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EXHIBIT 10.12
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made as of the 9th day of
August, 1999 (the "EFFECTIVE DATE"), by and among the undersigned holders of the
Common Stock, par value $0.001 per share (the "COMMON STOCK"), of AirWeb
Corporation, a Delaware corporation doing business as "OpenSky Corporation" (the
"COMPANY"), set forth on Schedule A attached hereto (individually, a "FOUNDER,"
collectively, the "FOUNDERS"), 3Com Ventures, Inc. ("3COM") and Aether OpenSky
Investments LLC ("AETHER") and any other purchaser of the Company's Series A
Preferred Stock who executes this Agreement (any holder of voting stock who is a
signatory to this Agreement is hereinafter referred to individually as a "VOTING
PARTY" and collectively as the "VOTING PARTIES").
RECITALS
A. 3Com and Aether wish to acquire 10,000,000 and 10,000,000 shares
(after exercise of a warrant issued to Aether on the date hereof), respectively,
of the Series A Preferred Stock, par value $0.001 per share (together with any
shares of Common Stock issued or issuable upon conversion of the Series A
Preferred Stock, the "SERIES A PREFERRED STOCK"), of the Company.
B. The Company, 3Com and Aether have entered into that certain
Series A Preferred Stock Purchase Agreement dated as of the Effective Date (the
"PURCHASE AGREEMENT").
C. Each Founder currently owns that number of shares of the Common
Stock, as set forth next to his or her respective name on Schedule A.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties agree as follows:
1. Board of Directors. From and after the date of this Agreement and
until the provisions of this Section 1 cease to be effective, each of the
Voting Parties shall vote, or cause the vote of, all shares of Common Stock,
Series A Preferred Stock and other voting securities of the Company over which
such Voting Party has voting control, and will take all other necessary or
desirable actions within his, her or its control (whether in his, her or its
capacity as a stockholder, director or officer of the Company or otherwise) in
order to ensure that the size of the Board of Directors (the "BOARD") shall be
no more than five (5) and to cause the election to the Board of:
(a) One (1) representative designated by 3Com, who initially
shall be Xxxxxx Xxxxxxx;
(b) One (1) representative designated by Aether, who initially
shall be Xxxxx Xxxx; and
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(c) One (1) representatives designated by the holders of
Common Stock, as a class, who initially shall be Xxxxxxx XxXxxxx.
2. Vacancies. In the event that any representative designated as
provided in Section 1 above for any reason ceases to serve as a member of the
Board during his or her term of office, the parties hereto shall cause the
resulting vacancy to be filled by a representative designated as provided in
Section 1 by the respective person or persons or entity who designated the
vacating representative. Each of the Voting Parties shall attend, and vote its
shares of the voting stock of the Company in accordance with this Agreement at,
each annual meeting of the stockholders of the Company and each special meeting
of the stockholders of the Company involving the election of directors of the
Company.
3. Application of Agreement to After-Acquired-Shares. All of the
provisions of Section 1 shall apply to all voting securities held by the Voting
Parties, whether issued before or after the Closing Date, and all securities
issued as a replacement for the shares or with respect to the shares as a
result of any stock dividend, stock split or other similar event.
4. Nontransferability. Each party hereby agrees that the obligations
and covenants contained herein are unique to the original parties hereto and
that no party may donate, transfer, sale, assign, pledge, hypothecate or
otherwise dispose (other than to an agent, wholly-owned subsidiary or other
person or entity that such party controls either directly or indirectly), any
of its rights and obligations under this Agreement without the prior written
consent of the Voting Parties holding at least a majority-in-interest of the
aggregate voting securities collectively held by all Voting Parties, assuming
full conversion of the Series A Preferred Stock. Any transfer not effected in
accordance with this Section 6 shall be null and void.
5. No Heightened Duties. Each party hereby acknowledges and agrees
that no fiduciary duty, duty of care, duty of loyalty or other heightened duty
shall be created or imposed upon any party to any other party, the Company or
other stockholder of the Company, by reason of this Agreement and/or any right
or obligation hereunder.
