XXXXXX.XXX INC.
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 17th day of February 1999, by and among Xxxxxx.xxx Inc., a Delaware
corporation (the "Company"), Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx X. Xxxxxxxxx,
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Xxxxxxx X. Xxxxx, Xxxxx X.X. XxXxxxxxx and Xxxxxx Xxxxxxxxxx (the "Founders"),
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and the holders of shares of Series A, Series B and Series C Preferred Stock
listed on Exhibit A (collectively, the "Investors" and individually, the
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"Investor").
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RECITALS
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WHEREAS, the Company (under its previous name StampMaster, Inc.), the
Founder and the holders of Series A and Series B Preferred Stock (the "Original
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Investors") are parties to a Voting Agreement dated February 26, 1998 (the
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"Original Agreement");
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WHEREAS, the Company and certain investors in the Company's Series C
Preferred Stock (the "Series C Investors") have entered into a Series C
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Preferred Stock Purchase Agreement (the "Purchase Agreement") of even date
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herewith pursuant to which the Company desires to sell to the Series C Investors
and the Series C Investors desire to purchase from the Company shares of the
Company's Series C Preferred Stock;
WHEREAS, a condition to the Series C 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;
WHEREAS, the Company, the Original Investors and the Founders each desire
to induce the Series C Investors to purchase shares of Series C Preferred Stock
pursuant to the Purchase Agreement by amending and restating the Original
Agreement (pursuant to Section 11(b) of the Original Agreement) and agreeing to
the terms and conditions set forth herein.
AGREEMENT
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The parties agree as follows:
1. Election of Directors and Board Representation. At each annual meeting
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of the stockholders of the Company, or at any meeting of the stockholders of the
Company at which members of the Board of Directors of the Company are to be
elected, or whenever members of the Board of Directors are to be elected by
written consent, the Founders and the Investors agree to vote and act with
respect to all of their shares of voting securities of the Company ("Shares") so
as to elect:
(a) one (1) member as shall be designated, from time to time, by
Brentwood Associates ("Brentwood") and subsequent assignees and transferees of
Brentwood;
(b) one (1) member as shall be designated, from time to time, by
Enterprise Partners ("Enterprise") and subsequent assignees and transferees of
Enterprise;
(c) one (1) member as shall be designated, from time to time, by
Forest, Xxxxxxx & Xxxxx ("FBB") and subsequent assignees and transferees of FBB;
(d) two (2) members as may be designated, from time to time, by the
holders of a majority of the Common Stock of the Company, one of which shall be
the Chief Executive Officer of the Company;
(e) one (1) member as may be designated, from time to time, by the
holders of a majority of the Series C Preferred Stock of the Company; and
(f) three(3) members as may be designated, from time to time, by all
of the other directors of the Company.
2. Certain Resignations or Removals. Any party or parties having the
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right to nominate a director pursuant to Section 1 also shall have the right to
request the resignation or removal of the director so nominated and elected. In
such event, such director shall immediately resign or be subject to removal by a
vote of the Founders and the Investors and each of the Founders and each
Investor shall vote all of their Shares entitled to vote in favor of such
removal. Likewise, in the event that any director does not continue to be
entitled to be nominated to be a director pursuant to Section 1, such director
shall immediately resign or be subject to removal by a vote of the Founder and
each of the Investors and the Founders and each of the Investors and Founders
shall vote all of their Shares entitled to vote in favor of such removal. In
either case, if such director shall fail to resign, any Founder or Investor
shall have the right to call a special meeting of stockholders for the purpose
of removing such director and each Founder and each Investor shall vote all
their Shares entitled to vote at such meeting in favor of removal.
3. Filling Vacancies. In the event of the death, removal or resignation
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of any director, any Founder or Investor shall have the right to call a special
meeting for the purpose of electing a director (provided that such director
shall be nominated in accordance with Section 1), to fill the vacancy created by
such death, removal or resignation. Any party that is entitled to designate a
director to fill such vacancy in accordance with Section 1 but that has failed
to do so prior to the election of a replacement by the Founder and Investors
hereunder, may, within thirty (30) days of the election provided for in the
preceding sentence, call a special meeting of stockholders for the purpose of
removing the director so elected and electing its nominee to the Board, or such
party may nominate a director for election at the next annual meeting of
stockholders to succeed the director nominated and elected by the Founders and
Investors pursuant to this Section 3. In any such event, each Founder and each
Investor shall vote all of their Shares entitled to vote in favor of any such
removal or election.
4. Notice of Certain Board Meetings. At least fourteen (14) days' notice
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shall be given to each member of the Board prior to any meeting of the Board at
which it is proposed that a vacancy
2
on the Board be filled unless such notice shall have been waived in accordance
with the Delaware General Corporation Law.
