STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement") is made and entered into as
of April 14, 2004 by and between YDI Wireless, Inc., a Delaware corporation
("YDI"), and SOFTBANK Capital Partners, L.P., SOFTBANK Capital LP, and SOFTBANK
Capital Advisors Fund LP (collectively, "Stockholder"), who are stockholders of
Terabeam Corporation, a Washington corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, YDI, T-Xxx
Acquisition Corporation, a Washington corporation and wholly owned subsidiary of
YDI ("Merger Sub"), and the Company have entered into an agreement and plan of
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merger (the "Merger Agreement"), whereby YDI would acquire all of the capital
stock of the Company through the merger (the "Merger") of Merger Sub with and
into the Company.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of more than
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15% of the outstanding voting capital stock of the Company.
C. In exchange for good and valuable consideration, receipt of which is
hereby confirmed, including the execution of the Merger Agreement by YDI,
Stockholder desires to restrict the transfer or disposition of any of the Shares
(defined below), and desires to vote the Shares so as to facilitate the
consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
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1.1 Transfer and Encumbrance. Stockholder agrees, during the period
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beginning on the date hereof and ending on the Expiration Date (as defined
below), not to transfer, sell, exchange, pledge or otherwise dispose of or
encumber (collectively, "Transfer") such number of shares of the Company's
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outstanding shares of voting common stock that it beneficially owns that is
equal to ten percent (10%) of the shares of the Company's outstanding voting
common stock outstanding as of the record date of the Company Stockholder
Meeting (as defined in the Merger Agreement) (the "Shares"), or to discuss,
negotiate, or make any offer or agreement relating thereto, other than to or
with YDI. Stockholder acknowledges that the intent of the foregoing sentence is
to ensure that YDI retains the right under the Proxy (as defined in Section 3
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hereof) to vote the Shares in accordance with the terms of the Proxy. As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Merger shall become effective in accordance with the terms
and provisions of the Merger Agreement, (ii) the termination of the Merger
Agreement in accordance with its terms, or (iii) one hundred eighty (180) days
after the date of this Agreement.
1.2 [intentionally deleted]
2. Agreement to Vote Shares. Until the Expiration Date, at every meeting of
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stockholders of the Company called with respect to any of the following, and at
every adjournment
or postponement thereof, and on every action or approval by
written consent of stockholders of the Company (which Stockholder shall sign at
such time or times as may be requested by YDI) with respect to any of the
following (the "Meeting"), Stockholder shall vote the Shares:
(i) in favor of approval of the Merger, the execution and delivery by the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and in favor of each of the other actions contemplated by the Merger
Agreement and any action required in furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger as contemplated by the Merger
Agreement; and
(iii) against any of the following actions (other than those actions that
relate to the Merger and the transactions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company with any party, (B) any sale,
lease or transfer of any significant part of the assets of the Company or any of
its subsidiaries, (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company or any of its subsidiaries, (D) any
material change in the capitalization of the Company or the Company's corporate
structure, or (E) any other action that is intended to impede, interfere with,
delay, postpone, discourage or materially and adversely affect the Merger or any
of the other transactions contemplated by the Merger Agreement (any of the
foregoing are referred to herein as an "Opposing Proposal").
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Prior to the Expiration Date, Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with this Section 2.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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Stockholder agrees to deliver to YDI an irrevocable proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest
extent permitted by applicable law, covering the total number of Shares. YDI
agrees to vote the Proxy at the Meeting.
4. Representations, Warranties and Covenants of Stockholder. Stockholder
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represents, warrants and covenants as follows:
4.1 Ownership of Shares. Stockholder is the beneficial owner of the Shares
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with full power to vote or direct the voting of the Shares. As of the date
hereof the Shares are, and at all times up until the Expiration Date the Shares
will be, free and clear of any rights of first refusal, co-sale rights, security
interests, liens, pledges, claims, options, charges or other encumbrances.
Stockholder has full power and authority to make, enter into and carry out the
terms of this Agreement and the Proxy.
4.2 Opposing Proposals. Stockholder will not, and will not permit any
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entity under Stockholder's control to: (i) solicit proxies or become a
participant in a solicitation with respect to an Opposing Proposal or otherwise
encourage or assist any party in taking or planning any action that would
compete with, restrain or otherwise serve to interfere with or inhibit, the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement; or (ii) initiate a stockholders' vote or action by consent of the
stockholders with respect to an Opposing Proposal.
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4.3 Accredited Investor. Stockholder is an "accredited
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investor" as defined in Rule 501 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"). The Stockholder has such knowledge and
experience in financial and business matters in general and investments in
particular so that the Stockholder is able to evaluate the merits and risks of
an investment in the securities issuable by YDI and to protect its own interests
in connection with such investment. In addition, Stockholder has received such
information as it considers necessary or appropriate for deciding whether to
make an investment in the securities issuable by YDI. Stockholder acknowledges
that YDI has afforded Stockholder a reasonable opportunity to ask questions and
receive answers from YDI and its management regarding the business and affairs
of YDI.
5. Additional Documents. Stockholder hereby covenants and agrees to execute
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and deliver any additional documents reasonably necessary or desirable to carry
out the purpose and intent of the Merger Agreement, this Agreement and the
Merger.
6. Consents and Waivers. Stockholder (solely in its capacity as a
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stockholder of the Company) hereby agrees to give any consents or waivers that
may reasonably be required for the consummation of the Merger under the terms of
any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
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herewith shall terminate and shall have no further force or effect on the
Expiration Date and no party shall have any further obligations or liability
hereunder at and after such time (except to the extent that such termination
results from the breach by a party hereto of any of its representations,
warranties, covenants, or agreements set forth in this Agreement or the Proxy).
