Exhibit 10.9
C-BRIDGE INTERNET SOLUTIONS, INC.
STOCKHOLDERS' VOTING AGREEMENT
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This Agreement dated as of October 7, 1999 is entered into by and among
the persons and entities listed on Exhibit A attached hereto (individually, a
"Purchaser" and collectively, the "Purchasers"), C-bridge Internet Solutions,
Inc., a Delaware corporation (the "Company") and Cambridge Technology
Enterprises, Limited, Xxxxxxxxxxx Trust (Bermuda) Limited, as Trustee of the
Xxxxxx Trust, Xxxxxxxx Trust Company Limited, as Trustee of the Willingdon
Trust, Xx. Xxxxxx X. Xxxxxxx and Xx. Xxxxxxx X. Xxxxxx (individually, a
"Founder" and collectively, the "Founders"). The Purchasers and the Founders are
sometimes referred to in this Agreement collectively as the "Stockholders."
Recitals:
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1. The Founders own certain outstanding shares of the Common Stock, par
value $0.01 per share ("Common Stock"), of the Company;
2. The Purchasers are purchasing, concurrently herewith, certain shares
of capital stock of the Company pursuant to the Series A Convertible Preferred
Stock Purchase Agreement of even date herewith (the "Purchase Agreement"); and
3. The Purchasers and Founders wish to provide for their 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 six and to elect one member designated by the
Purchasers (by action of the holders of a majority of the Shares held by all
Purchasers). In addition, the Company shall invite a representative selected by
the Purchasers to attend all meetings of the Company's Board of Directors in a
non-voting observer capacity. The Company shall provide such representative with
the same financial and other information that is provided to the members of the
Board of Directors in connection with any meetings of the Board of Directors of
the Company. The director initially designated by the Purchasers is Xxxxxxx
Xxxxxxxxxxxx, and the representative initially designated by the Purchasers as
having observer rights is Xxxxx Xxxxxxxx.
(b) The Purchasers shall not vote to remove any director
designated by the Founders, and the Founders shall not vote to remove any
director designated by the Purchasers, unless the other requests so.
(c) The Company shall provide the Stockholders with 30 days'
prior written notice of any intended mailing of a notice to stockholders for a
meeting at which directors are to be elected. The Purchasers and Founders shall
give written notice to all other parties to this Agreement, no later than 20
days prior to such mailing, of the persons designated by the Purchasers and
Founders as nominees for election as directors. The Company agrees to nominate
and recommend for election as directors only the individuals designated, or to
be designated, pursuant to Section 1(a). If the Purchasers or Founders shall
fail to give notice to the Company as provided above, it shall be deemed that
the designees of the Purchasers or Founders, as the case may be, then serving as
directors shall be their designees for reelection.
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. Bylaws. The Company will not amend its bylaws so as to preclude the
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majority of stockholders from calling a special meeting.
4. Termination. This Agreement shall terminate in its entirety on the
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earliest of (a) the tenth anniversary of the date of this Agreement, (b) 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), or (c) the sale of all or
substantially all of the assets or
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business of the Company, by merger, sale of assets or otherwise. Notwithstanding
the foregoing, Section 3 of this Agreement shall terminate one year from the
date of this Agreement.
5. 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.
6. 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."
7. Transfers of Rights. Any transferee to whom Shares are transferred
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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.
8. General.
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(a) Severability. The invalidity or unenforceability of any
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provision 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
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remedies 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. The liability of Xxxxxxxx Trust Company Limited shall be limited
to the extent of the assets held from time to time by Xxxxxxxx Trust Company
Limited solely in its capacity as Trustee of the Willingdon Trust and not
otherwise. Until the first anniversary of this Agreement, the Seller will
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not transfer further any shares of the Company without the prior consent of the
Purchasers, which will not unreasonably be withheld.
(c) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Delaware (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 the Company, at C-bridge Internet Solutions, Inc., 000 Xxxxxx
Xxxxxx, Xxxxx 0, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: President, or at
such other address or addresses as may have been furnished in writing by the
Company to the Purchasers, with a copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.;
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 X'Xxxxxxxx
Graev & Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Nissan, Esq; or
If to a Founder, 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 Founder.
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.
(e) Complete Agreement; Amendments. This Agreement constitutes
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the entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings
relating to
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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) Founders then employed by the Company holding at least 50% of the
voting power of the Shares held by all of the Founders then employed by the
Company and (ii) Purchasers holding a majority of the voting power of the Shares
then held by all of the Purchasers (giving effect to the conversion into Common
Stock of all securities convertible thereunto), provided that this Agreement may
be amended with the consent of less than all of the Purchasers only in a manner
which affects all Purchasers in the same fashion), and (iii) the Company, 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
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used in 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
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convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
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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:
C-BRIDGE INTERNET SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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PURCHASERS:
INSIGHT CAPITAL PARTNERS III, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxx Xxxxxx
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Name:
Title:
INSIGHT CAPITAL PARTNERS (CAYMAN) III, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxx Xxxxxx
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Name:
Title:
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INSIGHT CAPITAL PARTNERS III- CO-INVESTORS, L.P.
By: InSight Venture Associates III, L.L.C.,
its General Partner
By: /s/ Xxxx Xxxxxx
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Name:
Title:
H&D INVESTMENTS 97
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: General Partner
FOUNDERS:
XXXXXXXX TRUST COMPANY
LIMITED, AS TRUSTEE OF THE
WILLINGDON TRUST
By: /s/ X. Xxxxxxxx
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By: /s/ X. Xxxx
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XXXXXXXXXXX TRUST (BERMUDA)
LIMITED, AS TRUSTEE OF THE XXXXXX
TRUST
By: /s/ X. Xxxxxxx
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By: /s/ X. Xxxxxxx
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CAMBRIDGE TECHNOLOGY
ENTERPRISES, LIMITED
By: /s/ Xxxx Xxxx
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President
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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ORACLE CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President, Corporate
Department
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EXHIBIT A
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List of Purchasers
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Name and Address
of Purchaser
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InSight Capital Partners III, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
InSight Capital Partners
(Cayman) III, L.P.
c/o X.X. Xxxxxx & Company
Xxxxxx Xxxxx
X.X. Xxx 000XX
Xxxx Xxxxxx
Xxxxxx Xxxx
Grand Cayman, Cayman Islands
InSight Capital Partners III -
Co-Investors, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
H&D Investments 97
Attn: Xxxx X. Xxxxxxxx, Esq.
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
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