Exhibit 9.1
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
February __, 1999 by and between NetObjects, Inc., a Delaware corporation (the
"Company"), and International Business Machines Corporation, a New York
corporation ("IBM").
R E C I T A L S
WHEREAS, the Company anticipates making an Initial Public Offering (as
defined below) of common stock, par value, $0.01 per share, (the "Common
Stock"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
establish the composition of the Company's Board of Directors (the "Board").
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Beneficial ownership" shall mean ownership of a security, directly or
indirectly, by any person who through any contract, arrangement, understanding,
relationship or otherwise has or shares (1) voting power, which includes the
power to vote, or to direct the voting of, such security, and/or (2) investment
power, which includes the power to dispose, or to direct the disposition of,
such security, and for purposes of this Agreement shall be determined in
accordance with Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
1.2 "IBM Representative" shall mean a director, officer, employee or other
agent of IBM, or of an affiliate of IBM. For this purpose an "affiliate" is
defined as an individual, firm, corporation (other than NetObjects and its
subsidiaries), partnership, limited liability company, trust, joint venture or
other entity and any successor of such entity who directly, or indirectly
through one or more intermediaries, is controlled by or is under common control
with IBM.
1.3 "Initial Public Offering" shall mean a sale by the Company of Common
Stock, in a bona fide public offering on an underwritten firm commitment basis
pursuant to a registration statement filed with and declared effective by the
Securities and Exchange Commission pursuant to the Securities Act of 1933 as
amended and the General Rules and Regulations thereunder, which public offering
results in aggregate cash proceeds of at least $30 million.
1.4 "Fully Diluted" shall mean the number of fully diluted shares of
Voting Securities (including without limitation upon exercise of all outstanding
warrants, options, convertible securities and other rights to purchase Voting
Securities).
1.5 "Voting Securities" shall mean the Common Stock and any other
securities of the Company entitled to vote generally in the election of
directors of the Company and any other securities (including rights, warrants,
options and convertible debt) convertible into, exchangeable for or exercisable
for any Common Stock or other securities referred to above (whether or not
presently convertible, exchangeable or exercisable, including preferred stock of
the Company).
ARTICLE II
VOTING
2.1 From and after the date of the closing of the sale of Common Stock to
the Company's underwriters in an Initial Public Offering until the termination
of this Agreement, IBM agrees to vote all shares of Common Stock beneficially
owned by IBM and any other Voting Securities of the Company beneficially owned
by IBM and shall take all other necessary or desirable actions within its
control (whether as a stockholder, through IBM representatives serving as
directors, members of a Board committee or officer of the Company or otherwise,
and including, without limitation, attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions
(including, without limitation, calling special Board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be
established and remain at six directors; and
(ii) a total of three, and not more than three, IBM Representatives
designated in writing by IBM prior to their nomination shall be elected to serve
on the Board at any one time.
2.2 IBM designates Xxxxxx X. Xxxxxxxx, Xxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
as the initial IBM Representatives under this Agreement. IBM represents and
warrants to the Company that IBM has full power and authority to enter into and
perform this Agreement and will direct the IBM Representatives to act in
accordance with the provisions of this Agreement.
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2.3 If the holders of a majority of outstanding voting stock of the
Company, approve an amendment of the Company's Certificate of Incorporation or
Bylaws changing the size of the Board notwithstanding opposition thereto by IBM
and the Company in conformance with this Agreement, this Agreement shall remain
in full force and effect, but IBM shall not be deemed in breach of this
Agreement by reason of such amendment. Notwithstanding the foregoing sentence,
IBM and the Company may mutually agree to modify this Agreement in accordance
with the terms of Section 4.3 hereof to provide for a decrease in the size of
the Board and a simultaneous decrease in the number of IBM Representatives on
the Board, provided that the IBM Representatives shall constitute fifty percent
(50%) or less of such reduced Board.
2.4 This Voting Agreement is coupled with an interest and may not be
revoked without the written consent of the Company and IBM.
2.5 Except as provided by this Agreement, IBM shall exercise the full
rights of a stockholder with respect to the shares of Common Stock and any other
Voting Securities beneficially owned by it.
ARTICLE III
EFFECT; TERMINATION
This Agreement shall continue in full force and effect with respect to
all Common Stock and other Voting Securities of the Company currently or
hereafter beneficially owned by IBM from the date hereof until such time as
IBM's share of all Voting Securities of the Company on a Fully Diluted basis,
shall be less than forty-five percent (45%) for a period of 180 consecutive
days, at which time this Agreement will be deemed to have terminated in its
entirety as of the last day of the 180-day period.
ARTICLE IV
MISCELLANEOUS
4.1 The Company and IBM hereby declare that the terms of this Agreement
shall be specifically enforceable. If any party hereto or such party's
successors or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or
proceeding is brought hereby waives the claim or defense therein that such
party or such personal representative has an adequate remedy at law, and such
person shall not offer in any such action or proceeding the claim or defense
that such remedy at law exists.
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4.2 This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of California
without regard to its principles governing conflicts of laws.
4.3 The rights and covenants provided herein are the sole and entire
agreement between IBM and the Company with respect to the subject matter hereof.
This Agreement may be amended at any time and from time to time, and particular
provisions of this Agreement may be waived as to IBM and the Company, only by an
instrument in writing signed by IBM and the Company.
4.4 If any provision of this Agreement is held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby, provided that the principal
purpose of this Agreement is not materially affected thereby.
4.5 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
4.6 In the event that subsequent to the date of this Agreement any shares
or other securities (other than any shares or securities of another corporation
issued to the Company's stockholders pursuant to a reorganization transaction
that effects a change of control of the Company) are issued on, or in exchange
for, any of the Common Stock or other Voting Securities beneficially owned by
IBM by reason of any stock dividend, stock split, consolidation of shares,
reclassification or exchange of shares or the like involving the Company, such
shares or securities shall be deemed to be Common Stock for purposes of this
Agreement.
4.7 This Agreement may be executed in counterparts and transmitted by
facsimile, each of which when so executed and transmitted shall be deemed to be
an original, and such counterparts shall together constitute one and the same
instrument.
4.8 No delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of any similar breach or default thereunder occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Except as provided in Section 4.3,
any waiver, permit, consent or approval of any kind or character on the part of
any party of any breach or default under this Agreement, or any waiver on the
part of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
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This Voting Agreement is hereby executed as of the date first above
written.
NETOBJECTS, INC.
By:
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Name:
Title:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By:
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Name:
Title:
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