Exhibit
4.2
JAMDAT MOBILE INC.
FOURTH AMENDED AND RESTATED VOTING
AGREEMENT
This
Fourth Amended and Restated Voting Agreement, dated as of
October 24, 2003 (the " Agreement "), is entered into
by and among the persons and entities set forth on the signature
pages hereto under the caption "Holders" (each, a " Holder
", and collectively, the " Holders "), and JAMDAT
Mobile Inc., a Delaware corporation (the " Company
").
Reference
is made to that certain Series D Preferred Stock Purchase
Agreement, dated as of October 24, 2003 (the " Purchase
Agreement "), by and among the Company and certain of the
Holders (the " New Holders "), as well as to the Fourth
Restated Certificate of Incorporation of the Company filed with the
Secretary of State of the State of Delaware on October 24,
2003 (the " Certificate "). Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to them
in the Purchase Agreement or in the Certificate.
WHEREAS
the Company and certain of the Holders entered into that certain
Voting Agreement, dated as of February 26, 2001 (the "
First Voting Agreement ").
WHEREAS
the Company and certain of the Holders entered into that certain
Amended and Restated Voting Agreement, dated March 19, 2001,
which amended, restated and superceded the First Voting Agreement,
that certain Second Amended and Restated Voting Agreement, dated
April 26, 2001, which amended, restated and superceded the
Amended and Restated Voting Agreement and that certain Third
Amended and Restated Voting Agreement, dated August 30, 2002
(the " Prior Voting Agreement "), which amended, restated
and superceded the Second Amended and Restated Voting
Agreement.
WHEREAS
the undersigned Holders hold sufficient shares of the Company's
capital stock to constitute at least the Majority Common
Stockholders, the Majority Founders Preferred Stockholders, the
Majority Series B Preferred Stockholders (including at least
one holder of Series B Preferred Stock other than a Patricof
Stockholder) and the Majority Series C Preferred Stockholders
(as all such terms are defined under the Prior Voting Agreement),
such that the Company and the undersigned Holders may amend,
restate and supercede the Prior Voting Agreement with this
Agreement on behalf of all parties thereto and the Company and such
Holders desire to amend and restate the Prior Voting
Agreement.
WHEREAS
it is a condition to the Closing (as defined in the Purchase
Agreement) of the sale and purchase of the Company's 8%
Series D Convertible Preferred Stock (the " Series D
Convertible Preferred Stock ") under the Purchase Agreement by
the New Holders that the parties hereto amend and restate the Prior
Voting Agreement and enter into this Agreement with the New Holders
and that this Agreement be in full force and effect as of the
Closing.
NOW,
THEREFORE, the parties hereto hereby amend, restate and supercede
the Prior Voting Agreement in its entirety as follows:
1.
Voting Agreement.
1.1
Board Representation.
(a) Upon
the execution and delivery of this Agreement, the Board of
Directors of the Company (the " Board ") shall consist of
five members in accordance with the following:
(1) One
member of the Board (including any vacancies with respect thereto)
(the " Common Stock Director "), shall initially be
nominated and elected by the holders of a
1
majority of the Common Stock voting
as a separate class (the " Majority Common Stockholders ")
and shall be the Chief Executive Officer of the Company. The Common
Stock Director shall initially be Mitch Lasky.
(2) One
member of the Board (including any vacancy with respect thereto)
(the " Series B Preferred Director ") will be nominated
and elected by the holders of a majority of the Series B
Convertible Preferred Stock voting as a separate class (the "
Majority Series B Preferred Stockholders "). The
Series B Preferred Director shall initially be Paul
Vais.
(3) One
member of the Board (including any vacancy with respect thereto)
(the " Series C Preferred Director ") will be nominated
and elected by the holders of a majority of the Series C
Convertible Preferred Stock voting as a separate class (the "
Majority Series C Preferred Stockholders "). The
Series C Preferred Director shall initially be a
representative of QUALCOMM Incorporated ("Qualcomm").
(4) One
member of the Board (including any vacancy with respect thereto)
(the " Series D Preferred Director ") will be nominated
and elected by the holders of a majority of the Series D
Convertible Preferred Stock voting as a separate class (the "
Majority Series D Preferred Stockholders "). The
Series D Preferred Director shall initially be Bill Gurley, a
representative of Benchmark Capital Partners
("Benchmark").
