Exhibit 10.20
XXXXXXXXX.XXX, INC.
FIFTH AMENDED AND RESTATED VOTING AGREEMENT
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This Fifth Amended and Restated Voting Agreement (this "Agreement") is made
as of December 23, 1999, by and among xxxxxxxxx.xxx, inc., a Delaware
corporation (the "Company"), Xxx X. Xxxxx (the "Founder"), Xxxxx X. Xxxxxxx
("Xxxxxxx") and the holders of shares of the Company's Common Stock listed on
Exhibit A together with any affiliates (as defined in the Securities Act of
1933) of such holders to which such the shares are assigned or transferred
(collectively, the "Investors" and each individually, an "Investor") and
terminates and supersedes in all respects that certain Fourth Amended and
Restated Voting Agreement dated July 9, 1999, by and among the Company and
certain of the Investors (the "Prior Agreement").
RECITAL
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To correctly reflect the intentions of the parties at the time of the
execution of the Third Amended and Restated Voting Agreement; to clarify certain
matters regarding removal of the legend required by Section 2.3 of the Prior
Agreement; and pursuant to Section 4.2 of the Prior Agreement, this Agreement
is being executed by the Company, the Founder, and holders of at least two-
thirds (2/3) of the Company's capital stock held by the Investors who were
parties to the Prior Agreement, thereby permitting the Prior Agreement to be
terminated and superseded by this Agreement.
AGREEMENT
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The parties agree as follows:
1. Election of Directors. The number of authorized directors of the
Company will initially be set at nine (9). At each annual meeting of the
stockholders of the Company, or at any meeting of the stockholders of the
Company at which members of the Company's Board of Directors (the "Board") are
to be elected, or wherever members of the Board are to be elected by written
consent, the Founder, Xxxxxxx and the Investors agree to vote or act with
respect to their shares so as to elect:
(a) Two (2) persons designated by Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx
VIII ("KPCB"). One such designee may be made at KPCB's sole discretion and the
other such designee shall be reasonably acceptable to a majority of the
remaining Board members (excluding the KPCB designees). Such persons shall
initially be Xxxx Xxxxx and Xxxxx Xxxxx. Notwithstanding the foregoing, the
parties hereto shall not be obligated to vote or act to elect any representative
of KPCB if KPCB, together with all of its affiliates, does not hold at least
2,000,000 shares of Series A Preferred Stock (as adjusted for any future stock
splits, stock dividends, recapitalizations and the like);
(b) Two (2) persons designated by Xxxxxx.xxx, Inc. ("Xxxxxx.xxx").
One such designee may be made at Xxxxxx.xxx's sole discretion and the other such
designee shall be reasonably acceptable to a majority of the remaining Board
members (excluding the Xxxxxx.xxx designees). Such persons shall initially be
Xxxxxxx Xxxxx and such other designee as may be named at any time by Xxxxxx.xxx;
(c) One (1) person designated by Vulcan Ventures Incorporated
("Vulcan"). Such person shall initially be Xxxxxxx Xxxxx. Notwithstanding the
foregoing, the parties hereto shall not be obligated to vote or act to elect any
representative of Vulcan (i) until that certain convertible Promissory Note,
dated May 19, 1999 (the "Vulcan Note") is converted into shares of the Company's
equity securities and (ii) if Vulcan, together with all of its affiliates, does
not hold at least 2,000,000 shares of Series D Preferred Stock (as adjusted for
any future stock splits, stock dividends, recapitalizations and the like after
May 19, 1999);
(d) One (1) person designated by Rite Aid on or after January 1,
2000. Notwithstanding the foregoing, the parties hereto shall not be obligated
to elect any representative of Rite Aid if (x) Rite Aid does not beneficially
own at least 5% of the then-outstanding securities of the Company entitled to
vote for the election of directors of the Company or (y) each of the Main
Agreement dated as of June 17, 1999 between the Company and Rite Aid, the
Governance Agreement dated as of June 17, 1999 between the Company and Rite Aid
("Rite Aid Governance Agreement") and the Pharmacy Supply and Services Agreement
dated as of June 17, 1999 between the Company and Rite Aid shall have
terminated;
(e) Xxx Xxxxx, unless the Board has determined by majority vote
(excluding Xx. Xxxxx) that Xx. Xxxxx is no longer a valuable contributor to the
Company and therefore should no longer continue to serve as a director; and
(f) Xxxxx Xxxxxxx, unless the Board has determined by majority vote
(excluding Xx. Xxxxxxx) that Xx. Xxxxxxx is no longer a valuable contributor to
the Company and therefore should no longer continue to serve as a director.
