VOTING AGREEMENT
Exhibit
10.37
THIS
VOTING AGREEMENT (the “Agreement”)
is
made and entered into as of this 20th day of February, 2008 by and among
Asyrmatos, Inc., a Delaware corporation (the “Company”),
Lumera Corporation, a Delaware corporation (the “Investor”),
and
those certain stockholders of the Company and holders of options to acquire
shares of the capital stock of the Company listed on Schedule
B
(together with any subsequent stockholders or option holders, or any
transferees, who become parties hereto as “Key Holders” pursuant to the terms
hereof (the “Key
Holders”),
and
together collectively with the Investors, the “Stockholders”).
RECITALS
A. Concurrently
with the execution of this Agreement, the Company and the Investors are entering
into a Contribution Agreement (the “Contribution
Agreement”)
providing for, among other things, the sale of shares of the Company’s Class L
Preferred Stock, and in connection with that agreement the parties desire to
provide the Investors with the right, among other rights, to elect certain
members of the board of directors of the Company (the “Board”)
in
accordance with the terms of this Agreement.
B. The
Amended and Restated Certificate of Incorporation of the Company (the
“Restated
Certificate”)
provides that Investor shall be entitled to elect one director of the Company
(the “Lumera
Director”).
The
remainder of the directors of the Company shall be elected and appointed as
set
forth herein.
C. The
parties also desire to enter into this Agreement to set forth their agreements
and understandings with respect to how shares of the Company’s capital stock
held by them will be voted on an increase in the number of shares of Common
Stock required to provide for the conversion of the Company’s Class L Preferred
Stock.
NOW,
THEREFORE, the parties agree as follows:
1. Voting
Provisions Regarding Board of Directors.
1.1 Size
of the Board.
Each
Stockholder agrees to vote, or cause to be voted, all Shares (as defined below)
owned by such Stockholder, or over which such Stockholder has voting control,
from time to time and at all times, in whatever manner as shall be necessary
to
ensure that the size of the Board shall be set and remain at five (5) directors.
For purposes of this Agreement, the term “Shares”
shall
mean and include any securities of the Company the holders of which are entitled
to vote for members of the Board, including without limitation, all shares
of
Common Stock, and Preferred Stock, by whatever name called, now owned or
subsequently acquired by a Stockholder, however acquired, whether through stock
splits, stock dividends, reclassifications, recapitalizations, similar events
or
otherwise.
1.2 Board
Composition.
Each
Stockholder agrees to vote, or cause to be voted, all Shares owned by such
Stockholder, or over which such Stockholder has voting control, from time to
time and at all times, in whatever manner as shall be necessary to ensure that
at each annual or special meeting of stockholders at which an election of
directors is held or pursu-ant to any written consent of the stockholders,
the
following persons shall be elected to the Board:
a. One
individual designated by the Investor, which individual shall initially be
Xxxxxx Xxxx;
b. Four
individuals designated by a majority of the holders of the Common Stock of
the
Company, which shall initially be Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Dr. Xxx
Xxxxx, and Xx. Xxxxx XxXxxxx.
To
the
extent that any of clauses (a) through (c) above shall not be applicable, any
member of the Board who would otherwise have been designated in accordance
with
the terms thereof shall instead be voted upon by all the stockholders of the
Company entitled to vote thereon in accordance with, and pursuant to, the
Company’s Restated Certificate.
For
purposes of this Agreement, an individual, firm, corporation, partnership,
association, limited liability company, trust or any other entity (collectively,
a “Person”) shall be deemed an “Affiliate” of another Person who, directly or
indirectly, controls, is controlled by or is under common control with such
Person, including, without limitation, any partner, officer, director, member
or
employee of such Person and any venture capital fund now or hereafter existing
that is controlled by or under common control with one or more general partners
of or shares the same management company with such Person.
1.3 Failure
to Designate a Board Member. In the absence of any designation from the
persons or groups with the right to designate a director as specified above,
the
director previously designated by them and then serving shall be reelected
if
still eligible to serve as pro-vided herein.
