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EXHIBIT 9.1
VOTING AGREEMENT
VOTING AGREEMENT OF NOVO MEDIAGROUP, INC.
THIS AGREEMENT, dated August 31, 1999, is among The MacManus Group, Inc.
and the shareholders listed on Exhibit A attached hereto (collectively
Shareholders; individually Shareholder) (the "Voting Agreement"). The
Shareholders are all shareholders of Novo MediaGroup, Inc. (Corporation).
WHEREAS, the Shareholders desire to enter into this Voting Agreement,
prepared in accordance with California Corporations Code section 706(a), for the
purpose of granting an irrevocable proxy to exercise specified voting rights of
shares of stock of Novo MediaGroup, Inc. to allow for the election of directors
and other matters as provided for herein.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
AGREEMENT
ARTICLE 1. SHARES SUBJECT TO AGREEMENT
1.01 SHARES SUBJECT TO THIS AGREEMENT. The undersigned Shareholders
agree that the number of shares of stock of the Corporation listed in Exhibit A
will be subject to the voting agreement and proxy granted in Section 2 as
applicable to such type of stock so held by such Shareholder. Exhibit A is made
a part of this Agreement by this reference.
ARTICLE 2. VOTING AGREEMENT AND GRANT OF PROXY
2.01. VOTING AGREEMENT AND GRANT OF PROXY.
(a) Series A Common Stock.
(I) With regard to the below listed 5 areas of interest (the
"Matters"), the Shareholders holding Series A Common Stock agree that they will
vote in favor of any proposals concerning the Matters as presented to the
Shareholders by the Board Committee to be established by the Board of Directors
comprised of the two directors to be elected solely by the Series A Common Stock
(the "Series A Common Committee"). The Matters are as follows:
1. Officer appointments, removals.
2. Employment bonus, hiring and retention matters (including grant
of options pursuant to such stock option plans, stock purchase
plans and other employee plans approved by the Board of
Directors); provided that the total amount of compensation items
are within the budget approved by the Board of Directors.
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3. Banking/financial institution relationship approvals (i.e., the
identity and selection of the institutions providing loans,
credit lines, checking/savings and other money management
alternatives; provided the borrowing amounts and other
obligations are within the budget amounts approved by the Board
of Directors).
4. Initial public offering approval, IPO timing, underwriter
selection and deal pricing and all other reasonable authority to
take usual and customary actions directly related to the
offering and necessary to implement the offering.
5. Exercise of Right of First Offer rights to purchase shares held
by MacManus pursuant to the Investors' Rights Agreement.
In addition, the Shareholders holding Series A Common Stock agree that
they will vote their shares in favor of members of the Board of Directors which
support the creation of the Series A Common Committee to address the Matters and
that such Shareholders will vote against any members of the Directors, and to
the extent possible, support the removal of any such Directors via calling for
special elections or otherwise, which do not support the creation of the
Series A Common Committee with the powers over the Matters. In addition, the
holders of Series A Common Stock agree to vote their shares in favor of the
director selection proposed by the directors elected on a class basis by the
holders of Series A Common Stock, Series A Preferred Stock and the Series C
Common Stock.
Notwithstanding anything the contrary herein, it is agreed that any
decisions regarding the granting of options to members of the Series A Common
Committee, and the CEO of the Company (to the extent be is not on the Series A
Common Committee), shall require the consent of the Board of Directors,
including at least one member of the Board of Directors elected by the Series A
Preferred Stock and Series C Common Stock, voting as a single class.
(II) As further support for the voting agreement of the
Shareholders set forth in Article 2, 2.01(a)(I), on execution of this Voting
Agreement, the Shareholders holding Series A Common Stock agree to grant to the
members of the Board of Directors elected by the Series A Common Stock, an
irrevocable proxy to vote the Series A Common Stock shares held by such
Shareholders as follows:
IRREVOCABLE PROXY
The undersigned shareholders, holders of __ [specify number] shares of
Series A Common Stock of the Corporation, represented by the share
certificates listed in Exhibit A, by this Agreement revoke all proxies
dated before the date this Agreement is executed, and irrevocably
appoint the Series A Common Stock elected Board Members as proxies to
vote and otherwise represent the above shares for the following matters:
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(1) For the election of directors to be mutually agreed upon by the
Series A Common Stock, Series A Preferred Stock and Series C Common
Stock as provided for in Article III, D.4(b) of the Articles of
Incorporation of the Corporation.