Notwithstanding the provisions of paragraphs (a) and (b) above, at any
time after the date of this Agreement, either KPCB or Xxxxxx.xxx may (by written
notice to the other party and the Company) withdraw its right to designate two
Board members. In such event, KPCB and Xxxxxx.xxx shall each cause one of its
designees to resign from the Board; thereafter, KPCB and Xxxxxx.xxx shall each
have the right to designate one Board member, selected in such party's sole
discretion.
In the event of any termination, removal or resignation of any
director (other than as provided in the previous paragraph), the parties hereto
shall take all actions necessary and appropriate to cause such vacancy to be
filled in the manner by which such director was elected pursuant to the terms of
this Agreement.
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2. Additional Representations and Covenants.
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2.1 No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
2.2 Change in Number of Directors. The Founder and the Investors
will not vote for any amendment or change to the Company's Sixth Amended and
Restated Certificate of Incorporation or Bylaws providing for the election of
more than nine (9) directors, or any other amendment or change to the
Certificate of Incorporation or Bylaws inconsistent with the terms of this
Agreement.
2.3 Legends. Each certificate representing shares of the Company's
capital stock held by the Founder or the Investors shall bear the following
legend:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG
THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY (A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES
THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL
BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT."
2.4 Vulcan Director. The parties hereto agree to take reasonable
steps to fill the vacancy on the Board with the person nominated by Vulcan
pursuant to Section 1(c) as soon as practicable following the conversion of the
Vulcan Note into equity securities of the Company.
3. Termination.
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3.1 Termination Events. (a) This Agreement shall terminate when the
Company shall sell, convey, or otherwise dispose of all or substantially all of
its property or business or merge or consolidate with any other corporation
(other than a wholly-owned subsidiary corporation) where the stockholders of the
Company own less than fifty percent (50%) of the voting power of the surviving
entity after such merger or consolidation, provided that this subsection shall
not apply to a merger effected exclusively for the purpose of changing the
domicile of the Company.
(b) The rights and obligations of the Founder, Xxxxxxx and the
Investors pursuant to Sections 1(a), 1(b), 1(c), 1(d), 1(e) and 1(f) shall
terminate upon the consummation of an underwritten public offering by the
Company of shares of its Common Stock pursuant to a registration statement filed
under the Securities Act of 1933, which results in gross proceeds in excess of
$15,000,000 and the public offering price of which is at least $5.00 per share
(appropriately adjusted for any stock split, dividend, combination or other
recapitalization); provided, however, that on the first business day following
the termination of Xxxxxx.xxx's rights under Section 1(b) pursuant to this
Section 3.1(b), the Company will cause the Board to nominate, recommend and
solicit proxies (if necessary) for election to the Board of one person
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designated by Xxxxxx.xxx, provided that this obligation shall be deemed
fulfilled in the event an Xxxxxx.xxx designated director is already sitting on
the Board at such time. Thereafter, in the event of a vacancy in an Xxxxxx.xxx
Board seat, or in any Board election in which an Xxxxxx.xxx designated director
is up for re-election, unless a second Xxxxxx.xxx designated director is then
serving on the Board, the Company will cause the vacancy to be filled with an
Xxxxxx.xxx designated director or will cause such Xxxxxx.xxx designated director
to be included on the slate of directors proposed by the Board at such election
and cause the Board to recommend and solicit proxies (if necessary) in favor of
such Xxxxxx.xxx designated director. Notwithstanding any of the foregoing, the
Company's obligations under this Section 3.1(b) will terminate on the earlier
of:
(i) the date Xxxxxx.xxx ceases to beneficially own at least 5%
of the then-outstanding shares of Common Stock; and
(ii) termination of this Agreement for any reason including, a
termination pursuant to Section 3.1(a).
(c) The rights and obligations of the Founder, Xxxxxxx and the
Investors pursuant to Sections 1(a), 1(c), 1(e) and 1(f) shall terminate when
the Company shall effect any transaction or series of related transactions in
which more than fifty percent (50%) of the voting power of the Company is
disposed of, provided that this subsection shall not apply to any transaction or
series of related transactions effected exclusively for purpose of changing the
domicile of the Company, provided that this subsection shall not apply to a
transaction or series of transactions effected exclusively for the purpose of
changing the domicile of the Company.
(d) Notwithstanding the termination of the rights and obligations of
the Founder, Xxxxxxx and the Investors pursuant to Section 3.1(b) of this
Agreement, following any such termination Founder, Xxxxxxx and the Investors
(but not any transferee of any shares held by the Founder, Xxxxxxx and the
Investors) agree to vote or act with respect to their shares so as to elect the
nominee for director who is designated by Xxxxxx.xxx in accordance with Section
3.1(b) of this Agreement and the nominee for director designated by Rite Aid in
accordance with Section 3.1 of the Rite Aid Governance Agreement.