1.4 Removal
of Board Members.
Each
Stockholder also agrees to vote, or cause to be voted, all Shares owned by
such
Stockholder, or over which such Stockholder has voting control, from time to
time and at all times, in whatever manner as shall be necessary to ensure
that:
(a) no
director elected pursuant to Sections 1.2
or
1.3
of this
Agreement may be removed from office other than for cause (as reasonably
determined by a majority of the board acting in good faith) unless (i) such
removal is directed or approved by the affirmative vote of the Person, entitled
under Section 1.2
to
designate that director or (ii) the Person(s) originally entitled to designate
or approve such director or occupy such Board seat pursuant to Section
1.2
is no
longer so entitled to designate or approve such director or occupy such Board
seat; and
(b) any
vacancies created by the resignation, removal or death of a director elected
pursuant to Sections 1.2
or
1.3
shall be
filled pursuant to the provisions of this Section
1.
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All
Stockholders agree to execute any written consents required to perform the
obligations of this Agreement, and the Company agrees at the request of any
party entitled to designate directors to call a special meeting of stockholders
for the purpose of electing directors.
1.5 No
Liability for Election of Recommended Directors. No party, nor any Affiliate
of any such party, shall have any liability as a result of designating a person
for election as a director for any act or omission by such designated person
in
his or her capacity as a director of the Company, nor shall any party have
any
liability as a result of voting for any such designee in accordance with the
provisions of this Agreement.
1.6 Board
Observation Rights. A representative of the Investor shall have the right to
attend all meetings of the Company’s Board of Directors in a nonvoting observer
capacity (each a “Board Observer”) and, in this respect, the Company shall give
each Board Observer copies of all Board of Directors’ presentation materials
that the Company provides to its directors. Upon reasonable notice and at a
scheduled meeting of the Board of Directors or such other time, if any, as
the
Board may determine in its sole discretion, the Board Observer may address
the
Board of Directors with respect to significant business issues facing the
Company. The initial Board Observer will be Xxxxx Xxxxx. The Investor may change
the designated Board Observer at any time and from time to time, with or without
cause, in its sole discretion.
2. Vote
to Increase Authorized Common Stock.
Each
Stockholder agrees to vote or cause to be voted all Shares owned by such
Stockholder, or over which such Stockholder has voting control, from time to
time and at all times, in whatever manner as shall be necessary to increase
the
number of authorized shares of Common Stock from time to time to ensure that
there will be sufficient shares of Common Stock available for conversion of
all
of the shares of Preferred Stock outstanding at any given time.
3. Remedies.
3.1 Covenants
of the Company.
The
Company agrees to use its best efforts, within the requirements of applicable
law, to ensure that the rights granted under this Agreement are effective and
that the parties enjoy the benefits of this Agreement. Such actions include,
without limitation, the use of the Company’s best efforts to cause the
nomination and election of the directors as provided in this Agreement.
3.2 Irrevocable
Proxy. Each party to this Agreement hereby constitutes and
appoints the
other
parties hereto, and each of them, with full power of substitution, as the
proxies of the party with respect to the matters set forth herein, including
without limitation, election of persons as members of the Board in accordance
with Section 1 hereto and votes to increase authorized shares pursuant to
Section 2 hereof, and hereby authorizes each of them to represent and
to
vote, if and only if the party (i) fails to vote or (ii) attempts to
vote (whether by proxy, in person or by written consent), in a manner which
is
inconsistent with the terms of this Agreement, all of such party’s Shares in
favor of the election of persons as members of the Board determined pursuant
to
and in accordance with the terms and provisions of this Agreement or the
increase of authorized shares or approval of any Sale of the Company pursuant
to
and in accordance with the terms and provisions of Section 2 of this
Agreement. The proxy granted pursuant to the immediately preceding sentence
is
given in consideration of the agreements and covenants of the Company and the
parties in connection with the transactions contemplated by this Agreement
and,
as such, is coupled with an interest and shall be irrevocable unless and until
this Agreement terminates or expires pursuant to Section 4 hereof. Each
party hereto hereby revokes any and all previous proxies with respect to the
Shares and shall not hereafter, unless and until this Agreement terminates
or
expires pursuant to Section 4 hereof, purport to grant any other proxy or
power of attorney with respect to any of the Shares, deposit any of the Shares
into a voting trust or enter into any agreement (other than this Agreement),
arrangement or understanding with any person, directly or indirectly, to vote,
grant any proxy or give instructions with respect to the voting of any of the
Shares, in each case, with respect to any of the matters set forth
herein.
