Exhibit 9.1
WIRED VENTURES, INC.
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VOTING TRUST AGREEMENT
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This Voting Trust Agreement, dated as of March 23, 1998, is entered into
by and among each person named on Schedule 1 attached hereto and made a part
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hereof (collectively, the "Stockholders"), Wired Ventures, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxx of Pawtucket, Rhode Island,
as trustee hereunder (the "Trustee") (this Voting Trust Agreement, as amended,
supplemented or otherwise modified, this "Agreement").
WITNESSETH:
WHEREAS, the Stockholders hold the number and class of shares of capital
stock of the Company as set forth on Schedule 1 hereto (collectively, the
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"Shares");
WHEREAS, the Company is in need of additional funds;
WHEREAS, Providence Equity Partners L.P., a Delaware limited partnership
("PEP"), Providence Equity Partners II L.P., a Delaware limited partnership
("PEP II"), Raptor Global Fund Ltd., a company organized under the laws of the
Cayman Islands ("Raptor"), Raptor Global Fund L.P., a Delaware limited
partnership ("Raptor LP"), Tudor Arbitrage Partners, L.P., a Delaware limited
partnership ("Tudor"), Tudor BVI Futures, Ltd., a British Virgin Island
corporation ("Tudor BVI" and together with PEP, PEP II, Raptor, Raptor LP and
Tudor, the "Purchasers"), the Company and Wired Magazine Group, Inc., a
California corporation and a wholly-owned subsidiary of the Company ("WMG" and
together with the Company the "Companies"), have entered into that certain
Convertible Notes Purchase Agreement of even date herewith (the "Note
Agreement") pursuant to which the Purchasers will provide up to $10 million to
the Companies;
WHEREAS, the execution and delivery of this Agreement by the Stockholders
is a condition to the Purchasers' obligations under the Note Agreement;
WHEREAS, the Purchasers, in their capacity as holders of the Company's
Series C Preferred Stock, have the right to arrange a "Sale of the Company" (as
defined in the Company's Amended and Restated Certificate of Incorporation)
pursuant to the "Shareholders Agreement" (as defined in the Note Agreement) and
the Stockholders have agreed, among other matters, to vote in favor of, and take
all action necessary to effect, a Sale of the Company approved by a majority
vote of the Board of Directors of the Company (a "Board-Approved Sale of the
Company");
WHEREAS, the Purchasers desire further assurances that a Board-Approved
Sale of the Company will be approved as provided for in the Shareholders
Agreement;
WHEREAS, the Stockholders have had the opportunity to review the terms and
conditions hereof and the Stockholders Agreement with their legal counsel;
WHEREAS, the Stockholders deem it necessary that the Trustee be given the
right to vote in favor of a Board-Approved Sale of the Company;
WHEREAS, to effect such control, the Stockholders deem it necessary and
advisable to place into a voting trust on the terms, provisions and conditions
contained in this Agreement all of the Shares together with any other securities
of the Company hereafter acquired by them that bears or carries any voting
rights under any condition (collectively, the "Stock"); and
WHEREAS, the Trustee is willing to act as such on the terms, provisions and
conditions contained in this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Establishment of Voting Trust; Transfer of Stock to Trustee.
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(a) Upon execution of this Agreement (and upon any subsequent receipt by
any Stockholder of Stock), each Stockholder shall transfer to the Trustee legal
title to the Stock owned by such Stockholder and shall deliver to the Trustee
the certificate or certificates representing such Stock, accompanied by stock
assignments separate from certificate, duly executed, assigning the Stock to the
Trustee.
(b) Upon delivery to the Trustee of any certificates representing the
Stock, the Trustee shall present said certificates to the Company for transfer
to the Trustee of title to the shares represented by said certificates and
issuance of new certificates standing on the books of the Company in the
Trustee's name, the new certificates and the Stock represented by them to be
held by the Trustee in a voting trust ("Voting Trust") under and pursuant to the
provisions of this Agreement.
(c) The Voting Trust shall be known as the "Wired Ventures, Inc. Voting
Trust."
2. Issuance of Voting Trust Certificates and Replacements.
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(a) Upon receiving from the Company certificates representing Stock
pursuant to this Agreement, the Trustee shall deliver to each tendering
Stockholder a voting trust certificate or certificates ("Certificate") for the
number of shares of Stock represented by the certificates so tendered by the
Stockholder, such Certificate to be in the form of Exhibit A to this Agreement.