8. Miscellaneous.
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8.1 Severability. If any provision of this Agreement or the application
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thereof becomes or is declared by a court of competent jurisdiction to be
illegal, void, or unenforceable, the remainder of this Agreement will continue
in full force and effect and the application of such provision to other persons
or circumstances will be interpreted so as reasonably to effect the intent of
the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business, and other
purposes of such void or unenforceable provision; and, if they do not act to
replace the provision, the Agreement will be interpreted as if they had replaced
it with such a provision.
8.2 Binding Effect and Assignment. This Agreement and all of the provisions
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hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of Stockholder may be assigned by Stockholder without
the prior written consent of YDI.
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8.3 Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
8.4 Waiver. No failure on the part of YDI to exercise any power, right,
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privilege or remedy under this Agreement, and no delay on the part of YDI 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. YDI shall not 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 YDI; and
any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
8.5 Specific Performance; Injunctive Relief. The parties acknowledge that
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YDI will be irreparably harmed and that there will be no adequate remedy at law
for a violation of any of the covenants or agreements of Stockholder set forth
herein. Therefore, it is agreed that, in addition to any other remedies that may
be available to YDI upon any such violation, YDI shall have the right to enforce
such covenants and agreements by specific performance, injunctive relief or by
any other means available to YDI at law or in equity.
8.6 Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed given if delivered personally or by commercial
delivery service or mailed by registered or certified mail (return receipt
requested) or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as the party shall specify by like notice). If so mailed,
they shall be deemed given upon the earlier of actual receipt or three business
days after mailing.
(i) if to YDI, to:
0000 Xxx Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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(ii) if to Stockholder, to:
SOFTBANK, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
8.7 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Washington, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
8.8 Entire Agreement. This Agreement and the Proxy contain the entire
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understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties hereto
with respect to such subject matter.
8.9 Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. A facsimile or copy of a signature
is valid as an original.
* * * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
YDI WIRELESS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
STOCKHOLDER:
SOFTBANK CAPITAL PARTNERS, L.P.
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 3,999,858 common
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SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 3,931,099 common
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SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 69,043 common
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EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholders (collectively, the "Stockholder") of Terabeam
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Corporation, a Washington corporation (the "Company"), hereby irrevocably (to
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the fullest extent permitted by law) appoints Xxxxxx X. Xxxxxxxxxx, Xxxxxxx X.
Xxxxxx, and Xxxxx X. Xxxxxxx, each officers of YDI Wireless, Inc., a Delaware
corporation ("YDI"), and each of them, as the sole and exclusive attorney and
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proxy of the undersigned, with full power of substitution and resubstitution, to
vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to such number of shares of the
Company's outstanding shares of voting common stock that it beneficially owns
that is equal to ten percent (10%) of the shares of the Company's outstanding
voting common stock outstanding as of the record date of the Company Stockholder
Meeting (as defined in the Merger Agreement) (the "Shares"), in accordance with
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the terms of this Proxy. The shares of Company stock beneficially owned by the
undersigned Stockholder as of the date of this Proxy are listed on the final
page of this Proxy, along with the number(s) of the share certificate(s) which
represent such shares. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by each undersigned with respect to any Shares are
hereby revoked and the undersigned agrees not to grant any subsequent proxies
with respect to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest, is granted pursuant to and is subject to the terms of
that certain Stockholder Agreement dated as of the date hereof by and between
YDI and the Stockholder (the "Stockholder Agreement"), and is granted for good
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and valuable consideration, including in consideration of YDI entering into that
certain Agreement and Plan of Merger dated as of the date hereof by and among
YDI, T-Xxx Acquisition Corporation, a Washington corporation and wholly owned
subsidiary of YDI ("Merger Sub"), and the Company (the "Merger Agreement")
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whereby YDI would acquire all of the capital stock of the Company through the
merger (the "Merger") of Merger Sub with and into the Company. As used herein,
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the term "Expiration Date" shall mean the earlier to occur of (i) such date and
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time as the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement, (ii) the termination of the Merger Agreement
in accordance with its terms, or (iii) one hundred eighty (180) days after the
date of the Stockholder Agreement.
Subject to any limitations contained in the Stockholder Agreement, the
attorney and proxy named above is hereby authorized and empowered by the
undersigned, at any time prior to the Expiration Date, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting,
consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger, the execution and delivery by the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and in favor of each of the other actions contemplated by the Merger
Agreement and any action required in furtherance thereof;
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(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger as contemplated by the Merger
Agreement; and
(iii) against any of the following actions (other than those actions that
relate to the Merger and the transactions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company with any party, (B) any sale,
lease or transfer of any significant part of the assets of the Company or any of
its subsidiaries, (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company or any of its subsidiaries, (D) any
material change in the capitalization of the Company or the Company's corporate
structure, or (E) any other action that is intended to impede, interfere with,
delay, postpone, discourage or materially and adversely affect the Merger or any
of the other transactions contemplated by the Merger Agreement.
The attorney and proxy named above may not exercise this Proxy on any other
matter except as provided in clauses (i), (ii) or (iii) above. The Stockholder
may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: April 14, 2004
SOFTBANK CAPITAL PARTNERS, L.P.
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 3,999,858 common
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SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 3,931,099 common
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SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Administrative Member
Number and description of shares of stock of the Company owned by this
stockholder: 69,043 common
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