VOTING AND COVENANT AGREEMENT
Exhibit 4.3
This Voting and Covenant Agreement (this “Agreement”) is made as of July 7, 2006 by and
between LiveWorld, Inc., a Delaware corporation (the “Company”), and J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A.,
Inc. (“WPP”).
WHEREAS, the Company proposes to issue Warrants to purchase common stock, par value $0.001 per
share (“Common Stock”), of the Company (the “Warrants”) to WPP pursuant to a Warrant Purchase
Agreement (the “Purchase Agreement”) in connection with a proposed joint venture relationship (the
“Joint Venture”) entered into pursuant to a limited liability company operating agreement (the “LLC
Agreement”, and together with the Warrants and Purchase Agreement, the “Transaction Agreements”);
WHEREAS, in connection with the Joint Venture and the issuance of the Warrants, the Company
has agreed to certain covenants set forth herein and WPP has agreed to certain restrictions with
respect to the voting of any Common Stock issued upon the exercise of the Warrants (the “Shares”)
and other obligations as set forth herein; and
WHEREAS, as a condition to the Joint Venture and the issuance of the Warrants, the parties
have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained in this
Agreement, and other consideration, the receipt and adequacy of which is hereby acknowledged, the
parties agree as follows:
1. Voting of Securities.
(a) Definitions
“Investors” shall mean WPP and any Affiliates (as defined in Section 10) of WPP that become
parties hereto in accordance with
Section 10(b).
“Restricted Voting Securities” shall mean any Shares in excess of the Shares entitled to cast
the number of votes that is equal to: (x) the total number of votes then held by Investors
(including Shares transferred, whether in a registered public offering or pursuant to Rule 144 as
provided in Section 10(b) below or otherwise) would otherwise be entitled to vote in any matter
divided by (y) the LiveWorld Fully Diluted Shares with the resulting product multiplied by (z) the
aggregate number of votes that all outstanding shares of the Company are entitled to cast in the
matter.
“LiveWorld Fully Diluted Shares” shall equal the actual outstanding shares of Common Stock
(excluding treasury stock, if any) on the record date of a stockholder vote, plus the number of
shares of Common Stock issuable upon the conversion of any convertible securities of the Company or
upon exercise of any options or warrants or similar derivative instruments of the Company
outstanding on such record date, excluding any Warrants or Shares issued or issuable upon
exercisable of such Warrants, as calculated by the Company in good faith and set forth (with
reasonable supporting documentation) in a certificate of the Company’s Secretary. Such certificate
shall be delivered to WPP at least 20 business days prior to the date of the relevant meeting or
consent of the Company’s stockholders.
(b) Restricted Voting Matters. Except as otherwise provided herein, so long as the Investors
hold Shares that, in the aggregate, constitute less than a majority of the total LiveWorld Fully
Diluted Shares then, unless the Investors are able to obtain proxies (excluding any Shares) for
and/or hold other shares of Common Stock representing collectively at least twenty-five percent
(25%) of the voting power of the outstanding securities of the Company on the relevant record date,
the Investors shall vote all Shares they then hold on any Restricted Matter (as defined below) in
the same proportion as the stockholders of the Company not Affiliated or acting in concert with
WPP.
The “Restricted Matters” are:
(i) Any transaction involving: the sale of all or substantially all of the assets of the
Company; an exclusive license of all or substantially all of the intellectual property of the
Company; any transaction in which the holders of outstanding voting securities of the Company
immediately prior to the transaction or series of related transactions will own less than a
majority of the outstanding voting securities of the Company immediately after such transaction(s)
(a “Change in Control Transaction”);
(ii) Any transaction involving the Company entering into any partnership or joint venture
relationship;
(iii) Any approval of the issuance of capital stock of the Company;
(iv) Any acquisition of the stock or assets of a third-party or any other similar public
market transaction; and
(v) Any election of directors.
(c) General Voting Matters. Except with respect to Restricted Matters, each Investor shall
vote Restricted Voting Securities in the same proportion as the stockholders of the Company not
affiliated or acting in concert with WPP and may vote securities that are not Restricted Voting
Securities in such Investor’s discretion.