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The Trustee shall keep a Certificate transfer book, in which the name and
address of the holder of each Certificate ("Certificate Holder") and the number
of shares of Stock represented by each Certificate shall be recorded.
(b) In case of loss, mutilation or destruction of a Certificate, a
duplicate Certificate may be issued to the Certificate Holder upon such terms as
the Trustee shall prescribe.
3. Voting of Stock. The Stockholders agree that the Trustee shall have
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the exclusive right to vote the Stock, notwithstanding the subsequent death or
incapacity of one or more Stockholders, at meetings of the stockholders of the
Company or otherwise, in person or by proxy, whether by written consent or by
any other method, in such manner as the Trustee may determine without necessity
of consultation with the Stockholders, and to the same extent as if the Trustee
were the sole legal and beneficial owner of the Stock, with respect to all
matters to be voted upon by stockholders of the Company related to a Board-
Approved Sale of the Company.
4. Corporate Actions With Respect to Stock.
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(a) Upon repurchase or redemption by the Company of any of the Stock, the
Trustee shall surrender the certificates representing the affected Stock to the
Company, and the certificates representing such Stock thereupon shall be
canceled and thereafter such Stock shall not be subject to the terms of this
Agreement.
(b) All cash or other dividends or distributions or property (except for
Stock) receivable in respect of the Stock, whether by way of dividend, split,
consolidation, call, redemption, repurchase, recapitalization or otherwise,
shall, upon receipt by the Trustee, be paid over to the respective Certificate
Holders in the proportions to which they severally shall be entitled. All Stock
so acquired by the Trustee shall be held by the Trustee as additional Stock
subject to the terms of this Agreement, and the Trustee shall execute and
deliver to the Certificate Holders Certificates therefor in the proportions to
which the Certificate Holders severally shall be entitled.
5. Resignation of a Trustee; Successor Trustees.
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(a) The Trustee may resign at any time by delivering a written resignation
to each of the Certificate Holders.
(b) If the Trustee shall cease to serve as the Trustee under this
Agreement, then a successor trustee designated by him/her shall succeed as
Trustee hereunder.
(c) If the Trustee or any successor Trustee shall cease to serve as Trustee
under this Agreement and a successor is not designated by the retiring Trustee
within 60 days of such retirement then a majority in interest of the then
Certificate Holders shall designate a successor Trustee.
(d) Title to the Stock subject to this Agreement shall vest in the
successor Trustee without necessity of any court action, any transfer on the
books of the Company or any other action, notice or consent.
(e) The Trustee shall not receive any compensation for acting as Trustee
under this Agreement.
6. Liability and Interest of the Trustee.
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(a) In voting or acting with respect to the Stock, the Trustee will
exercise his or her discretion, but shall assume no responsibility and shall
incur no liability because of any action taken or omitted by the Trustee and
shall not incur any responsibility or liability as a stockholder, trustee or
otherwise by reason of any error of law or of any matter or thing done or
omitted under this Agreement except his or her own willful misconduct.
(b) The Trustee, directly or indirectly, may be or become interested
individually or in another fiduciary capacity or otherwise in (i) the Company,
(ii) a subsidiary of the Company, (iii) any successor corporation of the Company
or any subsidiary of the Company, or (iv) any joint stock company, trust,
association or other concern directly or indirectly controlled by or under
common control with the Company or any subsidiary of the Company, whether as
shareholder, director, officer or otherwise and, in such connection, the Trustee
may receive compensation from the Company or from such other entity, as if he or
she were not a Trustee under this Agreement.
(c) The Trustee, in an individual capacity, or any entity in which the
Trustee may have an interest, may deal with the Company as if he or she were not
the Trustee under this Agreement.
(d) The Trustee, in an individual or any other capacity, may hold
Certificates issued under this Agreement.
7. Releases of Stock.
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(a) Shares of the Stock may be released from this Agreement from time to
time to one or more of the Stockholders upon execution, by the Trustee, of a
written instrument expressly agreeing to release such shares.
