EXHIBIT I
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of June 2, 1998 (this
"Agreement") by and among (i) SOFTBANK Technology Ventures IV L.P., a Delaware
limited partnership, and SOFTBANK Holdings Inc., a Delaware corporation
(collectively, "SOFTBANK"), and (ii) Xxx X. Xxxxx ("Xxxxx"), June X. Xxxxx,
Paymentech Merchant Services, Inc., a Nevada corporation ("Paymentech"), and
First USA Financial, Inc., a Delaware corporation (collectively, the "Principal
Stockholders").
RECITALS
WHEREAS, on April 30, 1998, First Virtual Holdings Incorporated, a
Delaware corporation (the "Company"), and SOFTBANK entered into a Purchase
Agreement (the "Purchase Agreement"), pursuant to which SOFTBANK intends to
acquire 10 million shares of the Company's Common Stock, par value $0.001 per
share (the "Common Stock"); and
WHEREAS, the parties hereto wish to enter into certain agreements
regarding the composition of the Company's Board of Directors as provided
herein.
NOW, THEREFORE, in consideration of the covenants set forth herein, and
for other good and valuable consideration, intending to be legally bound hereby,
the parties agree as follows:
1. Composition and Nomination of Board of Directors.
1.1 Initial Board Members. Immediately following the Company's 1998
Annual Meeting of Stockholders, the Board of Directors of the Company shall
consist of the persons elected by the stockholders of the Company as
contemplated by Section 4(c) of the Purchase Agreement.
1.2 Board Composition Requirements. For so long as this Agreement
remains in effect, the Parties hereto intend that one member of the Company's
Board of Directors shall be the designee of (and must at all times be acceptable
to) Xxxxx, one member of the Company's Board of Directors shall be the designee
of (and must at all times be acceptable to) Paymentech and the remaining members
of the Company's Board of Directors shall be designees of (and must at all times
be acceptable to) SOFTBANK. The Board
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composition requirements set forth in this Section 1.2 are herein referred to as
the "Board Composition Requirements."
1.3 Nominating Procedures. Following the initial election of the
directors specified in Section 1.1 hereof, in connection with each meeting of
stockholders of the Company at which directors of the Company are to be elected,
the parties hereto shall cause their designees on the Board to nominate a slate
of nominees for director which meets the Board Composition Requirements for so
long as this Agreement remains in effect.
The nominees so selected by the Board of Directors shall be presented
and voted upon at the meeting of stockholders as a slate, and each of the
parties hereto agrees to vote all shares of capital stock of the Company (the
"Capital Stock") over which it has voting power in favor of such slate of
directors and in favor of no other nominee or slate.
1.4 Removal of Directors. Except as otherwise provided in this Section
1.4, each of the parties hereto agrees not to take any action to remove, with or
without cause, any director of the Company. Notwithstanding the foregoing:
(a) (i) SOFTBANK shall at all times have the right to remove and to
cause the other parties hereto to remove, with or without
cause, any or all of the directors designated by SOFTBANK or
any other director other than a director designated
hereunder by Xxxxx or Paymentech.
(ii) Xxxxx at all times shall have the right to remove and to
cause the other parties hereto to remove, with or without
cause, the director designated by Xxxxx.
iii) Paymentech shall have the right to remove and to cause the
other parties hereto to remove, with or without cause, the
director designated by Paymentech.
(b) If at any time Xxxxx or Paymentech is no longer entitled to
designate a director under this
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Agreement, any director then serving who is a designee of such party shall
resign.
(c) If a director shall fail to resign as contem plated by clause (b)
above, or if any party hereto determines to remove any director as contemplated
by clause (a) above and any such director shall fail to resign, then, at the
written request of any party hereto, the parties hereto shall immediately cause
a special meeting of stockholders of the Company to be called and held for the
purpose of removing such director. Each of the parties hereto agrees to vote, in
person or by proxy, all its shares of Capital Stock which are entitled to vote
at such meeting in favor of such removal and to take all other necessary and
appropriate action to cause such removal.