5. Covenant to Vote. Each of the Investors and the Founder shall appear
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in person or by proxy at any annual or special meeting of stockholders for the
purpose of obtaining a quorum and shall vote the Shares owned by such Investor
or Founder, either in person or by proxy, at any annual or special meeting of
stockholders of the Company called for the purpose of voting on the election of
directors or by consensual action of stockholders with respect to the election
of directors, in favor of the election of the directors nominated in accordance
with Sections 1 and 3 hereof. In addition, each Investor and the Founder shall
appear in person or proxy at any annual or special meeting stockholders for the
purpose of obtaining a quorum and shall vote the Shares owned by such Investor
or Founder and entitled to vote upon any other matter submitted to a vote of the
Stockholders of the Company in a manner so as to be consistent and not in
conflict with, and to implement, the terms of this Agreement.
6. No Voting or Conflicting Agreements. No Investor or Founder shall
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grant any proxy or enter into or agree to be bound by any voting trust with
respect to the Shares held by such Investor or Founder nor shall any Investor or
Founder enter into any stockholder agreements or arrangements of any kind with
any person with respect to the Shares inconsistent with the provision of this
Agreement (whether or not such agreements and arrangements are with other
stockholders of the Company that are not parties to this Agreement). The
foregoing prohibition includes, but is not limited to, agreements or
arrangements with respect to the acquisition, disposition or voting of Shares
held by such Founder or Investors. No Founder or Investor shall act, for any
reason, as a member of a group or in concert with any other persons in
connection with the acquisition, disposition or voting of shares of the
Company's capital stock in any manner which is inconsistent with the provisions
of this Agreement.
7. Change in Number of Directors. The Founders and the Investors will not
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vote (other than by unanimous vote) for any amendment or change to the
Certificate of Incorporation or Bylaws providing for the election of more or
less than nine (9) directors, or any other amendment or change to the
Certificate of Incorporation or Bylaws inconsistent with the terms of this
Agreement.
8. Ownership. Each Founder represents and warrants to the Investors that
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(a) he now owns his Shares, free and clear of liens or encumbrances, and, except
for the Original Agreement, has not, prior to or on the date of this Agreement,
executed or delivered any proxy or entered into any other voting agreement or
similar arrangement other than one which has expired or terminated prior to the
date hereof, and (b) such Founder has full power and capacity to execute and
deliver and perform this Agreement, which has been duly executed and delivered
by, and evidences the valid and binding obligation of such Founder enforceable
in accordance with its terms.
9. Injunctive Relief. It is acknowledged that it will be impossible to
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measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action shall be
3
brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law.
10. Legends. Each certificate representing shares of the Company's
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capital stock held by Founders or Investors or any assignee of the Founders or
Investors shall bear the following legend (the "Legend"):
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"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG
THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (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."
The Company agrees that, during the term of this Agreement, it will not
permit to be removed (upon registration of transfer, reissuance or otherwise),
the Legend from any such certificate and will place or cause to be placed the
Legend on any new certificate issued to represent Common Stock or Shares
theretofore represented by a certificate carrying the Legend.
11. Termination. This Agreement shall terminate upon the earlier of (a) a
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firm commitment underwritten public offering by the Company of shares of its
Common Stock pursuant to a registration statement on Form S-1 under the
Securities Act of 1933, as amended, or (b) the sale, conveyance, disposal, or
encumbrance of all or substantially all of the Company's property or business or
the Company's merger into or consolidation with any other corporation (other
than a wholly-owned subsidiary corporation) or if the Company effects any other
transaction or series of related transactions in which more than fifty percent
(50%) of the voting power of the Company is disposed of, provided that this
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Section 4 shall not apply to a merger effected exclusively for the purpose of
changing the domicile of the Company.
12. Miscellaneous.
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(a) Successors and Assigns. The terms and conditions of this
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Agreement 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.
(b) Amendments and Waivers. Any term hereof may be amended or waived
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only with the written consent of the Company, a majority in interest of the
voting stock of the Company held by Founders, and each of the Investors. Any
amendment or waiver effected in accordance with this Section 12(b) shall be
binding upon the Company, the Founders and the Investors, and each of their
respective successors and assigns.
(c) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by
4
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 or
fax number as set forth on the signature page or on Exhibit A hereto, or as
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subsequently modified by written notice.
(d) Severability. If one or more provisions of this Agreement are
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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 (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(e) Governing Law. This Agreement and all acts and transactions
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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
California, without giving effect to principles of conflicts of law.
(f) 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.
