AMENDED AND RESTATED
VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (this “
Agreement ”) is dated for reference as of
March 29, 2006 by and among Glu Mobile Inc., a California
corporation formerly known as Sorrent, Inc. (the “
Company ”), the persons listed on
Exhibit A attached hereto representing as of the date
hereof holders of a majority of the Company’s currently
outstanding Common Stock (the " Existing Shareholders
”), the holders of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series D-1 of the Company
identified on Exhibit B attached hereto representing
all of the holders of such Series of the Company’s Preferred
Stock (the “ Investors ”), and the iFone
Shareholders (as defined in the Exchange Agreement (as defined
below)) listed on Exhibit C attached hereto under the
heading “Former iFone Shareholders” (the “
New Shareholders ”) representing the holders of
a majority in interest of the shares of Special Junior Preferred
Stock issued pursuant to the Exchange Agreement (as defined below).
The Existing Shareholders and the New Shareholders are collectively
referred to herein as the “ Shareholders
.” The effectiveness of this Agreement is contingent upon and
this Agreement shall be effective immediately following the Closing
(as defined in the Exchange Agreement (as defined
below)).
WHEREAS, the Company, the Existing Shareholders and the
Investors are parties to that certain Amended and Restated Voting
Agreement dated as of July 26, 2005 (the “
Original Agreement ”).
WHEREAS, pursuant to that certain Exchange Agreement dated
as of March 29, 2006 by and among the Company, the
shareholders of iFone Holdings Limited (“ iFone
”), a company organized and registered under the laws of
England and Wales with number 3499988 and whose registered office
is at 21 Castle Street, Castlefield, Manchester, M3 4SW
(collectively, the “ iFone Shareholders
”) and David Bates, acting as the representative of the iFone
Shareholders (the “ Exchange Agreement
”), the Company will (subject to the terms and conditions of
the Exchange Agreement) issue shares of its Special Junior
Preferred Stock to the New Shareholders in exchange for iFone Stock
(as defined in the Exchange Agreement).
WHEREAS , the Company’s Amended and Restated Articles
of Incorporation as filed with the office of the Secretary of State
of the State of California and in effect on the date hereof (the "
Restated Articles ”) provides that
(a) holders of shares of the Series A Preferred Stock,
voting together as a separate series, shall elect two
(2) members of the Board (the “ Series A
Directors ”), (b) holders of shares of the
Series B Preferred Stock, voting together as a separate
series, shall elect one (1) member of the Board (the “
Series B Director ”), (c) holders of
shares of the Series C Preferred Stock, voting together as a
separate series, shall elect one (1) member of the Board (the
" Series C Director ”), (d) holders
of shares of the Series D Preferred
Stock and
Series D-1 Preferred Stock, voting together as a separate
series, shall elect two (2) members of the Board (the “
Series D/D-1 Directors ”),
(e) holders of shares of the Special Junior Preferred Stock,
voting together as a separate series, shall elect one
(1) member of the Board (the “ Special Junior
Preferred Director ”), and (f) holders of shares
of Common Stock, Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series D Preferred
Stock, Series D-1 Preferred Stock and Special Junior Preferred
Stock (on an as converted to Common Stock basis), voting together
as a single class, shall be entitled to elect the remaining members
of the Board.
WHEREAS, a condition to the New Shareholders’ and the
Company’s obligations under the Exchange Agreement is the
execution and delivery of this Agreement by the Company, Existing
Shareholders holding at least a majority of the shares of capital
stock held by all Existing Shareholders, holders of at least a
majority of the shares of the Series A Preferred Stock,
holders of at least 66 2 / 3 %
of the shares of the Series B Preferred Stock, holders of at
least a majority of the outstanding shares of the Series C
Preferred Stock, holders of at least 72% of the shares of the
Series D Preferred Stock and Series D-1 Preferred Stock,
voting together as a single class, and the New Shareholders for the
purpose of setting forth the terms and conditions pursuant to which
the Investors and the Shareholders shall vote their shares of the
Company’s voting stock in favor of certain designees to the
Company’s Board of Directors.
WHEREAS, the Company, the Investors and the Shareholders
each desire to facilitate the voting arrangements set forth in this
Agreement, and the exchange of shares pursuant to the Exchange
Agreement, by agreeing to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Original Agreement
shall be amended and restated in its entirety as follows and shall
be of no further force or effect:
1.
