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EXHIBIT 10.11
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of
November 25, 1998 by and among (i) High Speed Access Corp., a Delaware
corporation (the "Company"), (ii) Broadband Solutions, LLC, a Kentucky limited
liability company ("Broadband I"), and Broadband Solutions II, LLC, a Kentucky
limited liability company ("Broadband II" and, together with Broadband I,
"Broadband") and (iii) Vulcan Ventures, Incorporated, a Washington corporation
("Vulcan"). Broadband and Vulcan are sometimes individually referred to as a
"Preferred Stockholder" and collectively referred to as the "Preferred
Stockholders".
WITNESSETH
WHEREAS, the Preferred Stockholders together own at least a majority of
the issued and outstanding Series A Convertible Preferred Stock, par value $.01
per share of the Company ("Series A Preferred Stock"), and Series B Convertible
Preferred Stock, par value $.01 per share of the Company ("Series B Preferred
Stock"), and Vulcan may purchase up to all of the authorized and unissued shares
of Series C Convertible Preferred Stock, par value $0.01 per share of the
Company, pursuant to the Series C Convertible Preferred Stock Purchase dated as
of the date hereof by and between the Company and Vulcan (the "Series C
Preferred Stock", together with Series A Preferred Stock and Series B Preferred
Stock, collectively, the "Preferred Stock"); and
WHEREAS, the Preferred Stockholders desire to enter into this Agreement
to set forth their respective agreements to vote their shares of capital stock
of the Company on certain matters as provided herein.
NOW, THEREFORE, in consideration of the premises, the respective
covenants contained herein and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. ELECTION OF DIRECTORS. During the term of this Agreement, each Preferred
Stockholder agrees:
A. Except as hereinafter set forth in subsections D., E. and F. below,
to vote all shares of capital stock of the Company, whether preferred or common,
owned or controlled by it, including all shares which it is entitled to vote
under any voting trust, voting agreement, or proxy, for the election of four (4)
directors named by Broadband, who initially shall be Xxxxx X. Xxxxx, Xx., Xxxxxx
X. Xxxxxxxx, and any two of the persons listed on Exhibit 1 hereto; and three
(3) directors named by Vulcan, who initially shall be Xxxxxx X. Xxxx, Xxxxxxx X.
Xxxxx, and Xxxxxx Xxxxx.
B. Prior to any election of directors, each of Broadband and Vulcan
shall provide adequate notice to each of the Preferred Stockholders of the name
of the individual(s) it is
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designating for election pursuant to this Agreement.
C. In the event a director so named by Broadband or Vulcan ceases to be
a director for any reason before his or her term expires, to vote in favor of
another person named by Broadband or Vulcan as provided above, as the case may
be, as a director and otherwise to use its best efforts to elect or cause to be
elected all persons so named (including, without limitation, using its best
efforts to cause its designated directors to vote in favor of such persons).
D. If Broadband has transferred to an entity or person other than an
Affiliate (as defined below) of Broadband, after having taken into consideration
the provisions of subsection F. below, more than 30% of the total number of
shares of Preferred Stock as set forth opposite its name on Schedule I hereto
(as such Schedule is amended from time to time to reflect shares of Series C
Preferred Stock purchased by Broadband subsequent to the date hereof and any
shares of Preferred Stock transferred to an entity or person other than an
Affiliate of Broadband prior to the purchase of such shares of Series C
Preferred Stock (such transfer to be taken into account for the purposes of
amending Schedule 1 only after any such purchase of shares of Series C Preferred
Stock), "Schedule I") on the date of the shareholders= meeting at which
directors are to be elected or, if such election is to be otherwise than at the
shareholders= meeting, of the time of such election, then each Preferred
Stockholder agrees to vote all shares of capital stock of the Company, whether
preferred or common, then owned or controlled by it, including all shares which
it is entitled to vote under any voting trust, voting agreement, or proxy, for
the election of three (3) directors named by Broadband and four (4) directors
named by Vulcan; provided, however, Vulcan has not, as of the time specified
above, transferred to an entity or person, other than an Affiliate of Vulcan,
more than 30% of the total number of shares of Preferred Stock as set forth
opposite its name on Schedule II hereto (as such Schedule is amended from time
to time to reflect shares of Series C Preferred Stock purchased by Vulcan
subsequent to the date hereof and any shares of Preferred Stock transferred to
an entity or person other than an Affiliate of Vulcan prior to the purchase of
such shares of Series C Preferred Stock (such transfer to be taken into account
for the purposes of amending Schedule II only after any such purchase of shares
of Series C Preferred Stock), "Schedule II"). Notwithstanding the foregoing, if
Vulcan shall transfer to an entity or person, other than an Affiliate of Vulcan,
more than 30% of the total number of shares of Preferred Stock, as set forth
opposite its name on Schedule II, within six (6) months following any
determination made under this paragraph D, then the provisions of paragraph A
above shall again be applicable as of the date of such transfer.