2. Board Elections. In the event the Company’s Board of Directors is expanded to four or more
seats, the Investors shall have the right (i) to have one nominee included on the Company’s
recommended slate of directors for the next Annual Stockholder meetings and (ii) notwithstanding
Section 1 hereof, to vote all of their Shares in favor of the election of such nominee to the Board
of Directors at such Annual Meeting, provided, that such nominee must be approved by the Company,
such approval not to be unreasonably withheld and further, provided, that this Section 2 shall be
of no effect to the extent its application would result in ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or his designee not being
a Company recommended nominee, in the event the Company become subject to the rules of any exchange
or market, the Investors shall support and approve any expansion of the Board of Directors as may
be required or desirable to comply with such rules.
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3. Exchange Rules. In the event applicable rules of any stock exchange, market or quotation
system on which the Common Stock is then listed or proposed to be listed requires a stockholder
vote to approve the issuance of the Warrants, the Joint Venture, or the transactions contemplated
thereby or by this Agreement, the Company will use commercially reasonable efforts to obtain any
requisite stockholder vote, and, notwithstanding Section 1 above, the Investors shall vote any
Shares they then hold in favor of such transactions as needed or helpful. In the event requisite
stockholder vote is not timely obtained, WPP and the Company shall work in good faith to
restructure the contemplated transactions to provide similar economic value to the parties in
compliance with all such laws, rules and regulations. WPP shall take no action to prevent the
Company from listing its Shares on any stock exchange, market or quotation system (but rather shall
take any and all actions customary of a major stockholder that may be requested by the Company from
time to time to facilitate such listing, including completion of customary questionnaires, voting
to support reasonable and customary corporate structuring and similar actions).
4. Additional Shares. In the event that subsequent to the date of this Agreement any shares
or other securities (other than pursuant to a Change in Control Transaction) are issued on, or in
exchange for, any of the Shares by reason of any stock dividend, stock split, consolidation of
shares, reclassification or consolidation involving the Company, such shares or securities shall be
deemed to be Shares for purposes of this Agreement.
5. Restrictive Legend. Each certificate representing Shares shall be marked by the Company
with a legend (in addition to any other legends required by the Transaction Documents) reading
substantially as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF
WHICH MAY BE OBTAINED FROM THE ISSUER AT NO CHARGE) AND BY ACCEPTING ANY
INTEREST IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED
TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID
AGREEMENT.”
At the request of the Investor, the Company shall replace each such certificate with a
certificate free of such legend in connection with any transfer of the Shares represented by such
certificate in a public offering or pursuant to Rule 144 under the Securities Act of 1933 (“Rule
144”), provided such transfer is in compliance with Section 10(b) and such Shares are not
Restricted Voting Securities.
6. Right of First Refusal on Certain Joint Venture Transactions
(a) The Company covenants to WPP that prior to entering into any joint venture agreement
(i.e., a partnership agreement or limited liability company agreement pursuant to which a joint
venture is formed) with any Named Competitor (as defined below), it will offer to WPP the
opportunity to enter into the proposed relationship on substantially the same terms and conditions
by providing WPP written notice of the proposed transaction and a non-binding term sheet. WPP
shall have ten (10) calendar days from receipt of such notice to enter into, or cause an Affiliate
of WPP to
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enter into, such non-binding term sheet, with such modifications as WPP or such Affiliate and
the Company may agree and an additional thirty (30) calendar days after entry into such non-binding
term sheet to agree to definitive documentation with respect to the joint venture. In the event
the parties are unable to enter into a non-binding term sheet and definitive documentation within
the time periods set forth above, the Company may enter into a joint venture on substantially the
same terms as provided in the term sheet (or terms more favorable to the Company) with a Named
Competitor. If the terms of the proposed transaction with the Named Competitor are modified in a
manner that is more favorable to the Named Competitor than the terms set forth in the written
notice to WPP, the proposed transaction as so modified shall constitute a new proposed transaction
and shall again be offered to WPP in the manner set forth above. (The restrictions and covenants
set forth above are referred to as the “Competition Restrictions”.)
“Named Competitors” mean Omnicom Group Inc., Interpublic Group of Companies, Publicis Groupe,
Havas, Aegis Group pic, Digitas Inc., AQuantive, Inc., MDC, Inc., ValueClick, Inc., DoubleClick,
Inc. and any Affiliates of any of such companies.