(2) For the calling of a special election of shareholders, and to vote
at such special election or otherwise, for the purpose of removing such
directors which have voted against the creation, and maintenance, of
the Series A Common Committee with such powers over the Matters as
provided for in the Voting Agreement dated August 31, 1999 and for the
voting for replacement directors favorably inclined to the creation, and
maintenance, of the Series A Common Committee.
(3) For the sole and limited purpose of voting of such Series A Common
Stock upon such matters as brought before such Series A Common Stock by
the Series A Common Committee as described in the Voting Agreement dated
August 31, 1999 and otherwise for the purpose of voting on such matters
as may be brought by any other shareholder, third-party or as may be
required by applicable law with respect to matters that the Series A
Common Committee has authority to seek approval from the Series A Common
Stock.
The proxy holders named in this Agreement or any of them will represent
the undersigned for the purposes of determining a quorum at any
shareholders' meeting that they attend. However, their authority is
specifically limited to an affirmative vote or written consent to the
particular matters stated above.
(b) Series A Preferred Stock and Series C Common Stock.
(I) With regard to the Matters, the Shareholders holding Series A
Preferred Stock and Series C Common Stock agree that they will vote in favor of
any proposals concerning the Matters as presented to the Shareholders by the
Series A Common Committee. In addition, the Shareholders holding Series A
Preferred Stock and Series C Common Stock agree that they will vote their shares
in favor of members of the Board of Directors which support the creation of the
Series A Common Committee to address the Matters and that such Shareholders will
vote against any members of the Board of Directors, and to the extent possible,
support the removal of any such Directors via calling for special elections or
otherwise, which do not support the creation of the Series A Common Committee
with the powers over the Matters. In addition it is the intention of the Series
A Preferred Stock and Series C Common Stock to grant to its class elected
directors the right to vote the shares held by the Shareholders holding Series A
Preferred Stock and Series C Common Stock with respect to the election of the
director that is to be elected by the Series A Preferred Stock, Series A Common
Stock and Series C Common Stock, voting as a class. In addition, it is the
intention of the holders of the Series A Preferred Stock and Series C Common
Stock that the board members elected, on a class basis, by the Series A Common
Stock vote such shares as held by the holders of Series A Preferred Stock and
Series C Common Stock as necessary which exceed 51% of
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the voting stock of the Corporation, the type of such shares to be at the
election of the unanimous vote of such 2 Series A Common class elected
directors.
(II) As further support for the voting agreement of the
Shareholders set forth in Article 2, 2.01(b)(1), on execution of this Voting
Agreement, the Shareholders holding Series A Preferred stock and Series C Common
Stock agree to grant the following proxies:
(i) to the members of the Board of Directors elected by
the Series A Common Stock, an irrevocable proxy to vote the Series A Preferred
Stock and Series C Common Stock shares held by such Shareholders as follows:
IRREVOCABLE PROXY I
The undersigned shareholders, holders of ___ [specify number] shares of
Series A Preferred Stock (and any outstanding shares of Series C Common
Stock into which the Series A Preferred Stock may be converted) and
Series C Common Stock, of the Corporation, represented by the share
certificates listed in Exhibit A, by this Agreement revoke all proxies
dated before the execution date of this Agreement (except as described
in this Agreement), and irrevocably appoint the Directors elected by the
Series A Common Stock as proxies to vote and otherwise represent the
above shares for the following matters:
(1) For the calling of a special election of shareholders, and to vote
at such special election or otherwise, for the purpose of removing such
directors which have voted against the creation, and maintenance, of the
Series A Common Committee with such powers over the Matters as provided
for in the Voting Agreement dated August 31, 1999 and for the voting for
replacement directors favorably inclined to the creation, and
maintenance, of the Series A Common Committee as proposed to the Series
A Common Committee by the majority of the Series A Preferred Stock and
Series C Common Stock voting as a single class - which such proposed
director(s) shall not be any previously removed directors pursuant to
this proxy right.
(2) for the sole and limited purpose of voting upon such Matters as the
Series A Common Committee shall seek approval of from the Series A
Preferred Stock and Series C Common Stock as described in the Voting
Agreement dated August 31, 1999 and otherwise for the purpose of voting
on such matters as may be brought by any other shareholder, third-party
or as may be required by applicable law with respect to Matters that
the Series A Common Committee has authority to seek approval from the
Series A Preferred Stock and Series C Common Stock.
