereat
for purposes of establishing a quorum, and, at any such meeting or in any action
by consent of the stockholders of the Company, such Stockholder shall vote (or
cause to be voted)
all of such Stockholder's Shares (i) in favor of the approval and adoption of
the amendment and restatement of the Certificate of Designation for the Series A
Preferred Stock, substantially in the form attached hereto as Exhibit 1 (the
"Amendment"); (ii) against any action, proposal, agreement or transaction that
would result in a breach of any covenant of such Stockholder contained in this
Agreement; and (iii) against any action, agreement, transaction that could
reasonably be expected, to impede, interfere, delay, discourage or adversely
affect the Amendment. Any vote by such Stockholder that is not in accordance
with this Section 1.1 shall be considered null and void, and the provisions of
Section 1.2 shall be deemed to take immediate effect; provided, however, that
nothing in this Agreement shall be interpreted as obligating the Stockholders to
exercise any options to acquire additional Shares.
SECTION 1.2 Irrevocable Proxy. If a Stockholder fails to comply with the
provisions of Section 1.1, such Stockholder hereby agrees that such failure
shall result, without any further action by such Stockholder, effective as of
the date of such failure, in the constitution and appointment of Xxxxx Xxxxxxx
and Xxxxx Xxxxxxxxx, and each of them, from and after the date of such failure
until the Termination Date (at which point such constitution and appointment
shall automatically be revoked) as such Stockholder's attorney, agent and proxy
(such constitution and appointment, the "Irrevocable Proxy"), with full power of
substitution, to vote and otherwise act with respect to all such Stockholder's
Shares at any meeting of the stockholders of the Company (whether annual or
special and whether or not an adjourned or postponed meeting), however called,
and in any action by written consent of the stockholders of the Company, on the
matters and in the manner specified in Section 1.1. THIS PROXY AND POWER OF
ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM
A STOCKHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS AGREEMENT. Each
Stockholder hereby revokes all other proxies and powers of attorney with respect
to all such Stockholder's Shares that may have heretofore been appointed or
granted, and no subsequent proxy or power of attorney shall be given (and if
given, shall not be effective) by such Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of such Stockholder and any obligation of such Stockholder under this
Agreement shall be binding upon the heirs, personal representatives, successors
and assigns of such Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby severally, but not jointly, represents and warrants to
Purchaser Representative (for the benefit of Purchaser) as to such Stockholder
as follows:
SECTION 2.1 Organization and Authority of the Stockholders. Each Stockholder
that is an individual has full legal capacity, power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. Each
Stockholder that is not an individual is duly formed, validly existing and in
good standing under the laws of the jurisdiction of its formation and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each Stockholder and the
performance by each Stockholder of such
Stockholder's obligations hereunder have been duly authorized by all requisite
action on the part of each Stockholder. This Agreement has been duly and validly
executed and delivered by each Stockholder and (assuming due authorization,
execution and delivery by Purchaser Representative) constitutes a legal, valid
and binding obligation of each Stockholder enforceable against each Stockholder
in accordance with its terms, except as limited by bankruptcy, insolvency and
other similar laws or equitable principles (but not those concerning fraudulent
conveyance) generally affecting creditors' rights and remedies.
SECTION 2.2 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by each Stockholder does
not, and the performance of this Agreement by each Stockholder will not, (i)
conflict with or violate any agreement to which a Stockholder is a party, any
trust agreement or any equivalent organizational documents, as the case may be,
of such Stockholder, (ii) conflict with or violate any law applicable to such
Stockholder or by which any property or asset of such Stockholder is bound or
affected or (iii) result in any breach of, or constitute a default (or event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of an Lien on any Shares (other than pursuant to this
Agreement) pursuant to, any note, bond, mortgage, indenture, pledge, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
of such Stockholder, except, with respect to clauses (ii) and (iii) above, for
any such conflicts, violations, breaches, defaults or other occurrences that
would not prevent or materially delay the ability of such Stockholder to carry
out such Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by each Stockholder does
not, and the performance of this Agreement by each Stockholder will not, require
any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act and state securities or "blue sky"
laws, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay the ability of such Stockholder to carry out such
Stockholder's obligations under this Agreement.
SECTION 2.3 Ownership of Shares. As of the date hereof, each Stockholder is the
record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act,
which meaning will apply for all purposes of this Agreement) of, and has good,
valid and marketable title to, the number of Shares set forth opposite such
Stockholder's name on Schedule A hereto. Except as set forth on Schedule A, such
Shares are all the securities (as defined in Section 3(a)(10) of the Exchange
Act, which definition will apply for all purposes of this Agreement) of the
Company owned, either of record or beneficially, by such Stockholder as of the
date hereof and such Stockholder does not have any option or other right to
acquire any other securities of the Company. The Shares owned by such
Stockholder are owned free and clear of all Liens, other than any Liens created
by this Agreement or pledges disclosed in writing to the Purchaser
Representative pursuant to Section 3.1 below. Except as provided in this
Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by
such Stockholder.
SECTION 2.4 Reliance by Purchaser. Each Stockholder understands and acknowledges
that Purchaser is entering into the Purchase Agreement in reliance upon such
Stockholder's execution, delivery and performance of this Agreement.
