EXHIBIT 10.9
FLYCAST COMMUNICATIONS CORPORATION
AMENDED AND RESTATED VOTING AGREEMENT
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This Amended and Restated Voting Agreement (the "Agreement") is made as of
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the 30th day of December, 1998, by and among FlyCast Communications Corporation,
a California corporation (the "Company"), the investors listed on Exhibit A
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hereto, each of which is herein referred to as an "Investor," and the holders of
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Common Stock listed on Exhibit B hereto, each of whom is herein referred to as a
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"Founder".
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RECITALS
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The Company and the Investors have entered into a Series C Preferred Stock
Purchase Agreement (the "Purchase Agreement") of even date herewith pursuant to
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which the Company desires to sell to the Investors and the Investors desire to
purchase from the Company shares of the Company's Series C Preferred Stock. A
condition to the Investors' obligations under the Purchase Agreement is that the
Company, the Founders and the Investors enter into this Agreement for the
purpose of setting forth the terms and conditions pursuant to which the
Investors and the Founders shall vote their shares of the Company's voting stock
in favor of certain designees to the Company's Board of Directors. The Company,
the Investors and the Founders each desire to facilitate the voting arrangements
set forth in this Agreement, and the sale and purchase of shares of Series C
Preferred Stock pursuant to the Purchase Agreement, by agreeing to the terms and
conditions set forth herein.
The Fourth Amended and Restated Articles of Incorporation of the Company
(the "Restated Articles") provide that (a) the holders of the Series A Preferred
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Stock, as a class, shall be entitled to elect one (1) member of the Board of
Directors at each meeting or pursuant to each consent of the Corporation's
shareholders for the election of directors; (b) the holders of the Series B and
Series C Preferred Stock, voting together as a class, shall be entitled to elect
two (2) members of the Board of Directors at each meeting or pursuant to each
consent of the Corporation's shareholders for the election of directors; and (c)
any additional directors shall be elected by all of the holders of outstanding
stock of the Corporation.
The Company and certain of the Investors that are holders of the Company's
Series A and Series B Preferred Stock (the "Existing Investors") also desire to
------------------
amend that certain Voting Agreement (the "Prior Agreement") dated as of July 11,
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1997, by and among the Company, certain of the Founders and the Existing
Investors and restate it in its entirety with this Agreement.
AGREEMENT
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The parties hereby agree as follows:
1. Board Representation.
(a) So long as at least 300,000 shares of Series A Preferred Stock (as
adjusted for stock splits, stock dividends, recapitalizations and the like) are
outstanding, the parties hereto agree to vote or act with respect to their
shares so as to elect one (1) member of the Company's Board of Directors
designated by holders of the majority of the Series A Preferred Stock, whose
initial designee shall be Xxxxx Xxxxx,
(b) So long as at least 3,000,000 shares of Series B and Series C
Preferred Stock (as adjusted for stock splits, stock dividends,
recapitalizations and the like) are outstanding, the parties hereto agree to
vote or act with respect to their shares so as to elect (i) two (2) members of
the Company's Board of Directors designated by the holders of the majority of
then-outstanding Series B and Series C Preferred Stock (the "Series B and Series
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C Directors"), whose initial designees shall be Xxxxx Xxxxx and Xxx Xxxxxxxxxxx;
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and (ii) one (1) member of the Company's Board of Directors nominated by the
Series B and Series C Directors and approved by a majority of the Company's
Board of Directors other than the Series B and Series C Directors, whose initial
designee shall be Xxxxxxx Xxxxxxx.
(c) So long as Xxxx South holds at least 75% of the Series C Preferred
Stock purchased by it, the parties hereto agree to vote or act with regard to
their shares so as to elect one member of the Company's Board of Directors as
designated by BellSouth.
(d) The parties hereto agree to vote or act with respect to their
shares so as to elect the Chief Executive Officer of the Company, who is Xxxxxx
Xxxxxxx as of the date of this Agreement, provided, however, that such person
shall resign as director upon termination or resignation as Chief Executive
Officer, such resignation to be effective upon termination or resignation from
such office, without further action by such person.
