Exhibit 4.3
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (the "Agreement") is
made as of the 15th day of July, 1998, by and among Imgis, Inc., a California
corporation (the "Company"), certain holders of the Company's Preferred Stock
identified on Schedule A hereto (the "Investors"), and certain holders of the
Company's Common Stock identified on Schedule B hereto (the "Common Holders").
WHEREAS, certain of the Investors (the "Existing Investors") hold
shares of the Company's Series A Preferred Stock and/or shares of Common
Stock issued upon conversion thereof ("Series A Preferred Stock"), shares of
the Company's Series B1 Preferred Stock and/or shares of Common Stock issued
upon conversion thereof ("Series B1 Preferred Stock") or shares of the
Company's Series C Preferred Stock and/or shares of Common Stock issued upon
conversion thereof ("Series C Preferred Stock") and are parties to that
Voting Agreement dated July 2, 1997, as amended, by and among the Company and
the Existing Investors ("Prior Agreement"); and
WHEREAS, the Company, along with the Investors and the Common
Holders who together represent a majority of the shares of Preferred Stock
held by all parties to the Prior Agreement and a majority of the shares of
Common Stock held by all parties to the Prior Agreement, desire to terminate
the Prior Agreement and to accept the rights created pursuant hereto in lieu
of the rights granted to them under the Prior Agreement; and
WHEREAS, certain of the Investors are acquiring Series E Preferred
Stock ("Series E Preferred Stock") pursuant to a Series E Preferred Stock
Purchase Agreement (the "Purchase Agreement") of even date herewith; and
WHEREAS, in order to induce such Investors to consummate their
purchase of Series E Preferred Stock of the Company, the parties have agreed
to enter into this Agreement upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto hereby agree that the Prior
Agreement shall be superseded and replaced in its entirety by this Agreement,
and further agree as follows:
1. AGREEMENT TO VOTE. Each Investor hereby agrees to hold all of
the shares of the Company's Preferred Stock registered in its name (and any
securities of the Company issued with respect to, upon conversion of, or in
exchange or substitution for the Preferred Stock, and any other voting
securities of the Company subsequently acquired by such Investor)
(hereinafter collectively referred to as the "Investor Shares") subject to,
and to vote the Investor Shares in accordance with, the provisions of this
Agreement. Each Common Holder, as a holder of Common Stock of the Company,
hereby agrees on behalf of himself or herself to hold all of such shares of
Common Stock and any other securities of the Company acquired by him or her
in the future (and any securities of the Company issued with respect to, upon
conversion of, or in exchange or substitution for such securities) (the
"Common Holder Shares") subject to, and to
vote the Common Holder Shares in accordance with, the provisions of this
Agreement.
2. BOARD SIZE. The Investor Shares and Common Holder Shares
shall be voted (or the holders thereof shall consent pursuant to an action by
written consent of the Company's shareholders) to ensure that the size of the
Company's Board of Directors shall be set and remain at seven (7) directors;
provided, however, that such Board size may be increased or decreased
pursuant to an amendment of this Agreement in accordance with Section 9
hereof.
3. ELECTION OF DIRECTORS. On all matters relating to the
election of directors of the Company, the Investor Shares and Common Holder
Shares shall be voted (or the holders thereof shall consent pursuant to an
action by written consent of the Company's shareholders) so as to elect as
members of the Company's Board of Directors:
(a) The Chief Executive Officer of the Company; unless there
is no duly elected and qualified Chief Executive Officer of the Company, then
one (1) individual designated by a majority of the shares of Common Stock
held by the Common Holders;
(b) One (1) individual designated by a majority of the shares
of Common Stock held by the Common Holders;
(c) Two (2) individuals designated by the holders of a
majority of the shares of Series B1 Preferred Stock then outstanding;
(d) One (1) individual designated by Metromail Corporation
("Metromail") who is a current Metromail employee or one (1) individual who
is reasonably acceptable to a majority of the Company's directors and is
designated by Metromail or by a party acquiring at least 317,126 shares of
Series C Preferred Stock (or Common Stock issuable upon the conversion
thereof) from 360 Capital Partners, L.P.;
(e) One (1) individual designated by Convergence Ventures I,
L.P.; and
(f) One (1) individual designated by America Online, Inc.
("AOL"), for so long as AOL and its affiliates collectively hold at least
364,166 shares of Series E Preferred Stock (appropriately adjusted for any
stock split, dividend, combination or other recapitalization) or the
equivalent number of shares of Common Stock issued upon conversion thereof,
or any equivalent combination of shares of Series E Preferred Stock and
Common Stock issued upon conversion thereof, and provided that AOL has opted
to elect an AOL designee as a member of the Company's Board of Directors.
The Company agrees that it will take all actions that are necessary and
within its power in order to give effect to the provisions of this Section
3(f).
4. REMOVAL. Any director of the Company may be removed from the
Company's Board of Directors in the manner allowed by law and the Company's
Amended and Restated Articles of Incorporation (the "Articles") and Bylaws,
but with respect to a director designated pursuant to subsections 3(b)
through 3(f) above, only upon the vote or written consent
2
of the shareholders entitled to designate such director.