(b) The Competition Restrictions shall not apply to any joint venture the sole purpose of
which is to sell the Company’s services to a Named Competitor or its Affiliates, provided no such
arrangement shall include any provision pursuant to which the Named Competitor or any such
Affiliate shall receive equity securities, or the right to purchase equity securities, of the
Company.
(c) The restrictions and covenants in Section 6(a) shall terminate on December 31, 2008,
unless extended as set forth below.
(i) In the event that either (x) the sixty (60) calendar day average (A) closing
price of the
Common Stock, if the principal market for the Common Stock is then NASDAQ or a national exchange,
or (B) closing bid and asked quotations, if the principal market for the Common Stock is then the
pink sheets, for the period ending December 31, 2008 is less than the average exercise price for
the then issued and unexercised Warrants (the “2008 Price Trigger”) or (y) five (5) business days
following March 31, 2009 the Investors shall have exercised Warrants equal to or exceeding ten
percent (10%) of the LiveWorld Fully Diluted Shares (as measured on December 31, 2008), the
Competition Restrictions shall be extended until December 31, 2009.
(ii) In the event that either (x) the sixty (60) calendar day average
(A) closing price of the
Common Stock if the principal market for the Common Stock is then NASDAQ or a national exchange, or
(B) closing bid and asked quotations, if the principal market for the Common Stock is then the pink
sheets, for the period ending December 31, 2009 is less than the average exercise price for the
then issued and unexercised Warrants or (y) five (5) business days following March 31, 2010 the
Investors shall have exercised Warrants equal to or exceeding fifteen percent (15%) of the
LiveWorld Fully Diluted Shares (as measured on December 31, 2009) (or ten percent (10%) of such
LiveWorld Fully Diluted Shares if the 2008 Price Trigger was satisfied), the restrictions and
covenants in Section 6(a) shall be in force and effect for the one year period from December 31,
2009 to December 31, 2010, whether or not the conditions in Section 6(c)(i) had been met; provided,
however, that in the event the conditions in Section 6(c)(i) had not been met, any
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joint venture for which definitive documentation had been entered into during such period
shall not be subject to the Competition Restrictions.
(iii) In the event that five (5) business days following March 31, 2011 the Investors
shall
have exercised Warrants equal to or exceeding fifteen percent (15%) of the LiveWorld Fully Diluted
Shares (as measured on December 31, 2010) and the conditions in Section 6(c)(ii) had been met, the
Competition Restrictions shall remain in effect for the period from December 31, 2010 to December
31, 2011.
(d) Nothing in this Agreement shall prevent any third party from acquiring stock in the
Company via the public markets, including a tender offer, or in connection with any Change in
Control Transaction or from any party other than the Company; provided that the Company shall not
proactively orchestrate the acquisition of Company stock by a Named Competitor or Affiliate thereof
as part of a public offering, The parties acknowledge that Company cannot reasonably restrict or
prevent its investment bankers or other entities from selling stock to a Named Competitor in a
public offering.
7. Right of First Refusal on Private Placements to Named Competitors.
(a) The Company hereby grants to WPP the right of first refusal to purchase any shares of
Company capital stock that the Company may, from time to time, propose to sell and issue to any
Named Competitor. In the event the Company proposes to undertake such an issuance, it shall give
WPP written notice of its intention, describing the type of security to be sold, the identity of
the proposed purchaser, the price and the general terms upon which the Company proposes to issue
the same. WPP shall have ten (10) days after receipt of any such notice to agree to purchase such
securities for the price and upon the terms specified in the notice by giving written notice to the
Company. In the event WPP fails to agree within said ten (10) day period (the “Election Period”)
to purchase such securities, the Company shall have sixty (60) calendar days thereafter to sell or
enter into an agreement (pursuant to which the sale of such securities covered thereby shall be
closed, if at all, within sixty (60) calendar days from the date of said agreement), at a price and
upon terms no more favorable to the purchasers thereof than specified in the Company’s notice to
WPP delivered pursuant to this section. In the event the Company has not completed such
transaction within such sixty (60) day period following the Election Period, or such sixty (60) day
period following the date of said agreement, the Company shall not thereafter issue or sell any New
Securities without first again offering such securities to WPP in the manner provided in this
section.