6. Amendments; Waivers. Any term hereof may be amended or waived
only by the written consent of (i) each of (a) the Voting Parties as a group
holding at least a majority-in-interest of the aggregate voting securities
collectively held by all Voting Parties (or their respective successors and
assigns), assuming full conversion of the Series A Preferred Stock and, (b)
3Com and (c) Aether, and (ii) with respect to any amendment or waiver that
affects the rights of the Founders, then such amendment or waiver must also be
approved by a majority-in-interest of the Founders. Any amendment or waiver not
effected in accordance with this Section 8 shall be null and void and
non-binding upon the Voting Parties and their respective successors and
assigns. No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of such party or any other party hereto with respect to any subsequent
breach.
7. Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed delivered on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or confirmed
fax, or forty-eight (48) hours after being deposited in the U.S. mail, as
certified or registered mail, with postage prepaid, to the following addresses:
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(i) if to 3Com: 3Com Ventures, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX
00000, Attn: Xxxxxx Xxxxxxx; (ii) if to Aether: Aether OpenSky Investments LLC,
00000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000, Attn: Xxxxx Xxxx; (iii) if to a
Founder, at the address below such Founder's name on Exhibit A attached hereto,
(iii) if to such other Voting Parties signatory to this Agreement, at the
addresses set forth on such parties signature page, or (iv) at such other
address as such Voting Parties shall have furnished to the Company in writing.
8. Severability. If one or more provisions of or obligations under
this Agreement are held to be invalid, illegal, or unenforceable under
applicable law, then such provision or obligation shall be excluded from this
Agreement, and the remaining provisions of and obligations under this Agreement
shall be enforceable in full in accordance with their terms.
9. 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.
10. Counterparts. This Agreement may be executed by facsimile and in
two or more counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one agreement.
11. Successors and Assigns. Subject to Section 6 above, 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.
12. Specific Performance. The parties hereby acknowledge that it is
impossible to measure in money the damages which will accrue to a party hereto
or to its heirs, personal representatives, or assignees by reason of a party's
failure to perform its obligations under this Agreement and therefore agree
that, in addition to and without limiting any remedies available at law, each
of the parties hereto shall have full equitable remedies available to such
party.
13. Termination. This Agreement shall terminate and the obligations
of the Voting Parties to vote their respective shares of voting securities
shall cease upon the earlier to occur of:
(a) the closing of the Company's sale of its Common Stock in a
firm commitment underwriting pursuant to a registration statement under the
Securities Act of 1933, as amended, the aggregate proceeds of which are not
less than $15,000,000;
(b) the closing of (i) a merger or consolidation of the
Company with or into any other corporation (other than a wholly-owned
subsidiary corporation), (ii) the sale of all or substantially all the assets
or business of the Company, or (iii) any other transaction or series of related
transactions in which more than fifty percent (50%) of the voting power is
disposed of; or
(c) written consent of (i) each of (a) the Voting Parties as a
group holding at least a majority-in-interest of the aggregate voting
securities collectively held by all Voting
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Parties (or their respective successors and assigns), assuming full conversion
of the Series A Preferred Stock and, (b) 3Com and (c) Aether, and (ii) with
respect to any amendment or waiver that affects the rights of the Founders,
then such amendment or waiver must also be approved by a majority-in-interest
of the Founders.
14. Additional Parties. The parties hereto agree that additional
purchasers of the Company's Series A Preferred Stock may, subject only to
section 2.3 of that certain Series A Preferred Stock Purchase Agreement between
the Company, 3Com and Aether, be added as parties to this Agreement with
respect to any or all securities of the Company held by them, and shall
thereupon be deemed for all purposes a "Voting Party" hereunder. Any such
additional party shall execute a counterpart of this Agreement, and upon
execution by such additional party and by the Company, shall be considered a
Voting Party for purposes of this Agreement.
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IN WITNESS WHEREOF, the Voting Parties have entered into this Agreement
as of the Effective Date.
FOUNDERS:
/s/ Xxx XxXxxxx
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Xxxxxxx XxXxxxx
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
SIGNATURE PAGE TO VOTING AGREEMENT
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IN WITNESS WHEREOF, the Voting Parties have entered into this Agreement
as of the Effective Date.
3COM VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
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IN WITNESS WHEREOF, the Voting Parties have entered into this Agreement
as of the Effective Date.
AETHER OPENSKY INVESTMENTS LLC
By: Aether Technologies International, L.L.C.,
Its Sole Member
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Member
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
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IN WITNESS WHEREOF, the Voting Parties have entered into this Agreement
as of the Effective Date.
WS INVESTMENT COMPANY 99B
By:
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Name:
Title:
SIGNATURE PAGE TO VOTING AGREEMENT