2. CHANGE IN NUMBER OF DIRECTORS. The Founders and the Investors will
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not vote for any amendment or change to the Bylaws or Restated Articles
providing for the election of more or less than five (5) directors, or any other
amendment or change to the Bylaws inconsistent with the terms of this Agreement.
3. COMPENSATION COMMITTEE. So long as at least 1,000,000 shares of
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Series B and Series C Preferred Stock (as adjusted for stock splits, stock
dividends, recapitalizations and the like) are outstanding, the Company's Board
of Directors shall establish and maintain a Compensation Committee consisting of
at least two members of the Board of Directors that are not employees of the
Company.
4. LEGENDS. Each certificate representing Founders' or Investor's Shares
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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, THE FOUNDERS AND THE INVESTORS (A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN
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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.
5. TERMINATION. This Agreement shall terminate upon the earlier of (a)
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the consummation of the Company's sale of its Common Stock in a firm commitment
underwritten public offering pursuant to a registration statement under the
Securities Act of 1933, as amended, the public offering price of which is not
less than $8.00 per share (adjusted to reflect subsequent stock dividends, stock
splits or recapitalization) and which results in aggregate cash proceeds to the
Company of $15,000,000 (net of underwriting discounts and commissions), (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, but excluding any merger effected
exclusively for the purpose of changing the domicile of the Company), the sale
of all or substantially all of the assets of the Company) unless the Company's
shareholders of record as constituted immediately prior to such acquisition
will, immediately after such acquisition (by virtue of securities issued as
consideration for the Company's acquisition or sale or otherwise) hold at least
50% of the voting power of the surviving or acquiring entity, or (c) ten (10)
years from the date hereof.
6. AMENDMENTS; WAIVERS; TERMINATION OF PRIOR AGREEMENT. Any term hereof
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may be amended or waived only with the written consent of the Company, holders
of at least two-thirds (2/3) of the Preferred Stock, voting together as a single
class, and holders of at least a majority of the Founders' shares (or their
respective successors and assigns); provided, however, that any such amendment
or waiver that adversely affects any series or class of stock of the Company
requires the written consent of the holders of at least two-thirds (2/3) of such
series or class of stock of the Company. Section 1(c) of this Agreement shall
only be amended with the written consent of BellSouth, so long as BellSouth
holds at least 75% of the Series C Preferred Stock purchased by it. Any
amendment or waiver effected in accordance with this Section 6 shall be binding
upon the Company, the holders of Series A Preferred Stock, the holders of Series
B Preferred Stock, the holders of Series C Preferred Stock and any holder of
Founders' Shares, and each of their respective successors and assigns. The
Company, the Existing Investors, constituting the holders of at least a majority
of the Series A and Series B Preferred Stock held by the Investors and their
assignees now outstanding, and the Founders, agree that the Prior Agreement has
been amended and restated in its entirety by this Agreement.
7. NOTICES. Any notice required or permitted by this Agreement shall be
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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 below or on Exhibit A hereto or on Exhibit
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B hereto, or as subsequently modified by written notice.
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8. SEVERABILITY. If one or more provisions of this Agreement are held to
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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
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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.
9. GOVERNING LAW. This Agreement and all acts and transactions pursuant
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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
California, without giving effect to principles of conflicts of law.
10. COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
11. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
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shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. 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.
[Signature Page Follows]
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The parties hereto have executed this Amended and Restated Voting Agreement
as of the date first written above.
COMPANY:
FLYCAST COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
___________________________________
Xxxxxx Xxxxxxx, President
Address: 000 Xxxxxxx Xxxxxx; Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
INVESTORS:
BESSEMER VENTURE PARTNERS IV LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________________
Xxxxxx X. Xxxxxxxx, Manager
BESSEMER VENTURE INVESTORS LP
By: Deer IV & Co. LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________________
Xxxxxx X. Xxxxxxxx, Manager
Address: 0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX RIVER PARTNERSHIP VIII, A LIMITED
PARTNERSHIP
By: Xxxxxxx River VIII GP Limited
Partnership, General Partner
By: /s/
___________________________________
General Partner
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
INTELLIGENT MEDIA VENTURES, INC.
