Exhibit 9.1
Voting Agreement
This Voting Agreement ("Agreement") is made and entered into as of December
4, 2000, by and among The IXATA Group, Inc., a Delaware corporation (the
"Company"), NextGen Fund II, L.L.C., NextGen SBS Fund II, L.L.C. (collectively,
"NextGen"), Montpilier Holdings, Inc. ("Montpilier"), The Gluckman Family Trust
dated August 3, 1989 (the "Gluckman Trust"), The Andreoli Family Trust dated
April 11, 1996 (the "Andreoli Trust"), and Robert A. Steiner, individually.
NextGen, Montpilier, the Gluckman Trust, the Andreoli Trust and Mr. Steiner are
sometimes referred to in this Agreement collectively as the "Shareholders."
Recitals:
A. This Agreement is being executed and delivered in connection with the
purchase by NextGen of shares of the Company's preferred stock pursuant to that
certain Series C Convertible Preferred Stock and Series C Convertible Preferred
Stock Warrant Purchase Agreement, of even date herewith, by and among the
Company, NextGen and the other purchasers listed on Exhibit A of that agreement
(the "Purchase Agreement").
B. The Shareholders believe that it is in their mutual best interest (i)
that qualified persons serve the Company as members of its Board of Directors
(the "Board of Directors") to provide advice as to the Company's management,
policies, administration and development and (ii) to make provision for the
voting of any class of capital stock of the Company entitled to vote (the
"Voting Stock") held by any Shareholder.
Now, Therefore, in consideration of the foregoing, of the mutual promises
set forth below and in the Purchase Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Scope and Term of Agreement.
1.1 Scope of Agreement. This Agreement shall govern (i) the voting of all
shares of Voting Stock of which each Shareholder or any affiliates thereof is
now or in the future becomes the legal or beneficial owner, including, without
limitation, any shares of Voting Stock acquired upon the exercise of any stock
options or warrants issued by the Company, and (ii) all action taken by the
Shareholders with respect to the appointment or election of directors of the
Company by the holders of the Company's common stock. For purposes of this
Agreement, (i) the term "beneficial owner" has the meaning assigned to it in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended,
and the regulations promulgated thereunder; and (ii) the term "affiliate" means
any person or entity that controls, is controlled by or is under common control
with such person or entity, or any immediate family member of such person.
1.2 Term of Agreement. This Agreement will terminate upon the first to
occur of: (i) the mutual written agreement of the Shareholders to terminate this
Agreement; (ii) NextGen
ceases to collectively beneficially own any Voting Stock; or (iii) the sale of
all or substantially all of the Company, by merger, sale of assets or otherwise.
2. Voting Agreements.
2.1 Composition of the Board of Directors. Notwithstanding anything to
the contrary in the certificate of incorporation or by-laws of the Company as in
effect from time to time, and subject to applicable law, each Shareholder agrees
to take, or cause any persons or entities under its control to take, all
necessary or desirable actions within its control (whether as a director, member
of a committee of the Board of Directors or officer of the Company and
including, without limitation, voting all shares of Voting Stock under his, her
or its direction or control and, to the extent permitted by the certificate of
incorporation or by-laws of the Company, each as then in effect, executing and
delivering any written consents of stockholders and calling special
stockholder' meetings) to ensure that:
(a) so long as Montpilier or its affiliates beneficially own at least 50%
of the number of shares of the Voting Stock beneficially owned by
Montpilier on the date of this Agreement, the designee of Montpilier
(presently Michael M. Grand) is a director of the Company;
(b) so long as the Gluckman Trust or its affiliates beneficially own at
least 50% of the number of shares of Voting Stock beneficially owned
by the Gluckman Trust on the date of this Agreement, the designee of
the Gluckman Trust (presently Fred Gluckman) is a director of the
Company; and
(c) the designees of NextGen pursuant to (S)6(b) of the Company's
Certificate of Designations of Series C Convertible Preferred Stock
(presently Zimri C. Putney, Michael W. Wynne and Edward C. Groark),
subject to the director resignation provisions contained therein, are
directors of the Company.
2.2 Removal of Directors. Each Shareholder agrees not to vote to remove
any director designated by any other Shareholder pursuant to (S)2.1 above,
except for bad faith or willful misconduct.