(g) Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) Amendment; Supersedence. The undersigned Founders and Original
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Investors hereby agree to amend and restate the Original Agreement in accordance
with Section 11(b) of the Original Agreement. This Agreement supersedes in its
entirety the Original Agreement and the Original Agreement shall be of no
further force and effect.
[Signature Page Follows]
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The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
XXXXXX.XXX INC.
By:
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Xxxx X. Xxxxx, Chief Executive Officer
Address: 0000 00xx Xxxxxx,
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
XXXXXXXX COMMUNICATIONS AND INFORMATION
FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated,
its Investment Advisor
By:___________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
INTEL CORPORATION
By:_________________________________
Name: Xxxxxx Xxxxxxx
Title: Treasurer
Address:
SIGNATURE PAGE TO VOTING AGREEMENT
The parties have executed this Voting Agreement as of the date first
written above.
INVESTORS:
XXXXXXX, XXXXXXX & XXXXXXXX LLP
By:_________________________________
Name: Xxxxx X. Xxxxxxx
Title: Partner
Address: 00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
MEDIAONE INTERACTIVE
SERVICES, INC.
By:_________________________________
Name: Xxxxxx Xxxxxx
Title:
Address:
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
CHASE VENTURE CAPITAL
ASSOCIATES L.P.
By: Chase Capital Partners
Its General Partner
By:___________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
VULCAN VENTURES INC.
By:_________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: 000 000xx Xxxxxx
XX Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
BAYVIEW INVESTORS, LTD
By:_________________________________
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address:
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
XXXXX X. XXXXXXX AS TRUSTEE OF
THE XXXXX X. XXXXXXX LIVING
TRUST UNDER DECLARATION OF
TRUST DATED NOVEMBER 22, 1996
__________________________________________
Xxxxx X. Xxxxxxx, Trustee
Address: 0000 Xxxxxxx Xxx
Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS
XXXXXX XXXXXX
_________________________________
Address:
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
MAGELLEN TECHNOLOGIES, INC.
By:_________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title:
Address:
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
BRENTWOOD ASSOCIATES VIII L.P.
By: Brentwood VIII Ventures, LLC
Its General Partner
By:
________________________________
Managing Member
Address: 00000 Xxxxx Xxxxxx Xxxx.,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
BRENTWOOD AFFILIATES FUND
L.P.
By: Brentwood VII Ventures, L.P.
Its General Partner
By:
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General Partner
Address: 00000 Xxxxx Xxxxxx Xxxx.,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
SBIC PARTNERS, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
By: Xxxxxxx Xxxxxxx & Xxxxx, X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx Venture Co.,
General Partner
By:
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Xxxxxxx X. Xxxxx
Office of the President
By: SL-SBIC Partners, L.P.,
General Partner
By: FW-SBIC, Inc.,
General Partner
By:
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Xxxxx Xxxxxxxx
Chairman
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
ENTERPRISE PARTNERS IV, L.P.
By: Enterprise Management Partners IV,
Its General Partner
By:
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Xxxxxxx X. Xxxxxx, General Partner
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Venture
Partner
ENTERPRISE PARTNERS IV ASSOCIATES, L.P.
By: Enterprise Management Partners, IV,
Its General Partner
By:
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Xxxxxxx X. Xxxxxx, General Partner
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Venture
Partner
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
INVESTORS:
VLG INVESTMENTS 1998
By:
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Xxxx X. Xxxxxxxxx, Director
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXX X. XXXXXXXX
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Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
The parties hereto have executed this Voting Agreement as of the date first
written above.
FOUNDERS:
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Xxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
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Xxxxx Xxxxxx
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
--------------------------------------------------
Xxx X. Xxxxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------
Xxxxxxx X. Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxx. 00
Xxxxx Xxxxxx, XX 00000
--------------------------------------------------
Xxxxx X.X. XxXxxxxxx
Address: 0000 Xx. Xxxxxx Xxxxxx, Xxx. 0
Xxx Xxxxxxx, XX 00000
--------------------------------------------------
Xxxxxx Xxxxxxxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
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INVESTORS
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Vulcan Ventures Inc.
Chase Venture Capital Associates L.P.
Intel Corporation
Brentwood Associates VIII, L.P.
Brentwood Affiliates Fund, L.P.
SBIC Partners, L.P.
Enterprise Partners IV, L.P.
Enterprise Partners IV and Associates, X.X.
Xxxxxxxx Communications and Information Fund, Inc.
Magellen Technologies, Inc.
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx Living Trust
Bayview Investors, Ltd.
Xxxxxxx, Phleger & Xxxxxxxx LLP
Irell & Xxxxxxx LLP Trustee
VLG Investments 1998
Xxxx X. Xxxxxxxx