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3.3 Specific
Enforcement.
Each
party acknowledges and agrees that each party hereto will be irreparably damaged
in the event any of the provisions of this Agreement are not performed by the
parties in accordance with their specific terms or are otherwise breached.
Accordingly, it is agreed that each of the Company and the Stockholders shall
be
entitled to an injunction to prevent breaches of this Agreement, and to specific
enforcement of this Agreement and its terms and provisions in any action
instituted in any court of the United States or any state having subject matter
jurisdiction.
3.4 Remedies
Cumulative. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
4. Term.
This
Agreement shall be effective as of the date hereof and shall continue in effect
until and shall terminate upon the earliest to occur of (a) the consummation
of
the Company’s first underwritten public offering of its Common Stock (other than
a registration statement relating either to the sale of securities to employees
of the Company pursuant to its stock option, stock purchase or similar plan
or
an SEC Rule 145 transaction), (b) the consummation of a Deemed Liquidation
Event
(as that term is defined in the Restated Charter) and (c) termination of this
Agreement in accordance with Section 5.8 below.
5. Miscellaneous.
5.1 Additional
Investors.
In
the
event that after the date of this Agreement, the Company enters into an
agreement with any Person to issue shares of capital stock to such Person
following which such Person shall hold Shares constituting one percent (1%)
or
more of the Company’s then outstanding capital stock (treating for this purpose
all shares of Common Stock issuable upon exercise of or conversion of
outstanding options, warrants or convertible securities, as if exercised and/or
converted or exchanged), then, the Company shall cause such Person, as a
condition precedent to entering into such agreement, to become a party to this
Agreement by executing an Adoption Agreement in the form attached hereto as
Exhibit A, agreeing to be bound by and subject to the terms of this Agreement
as
a Stockholder and thereafter such person shall be deemed a Stockholder for
all
purposes under this Agreement.
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5.2 Transfers.
Each
transferee or assignee of any Shares subject to this Agree-ment shall continue
to be subject to the terms hereof, and, as a condition precedent to the
Com-pany’s recognizing such transfer, each transferee or assignee shall agree in
writing to be subject to each of the terms of this Agreement by executing and
delivering an Adoption Agreement sub-stantially in the form attached hereto
as
Exhibit A. Upon the execution and delivery of an Adoption Agreement by any
transferee, such transferee shall be deemed to be a party hereto as if such
transferee were the transferor and such transferee’s signature appeared on the
signature pages of this Agreement and shall be deemed to be an Investor and
Stockholder, or Key Holder and Stockholder, as applicable. The Company shall
not
permit the transfer of the Shares subject to this Agreement on its books or
issue a new certificate representing any such Shares unless and until such
transferee shall have complied with the terms of this Section 5.2. Each
certificate representing the Shares subject to this Agreement if issued on
or
after the date of this Agreement shall be endorsed by the Company with the
legend set forth in Section 5.12.
5.3 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.