SECTION 2.5 No Finder's Fees. No broker, finder, investment banker or financial
advisor is entitled to any brokerage, finder's, financial advisor's or other fee
or commission in connection with the transactions contemplated by this Agreement
or the Purchase Agreement based upon arrangements made by or on behalf of such
Stockholder that is or will be payable by Purchaser, the Company or any of their
respective Subsidiaries.
SECTION 2.6 Absence of Litigation. As of the date of this Agreement, there is no
litigation, suit, claim, action, proceeding or investigation pending, or to the
knowledge of such Stockholder, threatened against such Stockholder, or any
property or asset of such Stockholder, before any Governmental Body that seeks
to delay or prevent the Amendment from being approved by the holders of the
Series A Preferred Stock.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
SECTION 3.1 No Disposition or Lien of Shares. Except for pledges in existence as
of the date hereof that have been disclosed in writing to the Purchaser
Representative, each Stockholder hereby agrees that, except as contemplated by
this Agreement, such Stockholder shall not (i) sell, transfer, tender, pledge,
assign, contribute to the capital of any entity, hypothecate, give or otherwise
dispose of, grant a proxy or power of attorney with respect to (other than the
Irrevocable Proxy), deposit into any voting trust, enter into any voting
agreement, or create or permit to exist any Liens of any nature whatsoever
(other than pursuant to this Agreement) with respect to, any of such
Stockholder's Shares (or agree or consent to, or offer to do, any of the
foregoing), or (ii) take any action that would make any representation or
warranty of such Stockholder herein untrue or incorrect or have the effect of
preventing, delaying or disabling such Stockholder from performing such
Stockholder's obligations hereunder.
SECTION 3.2 Cooperation. Each Stockholder agrees to cooperate fully with
Purchaser Representative to execute and deliver such further documents,
certificates, agreements and instruments and to take such other actions as may
be reasonably requested by Purchaser Representative to evidence or reflect the
transactions contemplated by this Agreement and to carry out the intent and
purposes of this Agreement.
SECTION 3.3 Information for Offer Documents and Proxy Statement; Disclosure.
Each Stockholder covenants and agrees that none of the information relating to
such Stockholder and its affiliates for inclusion in any proxy statement or
other filings with the SEC with respect to the transactions contemplated by the
Purchase Agreement that has been or will be furnished to Purchaser
Representative by such Stockholder for inclusion in such documents will, at (i)
the time such proxy statement or other filing (or any amendment or supplement
thereto) is first filed with the SEC or mailed to stockholders of the Company or
(ii) the time of the Company Stockholders' Meeting (in the case of information
included in the proxy statement), not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each Stockholder
agrees to permit Purchaser and Purchaser Representative to publish and disclose
in such documents and any related filings under applicable securities laws such
Stockholder's identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement and any other
information regarding such Stockholder as required by applicable laws, provided
that each such Stockholder shall be given reasonable opportunity to review and
comment on the applicable portion of such documents relating to such Stockholder
and its affiliates.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Termination. This Agreement shall automatically terminate with
respect to any Stockholder, on the earlier of (i) the mutual agreement of
Purchaser Representative and Stockholders, (ii) the consummation of the Second
Closing, (iii) the termination of the Purchase Agreement in accordance with its
terms, or (iv) the Expiration Date. For purposes of this Agreement, "Expiration
Date" shall mean August 31, 2003; provided, however, that if the Third Closing
shall not have been consummated by July 31, 2003 due primarily to delays in
receiving clearance of the Proxy Statement from the SEC despite the good faith
efforts of the Company to file the Proxy Statement and amendments thereto on a
timely basis and obtain such clearance, then the Expiration Date shall be
extended to October 30, 2003.
SECTION 4.2 Nature of Obligations. Each of the obligations of each of the
Stockholders hereunder is several and not joint.
SECTION 4.3 Legending of Certificates; Nominees Shares; Stop Transfer. Upon
request by Purchaser Representative, each Stockholder agrees to submit to
Purchaser Representative contemporaneously with or promptly following execution
of this Agreement all certificates representing their Shares so that Purchaser
Representative may note thereon a legend referring to the rights granted to it
under this Agreement. If any of the Shares beneficially owned by a Stockholder
are held of record by a brokerage firm in "street name" or in the name of any
other nominee (a "Nominee," and, as to such Shares, "Nominee Shares"), such
Stockholder agrees that, upon written request by Purchaser Representative, such
Stockholder will within five days of such request execute and deliver to
Purchaser Representative a limited power of attorney, in form and substance
reasonably satisfactory to Purchaser Representative, enabling Purchaser
Representative to require such Nominee to (i) enter into an agreement to the
same effect as Article I hereof with respect to the Nominee Shares held by such
Nominee, and (ii) submit to Purchaser Representative the certificates
representing such Nominee Shares for notation of the above-referenced legend
thereon.
SECTION 4.4 Disclosure. Purchaser Representative and the Stockholders shall
consult with each other before issuing any press release or otherwise making any
public statement with respect to this Agreement or the Purchase Agreement or the
transactions contemplated hereby or thereby.
