Exhibit 10.6
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XxxxxxxXxxx.xxx, Inc.
AMENDED & RESTATED STOCKHOLDERS' VOTING AGREEMENT
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This Agreement dated as of July 12, 1999, which amends and restates in its
entirety that certain Stockholders' Voting Agreement dated as of November 6,
1998, is entered into by and among the persons and entities listed on Exhibit A
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hereto (individually, a "Purchaser" and collectively, the "Purchasers"), those
persons and entities listed on Exhibit B hereto who have executed counterpart
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signature pages to this Agreement (collectively, the "Existing Preferred
Holders"), Xxxxx Xxxxx, Xx Xxxxx, Xxxxxxx Xxxxx and Xxxxxxx Xxxxx (individually,
a "Senior Manager" and, collectively, the "Senior Managers") and
XxxxxxxXxxx.xxx, Inc., a Delaware corporation (the "Company"). The Purchasers,
the Existing Preferred Holders and the Senior Managers are sometimes referred to
in this Agreement collectively as the "Stockholders."
Recitals:
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1. The Senior Managers own certain outstanding shares of the Common
Stock, par value $.01 per share ("Common Stock"), of the Company;
2. The Existing Preferred Holders own certain outstanding shares of
Series A Convertible Preferred Stock, par value $.01 per share, and Series B
Convertible Preferred Stock, par value $.01 per share, of the Company
(collectively, the "Existing Preferred Stock");
3. The Purchasers are purchasing, concurrently herewith, certain shares
of Series C Convertible Preferred Stock of the Company pursuant to the Series C
Convertible Preferred Stock Purchase Agreement of even date herewith (the
"Purchase Agreement"); and
4. The Purchasers, the Existing Preferred Holders and Senior Managers
wish to provide for continuing representation on the Board of Directors of the
Company in the manner set forth below.
In consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of shares of capital stock of the Company
pursuant to the Purchase Agreement, and for other valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Voting of Shares.
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(a) In any and all elections of directors of the Company (whether at a
meeting or by written consent in lieu of a meeting), each Stockholder shall vote
or cause to be voted all Shares (as defined in Section 2 below) owned by him or
it, or over which he or it has voting control, and otherwise use his or its
respective best efforts, so as to fix the number of directors of the Company at
seven (7) and to elect (i) one (1) member designated by North Bridge Venture
Partners II, L.P.; (ii) one (1) member designated by Commonwealth Capital
Ventures II, L.P.; (iii) the Chief Executive Officer of the Company; (iv) the
Chairman of the Board; (v) for so long
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as Brighter Vision Holdings, Inc. owns at least 500,000 shares, one (1) member
designated by Brighter Vision Holdings, Inc.; and (vi) two (2) members
designated by a majority of the other directors of the Company. The director
initially designated by North Bridge Venture Partners II, L.P. is Xxxxxxx
X'Xxxxx, the director initially designated by Commonwealth Capital Ventures II,
L.P. is Xxxxxxx Xxxxxxxxxx, the director initially designated by Brighter Vision
Holdings, Inc. is Xxxxx X. Xxxxxx, Xxxxx Xxxxx shall initially be the Chief
Executive Officer of the Company and Xxxxxxx Xxxxx shall initially be the
Chairman of the Board of the Company. The parties acknowledge that, pursuant to
that certain letter agreement dated July 23, 1997, the Company has granted
Sylvan Learning Systems, Inc. ("Sylvan") "the right to a seat on [the Company's]
board of directors." The parties agree that, should Sylvan exercise its right to
nominate a director, (A) all of the parties hereto shall vote or cause to be
voted all Shares owned by him or it, or over which he or it has voting control,
and otherwise use his or its respective best efforts, to elect the nominee of
Sylvan to the board of directors, and (B) the nominee of Sylvan shall be deemed
to be one of the members designated pursuant to clause 1(a)(vi) above.
(b) No Stockholder shall vote to remove any director designated by any
other Stockholder unless the designating Stockholder also votes for such
removal.
2. Shares. "Shares" shall mean and include any and all shares of Common
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Stock and/or shares of capital stock of the Company, by whatever name called,
which carry voting rights (including voting rights which arise by reason of
default) and shall include any such shares now owned or subsequently acquired by
a Stockholder, however acquired, including without limitation stock splits and
stock dividends.
