VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as
of February 4, 2000, by and among Mulix, Inc., a Delaware corporation (the
"Company"), the holders of the Company's Series A Preferred Stock, (the
"Preferred Stock") listed on the Schedule of Investors attached as SCHEDULE A
hereto (the "Investors"), and the holders of Common Stock of the Company (the
"Founders") listed on the Schedule of Founders attached as SCHEDULE B hereto.
The Company, the Founders and the Investors are individually each referred to
herein as a "Party" and are collectively referred to herein as the "Parties."
The Company's Board of Directors is referred to herein as the "Board."
WITNESSETH:
WHEREAS, the Company and the Investors have entered into that
certain Series A Preferred Stock Purchase Agreement of even date herewith
(the "Purchase Agreement"), which provides for, among other things, the
purchase by such Investors of shares of the Company's Series A Preferred
Stock (the "Series A Preferred Stock"), and which further provides that as a
condition to the closing of the sale of shares of Series A Preferred Stock,
this Agreement must be executed and delivered by such Investors, the Founders
and the Company;
WHEREAS, TeleVideo, Inc. is one of the Investors; and
WHEREAS, the Company, the Founders and the Investors desire to grant
the rights created herein.
NOW, THEREFORE, in consideration of the foregoing premises and
certain other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. AGREEMENT TO VOTE. Each Investor, as a holder of Preferred
Stock, hereby agrees on behalf of itself and any transferee or assignee of
any such shares of the Preferred Stock, to hold all of the shares of
Preferred Stock registered in its name (and any securities of the Company
issued with respect to, upon conversion of, or in exchange or substitution of
the Preferred Stock, and any other voting securities of the Company
subsequently acquired by such Investor) (hereinafter collectively referred to
as the "Investor Shares") subject to, and to vote the Investor Shares at a
regular or special meeting of stockholders (or by written consent) in
accordance with, the provisions of this Agreement. Each Founder, as a holder
of Common Stock of the Company, hereby agrees on behalf of itself and any
transferee or assignee of any such shares of Common Stock, to hold all of
such shares of Common Stock and any other voting securities of the Company
acquired by such Founder in the future (and any securities of the Company
issued with respect to, upon conversion of, or in exchange or substitution
for such securities) (the "Founder Shares") subject to, and to vote the
Founder Shares at a regular or special meeting of stockholders (or by written
consent) in accordance with, the provisions of this Agreement.
2. BOARD SIZE. The holders of Investor Shares and Founder
Shares shall vote at a regular or special meeting of stockholders (or
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by written consent) such shares that they own (or as to which they have
voting power) to ensure that the size of the Board shall be set and remain at
four (4) directors; provided, however, that such Board size may be
subsequently increased or decreased pursuant to an amendment of this
Agreement in accordance with Section 15 hereof.
3. ELECTION OF DIRECTORS. In any election of directors of the
Company, the Parties shall each vote at any regular or special meeting of
stockholders (or by written consent) such number of shares of voting capital
stock then owned by them (or as to which they then have voting power) as may
be necessary to elect the following individuals to the Board:
(a) the Founders; and
(b) TeleVideo, Inc.
4. REMOVAL. Any director of the Company may be removed from
the Board in the manner allowed by law and the Company's Amended and Restated
Certificate of Incorporation and Bylaws, but with respect to a director
designated pursuant to Sections 3(a) and (b) above, only upon the vote or
written consent of the stockholders entitled to designate such director.
5. LEGEND ON SHARE CERTIFICATES. Each certificate representing
any Investor Shares or Founder Shares shall be endorsed by the Company with a
legend reading substantially as follows:
"The Shares evidenced hereby are subject to a Voting Agreement (a
copy of which may be obtained upon written request from the issuer),
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."
6. COVENANTS OF THE COMPANY. The Company agrees to use its
best efforts to ensure that the rights granted hereunder are effective and
that the Parties hereto enjoy the benefits thereof. Such actions include,
without limitation, the use of the Company's best efforts to cause the
nomination and election of the directors as provided above. The Company will
not, by any voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be performed hereunder by the Company, but
will at all times in good faith assist in the carrying out of all of the
provisions of this Agreement and in the taking of all such actions as may be
necessary, appropriate or reasonably requested by the holders of a majority
of the outstanding voting securities held by the Parties hereto assuming
conversion of all outstanding securities in order to protect the rights of
the Parties hereunder against impairment.
7. NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTORS. Neither
the Company, the Founders, the Investors, nor any officer, director,
stockholder, partner, employee or agent of such Party, makes any
representation or warranty as to the fitness or competence of the nominee of
any Party hereunder to serve on the Company's Board by virtue of such Party's
execution of this Agreement or by the act of such Party in voting for such
nominee pursuant to this Agreement.
8. GRANT OF PROXY. Should the provisions of this Agreement be
construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and are irrevocable for the term of this Agreement.
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9. SPECIFIC ENFORCEMENT. It is agreed and understood that
monetary damages would not adequately compensate an injured Party for the
breach of this Agreement by any Party, that this Agreement shall be
specifically enforceable, and that any breach or threatened breach of this
Agreement shall be the proper subject of a temporary or permanent injunction
or restraining order. Further, each Party hereto waives any claim or defense
that there is an adequate remedy at law for such breach or threatened breach.
10. EXECUTION BY THE COMPANY. The Company, by its execution in
the space provided below, agrees that it will cause the certificates
evidencing the shares of Common Stock and Preferred Stock to bear the legend
required by Section 5 herein, and it shall supply, free of charge, a copy of
this Agreement to any holder of a certificate evidencing shares of capital
stock of the Company upon written request from such holder to the Company at
its principal office. The parties hereto do hereby agree that the failure to
cause the certificates evidencing the shares of Common Stock and Preferred
Stock to bear the legend required by Section 5 herein and/or failure of the
Company to supply, free of charge, a copy of this Agreement as provided under
this Section 10 shall not affect the validity or enforcement of this
Agreement.
11. CAPTIONS. The captions, headings and arrangements used in
this Agreement are for convenience only and do not in any way limit or
amplify the terms and provisions hereof.
12. NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be sent prepaid registered or certified mail,
return receipt requested, addressed to the other Party at the address shown
below or at such other address for which such Party gives notice hereunder.
Such notice shall be deemed to have been given three (3) days after deposit
in the mail.
13. TERM. This Agreement shall terminate and be of no further
force or effect upon the earlier of (a) the consummation of the Company's
sale of its Common Stock or other securities pursuant to a registration
statement under the Securities Act of 1933, as amended, (other than a
registration statement relating either to the sale of securities to employees
of the Company pursuant to its stock option, stock purchase or similar plan
or a SEC Rule 145 transaction), (b) the acquisition of the Company by another
entity by means of any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
that results in the transfer of fifty percent (50%) or more of the
outstanding voting power of the Company or a sale of all or substantially all
of the assets of the Company, or (c) February __, 2010.
14. MANNER OF VOTING. The voting of shares pursuant to this
Agreement may be effected in person, by proxy, by written consent, or in any
other manner permitted by applicable law.
15. AMENDMENTS AND WAIVERS. Any term hereof may be amended and
the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of (i) the Company, (ii) the holders of a majority of the
then-outstanding Investor Shares, and (iii) the holders of a majority of the
then-outstanding Founder Shares. Any amendment or waiver so effected shall be
binding upon all of the Parties hereto and their successors, assigns and
transfers.
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16. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any
issuance of shares of the Company's voting securities hereafter to any of the
Parties hereto (including, without limitation, in connection with any stock
split, stock dividend, recapitalization, capital reorganization or the like),
such shares shall become subject to this Agreement and shall be endorsed with
the legend set forth in Section 5.
17. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
18. BINDING EFFECT. In addition to any restriction or transfer
that may be imposed by any other agreement by which any Party hereto may be
bound, this Agreement shall be binding upon the Parties, their respective
heirs, successors and assigns and to such additional individuals or entities
that may become stockholders of the Company and that desire to become Parties
hereto; provided that for any such transfer to be deemed effective, the
transferee shall have executed and delivered an Adoption Agreement
substantially in the form attached hereto as EXHIBIT A. Upon the execution
and delivery of an Adoption Agreement by any transferee reasonably acceptable
to the Company, such transferee shall be deemed to be a Party hereto as if
such transferee's signature appeared on the signature pages hereto. By their
execution hereof of any Adoption Agreement, each of the Parties hereto
appoints the Company as its attorney-in-fact for the purpose of executing any
Adoption Agreement which may be required to be delivered hereunder.
19. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
regard to conflicts of law principles thereof.
20. ENTIRE AGREEMENT. This Agreement is intended to be the sole
agreement of the Parties as it relates to this subject matter and does hereby
supersede all other agreements of the Parties relating to the subject matter
hereof.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
22. ARBITRATION. Any controversy between the Parties hereto
involving any claim arising out of or relating to this Agreement, will be
submitted to and be settled by final and binding arbitration in Palo Alto,
California, in accordance with the then current Commercial Arbitration Rules
of the American Arbitration Association (the "AAA"), and judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Such arbitration shall be conducted by one (1)
arbitrator mutually agreeable to the Company, a majority-in-interest of the
Founders and a majority-in-interest of the Investors, or failing such
agreement, an arbitrator experienced in similarly-sized companies appointed
by the AAA. There shall be limited discovery prior to the arbitration hearing
as follows: (a) exchange of witness lists and copies of documentary evidence
and documents relating to or arising out of the issues to be
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arbitrated, (b) depositions of all party witnesses, and (c) such other
depositions as may be allowed by the arbitrator upon a showing of good cause.
Depositions shall be conducted in accordance with the California Code of
Civil Procedure, the arbitrator shall be required to provide in writing to
the Parties the basis for the award or order of such arbitrator, and a court
reporter shall record all hearings, with such record constituting the
official transcript of such proceedings.
* * *
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first above written.
COMPANY:
MULIX, INC.
By: /s/ David D. Kim
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David D. Kim, CHIEF EXECUTIVE OFFICER
Address: 2727 Walsh Avenue, Suite 206
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Santa Clara, CA 95051
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SIGNATURE PAGE TO THE VOTING AGREEMENT
INVESTORS:
TeleVideo, Inc.
/s/ Dr. K. Philip Hwang
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Name: Dr. Philip Hwang, Chairman and CEO
Address: 2345 Harris Way
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San Jose, CA 95131
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SIGNATURE PAGE TO THE VOTING AGREEMENT
FOUNDERS:
/s/ David D. Kim
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David D. Kim
Address: 2727 Walsh Avenue, Suite 206
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Santa Clara, CA 95051
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/s/ Kwangjae Sung
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Kwangjae Sung
Address: 2727 Walsh Avenue, Suite 206
-----------------------------------
Santa Clara, CA 95051
-----------------------------------
/s/ Yoon Kim
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Yoon Kim
Address: 2727 Walsh Avenue, Suite 206
-----------------------------------
Santa Clara, CA 95051
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SIGNATURE PAGE TO THE VOTING AGREEMENT
SCHEDULE A
Schedule OF INVESTORS
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TeleVideo, Inc.
- --------------------------------------------------
- --------------------------------------------------
- --------------------------------------------------
- --------------------------------------------------
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SCHEDULE B
LIST OF FOUNDERS:
David D. Kim
Yoon W. Kim
Kwangjae Sung
EXHIBIT A
ADOPTION AGREEMENT
This Adoption Agreement ("Adoption Agreement") is executed by the
undersigned (the "Transferee") pursuant to the terms of that certain Voting
Agreement dated as of February __, 2000 (the "Agreement") by and among Mulix,
Inc. (the "Company") and certain of its stockholders. Capitalized terms used
but not defined herein shall have the respective meanings ascribed to such
terms in the Agreement. By the execution of this Adoption Agreement, the
Transferee agrees as follows:
(a) ACKNOWLEDGMENT. Transferee acknowledges that Transferee is
acquiring certain shares of the capital stock of the Company (the "Stock")
subject to the terms and conditions of the Agreement.
(b) AGREEMENT. Transferee (i) agrees that the Stock acquired by
Transferee shall be bound by and subject to the terms of the Agreement, and
(ii) hereby adopts and agrees to be bound by the Agreement with the same
force and effect as if Transferee were originally a Party thereto.
(c) NOTICE. Any notice required or permitted by the Agreement
shall be given to Transferee at the address listed beside Transferee's
signature below.
EXECUTED AND DATED this ________ day of ________________, ____.
TRANSFEREE:
By:
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Name and Title
Address:
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Facsimile:
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Accepted and Agreed:
COMPANY
MULIX, INC.
By:
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Title:
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