(5) One
member of the Board (including any vacancies with respect thereto)
(the " Outside Director ") will be elected by the holders of
a majority of the Common Stock and Convertible Preferred Stock,
voting as a single class and shall be a person who is not
affiliated with the Company or any Holder and shall be acceptable
to a majority of the Company's other directors. The Outside
Director shall initially be the nominee of a majority of the
Company's other directors specified above.
(b) All
directors shall be elected at a meeting of stockholders (or by
written consent in lieu of such meeting) and shall serve until the
annual meeting of the stockholders next succeeding such director's
election and until such director's successor is elected and
qualified, or as otherwise provided in the Company's bylaws. Any
director nominated by the holders of a particular series of
Convertible Preferred Stock may be removed during such director's
term of office, either with or without cause, by and only by the
affirmative vote of holders of a majority of the outstanding shares
of such series of Convertible Preferred Stock entitled to nominate
such director given at a special meeting of stockholders duly
called or by an action or written consent for that purpose. Any
vacancy existing or created in the offices of any such directors
may only be filled as provided in this Section 1
.
1.2
Voting. The
Holders agree to take all actions necessary to effect the
provisions of this Section 1 , including voting their
shares in favor of the directors designated pursuant to
Section 1.1 . No Holder will take any actions,
including voting its shares, in a manner which is inconsistent with
the provisions of this Section 1 .
1.3
Grant of Proxy.
Upon the failure of any party to vote their
voting securities of the Company in accordance with the terms of
this Agreement, such party hereby grants to a stockholder
designated by the Board of Directors of the Company a proxy coupled
with an interest in all voting securities of the Company owned by
such party, which proxy shall be irrevocable until this Agreement
terminates pursuant to its terms or this Section 1.3 is
amended to remove such grant of proxy, to vote all such voting
securities in the manner provided in Section 1
hereof.
2.
Covenants of the Company.
The Company agrees to use commercially
reasonable 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
commercially reasonable
2
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
securities held by the parties hereto assuming conversion of all
outstanding securities in order to protect the rights of the
parties hereunder against impairment. The Company shall reimburse
the Series B Preferred Director, the Series C Preferred
Director and the Series D Preferred Director for all
reasonable expenses incurred by such parties in connection with
attendance of meetings of the Board pursuant to this Agreement upon
presentation of appropriate documentation regarding such
expenses.
3.
No Liability for Election of Recommended
Directors. Neither the Company nor the
Holders, nor any officer, director, shareholder, partner, employee
or agent of such party, if any, makes any representation or
warranty as to the fitness or competence of the nominee of any
party hereunder to serve on the Board by virtue of such party's
execution of this Agreement or by the act of such party in voting
for such nominee pursuant to this Agreement.
4.
Board Attendance.
So long as Apax Excelsior VI, L.P., Apax
Excelsior VI-A C.V., L.P., Apax Excelsior VI-B C.V., L.P., and
Patricof Private Investment Club III, L.P. (collectively, the "
Patricof Stockholders ") continue to hold at least 33% of
the shares of Series B Preferred Stock held as of
February 26, 2001, the Board shall permit a representative of
the Patricof Stockholders to attend all meetings of the Board as
provided in this Section 4 (the " Patricof
Representative "). A representative of Apax Excelsior VI, L.P.
shall be the initial Patricof Representative. The Patricof
Representative may be changed at any time upon written notice from
the Patricof Stockholders. To the extent practicable, the Board
shall give the Patricof Representative reasonable advance notice of
the time and location of all meetings of the Board and shall
provide the Patricof Representative with all materials provided to
the Board in connection with each meeting; provided ,
however , that the Patricof Representative may be excluded
from meetings or portions thereof, and written information may be
withheld from the Patricof Representative, to the extent
(i) the Board is advised that such action is necessary to
maintain attorney client privilege or is required by the terms of
any confidentiality or similar agreement or (ii) such meeting
or portion thereof or such written information relates to
negotiations between the Company and the Patricof Stockholders
concerning its rights and obligations as a stockholder of the
Company. To the extent the Patricof Representative is unable to
attend any Board meeting in person, reasonable efforts shall be
made to enable the Patricof Representative to attend
telephonically. The Patricof Representative shall also sign a
confidentiality agreement in his individual capacity (i) to
maintain in confidence and not to disclose to any person other than
members of the Board any information obtained as a result of the
rights provided in this Section 4 (" Confidential
Board Information "), (ii) not to use any Confidential
Board Information for any purpose adverse to the Company or for any
other purpose other than in connection with the Patricof
Stockholders' ownership interest in the Company and (iii
