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EXHIBIT 9.1
XXXX.XXX, INC. VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made as of the 13th day of
July 2000, by and among Xxxx.xxx, Inc., a Delaware corporation (the "Company"),
Xxxxxxxx.xxx, Inc., a Delaware corporation ("Petstore"), Xxxxxxxxx.xxx, Inc., a
Delaware corporation ("Discovery"), and Xxxx XxXxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx
Xxxx, Xxxxxx.xxx, Inc., Hummer Winblad Venture Partners III, L.P., Hummer
Winblad Venture Partners IV, L.P., Hummer Winblad Technology Fund III, L.P.,
Spinnaker Technology Fund, L.P., Spinnaker Technology Offshore Fund Limited,
Spinnaker Offshore Founders Fund Cayman Limited, and Spinnaker Clipper Fund,
L.P. and the other holders of the Company's capital stock that are signatories
hereto (collectively, the "Investors" and individually, the "Investor").
RECITALS
The Company and Discovery have entered into a Securities Purchase
Agreement (the "Purchase Agreement") dated as of June 12, 2000 pursuant to which
the Company desires to sell to Discovery shares of the capital stock of the
Company. A condition to Discovery's obligations under the Purchase Agreement is
that the Company and the Investors enter into this Agreement for the purpose of
setting forth the terms and conditions pursuant to which Petstore, Discovery and
the Investors shall vote their shares of the Company's voting stock in favor of
a certain designee to the Company's Board of Directors. The Company, Petstore,
Discovery and the Investors desire to facilitate the voting arrangements set
forth in this Agreement, and the sale and purchase of the capital stock of the
Company pursuant to the Purchase Agreement, by agreeing to the terms and
conditions set forth below.
AGREEMENT
The parties agree as follows:
1. ELECTION OF DIRECTORS.
1.1 BOARD REPRESENTATION. At each annual meeting 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, Petstore, Discovery and the Investors agree to vote or act with
respect to their shares of Common Stock (the "Voting Stock") so as to elect Xx.
Xxxxxxx English or such other reasonable candidate (who shall be at the level of
senior vice president of Discovery or higher) designated by Discovery.
1.2 APPOINTMENT OF DIRECTORS. In the event of the resignation,
death, removal or disqualification of the director selected by Discovery,
Discovery shall promptly nominate a new director, and, after written notice of
the nomination has been given by Discovery
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to the other parties, Petstore, Discovery and each Investor shall vote their
shares of Voting Stock of the Company to elect such nominee to the Board of
Directors.
1.3 REMOVAL. Discovery may remove its designated director at any
time and from time to time, with or without cause (subject to the Bylaws of the
Company as in effect from time to time and any requirements of law), in their
sole discretion, and after written notice to each of the parties hereto of the
new nominee to replace such director, Petstore, Discovery and each Investor
shall promptly vote their shares of Voting Stock of the Company to elect such
nominee to the Board of Directors.
2. ADDITIONAL REPRESENTATIONS AND COVENANTS.
2.1 NO REVOCATION. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
2.2 CHANGE IN NUMBER OF DIRECTORS. Petstore, Discovery and the
Investors will not vote for any amendment or change to the Articles of
Incorporation or Bylaws providing for any amendment or change to the Articles of
Incorporation Bylaws inconsistent with the terms of this Agreement.
3. TERMINATION.
3.1 TERMINATION EVENTS. This Agreement shall terminate upon the
earlier of:
(a) the date on which the Tenancy and Promotion Agreement
dated as of June 12, 2000, entered into between the Company and Discovery, is
terminated;
(b) the date on which Discovery has transferred, sold or
otherwise disposed of more than [*] of the shares of Xxxx.xxx Common Stock
originally acquired by it from Xxxxxxxx.xxx, Inc. upon distribution, if any, of
those shares of Xxxx.xxx Common Stock received by Xxxxxxxx.xxx under the Asset
Purchase Agreement dated as of June 12, 2000, entered into between the Company,
Xxxxxxxx.xxx, Inc. and P-Sub Corporation, excluding for the purposes of this
calculation any shares Petstore has pledged to [*] under a guarantee agreement;
or
(c) the consummation of the sale of all or substantially
all of the Company's assets or a merger, reorganization or other
recapitalization or transaction or series of related transactions in which the
Company's stockholders prior to such transaction hold less than 50% of the
voting power.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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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.