Election of Directors .
1.1
Board Representation . At each annual meeting of the
shareholders of the Company, or at any meeting of the shareholders
of the Company at which members of the Board of Directors of the
Company are to be elected, or whenever members of the Board of
Directors are to be elected by written consent, the Company hereby
agrees to take such actions as are necessary, and each of the
Shareholders and the Investors agree to vote or act with respect to
any shares of the capital stock of the Company, whether now owned
or hereafter acquired, over which he, she or it exercises voting
control, so as to fix the number of members of the Board of
Directors of the Company at ten (10) and to elect
thereto:
(a) in
any election of directors of the Company to elect the Series A
Directors, (i) one (1) director nominated by New Enterprise
Associates 10, L.P. (“ NEA ”), which such
designee shall initially be Stewart Alsop, and (ii) one
(1) director nominated by Sienna Limited Partnership III,
L.P., which such designee shall initially be Daniel
Skaff;
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(b) in
any election of directors of the Company to elect the Series B
Director, one (1) director nominated by holders of a majority of
the voting stock held by JAFCO America Technology Fund III, LP,
JAFCO America Technology Cayman Fund III, LP, JAFCO USIT FUND III,
LP, JAFCO America Technology Affiliates Fund III, LP, Globespan
Capital Partners IV, L.P., Globespan Capital Partners (Cayman), IV,
L.P., GCP IV Affiliates Fund, L.P. or JAFCO Globespan USIT IV, L.P.
(collectively, “ GlobeSpan ”), which such
designee shall initially be Barry Schiffman;
(c) in
any election of directors of the Company to elect the Series C
Director, one (1) director nominated by BAVP, L.P. (the “
BAVP Designee ”), which such designee shall
initially be Sharon Wienbar;
(d) in
any election of directors of the Company to elect the
Series D/D-1 Directors, (i) one (1) director
nominated by Granite Global Ventures II L.P. (the “
Granite Designee ”), which such designee shall
initially be Hany Nada and (ii) one (1) director,
nominated by TWI Glu Mobile Holdings Inc. ( “Time
Warner” ) (the “ TW Designee
”), which such designee shall initially be Andrew
Heller;
(e) in
any election of directors of the Company to elect the Special
Junior Preferred Director, one (1) director nominated by a
majority of the then outstanding Special Junior Preferred Stock
then held by the New Shareholders, which designee shall initially
be David Ward, provided that any successor designee shall be
reasonably acceptable to a majority of the persons who are then
members of the Company’s Board of Directors; and
(f) in
any election of directors of the Company by the holders of shares
of Common Stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock, Series D-1 Preferred Stock and Special Junior
Preferred Stock, voting together as a single class, one
(1) director who is the person then serving as the Chief
Executive Officer of the Company.
1.2
Appointment of Directors . In the event of the resignation,
death, removal or disqualification of a director selected by any
party or parties as provided herein, such party or parties, as the
case may be, shall promptly nominate a new director, and, after
written notice of the nomination has been given by such party or
parties, as the case may be, to the other parties, the Company
shall take such actions as are necessary and each Investor and
Shareholder shall vote any shares of capital stock of the Company,
whether now owned or hereafter acquired, over which he, she or it
exercises voting control, to elect such nominee to the Board of
Directors as set forth herein.
1.3
Removal . Any director selected by any party or parties as
provided herein may be removed from the Board of Directors of the
Company at any time and from time to time, with or without cause
(subject to the Bylaws of the Company as in effect from time to
time and any requirements of law), in the sole discretion of such
party or parties, as the case may be, and after written notice by
such party or parties, as the case may be, to each of the parties
hereto of the new nominee to replace such director, the Company
shall take such actions as are necessary and each Investor and
Shareholder shall promptly vote any shares of capital
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stock of the
Company, whether now owned or hereafter acquired, over which he,
she or it exercises voting control, to elect such nominee to the
Board of Directors.