(b) Upon release of shares of Stock as provided above, the affected
Certificate Holders shall surrender their Certificates to the Trustee for
cancellation. Upon receipt of said Certificates, the Trustee shall assign the
Stock to the respective Certificate Holders as their interests may appear by
either endorsing the certificate(s) representing the Stock owned by such
surrendering Certificate Holders or duly executing stock assignments separate
from certificate. The Trustee shall present the above-referenced stock
certificates to the Company, duly endorsed or accompanied by duly executed stock
assignments separate from certificates, in order to effect the transfer of title
to the Stock on the records of the Company and shall deliver (or cause to be
delivered) to the Certificate Holders their respective stock certificates.
8. Restrictions Upon Transfer by Certificate Holders and the Trustee.
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(a) Each Certificate Holder acknowledges that each Certificate acquired
pursuant to this Agreement has not been and will not be registered under the
Securities Act of 1933 and will be taken and acquired for the Certificate
Holder's own account, for investment only and not with a view to its resale,
distribution or division to or among others. Each Certificate shall bear an
appropriate legend concerning transfer restrictions, and a notation concerning
such restrictions shall be made in the Certificate transfer book.
(b) The Certificates and the interest in the Stock that they represent may
be sold, transferred, hypothecated, pledged or otherwise disposed of by the
Certificate Holders only subject to (i) this Agreement; (ii) the requirements of
applicable securities laws and regulations; (iii) any restrictions on transfer
contained in (A) the Certificate of Incorporation of the Company, as amended,
and (B) the Shareholders' Agreement; (iv) the By-Laws of the Company, and (vi)
any other applicable agreement binding upon the Company or one or more of the
Stockholders, all of which are incorporated in this Agreement by reference.
9. Additional Parties. Any person or entity who owns stock of the
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Company that bears or carries any voting rights under any condition shall be
entitled to join in this Voting Trust, and execution by such stockholder of this
Agreement or a counterpart shall be sufficient to make such stockholder party to
this Agreement without necessity of any further action on the part of such
stockholder or of any other party.
10. Term and Termination of Voting Trust.
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(a) This Voting Trust shall continue from the date first written above for
a period of ten (10) years, unless terminated sooner pursuant to the other
provisions of this Agreement.
(b) This Voting Trust shall automatically terminate at such time, if any,
as of which the Purchasers (whether in their individual capacity, as a
shareholder, holder of a "Note" (as defined in the Note Agreement) or otherwise)
cease to hold any debt or equity securities issued by the Company.
(c) This Agreement shall not terminate solely by reason of death or
incapacity of a Certificate Holder or the Trustee, either entirely or with
respect to such Certificate Holder.
(d) The Trustee may terminate this Voting Trust at any time upon written
notice to the Certificate Holders.
(e) Upon termination of this Agreement, the Trustee shall present to the
Company the stock certificate(s) representing the Stock owned by the
Stockholders duly endorsed or accompanied by duly endorsed stock assignments
separate from certificate, assigning said Stock to the Certificate
Holders as their interests may appear in order to effect transfer of title to
the Stock on the records of the Company. The Trustee shall deliver (or cause to
be delivered) the stock certificates issued by the Company in exchange for said
stock certificate(s) to the Stockholders. The Certificates representing the
Certificate Holders' interest in such Stock shall automatically be canceled
without the necessity of further action by any party upon presentation of the
stock certificates to the Company by the Trustee.
11. Agreement Part of Corporate Records. The Trustee shall submit a copy
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of this Agreement to the Company for placement with the records of the
proceedings of the Company.
12. General Provisions.
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(a) Waiver of any provision of this Agreement, in whole or in part, in any
one instance shall not constitute a waiver of any other provision in the same
instance, nor any waiver of the same provision in another instance, but each
provision shall continue in full force and effect with respect to any other
then-existing or subsequent breach.
(b) Any notice required or permitted under this Agreement shall be given
(i) in writing by delivery in hand or by postage prepaid, United States (A)
first class mail and (B) registered or certified mail, return receipt requested,
or (ii) by overnight courier, to the Stockholders at their address set forth on
Schedule 1 hereto and to the Trustee at his/her address set forth below, or at
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such other address for a party as that party may specify by notice. Notice
shall be effective upon receipt.
To the Trustee: Xxxxxxx X. Xxxxxxx
c/o Providence Equity Partners L.P.