4.2 AMENDMENTS AND WAIVERS. Any term hereof may be amended or
waived only with the written consent of the Company, Petstore, Discovery, and
the Investors. Any amendment or waiver effected in accordance with this Section
4.2 shall be binding upon the Company, Petstore, Discovery and the Investors and
each of their respective successors and assigns.
4.3 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier, 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 on the signature page, or as subsequently modified by written notice.
4.4 SEVERABILITY. If one or more provisions of this Agreement are
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 (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.
4.5 GOVERNING LAW. This Agreement and all acts and transactions
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.
4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
4.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.8 LIABILITY OF STOCKHOLDERS. No Investor shall, by reason of
his, her or its ability to designate and cause the election of any member of the
Board of Directors hereunder, or otherwise, be subject to any liability or
obligation whatsoever with respect to the management and affairs of the Company
or otherwise be or become responsible for any of the debts, liabilities or
obligations of the Company. Neither any Investor nor any controlling person,
officer, director, partner, agent or employee of any Investor (each an "Investor
Agent") shall be liable to any other Investor or Investor Agent in connection
with the rights and obligations of such Investor arising under this Agreement.
[Signature Page Follows]
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The parties hereto have executed this Voting Agreement as of the date
first written above.
COMPANY:
XXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxx
------------------------------------
Title: Chief Executive Officer
-----------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
PETSTORE:
XXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Chief Executive Officer
-----------------------------------
Address: 0000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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DISCOVERY:
XXXXXXXXX.XXX, INC
By: /s/ Michela English
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Name: Michela English
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Title: President and COO
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Address:
INVESTORS:
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Xxxx XxXxxxxx
Address: 00 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
Address: 0000 00xx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
HUMMER WINBLAD VENTURE PARTNERS III, L.P.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Partner
-----------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
HUMMER WINBLAD VENTURE PARTNERS IV, L.P.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Partner
-----------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
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HUMMER WINBLAD TECHNOLOGY FUND III, L.P.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
------------------------------------
Title: Partner
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Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
XXXXXX CAPITAL TECHNOLOGY FUND, L.P., FORMERLY KNOWN AS THE
SPINNAKER TECHNOLOGY FUND, L.P.
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Controller
-----------------------------------
Address: c/x Xxxxxx Capital Management
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 000000
Attn: Xxxxxxx Xxxxx
XXXXXX CAPITAL TECHNOLOGY OFFSHORE FUND, LIMITED, FORMERLY
KNOWN AS THE SPINNAKER TECHNOLOGY OFFSHORE FUND LIMITED
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Controller
-----------------------------------
Address: c/x Xxxxxx Capital Management
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 000000
Attn: Xxxxxxx Xxxxx
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XXXXXX CAPITAL FOUNDERS OFFSHORE FUND CAYMAN LIMITED,
FORMERLY KNOWN AS THE SPINNAKER OFFSHORE FOUNDERS FUND
CAYMAN LIMITED
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Controller
-----------------------------------
Address: c/x Xxxxxx Capital Management
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 000000
Attn: Xxxxxxx Xxxxx
XXXXXX CAPITAL CLIPPER FUND, L.P., FORMERLY KNOWN AS THE
SPINNAKER CLIPPER FUND, L.P.
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Controller
-----------------------------------
Address: c/x Xxxxxx Capital Management
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 000000
Attn: Xxxxxxx Xxxxx
XXXXXX CAPITAL FOUNDERS FUND, L.P., FORMERLY KNOWN AS THE
SPINNAKER FOUNDERS FUND, L.P.
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Controller
-----------------------------------
Address: c/x Xxxxxx Capital Management
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 000000
Attn: Xxxxxxx Xxxxx
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OTHER INVESTORS
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: CIO
-----------------------------------
Address: 000 Xxxxxx Xx.
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Xxx Xxxxxxxxx, XX
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