Exhibit 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
of the 13th day of August, 2003, by and between TECORE, INC., a Texas
corporation ("TECORE"), and SCP PRIVATE EQUITY PARTNERS II, INC., a Delaware
limited partnership ("SCP").
RECITALS:
A. TECORE and SCP are the holders of Senior Secured Convertible Notes
issued by AirNet Communications, Inc., a Delaware corporation (the "Company"),
dated the date hereof (the "Notes"), which were purchased pursuant to the terms
of a Securities Purchase Agreement, dated June 5, 2003, among TECORE, SCP and
the Company (the "Purchase Agreement"). (TECORE and SCP are sometimes
hereinafter individually referred to as a "Holder" and collectively as the
"Holders.")
B. SCP is also the holder of shares of the Company's Common Stock, par
value $0.001 per share (the "Common Stock").
C. The Holders of the Notes are entitled to vote on matters submitted
to the stockholders of the Company on the basis of the number of shares of
Common Stock into which such Notes are convertible at an assumed conversion
price.
D. The Holders desire to provide for the voting of the Notes, the
shares of Common Stock into which the Notes are convertible, and the shares of
Common Stock now owned by SCP in accordance with the terms hereof, as well as
any other voting securities of the Company which the Holders may hereafter
acquire.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Representation on Board of Directors; Other Voting Arrangements.
1.1 (a) Prior TECORE's Ownership of a Majority of Outstanding Common
Stock. Subject to Sections 1.1(b) and (c) hereof, each of the Holders agrees
that so long as this Agreement remains in effect, it will vote all Notes and
shares of capital stock of the Company (including Common Stock) owned by it (and
all other securities the voting of which is within its control), from and after
the date hereof, to (A) maintain a Board of Directors of ten (10) members; and
(B) elect and maintain in office as a director of the Company: (i) the Company's
chief executive officer; (ii) two (2) persons designated from time to time in
writing by SCP; (iii) four (4) persons designated from time to time in writing
by TECORE; and (iv) three (3) persons who shall be independent, within the
meaning of Section 301 of the Xxxxxxxx-Xxxxx Act of 2002, the Securities
Exchange Act of 1934, as amended, and applicable national securities exchanges
and associations ("Independent"), who shall be satisfactory to TECORE and SCP,
and who shall be elected by the holders of a majority of the voting power
represented by the Notes,
the outstanding shares of Common Stock, and any other securities entitled to
vote in the election of directors, voting as a single class; provided, that only
three (3) of the persons designated by TECORE shall be permitted to take office
as directors of the Company until such time as the aggregate cash purchase price
paid for the Notes by the Holders pursuant to the Purchase Agreement represents
a contribution to the Company which, relative to the aggregate market value of
the Company's Common Stock as of the date of the Purchase Agreement, permits
such additional representation on the Board of Directors within the meaning of
the applicable national securities exchanges and associations' voting rights
rules.
(b) After TECORE's Ownership of a Majority of Outstanding Common
Stock. Subject to Section 1.1(c) hereof, from and after the time that TECORE
shall own a majority of the issued and outstanding shares of Common Stock and
for so long as TECORE maintains such majority ownership, each of the Holders
agrees that so long as this Agreement remains in effect, it will vote all Notes
and shares of capital stock of the Company (including Common Stock) owned by it
(and all other securities the voting of which is within its control), to (A)
maintain a Board of Directors of eleven (11) members, and (B) elect and maintain
in office as a director of the Company: (i) the Company's chief executive
officer; (ii) one (1) person designated from time to time in writing by SCP;
(iii) six (6) persons designated from time to time in writing by TECORE; and
(iv) three (3) persons who shall be Independent, who shall be satisfactory to
TECORE and SCP, and who shall be elected by the holders of a majority of the
voting power represented by the Notes, the outstanding shares of Common Stock,
and any other securities entitled to vote in the election of directors, voting
as a single class.
(c) After Payment Default. In the event that TECORE shall fail to
pay any installment of the purchase price of the Note purchased by TECORE when
due pursuant to any of Sections 1.1(b)(ii)-(ix) of the Purchase Agreement, and
such failure shall not be cured on or before the 20th calendar day following
such due date ("TECORE Payment Default"), the provisions of Sections 1.1(a) and
(b) shall thereafter have no applicability, and, in lieu thereof, each of the
Holders agrees that so long as this Agreement remains in effect, it will vote
all Notes and shares of capital stock of the Company (including Common Stock)
owned by it (and all other securities the voting of which is within its
control), to (A) maintain a Board of Directors of such number as SCP shall
determine, and (B) elect and maintain in office as a director of the Company:
(i) the Company's chief executive officer; (ii) such number of persons as SCP
shall be entitled to designate pursuant to Section 1.1(d) and as shall be
designated from time to time in writing by SCP; (iii) such number of persons as
TECORE shall be entitled to designate pursuant to Section 1.1(d) and as shall be
designated from time to time in writing by TECORE; and (iv) persons constituting
the balance of the Board of Directors who shall be Independent, who shall be
satisfactory to SCP, and who shall be elected by the holders of a majority of
the voting power represented by the Notes, the outstanding shares of Common
Stock, and any other securities entitled to vote in the election of directors,
voting as a single class.
(d) Number of Directors Who May be Designated Following a TECORE
Payment Default. In the event that there shall be a TECORE Payment Default, SCP
and TECORE shall be permitted to designate the following number of directors
pursuant to Section 1.1(c):
2
(A) TECORE shall be permitted to designate such number of
persons as shall equal four (4) multiplied by a fraction, the numerator of which
shall be the total amount paid by TECORE on account of the purchase price of the
Note purchased by TECORE and the denominator of which shall be $12,000,000 (such
quotient to be rounded down to the nearest lower whole number); provided that
the minimum number of designees which shall be permitted to TECORE shall be two
(2).