2.3 Sale of the Company. For a period of 18 months from the date of this
Agreement, NextGen agrees not to vote, or take any other action, in favor of the
sale of all or substantially all of the Company, by merger, sale of assets or
securities, or otherwise, in any single transaction or series of related
transactions, without first obtaining the written consent of:
(a) Montpilier, so long as Montpilier or its affiliates beneficially own
at least 50% of the number of shares of the Voting Stock beneficially
owned by Montpilier on the date of this Agreement;
(b) The Gluckman Trust, so long as the Gluckman Trust or its affiliates
beneficially own at least 50% of the number of shares of the Voting
Stock beneficially owned by the Gluckman Trust on the date of this
Agreement;
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(c) The Andreoli Trust, so long as the Andreoli Trust or its affiliates
beneficially own at least 50% of the number of shares of the Voting
Stock beneficially owned by the Andreoli Trust on the date of this
Agreement; and
(d) Mr. Steiner, so long as Mr. Steiner or his affiliates beneficially own
at least 50% of the number of shares of the Voting Stock beneficially
owned by Mr. Steiner on the date of this Agreement.
2.4 Agreement of the Company. The Company agrees that it will not give
effect to any vote cast or other action taken by any Shareholder with respect to
any matter submitted to a vote of the stockholders of the Company unless such
vote or action is in accordance with the terms of this Agreement.
3. Remedies.
3.1 Specific Performance. The parties agree that the failure of any party
to observe the obligations provided by this Agreement will result in irreparable
damage to the non-defaulting parties and that any non-defaulting party may seek
specific performance of such obligations in any federal or state court permitted
by (S) 3.2 below.
3.2 Submission to Jurisdiction; Consent to Service of Process; Venue.
Each of the parties agrees and consents to the jurisdiction of the Chancery
Court of the State of Delaware or the United States District Court for the State
of Delaware, and waives any objection based on venue or forum non conveniens
with respect to any action instituted, and agrees that any dispute concerning
this Agreement or any of the transactions described in this Agreement may be
heard only in the courts described above.
4. Miscellaneous Provisions.
4.1 Amendment. No change in, modification of or amendment to this
Agreement will be valid unless it is in writing and signed by each party to this
Agreement.
4.2 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but only if such
waiver is evidenced by a writing signed by that party. No failure on the part of
any party hereto to exercise, and no delay in exercising any right, power or
remedy created under this Agreement, will operate as a waiver thereof, nor will
any single or partial exercise of any right, power or remedy by any such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. No waiver by any party hereto of any breach of or
default in any term or condition of this Agreement will constitute a waiver of
or assent to any succeeding breach of or default in the same or any other term
or condition hereof.
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4.3 Assignment. No party to this Agreement may assign any of his, her or
its rights or obligations under this Agreement to any person or entity without
the written consent of all of the other parties.
4.4 Governing Law. The validity and effect of this Agreement will be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
4.5 Partial Invalidity and Severability. All rights and restrictions
contained in this Agreement may be exercised and will be applicable and binding
only to the extent that they do not violate any applicable laws and are intended
to be limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any term or part of this Agreement is held to be illegal,
invalid or unenforceable by a court of competent jurisdiction, it is the
intention of the parties that the remaining terms or partial terms will
constitute their agreement with respect to the subject matter of this Agreement
and all remaining terms or partial terms will remain in full force and effect.
To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement will be replaced by a valid provision that will
implement the commercial purpose of the illegal, invalid or unenforceable
provision.
4.6 Integration. This Agreement and the Purchase Agreement set forth all
of the promises, agreements, conditions and understandings among the parties
hereto with respect to the subject matter hereof and thereof, and supersede and
are intended to be an integration of any and all prior agreements or
understandings with respect thereto.
4.7 Execution in Counterparts. This Agreement may be executed by any one
or more of the parties in any number of counterparts, each of which will be
deemed to be an original, but all such counterparts will together constitute one
and the same instrument.
4.8 No Revocation. The voting agreements contained herein are coupled with
an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with (S)(S)1.2 or 4.1 above. Nothing in this
(S) 4.8 shall be construed as limiting the provisions of (S)(S)1.2 or 4.1 above.
In Witness Whereof, the undersigned have executed and delivered this
Agreement as of the date first set forth above.
The IXATA Group, Inc.
By: /s/ Paul B. Silverman
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Its: Chief Executive Officer
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NextGen Fund II, L.L.C.
By: /s/ Zimri C.Putney
------------------------------
Its: Managing Partner, NextGen Capital, L.L.C.
NextGen SBS Fund II, L.L.C.
By: /s/ Zimri C.Putney
------------------------------
Its: Managing Partner, NextGen Capital, L.L.C.
Montpilier Holdings, Inc.
/s/ Michael M. Grand
-----------------------------------
By Michael M. Grand, President
The Gluckman Family Trust
dated August 3, 1989
/s/ Fred Gluckman
-----------------------------------
By Fred Gluckman, Trustee
The Andreoli Family Trust
dated April 11, 1996
/s/ Ellen Andreoli
-----------------------------------
By Ellen Andreoli, Trustee
/s/ Robert A. Steiner
-----------------------------------
Robert A. Steiner, individually
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