(b) The right of first refusal granted under this Section 7 shall only be in effect at such
times at the Competition Restrictions are also in effect.
8. The Company’s Right of First Refusal
In the event of a proposed transfer of Warrants or Shares (collectively, the “Securities”) in
compliance with Section 12 of the Warrant and Section 10(b) of this Agreement, before any
Securities may be sold, transferred, encumbered or otherwise disposed of in any way (whether by
operation of law or otherwise) by WPP or any transferee that is an Affiliate of WPP (each, a
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“Holder”), such Holder must first offer such Securities or beneficial interest to the Company
and/or its assignee(s) as follows:
(a) Notice of Proposed Transfer. The Holder shall deliver to the Company a written notice
stating: (i) the Holder’s bona fide intention to sell or otherwise transfer the Securities; (ii)
the name of each proposed transferee; (iii) the number and type of Securities to be transferred to
each proposed transferee; (iv) the bona fide cash price or other consideration for which the Holder
proposes to transfer the Securities; and (v) that by delivering the notice, the Holder offers all
such Securities to the Company and/or its assignee(s) pursuant to this section and on the same
terms described in the notice.
(b) Exercise of Right of First Refusal. At any time within 30 days after receipt of the
Holder’s notice, the Company and/or its assignee(s) may, by giving written notice to the Holder,
elect to purchase all, but not less than all, of the Securities proposed to be transferred to any
one or more of the proposed transferees, at the purchase price determined in accordance with
Section 8(c).
(c) Purchase Price. The purchase price for the Securities purchased by the Company and/or its
assignee(s) under this section shall be the price listed in the Holder’s notice. If the price
listed in the Holder’s notice includes consideration other than cash, the cash equivalent value of
the non-cash consideration shall be determined by the Board of Directors of the Company in its sole
discretion.
(d) Payment. Payment of the purchase price shall be made, at the option of the Company and/or
its assignees), in cash (by check), by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company and/or its assignee(s), or by any combination thereof
within 30 days after receipt by the Company of the Holder’s notice (or at such later date as is
called for by such notice).
(e) Holder’s Right to Transfer. If all of the Securities proposed in the notice to be
transferred to a given proposed transferee are not purchased by the Company and/or its assignee(s)
as provided in this section, then the Holder may sell or otherwise transfer such Securities to that
proposed transferee; provided that: (i) the transfer is made only on the terms provided for in the
notice, with the exception of the purchase price, which may be either the price listed in the
notice or any higher price; (ii) such transfer is consummated within 60 days after the date the
notice is delivered to the Company; and (iii) the transfer is effected in accordance with any
applicable securities laws, and if requested by the Company, the Holder shall have delivered an
opinion of counsel acceptable to the Company to that effect. If any Securities described in a
notice are not transferred to the proposed transferee within the period provided above, then before
any such Securities may be transferred, a new notice shall be given to the Company, and the Company
and/or its assignees shall again be offered the right of first refusal described in this section.
Notwithstanding the foregoing, the provisions of this Section 8 shall be inapplicable in
connection with any sale of the Shares in a public offering or pursuant to Rule 144 and shall only
apply in the case of a negotiated private transaction.
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9. The Company’s Right of First Offer.
In the event of a proposed transfer of any Shares in compliance with Section 12 of the Warrant
and Section 10(b) of this Agreement, before any Shares may be sold pursuant to Rule 144 by any
Holder, such Holder must first offer such Shares or beneficial interest to the Company and/or its
assignee(s) as follows:
(a) Notice of Proposed Transfer. The Holder shall deliver to the Company a written notice
stating: (i) the Holder’s bona fide intention to sell the Shares pursuant to Rule 144; (ii) the
number of Shares to be sold; and (iii) that by delivering the notice, the Holder offers all such
Shares to the Company and/or its assignee(s) pursuant to this section and on the terms described
herein.
(b) Exercise of Right of First Offer. Within 24 hours after receipt of the Holder’s notice,
the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase
all, but not less than all, of the Shares proposed to be sold, at the purchase price determined in
accordance with Section 9(c).
