WHALESHARK MEDIA, INC. AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 4.3.2
WHALESHARK MEDIA, INC.
AMENDMENT TO
THIRD AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”), which amends that certain Third Amended and Restated Voting Agreement, dated October 28, 2011 (the “Original Agreement”), by and among WhaleShark Media, Inc., a Delaware corporation (the “Company”), the persons and entities listed on Exhibit A thereto and the persons and entities listed on Exhibit B thereto (each an “Investor” and collectively, the “Investors”), is made and entered into as of May 10, 2012. Unless otherwise defined herein, capitalized terms shall have the definitions ascribed to them in the Original Agreement.
RECITALS
WHEREAS, Section 5.3 of the Original Agreement provides that the Original Agreement may be amended by a written instrument signed by (a) the Company, (b) Common Stockholders holding a majority of the shares of Common Stock then outstanding and (c) Investors holding (i) a majority of the shares of Preferred Stock then outstanding, voting together as a single class, (ii) a majority of the Series B-3 Preferred Stock then outstanding and (iii) a majority of the Series BB-3 Preferred Stock then outstanding (the “Requisite Stockholders”).
WHEREAS, the Company and the Requisite Stockholders desire to amend the Original Agreement as set forth herein.
AMENDMENT
1. The preamble of the Original Agreement is amended and restated in its entirety as follows:
THIS THIRD AMENDED AND RESTATED VOTING AGREEMENT (this “Agreement”) is made and entered into as of October 28, 2011 by and among WhaleShark Media, Inc., a Delaware corporation (the “Company”), those holders of the Company’s Common Stock, par value $0.001 per share (“Common Stock”), or options to acquire Common Stock set forth on Exhibit A attached to this Agreement (together with any other person who becomes a party hereto as a Common Stockholder pursuant to Sections 2.5 or 2.6, individually, a “Common Stockholder,” and collectively, the “Common Stockholders”), and the holders of the Company’s Series B-1 Preferred Stock, par value $0.001 per share (“Series B-1 Preferred Stock”), Series B-2 Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock,”), Series B-3 Preferred Stock, par value $0.001 per share (“Series B-3 Preferred Stock”), Series BB-3 Preferred Stock, par value $0.001 per share (“Series BB-3 Preferred Stock”), Series B-4 Preferred Stock, par value $0.001 per share (“Series B-4 Preferred Stock”) and Series B-5 Preferred Stock, par value $0.001 per share (“Series B-5 Preferred Stock,” and together with the Series B-1 Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series BB-3 Preferred Stock and Series B-4 Preferred Stock, collectively “Preferred Stock”) as set forth on Exhibit B attached to this Agreement (together with any other person who becomes a party hereto as an Investor pursuant to Sections 2.5 or 2.6, individually, an “Investor,” collectively, the “Investors,” and together with the Common Stockholders, the “Stockholders”).
2. Section 2.2(a) of the Original Agreement is amended and restated in its entirety as follows:
(a) Number. From and after the date of this Agreement, each Stockholder shall vote all Stockholder Shares over which such Stockholder has voting control and which such shares have the power to vote for members of the Board of Directors of the Company (the “Board”), and shall take all other necessary or desirable actions within his, her, or its control (whether in his, her, or its capacity as a stockholder, director, or officer of the Company or otherwise), including, without limitation, calling meetings, attending meetings, executing a proxy to vote at any meeting and executing written consents, in order to ensure that the size of the Board shall be set at nine, and to cause the election to the Board of:
(i) Series B-1 Directors. Two representatives designated by Austin Ventures, who initially shall be C. Xxxxxx Xxxx and Xxxxxx Xxxxxx;
(ii) Common Director. One representative designated by the holders of a majority of the outstanding shares of Common Stock, who shall be Chief Executive Officer of the Company, who initially shall be X. Xxxxxx Xxxxxxxxxx;
(iii) Series B-2 Directors. Two representatives designated by Norwest Venture Partners, who initially shall be Xxxx Xxxxx and Xxxx Xxxxxxx;
(iv) Series B-3 Director. One representative designated by Institutional Venture Partners, who initially shall be Xxxxx Xxxxx;
(v) Outside Directors. Two representatives designated by mutual agreement of the Series B-1 Directors, Series B-2 Directors and Series B-3 Director, neither of whom shall be an employee of the Company or any of the Investors, one of who initially shall be Xxxxx Xxxxxxxx and one of which seats shall initially be vacant; and
(vi) Mutual Director. One representative designated by mutual agreement of a majority of the other directors designated pursuant to this Section 2.2(a), who initially shall be Xxxxx Xxxxx.
3. Waiver. Pursuant to Section 5.3 of the Original Agreement, certain subsections of Section 2.2(a) of the Original Agreement impacted by this Amendment may not be amended without the individual consent of Austin Ventures, Norwest Partners and Institutional Venture Partners (collectively the “Consenting Investors”). By executing this Amendment, each of the Consenting Investors hereby consents to this Amendment and the amendments to those sections of the Original Agreement for which the consent of each such Consenting Investor is separately required.