(B) SCP shall be permitted to designate such number of
persons as shall equal the sum of x plus y, where x shall equal two(2), and y
shall equal four times the principal amount of Notes purchased by SCP in excess
of $4,000,000 divided by $8,000,000 (such quotient to be rounded up to the
nearest higher whole number).
(e) Initial Directors. Pursuant to Section 1.1, each of the
Holders agrees that it will vote all Notes and shares of capital stock of the
Company (including Common Stock) owned by it (and all other securities the
voting of which is within its control), to elect the following persons to
initially serve on the Board of Directors: (i) Xxxxx Xxxxx, the Company's chief
executive officer; (ii) Xxxxx X. Xxxxx, current Chairman of the Board of
Directors, and Xxxxxxxxxxx X. Xxxxxxx, as the designees of SCP, (iii) Xxx
Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, and Xxxx Xxxxxx, as the designees of
TECORE, and (iv) Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxx as the
Independent directors.
1.2 In the event that any member of the Board of Directors elected
pursuant to Section 1.1 resigns or otherwise ceases to be a member of the Board
of Directors for any reason, the vacancy shall be filled as provided in the
Company's Certificate of Incorporation and By-laws, and the Holders shall vote
their stock in connection with filling such vacancy as provided in Section 1.1.
1.3 No party hereto shall in any event take any action to remove from
office any director designated by another party pursuant to Section 1.1, except
on the direction of the party with Board designation rights as to such director.
1.4 In the event that any of the Holders are not present in person or
by proxy at any meeting of stockholders of the Company at which directors are to
be elected, the Notes and/or shares of such person shall be voted by the
presiding officer of the meeting for the persons designated in Section 1.1, and
the presiding officer is hereby granted a proxy for that purpose.
2. Committees. The Holders shall take all appropriate action to ensure
that the Board of Directors of the Company maintains a Compensation Committee
and an Audit Committee (each with duties and responsibilities customary for such
committees) and that directors, who shall be satisfactory to SCP and TECORE and
permitted to serve on such committees by applicable Securities and Exchange
Commission and national securities exchanges and associations rule and
regulations, shall be appointed to each of the Compensation Committee and the
Audit Committee, and to each other significant committee of the Board of
Directors.
3
3. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective heirs, executors, administrators, assigns,
transferees and successors in interest of the parties hereto.
4. Termination. The rights and obligations of the Company and the
Holders shall terminate after the expiration of ten (10) years from the date of
this Agreement.
5. Modification or Amendment. Neither this Agreement nor any provision
hereof can be modified, amended, changed, discharged or terminated except by an
instrument in writing signed by TECORE and SCP.
6. Notices. All notices to be given or otherwise made to any part to
this Agreement shall be deemed to be sufficient if delivered in accordance with
the provisions of the Purchase Agreement.
7. Further Assurances. From and after the date of this Agreement, upon
the request of either of the Holders, the Holders shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
8. Legends. In addition to any other legend required by law or
agreement, each certificate evidencing Notes or shares of the Company's capital
stock shall be stamped or otherwise imprinted with a legend to the following
effect (in addition to any other legend required by law or agreement):
"[The shares represented by this certificate are] [This Note is]
subject to certain restrictions contained in a Voting Agreement between
TECORE, Inc., and SCP Private Equity Partners II, L.P., a copy of which is
available for examination at the principal office of the Company."
9. Severability; Governing Law. If any provisions of this Agreement
shall be determined to be illegal or unenforceable by any court of law, the
remaining provisions shall be severable and enforceable to the maximum extent
possible in accordance with their terms. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
10. Injunctive Relief. It is acknowledged that it would be impossible
to measure damages that would be suffered by the parties if any party hereunder
fails to comply with the provisions of this Agreement and that in the event of
such failure, the other parties will not have an adequate remedy at law. Each
party shall therefore be entitled to obtain specific performance of the other
parties' obligations hereunder and to obtain immediate injunctive relief. A
party failing to comply shall not argue, as a defense to any proceeding for such
specific performance or injunctive relief, that the other parties have an
adequate remedy at law.
11. Counterparts. This Agreement may be executed in counterparts, all
of which together shall constitute one and the same instrument. Telefacsimile
transmissions of any executed original document and/or retransmission of any
executed telefacsimile transmission
4
shall be deemed to be the same as the delivery of an executed original. At the
request of any party hereto, the other parties hereto shall confirm
telefacsimile transmissions by executing duplicate original documents and
delivering the same to the requesting party or parties.
12. Submission to Jurisdiction. Each of the Holders submits to the
jurisdiction of any state or federal court sitting in the State of Delaware in
any action or proceeding arising out of or relating to this Agreement, agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court, and agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court. Each of the
Holders waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought. Any Holder may make service on any other of the
Holders by sending or delivering a copy of the process to such person to be
served at the address and in the manner provided for the giving of notices in
Section 6 above. Nothing in this Section, however, shall affect the right of any
of the Holders to serve legal process in any other manner permitted by law. Each
Holder agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law.
IN WITNESS WHEREOF, each of the Holders has executed this Voting
Agreement as of the day and year first above written.
TECORE, INC.
By: /s/ Xxx X. Xxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxx
---------------------------------
Title: President
--------------------------------
SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP Private Equity II, General
Partner, L.P., its General Partner
By: SCP Private Equity II, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: A Manager
--------------------------------
5
