Exhibit 10.2
AMENDED AND RESTATED STOCKHOLDER
AGREEMENT
AMENDED AND RESTATED STOCKHOLDER
AGREEMENT dated as of September 23, 2008 (the “
Agreement ”), among WAVEXPRESS, INC., a Delaware
corporation (the “ Company ”), and the
stockholders listed on Exhibit A hereto, as the same
may be supplemented from time to time (individually, a “
Stockholder” and, collectively, the “
Stockholders ”).
WHEREAS, the Company and the
Stockholders are parties to that certain Stockholder Agreement,
dated as of October 15, 1999 (the “ Original
Agreement ”); and
WHEREAS, in accordance with
Section 6.12 of the Original Agreement, the Company and the
undersigned Stockholders desire to amend and restate the Original
Agreement in its entirety as set forth herein.
Accordingly, the undersigned
Stockholders agree as follows:
ARTICLE V
DEFINITIONS
5.1.
Defined Terms
. As used in this
Agreement, the following terms shall have the meanings specified
below:
“ Affiliate ”
shall mean, with respect to any Person, any other person which
directly or indirectly controls, is controlled by, or is under
common control with such person, including any limited partner, the
general partner of which is any such other person.
“ Approved Sale ”
has the meaning set forth in Section 3(a).
“ Board ” shall
mean the Board of Directors of the Company.
“ Common Stock ”
shall mean the Company’s Common Stock, par value $0.0001 per
share.
“ Common Stock
Equivalents ” shall mean, with respect to any
Stockholder, the number of shares of Common Stock owned by such
Stockholder and the number of shares of Common Stock into or for
which any shares of Preferred Stock or Convertible Securities owned
by such Stockholder shall be convertible, exchangeable or
exercisable (other than in respect of accrued and unpaid dividends)
as of the date of determination thereof.
“ Convertible
Securities ” shall mean any options, warrants,
convertible notes or other securities or rights (other than Shares)
convertible, exchangeable or exercisable, with or without the
payment of additional consideration, into or for shares of Common
Stock, directly or indirectly.
“ Disposition Event
” means (a) (i) the sale of all or substantially
all of the assets of the Company or its subsidiaries in a single
transaction or series of related transactions whether by
liquidation, dissolution, merger, consolidation or sale or
(ii) the sale or other transfer of at least 51% of the
outstanding shares of Common Stock in a single transaction or a
series of related transactions, in either case to any Person who is
not an Affiliate of the Company, or of a stockholder thereof,
immediately prior to such transaction or transactions, or
(b) the effective time of any merger, share exchange,
consolidation, or other business combination of the Company if
immediately after such transaction Persons who hold a majority of
the outstanding
voting securities entitled to vote generally in
the election of directors of the surviving entity (or the entity
owning 100% of such surviving entity) are not Persons who,
immediately prior to such transaction, held the securities of the
Company entitled to vote generally in the election of
directors.
“ Encumbrances ”
shall mean any and all liens, claims, charges, security interests,
options or other legal or equitable encumbrances.
“ Founders ”
shall mean Sarnoff and Wave.
“ Person ” shall
mean an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
“ Preferred Stock
” shall mean any shares of capital stock of the Company
hereafter issued which are preferred as to dividends or assets over
any other class of capital stock of the Company.
“ Sarnoff ” shall
mean Sarnoff Corporation, a New Jersey corporation.
“ SEC” shall mean
the Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
“ Securities Act
” shall mean the Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the
time.
“ Shares ” shall
mean any shares of capital stock of the Company, including Common
Stock and Preferred Stock, now or hereafter issued.
“ Wave ” shall
mean Wave Systems Corp., a Delaware corporation.
ARTICLE VI
BOARD OF DIRECTORS
6.1.
Nomination and Election of
Directors .
(a)
Selection of Nominees
. In any and all
elections of directors of the Company (whether at a meeting or by
written consent in lieu of a meeting), each Stockholder, to the
extent that such Stockholder has voting rights, shall vote, or
cause to be voted, or cause such Stockholder’s designees as
directors to vote, all Shares owned by such Stockholder or over
which such Stockholder has voting control, so as to fix the number
of directors of the Company at such number as Wave may from time to
time designate (currently two directors), and to nominate and elect
such two directors of the Company as are designated by Wave (which
directors shall currently be Steven K. Sprague and Gerard T.
