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EXHIBIT 10.2
VIASAT, INC.
SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement (the "Agreement") is made and entered
into this 11th day of June, 1986, by and among Southern California Ventures, a
California limited partnership ("SCV"), Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx
(SCV and Messrs. Xxxxxxx and Tisch are collectively referred to herein as the
"Investors" and singly as an "Investor"), ViaSat, Inc., a California corporation
(the "Corporation"), and Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxx and Xxxx X. Xxxxxx
(Messrs. Dankberg, Xxxx and Xxxxxx are collectively referred to herein as the
"Common Shareholders").
R E C I T A L S
A. The Investors desire to purchase from the Corporation shares of
its Series A Convertible Preferred Stock (the "Preferred Stock") on the terms
and conditions set forth in a Preferred Stock Purchase Agreement among each of
the Investors and the Corporation dated as of June 11, 1986 (the "Purchase
Agreement").
B. The Amended and Restated Articles of Incorporation of the
Corporation provide that each holder of Preferred Stock is entitled to the
number of votes equal to the largest number of full shares of the Corporation's
Common Stock into which such shares of Preferred Stock could be converted on all
matters submitted to a vote of shareholders.
C. The Common Shareholders own all or substantially all of the
outstanding Common Stock of the Corporation and have entered into certain
agreements ("Stock Restriction Agreements") with the Corporation providing for
the right of the Corporation to repurchase such stock under certain
circumstances.
D. The Stock Restriction Agreements between the Company and the
Common Stockholders grant the Investors the option to purchase the shares of
Common Stock of the Common Shareholders in certain circumstances; accordingly,
the Investors are third party beneficiaries under such Stock Restriction
Agreements.
E. The Investors are willing to purchase the Preferred Stock on the
terms and conditions contained in the Purchase Agreement if the Investors can
obtain assurances from the Corporation and the Common Shareholders regarding,
among other things, election of the Corporation's Board of Directors. To induce
the Investors to purchase the Preferred Stock, the Corporation and the Common
Shareholders are willing to enter into certain agreements as set forth herein.
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A G R E E M E N T
NOW, THEREFORE, IT IS AGREED among the parties as follows:
1. Definitions. Except as otherwise specifically provided in this
Agreement, or unless the context otherwise requires, the following terms shall
have the following respective meanings:
1.1 "Board" shall mean the Board of Directors of the
Corporation.
1.2 "Capital Stock" shall mean all shares or other units into
which the proprietary interest of the Corporation is divided pursuant to its
Articles of Incorporation, as amended and restated from time to time, and shall
include Common Stock and Preferred Stock.
1.3 "Common Shareholders" shall mean Xxxx Xxxxxxxx, Xxxxx Xxxx
and Xxxx Xxxxxx.
1.4 "Common Stock" shall mean all shares of Capital Stock other
than Preferred Stock.
1.5 "Corporation" shall mean Intellicom, Inc., a California
corporation.
1.6 "Investor" shall mean SCV or Xxxxxx X. Xxxxxxx or Xxxxxx X.
Xxxxx, and "Investors" shall mean all three of such individuals and entities and
any successor or successors to them as holders of any portion of the Preferred
Stock or the Common Stock into which the Preferred Stock is convertible.
1.7 "Investors' Common Stock" shall mean the shares of Common
Stock issued upon conversion of the Preferred Stock.
1.8 "Preferred Stock" shall mean the shares of Series A
Convertible Preferred Stock sold to the Investors by the Corporation pursuant
to the Purchase Agreement.
1.9 "Purchase Agreement" shall mean that certain Preferred
Stock Purchase Agreement by and among the corporation and the Investors.
1.10 "SCV" shall mean Southern California Ventures, a
California limited partnership.
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1.11 "Stock Restriction Agreement" shall mean any of the
agreements between the Corporation and a Common Shareholder providing for the
right of the Corporation to repurchase the Common Stock of such Common
Shareholder under certain circumstances.