3.2 Removal of Legend. Any assignee of the Founder or Investors that
holds a stock certificate legended pursuant to Section 2.3 may surrender such
certificate to the Company for removal of the legend and the Company will duly
reissue a new certificate without the legend. At any time after the termination
of this Agreement in accordance with Section 3.1, any holder of a stock
certificate legended pursuant to Section 2.3 may surrender such certificate to
the Company for removal of the legend, and the Company will duly reissue a new
certificate without the legend.
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4. Miscellaneous.
4.1 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this 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 Agreement, except as expressly provided
in this Agreement.
4.2 Amendments and Waivers. Any term hereof may be amended or waived
only with the written consent of the Company, the Founder, Xxxxxxx, and at least
two-thirds (2/3) of the Company's capital stock held by the Investors
(including, in the case of Xxxxxx.xxx, any wholly-owned subsidiary of
Xxxxxx.xxx); provided, however, that (i) any amendment to Section 1(c) or
Section 2.4 shall require the consent of Vulcan, (ii) any amendment to Section
1(d) or Section 3.1 shall require the consent of Rite Aid and (iii) any
amendment to Section 1(b) or Section 3.1 shall require the consent of
Xxxxxx.xxx. Any amendment or waiver effected in accordance with this Section 4.2
shall be binding upon the Company, the Investors and any holder of the Founder's
shares, and each of their respective successors and assigns.
4.3 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address or fax number as set forth on the signature page or on
Exhibit A hereto, or as subsequently modified by written notice.
4.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
4.5 Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law.
4.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
4.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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The parties hereto have executed this Fifth Amended and Restated Voting
Agreement as of the date first written above.
COMPANY: INVESTORS:
XXXXXXXXX.XXX, INC. RITE AID CORPORATION
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Chairman of the Board, President and ---------------------------------------
Chief Executive Officer Title: Senior Executive Vice President
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Address: Address:
00000 XX Xxxxxxxx Xxx 00 Xxxxxx Xxxx
Xxxxx 000 Xxxx Xxxx, XX 00000
Xxxxxxxx, XX 00000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx XXX
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
FOUNDER: RITE INVESTMENTS CORP.
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxx Xxxxx Name: Xxxxxx X. Xxxxxx
Founder ---------------------------------------
Title: Senior Vice President
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Address:
Address: 00 Xxxxxx Xxxx
000 Xxxxxx Xxx. #X000 Xxxx Xxxx, XX 00000
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Xxxxxxxxx, XX 00000 With a copy to:
--------------------------------------------- Skadden, Arps, Slate, Xxxxxxx & Xxxx XXX
Xxx Xxxx, XX 00000-0000
--------------------------------------------- Attention: Xxxxx Xxxxxxxxx, Esq.
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED VOTING AGREEMENT
GENERAL NUTRITION COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: V.P. Law, Chief Legal Officer
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and Secretary
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Address:
General Nutrition Companies, Inc.
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000 Xxxxx Xxxxxx
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Xxxxxxxxxx, XX 00000
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GENERAL NUTRITION INVESTMENT COMPANY
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
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Title: V.P. Law, Chief Legal Officer
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and Secretary
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Address:
General Nutrition Companies, Inc.
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000 Xxxxx Xxxxxx
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Xxxxxxxxxx, XX 00000
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VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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Address:
000 000xx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED VOTING AGREEMENT
XXXXXXX XXXXXXX XXXXXXXX &
XXXXX VIII, L.P.
By: KPCB VIII Associates, L.P.,
its General Partner
By: /s/ L. Xxxx Xxxxx
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Name: L. Xxxx Xxxxx
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a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII FOUNDERS FUND, L.P.
By: KPCB VIII Associates, L.P.,
its General Partner
By: /s/ L. Xxxx Xxxxx
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Name: L. Xxxx Xxxxx
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a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB LIFE SCIENCES ZAIBATSU FUND II, L.P.
By: KPCB VII Associates, L.P.,
its General Partner
By: /s/ L. Xxxx Xxxxx
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Name: L. Xxxx Xxxxx
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a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED VOTING AGREEMENT
XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President
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Address:
0000 00xx Xxxxxx X., Xxx. 0000
Xxxxxxx, XX 00000
XXXXXXX:
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Address:
0000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO
FIFTH AMENDED AND RESTATED VOTING AGREEMENT
EXHIBIT A
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INVESTORS
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Name and Address
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Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII Founders Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB Life Sciences Zaibatsu Fund II, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx.xxx, Inc.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
Xxxxx Xxxxxxx
c/x Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Vulcan Ventures Incorporated
000 000xx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Rite Aid Corporation, through its wholly owned subsidiary Rite Investments Corp.
00 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx XXX
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
General Nutrition Companies, Inc., through its wholly owned subsidiary
General Nutrition Investment Company
000 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