By: /s/ Xxxxxxx Xxxxxx
___________________________________
Xxxxxxx Xxxxxx
Attorney in Fact
Address: 00 Xxxxxxxxx Xxxx Xx. Xxxxx
X. X. Xxxxxxx, XX 00000
PACIFIC TELESIS GROUP
By: /s/ Xxxxxx X. Xxxxxxx
___________________________________
Xxxxxx X. Xxxxxxx,
Executive Vice President, Chief
Financial Officer
Address: Pacific Telesis Group
000 X. Xxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
ATTN: General Attorney, M & A
Legal
Facsimile: 000-000-0000
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Address: H3D Entertainment
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXX X.
XXXXX
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
XXXX XXXXX & SONS, CUSTODIAN FBO XXXXXXXX X.
XXXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
Address: 00000 0xx Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Address: c/x Xxxxx, Xxxxx Xxxxxxxx
0000 000xx X.X., Xxxx X
Xxxxx Xxxx Xxxxxxx, XX 00000
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Address: 00000 Xxxx Xxxxx
Xxxxxx, XX 00000
XXXX XXXXX & SONS, CUSTODIAN
FBO XXXXXX XXXXXXXX
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Address: 0000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Address: c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
VLG INVESTMENTS 1997
By: /s/ Xxxxxx Xxxxxx
Title: General Partner
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Print Name: Xxxxxx Xxxxxx
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FOUNDERS:
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Miles Xxxxx
WESTERN INVESTMENTS CAPITAL, LLC
By: /s/ Xxxxx Xxxxx
Title: Managing Member
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Print Name: Xxxxx Xxxxx
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/s/
Xxxxxxx X. Xxxxxx
BRIMSTONE ISLAND CO. L.P.
By: /s/
Name:
Its:
/s/
Neill X. Xxxxxxxxxx
/s/
Xxxxxx X. Xxxxxxxx
/s/
G. Xxxxx Xxxxxxxx
/s/
Xxxxxxxxxxxx Xxxxxxxx
/s/
Xxxxxx X. Xxxxxxx
Name:
Its:
GABRIELI FAMILY FOUNDATION
By: /s/
Name:
Its:
/s/
Xxxxxxx X. Xxxxxx
/s/
Xxxxx X. Xxxxx
/s/
Xxxxx X. Xxxxxx
/s/
Xxxxx X. XxXxxxxxx
/s/
Xxxx X. Xxxxxx
/s/
Xxxx X. Xxxx
/s/
Xxxxxx X. Xxxxxxx
/s/
Xxxxxxx X. Xxxxx
/s/
Xxxxxx X. Xxxxx
/s/
Xxxxxxx X. Xxxxx
/s/
Xxxx X. Xxxxxxx
XXXXXXX 1994 FAMILY PARTNERSHIP, L.P.
By: /s/
Xxxx X. XxxXxxxxx
/s/
Xxxxxx X. Xxxxxxxxx
/s/
Xxxxxx X. X. Xxxxxxxx
/s/
Xxxxxx X. Xxxxxxxxxx
XXXXX 1994 FAMILY PARTNERSHIP, L.P.
By: /s/
Name:
Its:
BVP IV SPECIAL SITUATIONS L.P.
By: /s/
Name:
Its:
Address: c/o Bessemer Partners IV L.P.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ST. XXXX VENTURE CAPITAL IV, LLC
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, General Partner
ST. XXXX VENTURE CAPITAL AFFILIATES FUND I,
LLC
By: St. Xxxx Venture Capital, Inc.
Its: Manager
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Executive Vice
President
Address: St. Xxxx Venture Capital
0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 1940
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Address: 000 Xxxxxx Xxx.