(a)
Board Observer . (i) A representative designated by
NEA, who shall initially be C. Richard Kramlich (the “
NEA Observer ”), (ii) a representative
designated by GlobeSpan who shall initially be Barry J. Schiffman
(the “ GlobeSpan Observer ”),
(iii) a representative designated by BAVP, L.P. (“
BAVP ”), who shall initially be Rory
O’Driscoll (the “BAVP Observer” )
and (iv) a representative designated by Time Warner, who shall
initially be Rachel Lam (the “TW
Observer” and together with the NEA Observer, the
GlobeSpan Observer and the BAVP Observer, the “
Observers ”) shall have the right, subject to
the terms and conditions herein, to attend all meetings of the
Company’s Board of Directors (whether in person, via
telephone or otherwise) in a non-voting, observer capacity and to
receive copies of all materials provided to the members of the
Board. If NEA, GlobeSpan, BAVP or Time Warner decide to send an
individual(s) other than those identified above to the
Board’s meetings as its representative, the Board shall have
the right to approve the new representative, such approval not to
be unreasonably withheld.
(b)
Committee Membership . (i) The BAVP Designee and
(ii) the TW Designee shall each have the right (but not the
obligation) to be a member of any committee of the Company’s
Board of Directors; provided that such committee was not
established for the purpose of considering or acting with respect
to a matter in which, with respect to the BAVP Designee, the BAVP
Designee or BAVP, or, with respect to the TW Designee, the TW
Designee or Time Warner, as applicable, is interested.
(c)
Confidentiality . NEA agrees to cause the NEA Observer,
GlobeSpan agrees to cause the GlobeSpan Observer, BAVP agrees to
cause the BAVP Observer and Time Warner agrees to cause the TW
Observer to hold in confidence and trust and to act in a fiduciary
manner with respect to all information and material provided to and
learned by the Observers in connection with NEA’s,
GlobeSpan’s, BAVP’s and Time Warner’s rights,
respectively, under Section 1.4(a) or in connection with the
Observers’ attendance at any meetings of the Board. The
parties hereto understand and acknowledge that nothing herein is
intended to limit the ability of Time Warner or the TW Observer to
use or disclose any information or materials that
(i) otherwise are furnished or become available to them in any
other capacity or through any other means (including, without
limitation, pursuant to the Agreement entered into and made as of
the date hereof between the Company and Time Warner (the
“Time Warner Agreement”)); (ii) prior to or after
the time of disclosure become part of the public domain, not as a
result of any inaction or action of Time Warner or the TW Observer;
or (iii) is approved for release by the Company in
writing.
(d)
Restrictions of Observer Rights . Notwithstanding the
provision of Section 1.4(a) hereof, a majority of the members
of the Board shall be entitled to recuse the Observers from certain
confidential “closed sessions” of the Board or any
portions of any Board meeting, and to redact portions of any Board
materials delivered to the Observers where and to the extent that
such majority determines in good faith that (i) such recusal
is reasonably necessary, in the opinion of counsel to the Company,
to preserve attorney-client
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privilege with
respect to a material matter, (ii) the presence of the
Observers would materially inhibit deliberations by the Board or,
(iii) there exists, with respect to any deliberation or Board
materials, an actual or potential conflict of interest between NEA,
GlobeSpan, BAVP, Time Warner, or any of its affiliates and the
Company.
(e)
Termination of Board Observer Rights . The rights described
in Section 1.4(a) and Section 1.4(b) herein shall
terminate and be of no further force or effect upon the earlier of:
(i) the closing of an initial public offering of the
Company’s Common Stock pursuant to a registration under the
Securities Act of 1933, as amended; (ii) the sale of all or
substantially all of the Company’s assets; (iii) upon
the closing of any merger or other acquisition involving the
Company in which the Company is not the surviving corporation or in
which the shareholders of the Company immediately prior to such
merger or acquisition own less than fifty percent (50%) of the
voting equity securities of the surviving corporation or entity
immediately after such merger or acquisition; (iv) with
respect solely to each of Section 1.4(a)(i),
Section 1.4(a)(ii), Section 1.4(a)(iii) and
Section 1.4(a)(iv), the holders of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock voting together with
Series D-1 Preferred Stock, respectively, are no longer
entitled to elect directors; or (v) with respect solely to
each of Section 1.4(b)(i) and Section 1.4(b)(ii), the
holders of Series C Preferred Stock and Series D
Preferred Stock voting together with Series D-1 Preferred
Stock, respectively, are no longer entitled to elect
directors.