3. Termination. This Agreement shall terminate in its entirety on the
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earliest of (a) the closing of the Company's initial public offering of shares
of Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act"), resulting in at least
$15,000,000 of gross proceeds to the Company at a minimum price to the public of
$10.00 per share (subject to appropriate adjustment for stock splits, stock
dividends, recapitalizations and other similar events) (a "Qualified Public
Offering"), or (b) the sale of all or substantially all of the assets or
business of the Company, by merger, sale of assets or otherwise; provided, that
the occurrence of the Company's initial public offering as described in Section
3(a) above shall not terminate this Agreement with respect to the obligation
pursuant to Section 1(a) to vote or cause to be voted all Shares so as to elect
one member designated pursuant to Section 1(a)(v). For so long as the condition
under Section 1(a)(v) above exists, the Company agrees to nominate Xx. Xxxxx X.
Xxxxxx (or such replacement as Brighter Vision Holdings, Inc. shall identify) as
a Brighter Vision Holdings, Inc. nominee to the Company's Board of Directors at
all elections of directors and to recommend to its stockholders the election of
Xx. Xxxxx X. Xxxxxx (or such replacement as Brighter Vision Holdings, Inc. shall
identify), all subject to the fiduciary obligations of the Board of Directors.
4. No Revocation. The voting agreements contained herein are coupled
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with an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with Section 7(e) hereof. Nothing in this
Section 4 shall be construed as limiting the provisions of Section 3 or 7(e)
hereof.
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5. Restrictive Legend. All certificates representing Shares owned or
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hereafter acquired by the Stockholders or any transferee of the Stockholders
bound by this Agreement shall have affixed thereto a legend substantially in the
following form:
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Stockholders' Voting
Agreement, as amended from time to time, by and among the registered
owner of this certificate, the Company and certain other stockholders
of the Company, a copy of which is available for inspection at the
offices of the Secretary of the Company."
6. Transfers of Rights. Prior to a Qualified Public Offering, any
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transferee to whom Shares are transferred by a Stockholder, whether voluntarily
or by operation of law, shall be bound by the voting obligations imposed upon
the transferor under this Agreement, to the same extent as if such transferee
were a Stockholder hereunder and no Stockholder shall transfer any Shares unless
the transferee agrees in writing to be bound by this Agreement.
7. General.
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(a) Severability. The invalidity or unenforceability of any provision
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of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(b) Specific Performance. In addition to any and all other remedies
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that may be available at law in the event of any breach of this Agreement, each
Purchaser shall be entitled to specific performance of the agreements and
obligations of the Stockholders hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by and construed
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in accordance with the internal laws of the Commonwealth of Massachusetts
(without reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to a Purchaser, at his or its address set forth in Schedule A hereto, or
at such other address or addresses as may have been furnished to the other
parties hereto in writing by such Purchaser, with a copy to Xxx X. Xxxxxxxx at
Xxxx and Xxxx XXX, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000; or
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If to a Senior Manager or Existing Preferred Stockholder, at the address
below his signature hereto, or at such other address or addresses as may have
been furnished to the other parties hereto in writing by such Senior Manager or
Existing Preferred Stockholder.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section 7.
(e) Complete Agreement; Amendments. This Agreement constitutes the
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entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings
relating to such subject matter. No amendment, modification or termination of,
or waiver under, any provision of this Agreement shall be valid unless in
writing and signed by (i) Senior Managers then employed by the Company holding
at least 51% of the voting power of the Shares held by all of the Senior
Managers then employed by the Company and (ii) Purchasers and Existing Preferred
Holders holding 66-2/3% of the voting power of the Shares then held by all of
the Purchasers and Existing Preferred Holders (giving effect to the conversion
into Common Stock of all securities convertible thereinto), and any such
amendment, modification, termination or waiver shall be binding on all parties
hereto; provided that the consent of a party shall not be required for any
amendment, modification or termination of, or waiver under, any provision of
this Agreement if such party is not adversely affected thereby.