Xxxx Xxxx Xxx, XX 00000
/s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
Address: 0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000
COMDISCO, INC.
By: /s/
Name:
Title:
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
BESSEC VENTURES IV L.P.
By: Deer IV & Co. LLC, It's General Partner
By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx, Manager
XXXXX X. XXXXXXX
By: /s/ XXXXX X. XXXXXXX
_____________________________
Name: Xxxxx X. Xxxxxxx
Address: 00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
By:______________________________
Address:
Facsimile:
XXXXXX XXXXX
By: /s/ XXXXXX XXXXX
_____________________________
Name: Xxxxxx Xxxxx
Address: 000 X. Xx. Xxxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxxx, XX 00000
ABS EMPLOYEE VENTURE FUND, LP
By: /s/
Name:____________________________
Title:___________________________
Address:
Facsimile:
U.S. DEVELOPMENT CAPITAL INVESTMENT COMPANY
By: /s/
_____________________________
Name:
Title:
Address:
EXHIBIT A
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INVESTORS
INVESTOR
Bessemer Venture Partners IV LP
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Bessemer Venture Investors LP
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx River Partnership VIII
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx
H3D Entertainment
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
00000 0xx Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
Xxxx and Xxxxxxx Xxxxxxxx
c/x Xxxxx, Xxxxx Xxxxxxxx
0000 000xx X.X., Xxxx X
Xxxxx Xxxx Xxxxxxx, XX 00000
Xxxx and Xxxxxxx Xxxxxxxx
00000 Xxxx Xxxxx
Xxxxxx, XX 00000
SECOND CLOSING - ADDITIONAL INVESTORS
-------------------------------------
SECOND CLOSING - BESSEMER INVESTORS
INVESTOR
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Xxxxxxx X. Xxxxxx
Brimstone Island Co. X.X.
Xxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
G. Xxxxx Xxxxxxxx
Xxxxxxxxxxx Xxxxxxxx
Gabrieli Family Foundation
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. XxXxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxx 1994 Family Partnership, L.P.
Xxxx X. XxxXxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx 1994 Family Partnership, L.P.
Bessemer Venture Partners IV L.P.
BVP IV Special Situations L.P.
Address: c/o Bessemer Partners IV L.P.
0000 Xxx Xxxxxxx Xxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
Attn. Xxxxxx X. Xxxxxxxx
SECOND CLOSING - FRIENDS OF THE COMPANY:
---------------------------------------
INVESTOR
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VLG Investments 1997
Address: c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn. Xxxxx X. Xxxxxxx
UMB, N.A., as Trustee For Xxxxxxx, Phleger & Xxxxxxxx
Savings Trust FBO Xxxxxxx X. Xxxx
Address: 0000 Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn. Xxxxx Longrace
THIRD CLOSING - ADDITIONAL CORPORATE INVESTORS AND
--------------------------------------------------
FRIENDS OF THE COMPANY
----------------------
St. Xxxx Venture Capital IV, LLC
St. Xxxx Venture Capital Affiliates Fund I, LLC
Address: 0000 Xxxxxxxxxx Xxxx Xxxx.
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Xxxx Xxxxxxx
Address: 000 Xxxxxx Xxx.
Xxxx Xxxx Xxx, XX 00000
Xxx Xxxxxxxxx
Address: 0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000
COMDISCO CLOSING:
-----------------
Comdisco, Inc.
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
SERIES C CLOSINGS--ADDITIONAL INVESTORS
---------------------------------------
Intelligent Media Ventures, Inc.
Address: 00 Xxxxxxxxx Xxxx Xx. Xxxxx
X.X. Xxxxxxx, XX 00000
Pacific Telesis Group
Address: 000 X. Xxxxxxx
00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: General Attorney, M&A
Legal
Xxxxx X. Xxxxxxx.
Address: 00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
EXHIBIT B
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FOUNDERS
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Miles Xxxxx