2. Representations and warranties.
2.1 Common Shareholders. Each of the Common Shareholders
represents and warrants to each Investor that (a) Exhibit 1 attached hereto sets
forth his true name and address and contains a true and complete description of
the number of shares of Common Stock owned by him, and (b) no other individual
(besides his spouse, if any), estate, corporation, trust, partnership, joint
venture, association or other entity has any present or contingent interest in
any of the shares of Common Stock listed on Exhibit 1 hereof.
2.2 Investors. Each Investor represents and warrants to each
Common Share holder that (a) Exhibit B to the Purchase Agreement contains a true
and complete description of the number of shares of Preferred Stock owned by him
or it after giving effect to the transactions contemplated by the Purchase
Agreement, and (b) no other individual (besides his spouse, if any), estate,
corporation, trust, partnership, joint venture, association or other entity has
any present or contingent interest in any of the shares of Preferred Stock
listed on such Exhibit B (other than as a general or limited partner of SCV).
3. Irrevocable Proxies.
3.1 Intent. The purpose of this Agreement is to provide for a
Board composed as follows:
(a) One person less than a majority of the Board selected
by the vote of the holders of outstanding Preferred Stock and Investors' Common
Stock voting as a class (the "Preferred Directors");
(b) One person less than a majority of the Board selected
by the vote of the holders of Common Stock, excluding the holders of the
Investors' Common Stock (the "Common Directors");
(c) One person (who shall not be an officer or full-time
employee of the Corporation, except as is specifically otherwise approved by the
Investors) selected by the Common Shareholders and not objected to by holders of
a majority of the Preferred Stock and Investors' Common Stock as a class (the
"Independent Director").
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3.2 Grant of irrevocable Proxy. The Common Shareholders and
each of them hereby appoint the Preferred Directors (or if less than two
directors are acting, the one so acting) as their attorney and proxy to attend
meetings, vote, give consents and in all other ways to act in their place with
respect to the shares of Common Stock held respectively by them, in order to
effect the following actions:
(a) To maintain a Board consisting of an odd number of
Directors;
(b) To provide for prompt elections to assure that
vacancies on the Board are replaced in a manner so that Common Directors
continue to be elected by holders of the Common Stock (excluding the Investors'
Common Stock), Preferred Directors continue to be elected by holders of the
Preferred Stock and the Investors' Common Stock, and the Independent Director
continues to be selected and elected as hereinafter provided.
(c) To vote or withhold the vote of the shares of Common
Stock for which the irrevocable proxy has been granted for the person nominated
by the holders of the Common Stock to be the Independent Director, it being
understood that if such vote is withheld no votes may be cast for such nominee
by any holder of the Preferred Stock or by any bolder of the Investors' Common
Stock. It is understood that it is the intent of this provision to provide to a
majority of the persons acting as Preferred Directors the right to disapprove a
nominee selected by the holders of the Common Stock to act as the Independent
Director. The proxy granted hereunder shall not permit the Preferred Directors
to nominate or select any person to act as Independent Director, if such person
has not been nominated on the same occasion by the holders of the Common Stock.
if no action in favor or against a nominee is taken by the holders of the proxy,
the holders of the Common Stock may vote in favor of the nominee.
3.3 Directors to Act as Nominees. The Investors, as holders of
the option to purchase common Stock of the Common Shareholders 'pursuant to the
Stock Restriction Agreements, each hereby appoint the Preferred Director or
Directors, as their nominees, to accept the irrevocable proxy granted under
Section 3.2 of this Agreement. It is the express intention of the Investors, as
holders of such option, and the Common Shareholders that such persons be
appointed as proxy holders so that the irrevocable proxy granted under Section
3.2 meets the requirements of Section 705(e)(2) of the California General
Corporation Law.
3.4 Term. The proxy granted under Section 3.2 shall remain in
effect and shall be irrevocable for the period of
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time commencing on the date of this Agreement and ending upon termination of
this Agreement pursuant to Section 6.6 of this Agreement.