2.
Additional Covenants .
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 Shareholders and the
Investors will not vote for any amendment or change to the Restated
Articles or Bylaws of the Company providing for the election of
more or less than ten (10) directors, or any other amendment
or change to the Restated Articles or Bylaws of the Company
inconsistent with the terms of this Agreement.
2.3
Legends . Each certificate representing shares of the
Company’s capital stock held by the Shareholders or the
Investors or any assignee of the Shareholders 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 SHAREHOLDERS OF THE COMPANY (A COPY
OF WHICH MAY BE OBTAINED FROM THE COMPANY WITHOUT CHARGE UPON
WRITTEN REQUEST), 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.”
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2.4
Holder(s) of Series D-1 Preferred Stock and Holders of
Series D Preferred Stock Will Vote Together . To the
extent either the holder(s) of Series D-1 Preferred Stock or
the holders of Series D Preferred Stock are deemed to be
entitled to a separate Series vote under California Corporations
Code Section 903 or otherwise with respect to any matter
(except, in the case of the Series D-1 Preferred Stock, with
respect to amending, altering or repealing Article III(B)(3)(e)(iv)
or Article III(B)(5)(a)(v) of the Restated Articles, as such
may be amended from time to time) (a “ Required
Separate Series Vote ”), a preliminary vote
shall be taken with respect to such actions whereby the holders of
Series D Preferred Stock and the holders of Series D-1
Preferred Stock shall vote together as a single class (the “
Preliminary Vote ”). Provided that the holders
of 72% of the outstanding Series D Preferred Stock and
Series D-1 Preferred Stock vote in the same manner (either in
favor or against) in the Preliminary Vote, for purposes of the
Required Separate Series Vote, each holder of Series D-1
Preferred Stock and/or Series D Preferred Stock, as the case
may be, agrees to vote all shares held by such holder (or consent
pursuant to an action by written consent of the stockholders) in
the same manner in which 72% of the outstanding Series D
Preferred Stock and Series D-1 Preferred Stock voted in the
Preliminary Vote.
2.5
No Impairment . The Company agrees to use its best efforts
to ensure that the rights granted hereunder are effective and that
the parties hereto enjoy the benefits thereof. Such actions
include, without limitation, the use of the Company’s best
efforts to cause the nomination and election of the directors as
provided above. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the
terms to be performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all of the
provisions of this Agreement and in the taking of all such actions
as may be necessary, appropriate or reasonably requested by the
holders of a majority of the outstanding voting capital stock held
by the parties hereto (assuming conversion of all outstanding
securities) in order to protect the rights of the parties hereunder
against impairment.
(a) For
purposes of this Section 3, “ Company Sale
” shall mean the sale, conveyance, or disposition of all or
substantially all of the Company’s property or business, or
merger into or consolidation with, any other entity (other than a
wholly-owned subsidiary corporation) or any transaction or series
of related transactions in which either (i) more than fifty
percent (50%) of the voting power of the Company is transferred, or
(ii) the shareholders of the Company immediately prior to such
transaction or series of related transactions own less than fifty
percent (50%) of the outstanding voting power of the Company
immediately after such transaction or series of related
transactions, excluding any consolidation or merger effected
exclusively to change the domicile of the Company.
(b) For
purposes of this Section 3, “ Qualifying
Conditions ” shall mean the following:
(i) the
net proceeds of the Company Sale are to be paid in the same form of
consideration to all shareholders entitled to receive the
same;
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(ii) such
net proceeds or consideration are to be distributed or paid to
shareholders of the Company in accordance with the Restated
Articles; and
(iii) other
than the portion of the net proceeds or consideration placed in
escrow (which shall be shared pro rata among the Company’s
shareholders, in proportion to the net proceeds or consideration
received by each shareholder and capped at the amount of net
proceeds or consideration actually received by each shareholder),
the shareholders shall have no liability for indemnification or
otherwise to the acquirer of the Company or any other person in
connection with the Company Sale.
(c) For
purposes of this Section 3, “ Requisite
Shareholders ” shall mean the holders of at least
(i) a majority of the outstanding shares of Common Stock,
(ii) a majority of the outstanding shares of Preferred Stock
and (
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