5.4 Governing
Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the General Corporation Law of the State of Delaware as to
matters within the scope thereof, and as to all other matters shall be governed
by and construed in accordance with the internal laws of the State of Delaware,
without regard to its principles of conflicts of laws. The parties (a) hereby
irrevocably and unconditionally submit to the jurisdiction of the state and
federal courts located in the State of Delaware for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement
(“Covered
Matters”),
(b)
agree not to commence any suit, action or other proceeding arising out of or
based upon any Covered Matters except in the state courts or federal courts
located in the State of Delaware, and (c) hereby waive, and agree not to assert,
by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that it is not subject personally to the jurisdiction
of
the above-named courts, that its property is exempt or immune from attachment
or
execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that
this
Agreement or the subject matter of any Covered Matter may not be enforced in
or
by such court.
5.5 Counterparts;
Facsimile.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may be executed and delivered by facsimile signature
and in two or more counterparts, each of which shall be deemed an original,
but
all of which together shall constitute one and the same instrument.
5.6 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
5.7 Notices.
All
notices, requests and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given, delivered
and received: (i) upon personal delivery to the party to be notified, (ii)
when
sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient, and if not so confirmed, then on the next business
day,
(iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) business day after
the business day deposit with a nationally recognized overnight courier,
specifying next-day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at their address as
set
forth on Schedule A or Schedule B hereto, or to the principal
office of the Company and to the attention of the Chief Executive Officer,
in
the case of the Company, or to such email address, facsimile number or address
as subsequently modified by written notice given in accordance with this
Section 5.7. If notice is given to the Investor, a copy shall also be
sent to the attention of Xxxxxxxxxxx Xxxxxx at Ropes & Xxxx LLP, Xxx
Xxxxxxxxxxx Xxxxxx Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000. If notice is
given to Xxxxx X. Xxxxxx, then a copy shall also be sent to Xxxxxx X. Xxxx,
Xx.
000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
5.8 Consent
Required to Amend, Terminate or Waive. This
Agreement may be amended or modified and the observance of any term hereof
may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only
by a
written instrument executed by (a) the Company and (b) the holders of a
majority-in-interest of the shares of Common Stock held by the Stockholders
(voting as a single class and on an as-converted basis). Notwithstanding the
foregoing:
(a) this
Agreement may not be amended or terminated and the observance of any term of
this Agreement may not be waived with respect to any Investor or Key Holder
without the written consent of such Investor or Key Holder unless such
amendment, termination or waiver applies to all Investors or Key Holders, as
the
case may be, in the same fashion;
(b) Schedules
A
and
B
hereto
may be amended by the Company from time to time in accordance with Section
1.3
of the
Purchase Agreement to add information regarding additional Investors (as defined
in the Purchase Agreement) without the consent of the other parties
hereto;
(c) any
provision hereof may be waived by the waiving party on such party’s own behalf,
without the consent of any other party; and
(d) this
Section
5.8
and
Section
1.2(a)
and
Section
1.6
of this
Agreement shall not be amended or waived without the written consent the
Investor.
The
Company shall give prompt written notice of any amendment, termination or waiver
hereunder to any party that did not consent in writing thereto. Any amendment,
termination or waiver effected in accordance with this Section 5.8 shall be
binding on each party and all of such party’s successors and permitted assigns,
whether or not any such party, successor or assignee entered into or approved
such amendment, termination or waiver.
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5.9 Delays
or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party under this Agreement, upon any breach or default of any
other party under this Agreement, shall impair any such right, power or remedy
of such non-breaching or non-defaulting party nor shall it be construed to
be a
waiver of or acquiescence to any such breach or default or to any similar breach
or default thereafter occurring; nor shall any waiver of any single breach
or
default be deemed a waiver of any other breach or default previously or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only
to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
5.10 Severability.
The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
5.11 Entire
Agreement.
This
Agreement (including the Exhibits hereto), the Restated Certificate and the
other Transaction Agreements (as defined in the Contribution Agreement)
constitute the full and entire understanding and agreement between the parties
with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties
are
expressly canceled.
5.12 Legend
on Share Certificates.