E. Each of Broadband or Vulcan shall cease to have the right to name
directors if (i) it and its Affiliates, in the aggregate, do not own at least
50%, after having taken into consideration the provisions of subsection F. below
with respect to Broadband, of the total number of shares of Preferred Stock as
set forth opposite its name on Schedules I or II hereto, respectively, on the
record date of the shareholders= meeting at which directors are to be elected
or, if such election is to be otherwise than at the shareholders= meeting, at
the time of such election, or (ii) there is a Change of Control (as defined in
Section 14 below) of such entity.
F. With respect to the determination or calculation of the number and
percentage of shares of Preferred Stock transferred by Broadband in Sections 1.D
and 1.E above
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(including any amendment to Schedule 1), a transfer of any number of shares of
Preferred Stock to River Cities Capital Fund ("River Cities") shall not be
included in such determination or calculation so long as River Cities and, to
the extent River Cities transfers such shares to its partners, such partners
agree to hold such shares and grant an irrevocable proxy to Broadband to vote
such shares on all matters.
2. OBSERVER RIGHTS. If, and for so long as, Vulcan holds at least 25% of
the number of shares of Preferred Stock set forth on Schedule II, the Company
shall invite a representative from Vulcan to attend in a nonvoting,
nonparticipatory, observer capacity, all meetings of any board or special
committees formed by the Company (to the extent no designee of Vulcan is a
member of any such committee) and give such representative copies of all
notices, minutes, consents and other materials that it provides to its directors
or special committee members at the same time the foregoing are provided to the
directors or special committee members.
3. COVENANTS OF THE COMPANY. The Company agrees to take all actions
required to ensure that the rights given to the Preferred Stockholders hereunder
are effective and that the Preferred Stockholders enjoy the benefits thereof.
Such actions include, without limitation, the use of the Company=s best efforts
to cause the nomination of the designees of the Preferred Stockholders, as
provided herein, for election as directors of the Company. The Company will not,
by any voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be performed hereunder by the Company, but will at all times
in good faith assist in the carrying out of all of the provisions of this
Agreement and in the taking of all such actions as may be necessary or
appropriate in order to protect the rights of the Preferred Stockholders
hereunder against impairment.
4. TERMINATION. The term of this Agreement shall commence on the date
hereof and shall continue in full force and effect until the earlier of the
following events of termination:
[1] Completion by the Company of an underwritten public offering,
initiated by resolution of the Company=s Board of Directors, of common
stock of the Company of not less than $50 million in aggregate gross
proceeds to the Company at a minimum initial price per share of $7.50
(as proportionately and appropriately adjusted to reflect any
subdivision, reverse split or recapitalization of Common Shares after
the date hereof) which has been made pursuant to a registration
statement filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended; or
[2] Written consent to termination executed by each party who has
rights to designate directors hereunder; or
[3] The lapse of ten (10) years from the date of this Agreement.
5. MODIFICATION. This Agreement may not be modified or amended except in
a writing signed by all of the parties hereto.
6. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be
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interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
7. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without regard to the conflicts of laws
provisions thereof.
8. COUNTERPARTS. 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.
9. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties to this Agreement, shall bind and inure to the benefit of their
respective successors and assigns; provided, however, that the rights granted
hereunder are personal to the parties hereto and may not be assigned or
transferred except to an Affiliate.
10. AFFILIATE TRANSFEREES. To the extent the Preferred Stockholders
transfer any shares of their Preferred Stock pursuant to Section 4.E. of the
Amended and Restated Shareholder Agreement dated as of the date hereof (the
"Shareholders Agreement") by and among High Speed Access Corp., the holders of
the Common Shares of the Company listed on Schedule I attached thereto, and the
holders of the Preferred Shares of the Company listed on Schedule II attached
thereto, such resulting transferees receiving, holding or owning such Preferred
Stock shall receive, hold, own and vote such Preferred Stock subject to the
terms and conditions of this Agreement and such transferee shall become a
signatory hereto by executing a conformed counterpart of this Agreement. Except
as provided in Section 1.E hereof, if such transferee attempts to further
transfer such shares of Preferred Stock, the subsequent transferee, if not also
an Affiliate of the original transferring Preferred Stockholder, shall not be
considered an Affiliate for the purposes of Sections 1.D and 1.E specifically,
and this Agreement in general.