4. Entire Agreement. The Original Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| WHALESHARK MEDIA, INC. | ||
| By: | /s/ X. Xxxxxx Xxxxxxxxxx | |
| X. Xxxxxx Xxxxxxxxxx, | ||
| President and Chief Executive Officer | ||
| Address: | 000 Xxxxxxxx Xxxxxx, Xxxxx 000 | |
| Xxxxxx, Xxxxx 00000 | ||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| COMMON STOCKHOLDERS: |
| /s/ X. Xxxxxx Xxxxxxxxxx |
| X. Xxxxxx Xxxxxxxxxx |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| AUSTIN VENTURES IX, L.P. | ||
| By: | AV Partners IX, L.P., | |
| its general partner | ||
| By: | AV Partners IX, LLC, | |
| its general partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Member | ||
| AUSTIN VENTURES X, L.P. | ||
| By: | AV Partners X, L.P., | |
| its general partner | ||
| By: | AV Partners X, LLC, | |
| its general partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Member | ||
| Address: 000 Xxxx 0xx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxx, Xxxxx 00000-0000 | ||
| Attn: | C. Xxxxxx Xxxx | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| Norwest Venture Partners XI, LP | ||
| By: | Genesis VC Partners XI, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxx | |
| Xxxx Xxxxx | ||
| Norwest Venture Partners VII-A, LP | ||
| By: | Itasca VC Partners VII-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Norwest Venture Partners VI-A, LP | ||
| By: | Itasca VC Partners VI-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Address: 000 Xxxxxxxxxx Xxx., Xxxxx 000 | ||
| Xxxx Xxxx, XX 00000-0000 | ||
| Attn: | Xxxx Xxxxxxx, CFO | |
| With a copy to: | ||
| Norwest Venture Partners XI, LP | ||
| 000 Xxxxxxxxxx Xxx., Xxxxx 000 | ||
| Xxxx Xxxx, XX 00000-0000 | ||
| Attn: | Xxxx X. Xxxxxxx, General Counsel | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| XXXXX STREET 2010 DIRECT FUND, L.P. | ||
| By: | ASP 2010 Direct Management, LLC, its General Partner | |
| By: | Xxxxx Street Partners, LLC, its Managing Member | |
| By: | /s/ Xxxxx Xxxxxx | |
| Partner | ||
| XXXXX STREET 2009 DIRECT FUND, L.P. | ||
| By: | ASP 2009 Direct Management, LLC, its General Partner | |
| By: | Xxxxx Street Partners, LLC, its Managing Member | |
| By: | /s/ Xxxxx Xxxxxx | |
| Partner | ||
| XXXXX STREET 2008 DIRECT FUND, L.P. | ||
| By: | ASP 2008 Direct Management, LLC, its General Partner | |
| By: | Xxxxx Street Partners, LLC, its Managing Member | |
| By: | /s/ Xxxxx Xxxxxx | |
| Partner | ||
| Address: x/x Xxxxx Xxxxxx Partners, LLC | ||
| Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||
| Xxxxxxx, XX 00000-0000 | ||
| Attn: | Xxxxx Xxxx | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| GOOGLE VENTURES 2011, L.P. | ||
| By: | Google Ventures 2011 GP, L.L.C., | |
| its general partner | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Member | |
| Address: | 0000 Xxxxxxxxxxxx Xxxxxxx | |
| Xxxxxxxx Xxxx, XX 00000 | ||
| Attn: Xxxxx Xxxxx |
| With a copy to: | ||||
| Google Ventures 2011, L.P. | ||||
| Attn: | General Counsel, Google Ventures | |||
| Email: | xx-xxxxxx@xxxxxx.xxx | |||
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| Xxxxxx Xxxxxxxx | ||||
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| Xxx Xxxxxxxx | ||||
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| Xxxxxxx Xxxxxxx | ||||
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| Xxxxxxx Argiolas | ||||
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| Xxxxxx Xxxxx | ||||
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| Xxxx-Xxxx Xxxxx | ||||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| INSTITUTIONAL VENTURE PARTNERS XIII L.P. | ||
| By: | Institutional Venture Management XIII LLC | |
| Its: | General Partner | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | ||
| Title: | ||
| XX XXXXXX DIGITAL GROWTH FUND L.P. | ||
| By: | X.X. Xxxxxx Investment Management Inc. | |
| Its: | Investment Advisor | |
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Managing Director | |
| Executed by King Holdings (Vic) Pty Ltd ACN 147 435 970 in its capacity as trustee for the King Holdings Trust, in accordance with S. 127 of the Corporations Xxx 0000 by being signed by the following officer: | ||||
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| Guy Xxxxxxx Xxxx being the sole director and company secretary | ||||
| Executed by Xxxxx/Xxxx Holdings Pty Ltd ACN 000 000 000 in its capacity as trustee for the Xxxxx/Xxxx Holdings Trust, in accordance with S. 127 of the Corporations Xxx 0000 by being signed by the following officer: | ||||
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| Xxxxx Xxxxx Xxxxx being the sole director and company secretary | ||||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
| MOUVEO, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 539 803 775 | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Gérant | |
| INVENTUZ, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 000 000 000 | ||
| By: | /s/ Francois Larvor | |
| Name: | Francois Larvor | |
| Title: | Gérant | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED VOTING AGREEMENT