The proxy holders named in this Agreement or any of them will represent
the undersigned for the purposes of determining a quorum at any
shareholders' meeting
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that they attend. However, their authority is specifically limited to an
affirmative vote or written consent to the particular matters stated
above.
(ii) to the board members elected on a class basis by the Series
A Preferred Stock and Series C Common Stock the following proxy:
IRREVOCABLE PROXY 2
The undersigned shareholders, holders of ___ [specify number] shares of
Series A Preferred Stock (and any outstanding shares of Series C Common
Stock into which the Series A Preferred Stock may be converted) and
Series C Common Stock, of the Corporation, represented by the share
certificates listed in Exhibit A, by this Agreement revoke all proxies
dated before the execution date of this Agreement (except as described
in this Agreement), and irrevocably appoint the Directors elected by the
Series A Preferred Stock and Series C Common Stock as proxies to vote
and otherwise represent the above shares for the following matters:
(1) For the election of directors to be mutually agreed upon by the
Series A Common Stock, Series A Preferred Stock and Series C Common
Stock as provided for in Article III, D.4(b) of the Articles of
Incorporation of the Corporation.
The proxy holders named in this Agreement or any of them will represent
the undersigned for the purposes of determining a quorum at any
shareholders' meeting that they attend. However, their authority is
specifically limited to an affirmative vote or written consent to the
particular matters stated above.
(iii) to the Series A Common Stock Directors, for so long as
MacManus controlled or affiliated shareholders own 51%
or more of the outstanding voting stock of the
Corporation, the following proxy:
IRREVOCABLE PROXY 3
The undersigned shareholders, holders of ___ [specify number] shares of
Series A Preferred Stock (and any outstanding shares of Series C Common
Stock into which the Series A Preferred Stock may be converted) and
Series C Common Stock, of the Corporation, represented by the share
certificates fisted in Exhibit A, by this Agreement revoke all proxies
dated before the execution date of this Agreement (except as described
in this Agreement), and irrevocably appoint the Directors elected by the
Series A Common Stock as proxy (action to be taken on unanimous consent
of both such directors) to vote and otherwise represent the necessary
amount and type of the above shares as provided for herein for all
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matters to be presented to the shareholders where all of the
shareholders of the Corporation holding voting stock vote on a single
class basis, other than the matters set forth in the Voting Agreement as
addressed in Section 2.01(b), Proxy 1 and Proxy 2. For the purposes of
this proxy, the type of such shares subject to this proxy shall be first
taken from the Series C Common Stock, and if not sufficient, then from
the Series A Preferred Stock, and the number of such shares shall be
determined on the following basis:
"total shares of Series A Preferred Stock and Series C Common
Stock outstanding owned by MacManus controlled or affiliated
shareholders less 51% of the total voting stock outstanding"
The proxy holders named in this Agreement or any of them will represent
the undersigned for the purposes of determining a quorum at any
shareholders' meeting that they attend. However, their authority is
specifically limited to an affirmative vote or written consent to the
particular matters stated above.
ARTICLE 3. AGREEMENT ON VOTING FOR CERTAIN DIRECTORS
3.01. MUTUAL ELECTED DIRECTORS. With respect to those Directors which shall be
elected by the Series A Common Stock, the Series A Preferred Stock and Series C
Common Stock voting as a class, the parties hereto agree that such Directors
shall be voted upon as follows: the Series A Common Stock, voting as a class,
and the Series A Preferred Stock and the Series C Common Stock, voting as a
class, shall mutually approve any such directors. Such class based director
- -voting shall terminate on the IPO.
ARTICLE 4. TERMINATION OF AGREEMENT
4.01. TERMINATION OF AGREEMENT. This Agreement will terminate upon the sooner
of: (i) the closing of a sale and issuance of shares of Common Stock of the
Corporation pursuant to an effective registration statement under the Securities
Act of 1933, as amended, (ii) at the election of a majority of the Class A
Common Stock, (iii) the reduction of the Series A Preferred Stock and Series C
Common Stock, assuming all conversions of Series A Preferred Stock to Series C
Common Stock or otherwise, to less than 30% of the outstanding voting stock of
the Corporation or (iv) the reduction of the Series A Common Stock to less than
20% of the outstanding voting stock of the Corporation.