(c) Purchase Price. The purchase price for the Shares purchased by the Company and/or its
assignee(s) under this section shall be the average of the daily closing prices of the Common Stock
for each trading day during the period commencing 20 trading days before the date of the Holder’s
notice and ending on the date one trading day prior to such date, or if the security has been
registered under the Securities Exchange Act of 1934, as amended, for less than 20 consecutive
trading days before such date, the average of the daily closing prices (or such equivalent) for all
of the trading days before the date that is one day prior to the date of the Holder’s notice for
which daily closing prices are available.
(d) Payment. Payment of the purchase price shall be made, at the option of the Company and/or
its assignee(s), in cash (by check), by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company and/or its assignee(s), or by any combination thereof
within 30 days after receipt by the Company of the Holder’s notice (or at such later date as is
called for by such notice).
(e) Holder’s Right to Sell. If all of the Shares proposed in the notice to be sold are not
purchased by the Company and/or its assignee(s) as provided in this section, then the Holder may
sell such Shares pursuant to Rule 144; provided that: (i) such transfer is consummated within 60
days after the date the notice is delivered to the Company; and (ii) the transfer is effected in
accordance with any applicable securities laws, and if requested by the Company, the Holder shall
have delivered an opinion of counsel acceptable to the Company to that effect. If any Shares
described in a notice are not sold pursuant to Rule 144 within the period provided above, then
before any such Shares may be sold pursuant to Rule 144, a new notice shall be given to the
Company, and the Company and/or its assignees shall again be offered the right of first offer
described in this section.
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10. Miscellaneous
(a) Certain Definitions. Shares “held” by an Investor shall mean any capital stock directly
or indirectly owned (of record or beneficially) by such Party or as to which such Party has voting
power. “Vote” shall include any exercise of voting rights whether at an annual or special meeting
or by written consent or in any other manner permitted by applicable law. “Affiliate” or an entity
“Affiliated with” another entity shall mean, with respect to a specified entity, an entity that,
directly or indirectly through one or more intermediaries, controls, is controlled by or is under
common control with, the specified entity. “Direct Competitor” means a company that is primarily
or significantly in the same line of business as the Company which is defined as the consulting
about and/or the creation of and/or the operation of private label and/or branded online community
services including but not limited to any or any combination of: moderation and/or moderation
tools, community management and/or community management tools, research and reporting services and
tools, dialogue mining and analysis services and/or tools, application hosting of online dialogue
and user authoring services including but not limited to: message forums, blogs, chats, groups,
profiles, photo albums, guest books, home pages, calendars, file sharing, friends lists, webcasts,
polls, surveys, focus groups, conversation analysis, instant messaging, email, alerts, and any
loyalty marketing, customer support or business intelligence services based on any or any
combination of the preceding items.
(b) Transfer of Warrants or Common Stock. In the event WPP transfers Warrants or Shares, in
compliance with Section 12 of the Warrant, such transferee shall become a party to this Agreement
as an “Investor” and any such transfer shall be conditioned up receipt of an executed counterpart
of this Agreement by such transferee. This Agreement may be amended to join any such transferee by
the affixation of a counterpart signature page of such transferee and no further action by any
party hereto shall be required. Notwithstanding the foregoing, Shares that do not constitute
Restricted Voting Securities maybe sold as part of a registered public offering (pursuant to
Section 16 of the Warrants or otherwise) or pursuant to Rule 144 to persons or entities that are
neither WPP Affiliates nor acting as agents for WPP or WPP Affiliates provided that (i) the Shares
so sold shall continue to count as “Restricted Voting Securities” for purposes of the Restricted
Voting Securities calculation in Section l(a) and (ii) the transferees of the Shares so sold shall
not be bound by this Agreement or the Warrant Agreement.
The Company shall not permit the transfer or sale of any Warrants or Shares on its books nor
issue a new certificate representing any Warrants or Shares except in compliance with the
provisions set forth in this Section 10(b) and all other transfer restrictions in the Transaction
Documents.