(f) Pronouns. Whenever the context may require, any pronouns used in
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this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Counterparts; Facsimile Signatures. This Agreement may be
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executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(h) Section Headings. The section headings are for the convenience of
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the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
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[THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
COMPANY:
XxxxxxxXxxx.xxx, Inc.
By: /s/ Xxxxx Xxxxx
____________________________
Name: Xxxxx Xxxxx
________________________
Title: CEO
_______________________
PURCHASERS:
BRIGHTER VISION HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxxx
Title: Asst. Secretary
_____________________________
INTEL CORPORATION
By: /s/ Arind Xxxxxxx
____________________________________
Name: Arind Xxxxxxx
______________________________
Title: Vice President and Treasurer
_____________________________
XXX XXXXXXX CAPITAL MANAGEMENT
By: /s/ X. Xxx Xxxxxxx
____________________________________
Name: Xxxxxxx Xxx Xxxxxxx
______________________________
Title: President
____________________________
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ADVENT CROWN FUND C.V.
By: Advent International Limited Partnership, General
Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxx
______________________________
Title: Vice President/Senior Vice President
DIGITAL MEDIA & COMMUNICATIONS II LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General
Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxx
______________________________
Title: Vice President/Senior Vice President
OAKSTONE VENTURES LIMITED PARTNERSHIP
By: Advent International Limited Partnership, General
Partner
By: Advent International Corporation, General Partner
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxx
______________________________
Title: Vice President/Senior Vice President
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RRE INVESTORS, L.P.
By: /s/ Illegible
____________________________________
Name:
______________________________
Title: General Partner
RRE INVESTORS FUND, L.P.
By: /s/ Illegible
____________________________________
Name: ______________________________
Title: General Partner
XX XX PARTNERS, LLC
By: /s/ Xxxxx Xxxxxxxxx
____________________________________
Xxxxx Xxxxxxxxx, General Partner
REAL ESTATE EQUITIES LIMITED PARTNERSHIP
By: First Capital Financial Corporation
By: /s/ Xxxxxx XxXxxx
____________________________________
Xxxxxx X. XxXxxx, President
NORTH BRIDGE VENTURE PARTNERS III, L.P.
By: NORTH BRIDGE VENTURE MANAGEMENT III, L.P., its
General Partner
By: /s/ Xxxxxxx X'Xxxxx
____________________________________
Name: Xxxxxxx X'Xxxxx
______________________________
Title: General Partner
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COMMONWEALTH CAPITAL VENTURES II L.P.
By: COMMONWEALTH CAPITAL VENTURES II, L.P., its
General Partner
By: /s/ Xxx X. Xxxxxxx
____________________________________
Name: Xxx X. Xxxxxxx
______________________________
Title: General Partner
CCV II ASSOCIATES L.P.
By: /s/ Xxx X. Xxxxxxx
____________________________________
Name: ______________________________
Title: General Partner
By: /s/ Xxxxx Way
____________________________________
Xxxxx Way
CARDINAL CREST PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxxx
______________________________
Title: Partner
____________________________
By: /s/ Xxx Xxxxx
____________________________________
Xxx Xxxxx
By:/s/ Xxxxxx Xxxxxx
____________________________________
Xxxxxx Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxxxx XX
___________________________________
Xxxxxx X. Xxxxxxxxxx XX
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By: /s/ Xxxxx Xxxxxxxx
____________________________________
Xxxxx Xxxxxxxx
SENIOR MANAGERS:
/s/ Xxxxx Xxxxx
______________________________
Xxxxx Xxxxx
Address: 00 Xxxxxxxx Xxxx
______________________
Xxxxxxx, XX 00000
______________________
/s/ Xx Xxxxx
______________________________
Xx Xxxxx
Address: 000 Xxxxxxxxxxxx Xxx, #0
_________________________
Xxxxxx, XX 00000
______________________
/s/ Xxxxxxx Xxxxx
______________________________
Xxxxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxxxx
______________________
Xxxxxxx, XX 00000
______________________
/s/ Xxxxxxx Xxxxx
______________________________
Xxxxxxx Xxxxx
Address:169 North Street
______________________
Xxxxxxx, XX 00000
______________________
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EXISTING PREFERRED HOLDERS:
_________________________________
Name: _______________________
Address: _____________________
_____________________
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