Exhibit 4.5
February 12, 1999
Liberty IB, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Re: Voting Agreement
Gentlemen:
This Letter Agreement will confirm our agreement that pursuant to your
purchase of shares of Series C Preferred Stock of iBEAM Broadcasting Corporation
(the Company), Liberty IB, Inc. (Investor) and the Company hereby agree as
follows:
1. Investor shall take such action as may be required so that all
securities of the Company entitled to vote in connection with a Corporate
Transaction (as defined below) beneficially owned by Investor, Liberty Media
Corporation and/or any of its controlled affiliates (Voting Securities) are
voted on all Corporate Transactions in the same manner as voted by a majority of
the Board of Directors of the Company. For purposes of this Letter Agreement,
Corporate Transaction shall mean (i) the acquisition of the Company by another
entity by means of any transaction or series of related transactions that
results in the transfer of fifty percent (50%) or more of the outstanding voting
power of the Company or (ii) the sale of all or substantially all of the assets
of the Company, provided that no transferee of such voting power or assets is
(A) a director, officer or affiliate of the Company or (B) an associate of such
a director, officer or affiliate (with affiliate and associate having the
meanings set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended (Rule 12b-2")). For purposes of this Letter Agreement, an entity will be
deemed a controlled affiliate of Investor or Liberty Media Corporation if
Investor or Liberty Media Corporation controls such entity within the meaning of
Rule 12b-2.
(a) Investor, Liberty Media Corporation and its controlled
affiliates, as holders of shares of Voting Securities, shall be present, in
person or by proxy, at all meetings of stockholders of the Company so that all
shares of Voting Securities beneficially owned by Investor, Liberty Media
Corporation and/or its controlled affiliates may be counted for the purpose of
determining the presence of a quorum at such meetings.
(b) Investor, Liberty Media Corporation and its controlled
affiliates, as holders of shares of Voting Securities, shall not exercise any
dissenters rights under applicable law at any time for such Corporate
Transactions, if applicable.
(c) Investor, Liberty Media Corporation and its controlled
affiliates, as holders of shares of Voting Securities, shall refrain from
transferring any securities of the Company, the acquirer, or any other
applicable company during any period prohibited by then applicable pooling of
interests accounting treatment rules, whether before or after the sale of the
Company.
(d) None of Investor, Liberty Media Corporation or nor any of its
controlled affiliates shall deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement with respect to
the voting of such Voting Securities.
2. As long as Liberty Media Corporation or Investor, together with
its subsidiaries (defined as entities in which Investor or Liberty Media
Corporation beneficially owns, either directly or indirectly, at least 50% of
the voting securities), in the aggregate own not less than 50% of the shares of
the Series C Preferred Stock that Investor purchased pursuant to the Series C
Stock Purchase Agreement dated as of February 3, 1999 (or an equivalent amount
of Common Stock issued upon conversion thereof), the Company shall invite a
representative of Investor (the Observer) to attend all meetings of its Board of
Directors in a nonvoting observer capacity and, in this respect, shall give such
representative copies of all notices, minutes, consents, and other materials
that it provides to its directors; provided, however, that Investor shall not
make any use whatsoever at any time of such information except to evaluate its
investment in the Company; provided further, that the Observer shall agree to
hold in confidence and trust and to act in a fiduciary manner with respect to
all information so provided; and, provided further, that the Company reserves
the right to withhold any information and to exclude the Observer from any
meeting or portion thereof if access to such information or attendance at such
meeting could (a) adversely affect the attorney-client privilege between the
Company and its counsel; or (b) result in disclosure of confidential or
proprietary information of third parties. In addition, a majority of the
Company's nonemployee directors shall have the right to exclude the Observer
from portions or entire meetings of the Board of Directors or to omit to provide
the Observer with certain information or analysis Which would pose a conflict of
interest for Investor. The Company acknowledges that Investor will likely have,
from time to time, information that may be of interest to the Company
(Information) regarding a wide variety of matters including, by way of example
only, (1) Investor's technologies, plans and services, and plans and strategies
relating thereto, (2) current and future investments Investor has made, may
make, may consider or may become aware of with respect to other companies and
other technologies, products and services, including, without limitation,
technologies, products and services that may be competitive with the Company's,
and (3) developments with respect to the technologies, products and services,
and plans and strategies relating thereto, of other companies, including,
without limitation, companies that may be competitive with the Company. The
Company recognizes that a portion of such Information may be of interest to the
Company. Such Information may or may not be known by the Observer. The Company
agrees that Investor and the Observer shall have no duty to disclose any
Information to the Company or permit the Company to participate in any projects
or investments based on any Information, or to otherwise take advantage of any
opportunity that may be of interest to the Company if it were aware of
Liberty IB, Inc.
February 12, 1999
Page 3
such Information, and hereby waives, to the extent permitted by law, any claim
based on the corporate opportunity doctrine or otherwise that could limit
Investor's ability to pursue opportunities based on such Information or that
would require Investor or the Investor Observer to disclose any such Information
to the Company or offer any opportunity relating thereto to the Company
3. This Letter Agreement constitutes the full and entire
understanding and agreement among the parties with regard to subjects hereof.
Any provision of this Letter Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the Investor.
4. Except as otherwise provided herein, the terms and conditions of
this Letter Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties (including transferees of any
shares of Voting Securities). Nothing in this Letter 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 Letter Agreement, except as expressly
provided in this Letter Agreement.
5. If one or more provisions of this Letter Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Letter Agreement and the balance of the Letter Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance with
its terms.
6. This Letter Agreement may be executed in two or more
counterparts, each of which shall be. deemed an original, but all of which
together shall constitute one and the same instrument.
7. This Letter Agreement shall be governed by and construed under
the laws of the State of California.
8. The agreements set forth in paragraph 1 of this Letter Agreement
shall terminate and be of no further force or effect upon the first to occur of
(a) such time as both of the following conditions shall have been satisfied: (i)
the consummation of the sale of securities pursuant to bona fide, firmly
underwritten public offering of shares of common stock of the Company registered
under the Securities Act of 1933, as amended (the Initial Public Offering); and
(ii) Investor, Liberty Media Corporation and its controlled affiliates in the
aggregate own Voting Securities representing less than 5% of the then
outstanding voting power of the Company and (b) the consummation of a Corporate
Transaction. The agreements set forth in paragraph 2 of this Letter Agreement
shall terminate and be of no further force or effect upon the consummation of
the Initial Public Offering.
Notwithstanding the provisions set forth in the first sentence of
paragraph 4, the agreements set forth in paragraph 1 and paragraph 2 shall not
be binding upon or inure to the benefit of any transferee (other than Liberty
Media Corporation or a controlled affiliate of Liberty Media Corporation) of
Voting Securities unless such transferee acquires beneficial ownership of Voting
Securities representing 5% or more of the then outstanding voting power of the
Company. For the purposes of the immediately preceding sentence, all shares of
Voting Securities held or acquired by a transferee and by entities or persons
affiliated with a transferee shall be aggregated for the purpose of determining
the applicability of paragraphs 1 and 2 to transferees.
Very truly yours,
iBEAM BROADCASTING CORPORATION
By: _________________________________
Its: _________________________________
AGREED AND ACCEPTED THIS
12 th DAY OF February, 1999:
LIBERTY IB, INC.
By: /s/ XXX
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Its: Senior Vice President
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