3.5 Agreement Not to Amend Stock Restriction Agreements. The
Corporation and the Common Shareholders shall not amend any of the Stock
Restriction Agreements without the consent of Investors who are holders of a
majority of the number of shares of Common Stock issued or issuable upon
conversion of the Preferred Stock.
4. Legend. All shares and certificates representing the Common Stock
held by the Common Shareholders shall have the following legend printed thereon:
"These shares are subject to a Shareholders' Agreement which grants
under certain limited circumstances an irrevocable proxy to vote
these shares. Such Agreement is binding upon succeeding holders of
these shares. A copy of such Agreement is on file and may be
inspected at the principal office of the Corporation."
Such legend shall be promptly removed upon the earlier of termination of the
irrevocable proxy or the written consent of a majority of the then living
Selling Shareholders.
5. Assistance of the Corporation. The Corporation shall use its
reasonable best efforts to cause the nomination and election to the Board of
Directors of the persons chosen in accordance with Section 3.1 above.
6. Miscellaneous.
6.1 Amendment and Waiver. No modification or amendment of any
provision of this Agreement shall be valid unless it is in writing and signed by
all of the parties hereto, and no waiver of any provision hereof shall be
binding upon any party unless in writing and signed by the party so waiving.
6.2 Notices. All notices and other communications given or made
pursuant to or in connection with this Agreement shall be in writing, shall be
addressed to the Corporation at its principal place of business or to the Common
Shareholders and Investors as specified on Exhibit 1 or 2 hereto, or at such
other address or to such other person as each party shall furnish by notice to
all the others with respect to himself, and shall be delivered personally or
sent by certified mail, postage prepaid, return receipt requested. Unless
otherwise specifically provided
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herein, all such notices and other communications shall be deemed given or made
only (a) upon personal delivery to the appropriate address or (b) on the second
business day following deposit in the mail, if sent by certified mail, return
receipt requested.
6.3 Governing Law and Interpretation. This Agreement shall
be governed and construed in accordance with the laws of the State of
California. The headings of the various Sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
6.4 Counterparts. This Agreement may be executed in any number
of counterparts, all of which together shall constitute one and the same
instrument.
6.5 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of each of the parties hereto and their respective
administrators, executors, legal representatives, heirs, devisees, legatees,
successors, assigns, and transferees. The invalidity or unenforceability of any
provisions hereof shall in no way affect the validity or enforceability of any
other provisions.
6.6 Termination. The provisions of this Agreement shall
terminate upon the earlier of (i) the closing of a firm commitment underwritten
public offering of the Corporation's Common Stock pursuant to a registration
statement declared effective under the Securities Act of 1933, as amended, in
which the aggregate gross proceeds are at least $3,000,000 at a price per share
(subject to adjustment for events occurring after the date hereof) of at least
$0.50, (ii) the end of the second consecutive fiscal year of the Corporation in
which the Corporation has earned income before taxes (determined in accordance
with generally accepted accounting principles consistently applied) of
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at least $500,000, or (iii) the conversion of more than 50% of the shares of
Preferred Stock issued to the Investors pursuant to the Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this Shareholders'
Agreement as of the day and year first above written.
VIASAT, INC. SOUTHERN CALIFORNIA VENTURES
By /s/ Xxxx X. Xxxxxxxx By
--------------------------------- -------------------------------------
/s/ Xxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxx
----------------------------------- ---------------------------------------
Xxxxxx X. Xxxxx Xxxxxx X. Xxxx
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
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at least $500,000, or (iii) the conversion of more than 50% of the shares of
Preferred Stock issued to the Investors pursuant to the Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this Shareholders'
Agreement as of the day and year first above written.
VIASAT, INC. SOUTHERN CALIFORNIA VENTURES
By By /s/
___________________________________ _______________________________________
___________________________________ _______________________________________
Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx
___________________________________ _______________________________________
Xxxxxx X. Xxxxx Xxxxxx X. Xxxx
_______________________________________
Xxxx X. Xxxxxx
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