50 Xxxxxxx Plaza
Fleet Center, 9th Floor
Providence, Rhode Island 02903
With a copy to: Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
(c) This Agreement: (i) may be executed in any number of counterparts,
each of which, when executed by all (except and to the extent expressly
otherwise provided in Section 10 of this Agreement) parties to this Agreement
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shall be deemed to be an original, and all of which counterparts together shall
constitute one and the same instrument; (ii) shall be governed by and construed
under the laws of the State of California applicable to contracts made, accepted
and performed wholly within such State, without application of principles of
conflicts of laws; (iii) except and to the extent as expressly provided in
subsection 9(b) of this Agreement, constitutes the entire agreement of the
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parties with respect to its subject matter, superseding all prior oral and
written communications, proposals, negotiations, representations,
understandings, courses of dealing, agreements, contracts and the like between
or among any or all of the parties in such respect; (iv) may be amended,
modified, or terminated, and any right under this Agreement may be waived in
whole or in part, only by a writing signed by all parties, except as and to the
extent otherwise expressly provided in Section 10 of this Agreement; (v)
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contains headings only for convenience, which headings do not form part of and
shall not be used in construction of this Agreement; and (vi) shall bind and
inure to the benefit of the parties and their respective legal representatives,
successors and assigns.
14. Arbitration. (a) Any controversy, dispute or claim arising out of
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or relating to this Agreement shall be resolved by arbitration in accordance
with the provisions hereof and shall be in accordance with the Commercial
Arbitration Rules (the "AAA Rules") of the American Arbitration Association (the
"AAA"), and judgment on the award rendered by the arbitrators may be entered and
specifically enforced in any court having jurisdiction thereof.
(b) Pursuant to AAA Rule 14, the parties to such controversy, dispute or
claim shall appoint an arbitrator within 5 days of a party giving a demand for
arbitration (each a "Demand for Arbitration") pursuant to AAA Rule 6(a). A
neutral arbitrator shall be appointed by the party-appointed arbitrator pursuant
to AAA Rule 15 within 10 days of a Demand for Arbitration. In the event the
parties fail to appoint an arbitrator within the time frame set forth above, or
in the event the party-appointed arbitrator fails to appoint a second arbitrator
within the time frame set forth above, AAA shall, within three Business Days
following such failure, appoint such arbitrator.
(c) A final award shall be rendered as soon as reasonably possible and in
any event within 60 days of filing of a Demand for Arbitration.
(d) The parties agree that the arbitrators shall have the right to shorten
the length of any notice periods or other time periods provided in the AAA Rules
and to implement Expedited Procedures under the AAA Rules in order to ensure
that the arbitration process is completed within the time frames provided
herein. The arbitration award shall be in writing. To the extent permitted by
AAA Rules, and subject to the time periods provided herein, the parties shall be
entitled to document discovery from one another and from third parties.
(e) The losing party shall reimburse the prevailing party for attorneys'
fees and disbursements, the costs of the arbitration, including the arbitrators'
fees, and any court costs incurred by the prevailing party in successfully
seeking any equitable relief or judicially enforcing any arbitration award.
(f) The site of the arbitration shall be San Francisco, California.
13. Indemnification. The Company hereby agrees to indemnify and hold
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harmless the Trustee and any party acting on behalf of the Trustee from and
against any and all claims, losses and
liabilities arising out of or resulting from this Agreement (including, without
limitation, claims, losses and liabilities arising out of or resulting from a
Sale of the Company), except claims, losses or liabilities resulting from the
willful misconduct of the Trustee. It is the express intent of the Company to
indemnify the Trustee and any party acting on behalf of the Trustee from claims,
losses and liabilities resulting from the Trustee's or such party's own
negligence.
14. Counterparts. This Agreement may be executed in any number of
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counterparts each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
Executed under seal and delivered as of the date first above written.
TRUSTEE:
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.......................................
Xxxxxxx X. Xxxxxxx, as Trustee and Not
Individually
STATE OF __________________ )
) ss.
COUNTY OF ________________ )
On this ______ day of March, 1998, before me personally appeared Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, declared that he did execute
the foregoing Voting Trust Agreement in his capacity as Trustee thereunder and
that the foregoing constitutes his free act and deed in his capacity as Trustee
thereunder.
_________________________________________
Notary Public
My commission expires: _________________________________
[Signature page to Voting Trust Agreement]
WIRED VENTURES, INC.
By:
..................................