5. WAIVER OF DISSENTER'S RIGHTS. Each Major Investor identified
on Schedule C hereto (each a "Major Investor") agrees that, if so requested
by AOL, such Major Investor and its affiliates, prior to a Qualified IPO (as
defined below), will not exercise any dissenter's or appraisal rights with
respect to any Investor Shares or any Common Holder Shares held by such Major
Investor or its affiliates that are provided by the laws of the jurisdiction
in which the Company is incorporated in connection with a merger,
consolidation or similar corporate transaction of the Company into another
person for consideration with an aggregate fair market value of more than
$150 million that would qualify for pooling of interests accounting
treatment, where the Company has provided at least fifteen (15) business
days' notice to such holder prior to the date that the Company signs a
binding agreement to enter into such transaction with such other person
(provided that the disclosure to the Company's Board of Directors of such
transaction, at a meeting at which any designee of such Major Investor is
present either as an observer or as a member of the Company's Board of
Directors, shall be deemed to be effective notice for such purposes) and has
afforded such holder the opportunity to propose a competing offer, provided
that the procedures followed by the Company with respect to the solicitation
of a competing offer by such Major Investor do not place such holder in a
position that is less favorable than the position of such other person. The
foregoing waiver shall terminate and be of no further force and effect in the
event of the termination of the waiver of AOL provided for in Section 2.8(f)
of the Amended and Restated Investors' Rights Agreement dated as of even date
herewith by and among the Company, AOL and certain shareholders of the
Company listed on Schedule A thereto.
6. ADDITIONAL AGREEMENT. The Investor Shares and Common Holder
Shares shall be voted in opposition to any proposal (and the holders thereof
shall oppose such a proposal pursuant to an action by written consent of the
Company's shareholders) to authorize the issuance of any additional shares of
the Company's Preferred Stock, including an increase in the authorized number
of shares of any then existing series of Preferred Stock or of the Company's
Common Stock, such that would cause the Investors and the Common Holders to
hold less than a majority of the shares of the Company's Preferred Stock and
Common Stock, unless the holders of such newly authorized shares agree to
become parties to this Agreement by execution of a counterpart signature page
hereto.
7. SUCCESSORS IN INTEREST.
(a) Prior to a Qualified IPO (as defined below) and
notwithstanding anything to the contrary in Section 8 hereof, the provisions
of this Agreement shall be binding upon the successors in interest to any of
the Investor Shares or Common Holder Shares. Prior to a Qualified IPO and
notwithstanding anything to the contrary in Section 8 hereof, the Company
shall not permit the transfer of any of the Investor Shares or Common Holder
Shares on its books or issue new certificates representing any of the
Investor Shares or Common Holder Shares unless and until the person(s) to
whom such shares are to be transferred shall have executed a written
agreement, substantially in the form of this Agreement, pursuant to which
such person becomes a party to this Agreement, and agrees to be bound by all
the provisions hereof as if such person was a party hereunder. In or
following a Qualified IPO, the provisions of this Agreement
3
shall not be binding upon the successors in interest to any of the Investor
Shares or Common Holder Shares.
(b) Each certificate representing any of the Investor Shares
or Common Holder Shares shall bear a legend reading as follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN AMENDED AND RESTATED
VOTING AGREEMENT DATED AS OF JULY __, 1998 (A COPY OF WHICH MAY BE OBTAINED
WITHOUT CHARGE FROM THE ISSUER), 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 SUCH AMENDED AND RESTATED
VOTING AGREEMENT.
8. TERMINATION. This Agreement shall terminate in its entirety
and be of no further force or effect upon the earlier of:
(a) the date the Company consummates a firm commitment
underwritten public offering of its Common Stock under the Securities Act of
1933, as amended, the public offering price of which is not less than $13.73
per share (as adjusted for subsequent stock splits, stock dividends,
recapitalizations and the like) and in which aggregate net proceeds to the
Company total at least $20,000,000 (a "Qualified IPO"); provided, however,
that this Section 8(a) shall have no effect on the right of AOL to elect a
director pursuant to Section 3(f) hereof;
(b) the date upon which the Company first becomes subject to
the periodic reporting requirements of Section 12(g) or 15(d) of the
Securities Exchange Act of 1934, as amended; provided, however, that this
Section 8(b) shall have no effect on the right of AOL to elect a director
pursuant to Section 3(f) hereof; or
(c) July __, 2008.
9. AMENDMENTS AND WAIVERS. Any term hereof may be amended and
the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of (a) the Company, (b) the holders of a majority of the then
outstanding shares of Series B1 Preferred Stock and Series A Preferred Stock,
voting together as a single class, (c) the holders of a majority of the then
outstanding shares of Series C Preferred Stock, voting as a separate series,
(d) the holders of a majority of the then outstanding shares of Series E
Preferred Stock, voting as a separate series, and (e) the parties hereto or
their assigns holding not less than a majority of the shares of Common Stock
then held by all parties hereto. Any amendment or waiver so effected shall
be binding upon the Company, all parties hereto, any assignee of any such
party, and any other shareholder of the Company subject to the terms of this
Agreement.
10. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any stock
split, stock dividend, recapitalization, reorganization, or the like, any
securities issued with respect to the
4
Investor Shares or the Common Holder Shares shall become "Investor Shares" or
"Common Holder Shares" for purposes of this Agreement and shall be endorsed
with the legend set forth in Section 7(b) hereof.
11. ENFORCEABILITY/SEVERABILITY. The parties hereto agree that
each provision of this Agreement shall be interpreted in such a manner as to
be effective and valid under applicable law. If any provision of this
Agreement shall nevertheless be held to be prohibited by or invalid under
applicable law, (a) such provision shall be effective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement, and (b) the parties
shall, to the extent permissible by applicable law, amend this Agreement, or
enter into a voting trust agreement under which the Common Holder Shares and
the Investor Shares shall be transferred to the voting trust created thereby,
so as to make effective and enforceable the intent of this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
13. COUNTERPARTS. This 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 agreement.
14. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided in this Agreement, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors and assigns of the parties hereto.
15. REMEDIES. Each holder of Investor Shares or Common Holder
Shares will be entitled to enforce its rights under this Agreement
specifically, to recover damages by reason of any breach of any provision
hereof, and to exercise all other rights existing in its favor. Each holder
of Investor Shares or Common Holder Shares agrees and acknowledges that money
damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that each holder may, in its sole discretion, apply for
specific performance and injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
IMGIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Address: 00000 X. Xx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
COMMON HOLDERS:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Address: 00000 X. Xx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxx
Address: 000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
/s/ Xxxx Xxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxx
Address: 000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
WASHINGTON HOLDINGS, L.P.
By: /s/ Xxxx Xxxx
-----------------------------------------
Title: General Partner
-------------------------------------
Address: 00000 Xxxxxxx Xxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
INVESTORS:
360 CAPITAL PARTNERS, L.P.
By: /s/ ILLEGIBLE
-----------------------------------------
Title: President
--------------------------------------
Address: 000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
HUMMER WINBLAD
VENTURE PARTNERS II, L.P.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Title: Partner
-------------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
HUMMER WINBLAD
TECHNOLOGY FUND II, L.P.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Title: Partner
-------------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
HUMMER WINBLAD
TECHNOLOGY FUND II-A, L.P.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------------
Title: Partner
------------------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
21st CENTURY INTERNET FUND, L.P.
By: /s/ J. Xxxx Xxxxxxxxx
----------------------------------------------
Title: Member
------------------------------------------
Address: 0 Xxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
WASHINGTON HOLDINGS, L.P.
By: /s/ Xxxx Xxxx
----------------------------------------------
Title: Partner
------------------------------------------
Address: 00000 Xxxxxxx Xxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
IBL CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Title: Vice President
------------------------------------------
Address: c/o Hunter Capital Group, L.L.C.
Attn: Xxxxx Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
CONVERGENCE VENTURES I, L.P.
By: /s/ Xxxx Xx Xxxxxxxxx
----------------------------------------------
Title: General Partner
------------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
CONVERGENCE ENTREPRENEURS I, L.P.
By: /s/ Xxxx Xx Xxxxxxxxx
----------------------------------------------
Title: General Partner
------------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
COMDISCO, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------------
Title: President
------------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------------
Xxxxxxxxx Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
By: /s/ Xxxx Xxxx
----------------------------------------------
Xxxx Xxxx
Address: 000 Xxxxxx Xxxxxx
Xxxx Xxxx Xxx, XX 00000
ATTRACTOR LP
By: Attractor Ventures LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx, Managing Member
Address: 0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
ATTRACTOR DEARBORN PARTNERS LP
By: Attractor Ventures LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx, Managing Member
Address: 0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
ATTRACTOR INSTITUTIONAL LP
By: Attractor Ventures LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx, Managing Member
Address: 0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
AMERICA ONLINE, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President, Business Affairs
Address: 00000 XXX Xxx
Xxxxxx, XX 00000
SCHEDULE A
INVESTORS
Hummer Winblad
Venture Partners II, L.P.
Hummer Winblad
Technology Fund, L.P.
Hummer Winblad
Technology II-A, L.P.
21st Century
Internet Fund, L.P.
360 Capital Partners, L.P.
Landview Limited
Xxxx Xxxx
IBL Corporation
Convergence Ventures I, L.P.
Convergence Entrepreneurs I, L.P.
Comdisco, Inc.
America Online, Inc.
SCHEDULE B
COMMON HOLDERS
Washington Holdings, L.P.
Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxx
SCHEDULE C
MAJOR INVESTORS
Hummer Winblad
Venture Partners II, L.P.
Hummer Winblad
Technology Fund, L.P.
Hummer Winblad
Technology II-A, L.P.
21st Century
Internet Fund, L.P.
360 Capital Partners, L.P.
IBL Corporation
Convergence Ventures I, L.P.
Convergence Entrepreneurs I, L.P.
Attractor LP
Attractor Dearborn Partners LP
Attractor Institutional XX
Xxxxxxxxxx Holdings, L.P.
Xxxxxxx X. Xxxxxx