ARTICLE 5. MISCELLANEOUS PROVISIONS
5.01. NECESSARY ACT. All parties to this Agreement will perform any acts,
including executing any documents, that may be reasonably necessary to fully
carry out the provisions and intent of this Agreement.
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5.02. NOTICES. All notices, demands, requests, or other communication required
or permitted by this Agreement will be in writing and shall be deemed duly
served when personally delivered to the party or to an officer of agent of the
party, or when deposited in the United States mail, first-class postage prepaid,
addressed to the proxy holders at ____________ [address], or to a Shareholder at
the address appearing for him of her on the books and records of the
Corporation, or at any other address the party may designate by written notice
to the others.
5.03. REMEDIES. The parties will have all the remedies available to them for
breach of this Agreement by law or in equity. The parties further agree that in
addition to all other remedies available at law or in equity, the parties will
be entitled to specific performance of the obligations of each part to this
Agreement and immediate injunctive relief. The parties also agree and that if an
action is brought in equity to enforce a party's obligations, no part will
argue, as a defense, that there is an adequate remedy at law. In addition, in
the event that there is a dispute as to the Matters to be covered by the Series
A Common Committee, then the parties hereto agree that if such dispute cannot be
settled by the Board of Directors of the Corporation, then the parties hereto
agree to support the submission of such dispute to the American Arbitration
Association ("AAA") office nearest to San Francisco, California. The holders of
Series A Common Stock which are parties hereto, as a class, and the holders of
Series A Preferred Stock and Series C Common Stock which are parties hereto, as
a class, agree to mutually select approve one arbitrator from the AAA and that
arbitrator shall follow the normal arbitration procedures and rules for the AAA
and settle such dispute. Any such dispute much be resolved, resulting in a final
determination by the arbitrator, no later than 30 days from submission of final
oral or written arguments to the AAA, with only one set of written arguments,
being allowed per party.
5.04. ATTORNEYS' FEES. In the event of any litigation concerning this Agreement
between the parties to this Agreement or the parties to this Agreement and the
estate of the any deceased Beneficiary, the prevailing party will be entitled,
in addition to any other relief that may be granted, to reasonable attorney
fees.
5.05. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement will be binding on the
parties to the Agreement and on each of their heirs, executors, administrators,
and assigns.
5.06. SEVERABILITY. If any provision is unenforceable or invalid for any reason,
the remaining provision will be unaffected by such a holding.
5.07. GOVERNING LAW. This Agreement will be constructed according to and
governed by the laws of the state of California.
5.08. NON-CIRCUMVENTION. Neither party hereto will take any act or execute any
document to circumvent the purposes of this Agreement. In addition, the parties
hereto understand and agree that, notwithstanding this Agreement, nothing herein
is intended in
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any manner to undermine or alter any rights of the parties in the Investors'
Rights Agreement
5.09. ENTIRE AGREEMENT. This instrument and Exhibit A, hereto constitutes the
entire Voting Agreement of the Shareholders and correctly sets forth the rights,
duties, and obligations, or representations concerning the Agreement's subject
matter not expressly set forth in this Agreement are of no force or effect.
Executed on _______ [date], at ____________ [city], _______________[country],
California.
THE MACMANUS GROUP, INC.
/s/ KELLY RODRIQUES
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Kelly Rodriques By: /s/ DAVID WINCLECHTER
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Name: David Winclechter
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Title: VP/Secretary
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Address: 222 Sutter 6th Floor Address:
Facsimile: San Francisco Ca. 94108
Facsimile:
/s/ HARRY SCHLOUGH /s/ ANTHONY WESTREICH
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Harry Schlough Anthony Westreich
Address: 222 Sutter Street, Address:
Ste. 600
San Francisco, CA 94108
Facsimile: Facsimile:
N.W. AYER COMMUNICATIONS, INC.
By: /s/ DAVID WINCLECHTER
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Name: David Winclechter
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Title: VP/Secretary
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Address:
Facsimile:
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EXHIBIT A
1. Kelly Rodriques - all Series A Common Stock Shares held by Mr. Rodriques
2. Harry Schlough - all Series A Common Sock held by Mr. Schlough
3. Anthony Westreich - all Series A Common Stock held by Mr. Westreich
4. The MacManus Group, Inc. - all Series A Preferred Stock and Series C
Common Stock held by MacManus
5. N.W. Ayer Communications, Inc. - all Series C Common Stock held by N.W.
Ayer Communications, Inc.
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