Each
certificate representing any Shares issued after the date hereof shall be
endorsed by the Company with a legend reading substantially as
follows:
“THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREE-MENT, AS MAY BE AMENDED
FROM TIME TO TIME, (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST 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 THAT VOTING AGREEMENT, INCLUD-ING CERTAIN RESTRICTIONS ON TRANSFER
AND OWNERSHIP SET FORTH THEREIN.”
The
Company, by its execution of this Agreement, agrees that it will cause the
certificates evidencing the Shares issued after the date hereof to bear the
legend required by this Section 5.12 of this Agreement, and it shall supply,
free of charge, a copy of this Agreement to any holder of a certificate
evidencing Shares upon written request from such holder to the Company at its
principal office. The parties to this Agreement do hereby agree that the failure
to cause the certificates evidencing the Shares to bear the legend required
by
this Section 5.12 herein and/or the failure of the Company to supply, free
of
charge, a copy of this Agreement as provided hereunder shall not affect the
validity or enforcement of this Agreement.
5.13 Stock
Splits, Stock Dividends, etc.
In the
event of any issuance of Shares of the Company’s voting securities hereafter to
any of the Stockholders (including, without limitation, in connection with
any
stock split, stock dividend, recapitalization, reorganization, or the like),
such Shares shall become subject to this Agreement and shall be endorsed with
the legend set forth in Section 5.12.
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5.14 Manner
of Voting. The
voting of Shares pursuant to this Agreement may be effected in person, by proxy,
by written consent or in any other manner permitted by applicable
law.
5.15
Further
Assurances. At any time or from time to time after the date hereof, the
parties agree to cooperate with each other, and at the request of any other
party, to execute and deliver any further instruments or documents and to take
all such further action as the other party may reasonably request in order
to
evidence or effectuate the consummation of the transactions contemplated hereby
and to otherwise carry out the intent of the parties hereunder.
5.16 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.
5.17
Consent
of Spouse. If
any
individual Stockholder is married on the date of this Agreement and is a
resident of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington or Wisconsin, or the Commonwealth of Puerto Rico, such Stockholder’s
spouse shall execute and deliver to the Company a Consent of Spouse in the
form
of Exhibit B hereto (“Consent
of Spouse”),
effective on the date hereof. Notwithstanding the execution and delivery
thereof, such consent shall not be deemed to confer or convey to the spouse
any
rights in such Stockholder’s Shares that do not otherwise exist by operation of
law or the agreement of the Parties. If any individual Stockholder who is a
resident of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas,
Washington or Wisconsin, or the Commonwealth of Puerto Rico should marry or
remarry subsequent to the date of this Agreement, such Stockholder shall within
thirty (30) days thereafter obtain his/her new spouse’s acknowledgement of and
consent to the existence and binding effect of all restrictions contained in
this Agreement by causing such spouse to execute and deliver a Consent of Spouse
acknowledging the restrictions and obligations contained in this Agreement
and
agreeing and consenting to the same.
5.18 Certain
Definitions. Shares “held”
by
a
holder of record of stock in the Company shall mean any Shares directly or
indirectly owned (of record or beneficially) by such holder or as to which
such
holder has voting power. “Vote”
shall
include any exercise of voting rights whether at an annual or special meeting
or
by written consent or in any other manner permitted by applicable law. A
“majority-in-interest”
of
the
Stockholders shall mean the holders of a majority of the Common Stock
(determined on an as-converted basis) then held by such group.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
date
first written above.
|
ASYRMATOS,
INC.
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Chief
Executive Officer
|
|
LUMERA
CORPORATION
|
|
|
By:
|
/s/
Xxxxx X. Xxxxx
|
|
Name:
|
Xxxxx
X. Xxxxx
|
|
Title:
|
Chief
Financial Officer
|
|
KEY
HOLDERS:
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
By:
|
/s/
Xxx Xxxxx
|
|
Name:
|
Xxx
Xxxxx
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
Name:
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Xxxxxxx
Xxxxx
|
|
By:
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/s/
Xxxxx XxXxxxx
|
|
Name:
|
Xxxxx
XxXxxxx
|