11. SPECIFIC PERFORMANCE. It is mutually agreed that there is no
adequate remedy at law in favor of the other parties hereto in the event of a
breach of the provisions hereof by any party hereto, and that any party, in
addition to all other rights and remedies which may be available, shall have the
right of specific performance in the event of any breach of this Agreement or
injunction in the event of any threatened breach of this Agreement, in any such
case without the posting of a bond or other security.
12. NOTICES.
A. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be mailed by first class,
registered, or certified mail, postage prepaid, or sent via overnight courier
service, delivered personally or by facsimile:
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If to the Company: High Speed Access Corp.
Suite 210
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: W. Xxxx Xxxxx, III
Telecopy No.: (000) 000-0000
If to Broadband: Broadband Solutions, LLC
c/o Chrysalis Ventures, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Xx.
Telecopy No.: (000) 000-0000
If to Vulcan: Vulcan Ventures, Incorporated
000 000xx Xxxxxx X.X.
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
or to such other address of which the addressee shall have notified the sender
in writing. Notices mailed in accordance with this section shall be deemed given
when mailed, and notices sent by overnight courier service shall be deemed given
when placed in the hands of a representative of such service.
13. AFFILIATES; AGGREGATION OF STOCK. For purposes of this Agreement, an
Affiliate shall mean (i) with respect to Vulcan, any entities or persons
controlled, directly, by Xxxx X. Xxxxx, or any entities or persons in which Xxxx
X. Xxxxx, either individually or through an entity which he controls, holds an
equity investment of not less than One Hundred Million Dollars ($100,000,000) in
value, as determined at the time of any transfer referred to in Sections 1.D and
1.E above and on the record date of the shareholders= meeting at which directors
are to be elected, or if such election is to be otherwise than at the
shareholders= meeting, at the time of such election, and (ii) with respect to
Broadband, any entities or persons controlling, controlled by or under common
control with Broadband I or Broadband II or any or all of its members, each
existing as of the date hereof, directly or indirectly, either individually or
as a group, or any member of Broadband I or Broadband II, each existing as of
the date hereof, or such person=s lineal descendants, ancestors or spouses of
any of them, or a trust or family limited partnership or any estate or tax
planning vehicles established for its or their benefit. For all purposes of this
Section 13, control shall mean (i) with respect to any entities, the ability,
directly or indirectly, to exercise the right to vote or cause the voting of at
least 50% of the outstanding voting securities of any such entity, or otherwise
control the actions of any such entity, and (ii) with respect to any person,
such person=s lineal descendants or ancestors or spouses of any of them. All
shares of capital stock of the Company, whether preferred or common, held or
acquired by Affiliates shall be aggregated together for the purpose of
determining the availability of any right under this Agreement or any obligation
to vote hereunder.
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14. CHANGE OF CONTROL. With respect to Vulcan, a Change of Control
occurs if Xxxx X. Xxxxx does not have the right to vote, directly or indirectly,
more than sixty percent (60%) of the outstanding voting stock of Vulcan. With
respect to Broadband, a Change of Control occurs if (i) the members of Broadband
as of the date hereof, either individually or as a group, do not have the right
to vote, directly or indirectly, more than sixty percent (60%) of the
outstanding voting interests of Broadband (provided, however, that River Cities
shall be included as a member of Broadband so long as River Cities and, to the
extent River Cities transfers shares to its partners, or its partners agree to
hold such shares and grant to Broadband an irrevocable proxy to vote such shares
on all matters), or (ii) at least two of the persons listed on Exhibit 2 hereto
are no longer serving as directors.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Its: Vice Chairman
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BROADBAND SOLUTIONS, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Its: Member
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BROADBAND SOLUTIONS II, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Its: Member
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VULCAN VENTURES, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
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Its: Vice President
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SCHEDULE I
Broadband Solutions, LLC 5,000,000 shares
c/o Chrysalis Ventures, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 502/000-0000
Fax: 502/000-0000
Broadband Solutions II, LLC 2,000,000 shares
c/o Chrysalis Ventures, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 502/000-0000
Fax: 502/000-0000
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SCHEDULE II
Vulcan Ventures Incorporated 8,000,000 shares
000 000xx Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Phone: (425)
Fax: (000) 000-0000
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EXHIBIT 1
BROADBAND DIRECTOR DESIGNEES
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx, XX
J. Xxxxx Xxxxxxx
Xxxxxx Xxxxxx (or other representative of River Cities Capital Fund)
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EXHIBIT 2
BROADBAND CONTINUING DIRECTOR DESIGNEES
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx, XX
J. Xxxxx Xxxxxxx
Xxxxxx Xxxxxx (or other representative of River Cities Capital Fund)
Xxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxxxxx
