Exhibit 10.2
ONSITE ACCESS, INC.
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into April 16,
1999 by and among OnSite Access, Inc., a Delaware corporation (the "Company"),
and the individuals and entities listed on Exhibit A attached hereto (each an
"Investor" and collectively, the "Investors").
AGREEMENT
The parties hereby agree as follows:
1. BOARD REPRESENTATION.
(a) With respect to the six (6) members of the Company's Board of
Directors the Company's Certificate of Incorporation provides are to be elected
by the holders of the Company's Series C Convertible Redeemable Preferred Stock
("Preferred Stock"), the Investors agree to vote or act with respect to the
shares of Preferred Stock owned by them and to cause the directors designated
by each of them to act so as to elect (or appoint to fill a vacancy): (i) one
(1) member of the Company's Board of Directors designated by Spectrum Equity
Investors III, L.P. ("Spectrum"), (ii) one (1) member of the Company's Board of
Directors designated by XX Xxxxxx Investment Corporation ("XX Xxxxxx"), (iii)
one (1) member of the Company's Board of Directors designated by Crosspoint
Venture Partners ("Crosspoint"), (iv) two (2) members of the Company's Board of
Directors designated by RSI-OnSite Holdings LLC ("RSI") and (v) a person
independent of the Company, its Subsidiaries and, to the knowledge of Spectrum,
XX Xxxxxx, Crosspoint, RSI and Xxx Xxxxxxx, all shareholders of the Company,
and who is familiar with the industry in which the Company operates, selected
by Spectrum, XX Xxxxxx, Crosspoint, RSI and Xxx Xxxxxxx, by a vote of a
majority of the shares of Preferred Stock held by all of them (the "Independent
Director") (collectively, the "Investor Directors").
(b) The Board of Directors shall designate a Compensation Committee and
an Audit Committee, and the Investors agree to cause the directors designated
by each of them or their affiliates to act so as to establish these committees
consisting of three (3) directors and to appoint to these committees (i) one
director to be designated by Spectrum, XX Xxxxxx and Crosspoint, by a vote of a
majority of the shares of Preferred Stock held by all of them, (ii) one
director to be designated by RSI and (iii) one director to be designated by the
Board of Directors as a whole by a vote of the majority of the authorized
number of directors. Any party or parties with a right to designate a director
to the Compensation Committee pursuant to this Section 1(b) shall have the
right to remove such director, and the Investors agree to cause the directors
designated by each of them, to the extent permitted by applicable law, to cause
the removal of such director; PROVIDED that such directors shall not be
required to violate their duties under law as a director of the Company.
(c) The Board of Directors shall designate a Funding Committee, and the
Investors agree to cause the directors designated by each of them or their
affiliates to act so as to establish these committees consisting of three (3)
directors and to appoint to these committees (i) one director to be designated
by Spectrum, XX Xxxxxx and Crosspoint, by a vote of a majority of the shares of
Preferred Stock held by all of them, (ii) one director to be designated by RSI
and (iii) the Management Director (as defined in Section 1(d) hereof). Any
party or parties with a right to designate a director to the Funding Committee
pursuant to this Section 1(c) shall have the right to remove such director, and
the Investors agree to cause the directors designated by each of them, to the
extent permitted by applicable law, to cause the removal of such director;
PROVIDED that such directors shall not be required to violate their duties
under law as a director of the Company.
(d) With respect to the one (1) member of the Company's Board of
Directors the Company's Certificate of Incorporation provides are to be elected
by the holders of Common Stock (including Common Stock, if any, issuable upon
conversion of Preferred Stock), the Investors agree to vote or act with respect
to their shares of Preferred Stock having the right to vote with the Common
Stock and Common Stock of the Company and to cause the directors designated by
each of them to act so as to elect (or appoint to fill a vacancy) as a member
of the Company's Board of Directors the Company's Chief Executive Officer or,
if there is then no Chief Executive Officer, the President (the "Management
Director").
(e) The Company agrees to reimburse the Investor Directors and the
Independent Director and Xxx Xxxxxxx (or his representative) for reasonable
out-of-pocket expenses incurred by them in attending meetings of the Board of
Directors. In addition, so long as Xx. Xxxxxxx (or his representative) is not a
board member, but is invited to attend meetings of the Board of Directors and
committees thereof pursuant to paragraph (f) below, Xx. Xxxxxxx shall be
compensated (whether in cash or options or other equity securities) to the same
extent as the Investor Directors.
(f) Xxx Xxxxxxx (or his representative) shall be invited to attend all
meetings of the Board of Directors and committees (and any executive sessions)
thereof and will be provided information and copies of written materials
provided to all members of the Board of Directors or any committee thereof at
the same time and in the same manner that such materials are provided to the
members of the Board of Directors or any committee thereof. The Investors will
nominate Xxx Xxxxxxx to the Board of Directors and agree to vote on or act with
respect to their shares of Preferred Stock having the right to vote with the
Common Stock and Common Stock of the Company to elect Xxx Xxxxxxx to the Board
of Directors:
(i) if any seat committed to the designee of an Investor (or the
designee of an Investor's affiliate) becomes vacant and such
Investor (or its designee) is no longer entitled to designate
the individual to fill such director seat, unless one (but only
one) such seat that becomes available is made available to a
person described in Section 1(f)(ii)(C) hereof; or
(ii) if the size of the Board of Directors is increased and any
additional seat thereby created is not made available to
(A) a person appointed by a new investor in the Company that
holds an aggregate investment in the Company in excess of
the investment held by Xx. Xxxxxxx and entities he
controls, or
(B) a person appointed by a strategic investor in the Company;
or
(C) a person who is either (i) appointed by RSI or (ii)
unaffiliated with (and is not a member of) management of
the Company and who is unaffiliated with the Investors; or
(D) a person appointed by a new investor in the Company, but
only in the case of a new investor that invests in the
Company after the Investors have purchased $60 million of
Company securities pursuant to the Series B, Series C and
Series D Stock Purchase Agreement, dated the date hereof,
among the Company, the Investors and certain other parties.
2. CHANGE IN NUMBER OF DIRECTORS. The Investors will not vote for any
amendment or change to the Bylaws or Certificate of Incorporation of the
Company providing for the election of more or less than seven (7) directors, or
any other amendment or change to the Bylaws or Certificate of Incorporation of
the Company inconsistent with the terms of this Agreement, unless such
amendment or change is approved by (a) Investors holding at least eighty-five
percent (85%) of the Preferred Stock and (b) RSI.
3. LEGENDS. Each certificate representing shares of the Company's capital
stock held by Investors shall be endorsed by the Company with a legend reading
as follows: "The Shares evidenced hereby are subject to a Voting Agreement by
and among the Company and the Investors (a copy of which may be obtained from
the COMPANY), and by accepting any interest in such shares the person accepting
such interest shall be deemed to agree to and shall become bound by all the
provisions of said Voting Agreement."
4. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
consummation of the Company's initial public offering on a firm commitment
underwriting basis of any of its Common Stock (i) based upon a Company
valuation exceeding Three Hundred Million Dollars ($300,000,000) prior to the
offering, (ii) resulting in gross proceeds to the Company of at least Thirty
Million Dollars ($30,000,000), and (iii) managed by a nationally recognized
underwriter reasonably acceptable to the Investors; or (b) ten (10) years from
the date hereof.
5. AMENDMENTS; WAIVERS. Any term hereof may be amended or waived with the
written consent of Investors holding at least eighty-five percent (85%) of the
Preferred Stock; PROVIDED, HOWEVER, notwithstanding the foregoing, Sections
1(e) and 1(f) hereof may not be amended without the prior written consent of
Veritech Ventures LLC. Any amendment or waiver effected in accordance with this
Section 5 shall be binding upon the Company and the Investors, and each of
their respective successors and assigns.
6. NOTICES. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient on the date of delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, and addressed to the party to be notified at such
party's address as set forth on the books of the Company, or as subsequently
modified by written notice.
7. SEVERABILITY. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
8. 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 New York,
without giving effect to principles of conflicts of law.
9. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
10. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. An investor may assign its rights hereunder
only to (i) any of its affiliates as defined in Rule 405 promulgated under the
Securities Act of 1933 or (ii) with the consent of Investors holding at least
eighty-five percent (85%) of the Preferred Stock. Any Investor who transfers
any of its interest in the Company's Common Stock or Preferred Stock and
thereafter (together with its affiliates) no longer holds at least five percent
(5%) of the Company's Common Stock (assuming the conversion of Preferred Stock
convertible into Common Stock) will no longer have any rights to designate
directors under this Agreement but shall be obligated to vote as provided
herein; PROVIDED, HOWEVER, that with respect to any provisions of this
Agreement requiring the vote or consent of an Investor, in the event of any
assignment of this Agreement by an Investor to permitted assignees in
accordance with the terms hereof, such Investor and its permitted assignees
shall designate one holder of the Preferred Stock (or Common Stock issued in
respect thereof) originally held by the Investor as a representative for
purposes of all consents and determinations hereunder. Any attempted assignment
of this Agreement in violation of the terms of this Section 10 shall be void AB
INITIO. 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.
11. ATTORNEY'S FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements (including all fees, costs and expenses of appeals) in
addition to any other relief to which such party may be entitled.
[Signature Page Follows]
The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
ONSITE ACCESS, INC.
By:______________________
Title:__________________
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
INVESTORS:
SPECTRUM EQUITY INVESTORS III, L.P.
By: Spectrum Equity Associates III, L.P.,
its General Partner
By: _____________________________________
Name:
Title:
XX XXXXXX INVESTMENT CORPORATION
By: ____________________________________
Name:
Title:
CROSSPOINT VENTURE PARTNERS
By: ____________________________________
RSI-ONSITE HOLDINGS LLC
By: Reckson Service Industries, Inc.,
its sole member
By: ____________________________________
VERITECH VENTURES LLC
By: ____________________________________
EXHIBIT A
Investors
Spectrum Equity Investors III, L.P.
XX Xxxxxx Investment Corporation
Crosspoint Venture Partners
RSI-OnSite Holdings LLC
Veritech Ventures LLC