Name:
...............................
Title:
..............................
[Signature page to Voting Trust Agreement]
SHAREHOLDER:
_________________________________________
_____________________
By:
_________________________________
Name:
________________________________
Title:
_______________________________
STATE OF __________________ )
) ss.
COUNTY OF ________________ )
On this ______ day of March, 1998, before me personally appeared
____________, to me known, who, being by me duly sworn, declared that he/she is
the _____________ of ________________________________, a
__________________________ ("__________"), and that, being duly authorized,
he/she did execute the foregoing Voting Trust Agreement on behalf of
______________; and that the foregoing constitutes the free act and deed of
______________.
_________________________________________
Notary Public
My commission expires: _________________________________
[Signature page to Voting Trust Agreement]
SHAREHOLDER:
_________________________________________
_____________________
By:
_________________________________
Name:
________________________________
Title:
_______________________________
STATE OF __________________ )
) ss.
COUNTY OF ________________ )
On this ______ day of March, 1998, before me personally appeared
____________, to me known, who, being by me duly sworn, declared that he/she
did execute the foregoing Voting Trust Agreement; and that the foregoing
constitutes his/her free act and deed.
_________________________________________
Notary Public
My commission expires: _________________________________
[Signature page to Voting Trust Agreement]
Exhibit A
to
Voting Trust Agreement
Dated as of March 23, 1998
Form of Voting Trust Certificate
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THIS CERTIFICATE, AND THE BENEFICIAL INTEREST AND THE SHARES OF STOCK THAT
IT REPRESENTS: HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"); HAVE BEEN ACQUIRED FOR INVESTMENT; MAY NOT BE
GIVEN, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT WITH REGARD THERETO OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE; AND ARE SUBJECT TO
SUCH RESTRICTIONS AS APPLY TO THE TRANSFER OF SHARES AS MAY BE CONTAINED IN
THE CORPORATION'S CERTIFICATE OF INCORPORATION, IN A CERTAIN VOTING TRUST
AGREEMENT DATED AS OF MARCH 23,1998, AS AMENDED, AND A CERTAIN
SHAREHOLDERS' AGREEMENT DATED AS OF DECEMBER 30, 1996, AS AMENDED.
Voting Trust Certificate Representing __ Shares of the ________ Stock of Wired
Ventures, Inc., a Delaware corporation (the "Shares").
This Certificate is issued under and pursuant to the terms and conditions
of that certain Voting Trust Agreement, dated as of March 23, 1998, entered into
by and among Wired Ventures, Inc., a Delaware corporation (the "Company"),
certain stockholders of the Company and Xxxxxxx X. Xxxxxxx of Pawtucket, Rhode
Island, as trustee thereunder (the "Trustee") (said Voting Trust Agreement, as
amended, supplemented or otherwise modified, the "Agreement"). A copy of the
Agreement is recorded in the minutes of the Company.
This certifies that ___________ ("Certificate Holder") has deposited with
the Trustee a certificate or certificates for the Shares and that the
Certificate Holder is entitled to all benefits and interests specified in the
Agreement arising from deposit of the Shares, all as provided in and subject to
the terms and conditions of the Agreement.
The Certificate Holder accepts this Certificate subject to all terms and
conditions, and is entitled to the benefits, of the Agreement and, by accepting
this Certificate, agrees to be bound by the Agreement. Without limitation,
neither this Certificate nor the Shares may be transferred except
pursuant to the terms of the Agreement and subject to such restrictions upon
transfer, if any, as may be set forth in the Agreement. Upon written request,
the Company will provide to the Certificate Holder, without charge, a copy of
the Agreement and all of the agreements setting forth the restrictions
applicable to this Certificate.
This Certificate and the beneficial interest that it represents are
transferable only on the books of the Trustee upon presentation and surrender of
this Certificate. Until so transferred, the Trustee may treat the registered
holder as the owner for all purposes, notwithstanding any notice received by the
Trustee to the contrary.
IN WITNESS WHEREOF, the Trustee has set his/her hand and seal the 23rd day
of March, 1998.
TRUSTEE:
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Xxxxxxx X. Xxxxxxx, as Trustee and
Not Individually
Schedule 1
to
Voting Trust Agreement
Dated as of March 23, 1998
List of Stockholders
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Name and Address Class of Shares Number of Shares
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