1.5 Vacancies. (a) If a vacancy is created on the Board of Directors by
reason of the death, disability, removal or resignation of any one of the
directors, the parties hereto shall take all necessary and appropriate action,
including calling a special meeting of stockholders and voting their shares of
Capital Stock at such meeting in such a manner, to ensure that such vacancy is
filled in a manner consistent with the Board Composition Requirements.
2. Action by Shareholders to Reconstitute Board of Directors. If at any
time and for any reason the Board of Directors shall fail to satisfy the Board
Composition Requirements, then, at the written request of any party hereto, the
other parties hereto shall cause to be called a special meeting of the
stockholders to be held for the purpose of taking whatever action may be
necessary to ensure that the Board is constituted so as to satisfy the Board
Composition Requirements as promptly as practicable.
3. Certificate of Incorporation and Bylaws. Each of the parties hereto
shall vote all shares of Capital Stock over which it may have or share voting
power and shall take all other actions necessary and appropriate (including,
without limitation, removing any director) to ensure that the Company's
Certificate of Incorporation and Bylaws do not at any time conflict with the
provisions of this Agreement. Without limiting the foregoing, each party hereto
shall vote all shares of Capital Stock over which it has or shares voting power
to ensure that the Company's Certificate of Incorporation and By-laws provide
for a Board of no less than 5 and no more than seven directors.
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4. Effectiveness; Termination. Regardless of when executed, this
Agreement shall not be effective until, and shall become effective immediately
upon the occurrence of, the Closing (as defined in the Purchase Agreement). All
rights hereunder shall terminate (1) as to all Principal Stockholders and
SOFTBANK, on the second anniversary of the Closing Date (as defined in the
Purchase Agreement) and (2) as to any Principal Stockholder, at such time as
such Principal Stockholder shall beneficially own less than 75% of the number of
shares of the Company's Common Stock beneficially owned by such Principal
Stockholder as of April 30, 1998.
5. Miscellaneous.
5.1 Modification and Waiver. No amendment or modification of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed to or shall constitute a waiver of
any other provisions hereof. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof.
5.2 Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof. Any
previous agreement or understandings between the parties regarding the subject
matter hereof are merged into and superseded by this Agreement.
5.3 Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.4 No Implied Rights. Nothing herein, express or implied, is intended
to or shall be construed to confer upon or give to any person, firm, corporation
or legal entity, other than the parties hereto, any interest, rights, remedies
or other benefits with respect to or in connection with any agreement or
provision contained herein or contemplated hereby.
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5.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
5.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
5.7 Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
5.8 Notices. All notices and other communications under this Agreement
shall be in writing, and shall be deemed to have been duly given on the date of
delivery if delivered personally or on the third business day after mailing or
if mailed to the party to whom notice is to be given by first class mail,
registered or certified, postage prepaid, return receipt requested, and
addressed as follows (until any such address is changed by notice duly given):
(a) if to SOFTBANK, to:
SOFTBANK Holdings Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Vice Chairman
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to Xxx X. Xxxxx or June X. Xxxxx, to:
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
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with a copy to:
Xxxx X. Xxxxxxxx
Xxxx Xxxx Xxxx & Xxxxxxxxxx
0000 Xxxxxxxxx Xxxxx, Xxx. 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
(c) if to Paymentech, to:
Xxxxxx X. Xxxxxxx, President & Chief
Executive Officer
Paymentech, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
with a copy to:
Xxxxxx X. Taken, Chief Administrative
Officer and General Counsel
Paymentech, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(d) if to First USA Financial, Inc., to:
Xxxxxx Xxxxx
First USA Financial, Inc.
0000 Xxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SOFTBANK TECHNOLOGY
VENTURES IV L.P.
By: STV IV LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxx
------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
SOFTBANK HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice Chairman
/s/ Xxx X. Xxxxx
---------------------------------
XXX X. XXXXX
/s/ June X. Xxxxx
---------------------------------
JUNE X. XXXXX
PAYMENTECH MERCHANT SERVICES, INC.
By: /s/ Xxxxxx X. Taken
------------------------------
Name: Xxxxxx X. Taken
Title: CAO & General Counsel
FIRST USA FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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