Feeney).
Each Stockholder agrees to vote, or to cause to
be voted, all voting Securities owned by such Stockholder, or over
which such Stockholder has voting control, in order to comply with
this Section 2.1(a).
(b)
If any vacancy shall occur in the
Board as a result of death, disability, resignation or any other
termination of a director, the replacement for such vacating
director shall be designated by the Person or Persons who
originally designated such vacating director. Wave
shall also be entitled to designate the removal
and replacement of any director, with or without cause.
(c)
No Stockholder shall vote any Shares
in favor of the removal of a director nominated by one of the other
Stockholders hereunder unless the right of any such Stockholder so
to nominate such director shall no longer exist due to the
reduction in the ownership of Common Stock Equivalents by such
Stockholder pursuant to Section 2.1(a); provided ,
however , that upon the request of the Stockholder to remove
a director previously nominated by such Stockholder, the
Stockholders shall vote all of their Shares in favor of
(i) the removal of such director and (ii) the election of
any replacement director as may be designated by such
Stockholder.
6.2.
PROXY
. EACH STOCKHOLDER
HEREBY GRANTS TO THE COMPANY AN IRREVOCABLE PROXY, COUPLED WITH AN
INTEREST, TO VOTE ALL OF THE VOTING SECURITIES OWNED BY SUCH
STOCKHOLDER OR OVER WHICH SUCH STOCKHOLDER HAS VOTING CONTROL TO
THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ARTICLE 2
IN THE EVENT OF ANY BREACH BY SUCH STOCKHOLDER OF HIS, HER OR ITS
OBLIGATIONS UNDER THE VOTING AGREEMENT CONTAINED
HEREIN.
6.3.
Action by
Securityholders . Each Stockholder further agrees
that such Stockholder will not vote any voting Shares owned by such
Stockholder or over which such Stockholder has voting control, or
take any action by written consent, or take any other action as a
stockholder of the Company, to circumvent the voting arrangements
required by this Article 2. Without limiting the
generality of the foregoing, each Stockholder agrees not to
(a) vote any voting Shares owned by such Stockholder or over
which such Stockholder has voting control, or take any other action
as a stockholder of the Company, to approve any corporate action or
transaction by the Company not previously approved by the Board
elected in accordance with this Article 2 and the By-Laws of
the Company, or (b) commence or maintain any
shareholder’s derivative suit challenging any action or
transaction approved by the Company’s Board.
6.4.
Board of Directors Meeting
Expenses . The
Company shall reimburse each director for all reasonable
out-of-pocket expenses incurred by such director in connection with
the attendance at meetings of the Board.
ARTICLE VII
TRANSFER OF SHARES
7.1.
Restrictions on
Transfer . So
long as this Agreement is in effect, no Stockholder shall sell,
assign, transfer, give, encumber, pledge, hypothecate or in any
other way dispose of any Shares or any Convertible Securities (any
of which being a “ Transfer ”), except as
permitted pursuant to Section 3.2 or as may approved by the
Company in writing. No Transfer in violation of this
Agreement shall be made or recorded on the books of the Company and
any such Transfer shall be void and of no force or effect.
Subject to the terms of this Agreement, the Stockholders shall be
entitled to exercise all rights of ownership of their Shares and
Convertible Securities.
7.2.
Certain Permitted
Transfers . The Company and the Stockholders
acknowledge and agree that any of the following Transfers shall be
deemed to be in compliance with this Agreement, and shall not be
governed by Section 3.3:
(a)
a Transfer made to the
Company;
(b)
a Transfer upon the death of a
Stockholder to his executors, administrators and testamentary
trustees;
(c)
a Transfer made by Wave to any of
its Affiliates or to any of its respective officers, directors,
employees or consultants, or to any officer, director, employee or
consultant of any of its Aff