(c) Notices. All notices, requests, demands, consents, instructions or other communications
required or permitted hereunder shall be in writing and faxed, e-mailed, mailed, or delivered to
each party as follows: (i) if to WPP at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, facsimile No. 212-632-2222, or at such other address or facsimile number as WPP shall
have furnished in writing, with copies of any such notice to (x) WPP Group USA, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, facsimile No. 212-632-2250 and (y) ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, Esq., facsimile No.
▇▇▇-▇▇▇-▇▇▇▇, (ii) if to an Investor, at such Investor’s address or facsimile number set forth in
the Company’s records, or at such other address or facsimile
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number as such Investor shall have furnished the Company in writing, or (iii) if to the
Company, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Executive
Officer, facsimile: ▇▇▇-▇▇▇-▇▇▇▇, or at such other address or facsimile number as the Company shall
have furnished in writing, with a copy to Page ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. All such notices and communications will be deemed
effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one
business day after being delivered by facsimile (with receipt of appropriate confirmation), (iv)
one business day after being deposited with an overnight courier service of recognized standing or
(v) four days after being deposited in the U.S. mail, first class with postage prepaid.
(d) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and administrators of the parties
hereto. The Warrants may only be transferred to a WPP Affiliate, provided such WPP Affiliate may
not be a Direct Competitor of the Company.
(e) Governing Law. This Agreement shall be governed in all respects by the internal laws of
the State of Delaware as applied to agreements entered into among Delaware residents to be
performed entirely within Delaware, without regard to principles of conflicts of law.
(f) Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement. All
references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits attached hereto.
(g) Further Assurances. Each party agrees to execute and deliver, by the proper exercise of
its corporate, limited liability company, partnership or other powers, all such other and
additional instruments and documents and so all such other acts and things as may be necessary to
more fully effectuate this Agreement.
(h) Entire Agreement. This Agreement and the other Transaction Documents and related exhibits
constitute the full and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. No party shall be liable or bound to any other party in any manner
with regard to the subjects hereof or thereof by any warranties, representations or covenants
except as specifically set forth herein.
(i) No Grant of Proxy. This Agreement does not grant any proxy and should not be interpreted
as doing so.
(j) Not a Voting Trust. This Agreement is not a voting trust governed by Section 218 of the
Delaware General Corporation Law and should not be interpreted as such.
(k) Specific Performance. It is agreed and understood that monetary damages would not
adequately compensate an injured party for the breach of this Agreement by any party, that this
Agreement shall be specifically enforceable, and that any breach or threatened breach of this
Agreement shall be the proper subject of a temporary or permanent injunction or restraining order.
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Further, each party waives any claim or defense that there is an adequate remedy at law for
such breach or threatened breach.
(l) Amendment. Except as expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written instrument
referencing this Agreement and signed by the Company and the holders of the greatest number of
Shares (assuming the exercise of all Warrants) as indicated on the Company’ s books of record.
(m) No Waiver. The failure or delay by a party to enforce any provision of this Agreement
will not in any way be construed as a waiver of any such provision or prevent that party from
thereafter enforcing any other provision of this Agreement. The rights granted the parties
hereunder are cumulative and will not constitute a waiver of either party’s right to assert any
other legal remedy available to it.
(n) Severability. If any provision of this Agreement becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such
court will replace such illegal, void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the same economic, business and
other purposes of the illegal, void or unenforceable provision. The balance of this Agreement
shall be enforceable in accordance with its terms.
(o) Purchases of Common Stock by WPP. In the event that WPP (i) purchases 1% or more of the
Company’s outstanding common stock other than in a transaction directly with the Company or (ii)
becomes aware that any WPP Affiliate has made such a purchase, then WPP shall use commercially
reasonable efforts to promptly notify the Company of such purchase.
(p) Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same agreement.
Facsimile copies of signed signature pages will be deemed binding originals.
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The parties have executed this Voting and Covenant Agreement as of the date first above
written.
| LIVEWORLD, INC. a Delaware corporation |
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| /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO | ||||
| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S. A., INC. a Delaware corporation |
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(Signature page to Voting and Covenant Agreement)
The parties have executed this Voting and Covenant Agreement as of the date first above
written.
| LIVEWORLD, INC. a Delaware corporation |
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| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S A., INC. a Delaware corporation |
||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Treasurer | ||||
(Signature page to Voting and Covenant Agreement)
Exhibit A
INVESTORS