SECTION 4.5 Adjustments.
(a) In the event (i) of any increase or decrease or other change in the
Shares by reason of stock dividend, stock split, reverse stock split,
recapitalizations, combinations, exchanges of shares or the like or (ii) that a
Stockholder becomes the beneficial owner of any additional Shares, then the
terms of this Agreement shall apply to such Shares immediately following the
effectiveness of the events described in clause (i), or such Stockholder
becoming the beneficial owner thereof pursuant to clause (ii).
(b) Each Stockholder hereby agrees to promptly notify Purchaser
Representative of the number of any new Shares acquired by such Stockholder, if
any, after the date hereof.
SECTION 4.6 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 4.6):
(a) if to any Stockholder:
To the appropriate address set forth on Schedule B hereto
(b) if to Purchaser Representative:
Xxxxx Xxxxxxxxx
c/o Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
SECTION 4.7 Amendment. This Agreement may not be amended except by an instrument
in writing signed by all the parties hereto.
SECTION 4.8 Waiver. No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. No party shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
SECTION 4.9 Entire Agreement. This Agreement (together with the Schedules
hereto) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof, other than the Purchase Agreement and the other agreements
contemplated thereby.
SECTION 4.10 Applicable Law; Jurisdiction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof or any other jurisdiction. In any action between any of the
parties arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement: (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the state and federal courts located in the State of Delaware (and agrees not to
commence any such action except in such courts) and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action brought in such court has been brought in an inconvenient forum;
(b) if any such action is commenced in a state court, then, subject to
applicable law, no party shall object to the removal of such action to any
federal court located in the State of Delaware; (c) each of the parties
irrevocably waives the right to trial by jury; and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the address at which such party is to
receive notice in accordance with Section 4.6.
SECTION 4.11 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity, without necessity of proof that there is no adequate
remedy at law or requirement to post any security bond.
SECTION 4.12 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 4.13 Costs and Expenses. Except as otherwise provided in the Purchase
Agreement, all costs and expenses of the parties hereto, including fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the First
Closing or the Third Closing shall have occurred.
SECTION 4.14 Parties in Interest; Assignability. This Agreement shall be binding
upon, and shall be enforceable by and inure solely to the benefit of, the
parties hereto, Purchaser and their respective successors and assigns; provided,
however, that neither this Agreement nor any of the Stockholders' rights
hereunder may be assigned by any Stockholder without the prior written consent
of Purchaser Representative, and any attempted assignment of this Agreement or
any of such rights by any Stockholder without such consent shall be void and of
no effect; provided,
further, that Purchaser may assign its rights under this Agreement to any direct
or indirect subsidiary of Purchaser. Except as noted in the preceding sentence,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any Person (other than the parties hereto) any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement. Any assignment
prohibited under this Section shall be null and void. Purchaser Representative
shall provide Stockholders with written notice of the designation of any new
person or entity as Purchaser Representative pursuant to the Purchase Agreement,
and such person or entity shall succeed to the rights and obligations of
Purchaser Representative hereunder.
SECTION 4.15 Severability. Any term or provision of this Agreement that is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
SECTION 4.16 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 4.17 Interpretation of Representations. Each representation and warranty
made in this Agreement or pursuant hereto is independent of all other
representations and warranties made by the same parties, whether or not covering
related or similar matters, and must be independently and separately satisfied.
Exceptions or qualifications to any such representation or warranty shall not be
construed as exceptions or qualifications to any other representation or
warranty.
SECTION 4.18 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(c) For purposes of this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the day and year first above written.
Purchaser Representative
By: /s/ Xxxxx Xxxxxxxxx
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[STOCKHOLDER SIGNATURE PAGE
TO SERIES A PREFERRED STOCK VOTING AGREEMENT]
"STOCKHOLDER"
PRINTED NAME OF STOCKHOLDER:
Ventures West Investments Ltd.
By: /s/ Xxx Xxxxxxx
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BMO Capital Corporation
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By: its Manager
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Ventures West Management TIP Inc.
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By: /s/ Xxx Xxxxxxx
-------------------------------
/s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxx X. Xxxxxx
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GMN Investors II, L.P.
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By: /s/ Xxxxx X. Xxxxxx
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Title: Managing Director
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SCHEDULE A
NUMBER OF
SHARES ISSUABLE
UPON EXERCISE
OF COMPANY
NUMBER OF SHARES OF OPTIONS AND
NAME COMMON STOCK WARRANTS
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Exhibit 99.6
SCHEDULE B
NAME ADDRESS
---- -------
Xxxxx X. Xxxxxx Managing Director
Gemini Investors Inc.
00 Xxxxxxx Xxxxxx, Xxx 000
Xxxxxxxxx, XX 00000
Ventures West Investments Limited 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX X0X 0X0
XXXXXX
Attention: Xxx Xxxxxxx
Xxxxxxx Xxxxxxx Rigel Associates, LLC
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Exhibit 99.6
EXHIBIT 1
FORM OF AMENDED AND RESTATED CERTIFICATE OF DESIGNATION
