exv4w4






Exhibit 4.4




REPLY! INC.




AMENDED AND RESTATED VOTING AGREEMENT



     This Amended and Restated Voting Agreement (the “Agreement”) is made as of March 19, 2007, by and
among Reply! Inc., a California corporation (the “Company”), the undersigned holders of the
Company’s Preferred Stock (each a “Preferred Holder” and collectively, the “Preferred Holders”) and
the undersigned holders of the Company’s Common Stock (each a “Common Holder” and, collectively,
the “Common Holders”) listed on Exhibit A attached hereto.



RECITALS




     WHEREAS, the Company and certain of the Preferred Holders (the “Series B Holders”) are entering
into a Series B Preferred Stock Purchase Agreement of even date herewith (the “Series B Purchase
Agreement”) pursuant to which the Company will sell to the Series B Holders and the Series B
Holders will purchase from the Company shares of the Company’s Series B Preferred Stock.



     WHEREAS, a condition to the Series B Holders’ obligations under the Series B Purchase Agreement is
that the Company, the Common Holders and the Preferred Holders enter into this Agreement in order
to establish the composition of the Company’s Board of Directors upon the closing of the
transactions contemplated by the Series B Purchase Agreement.



     WHEREAS, the Company’s Second Amended and Restated Articles of Incorporation, as amended (the
“Articles”) provide that (a) holders of shares of Common Stock, voting together as a class, shall
elect three (3) members of the Company’s Board of Directors (the “Common Directors”), (b) holders
of shares of the Company’s Preferred Stock, voting together as a class, shall elect three (3)
members of the Company’s Board of Directors (the “Preferred Directors”), and (c) holders of shares
of Common Stock and holders of shares of Preferred Stock, voting together as a single class and on
an as converted to Common Stock basis, shall be entitled to elect the remaining member of the
Company’s Board of Directors (the “Joint Director”).



     WHEREAS, the Company, the Common Holders and the Preferred Holders each desire to induce the Series
B Holders to purchase shares of Series B Preferred Stock of the Company pursuant to the Series B
Purchase Agreement by agreeing to the terms and conditions set forth herein.



     In consideration of the foregoing and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Board of Directors.



          (a) The Board shall be composed of seven (7) members. At each election of directors of the Company,
the Preferred Holders and the Common Holders (each an “Elector” and, collectively, the “Electors”),
hereby consent and agree to vote (whether at an annual or special meeting or by written consent)
all outstanding shares of the Company now held or






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subsequently acquired by Electors or over which such Electors hold voting control (the “Voting
Shares”) to elect members to the Board in the following manner:




               (i) in any election of the Common Directors, all shares of Common
Stock shall be voted in favor of three (3) representatives, one such individual shall be the
Company’s then Chief Executive Officer (the “CEO”), who initially shall be Mr. Payam Zamani,
and the second and third shall be such persons nominated by the holders of a majority of the
Common Stock, who initially shall be Messrs. Jordan Spiegel and John Truchard (the “Non-CEO
Common Directors”);



               (ii) in any election of the Preferred Directors, all shares of Preferred Stock shall be voted in
favor of three (3) representatives as follows: (A) one such individual shall be nominated by Scale
Venture Partners II, LP, who initially shall be Ms. Sharon Wienbar, (B) the second Preferred
Director shall be nominated by Outlook Ventures III, L.P. (“Outlook Ventures”), who initially shall
be Mr. Randy Haykin (the “Outlook Director”) and (C) the third Preferred Director shall be
nominated by the holders of a majority of the then outstanding shares Preferred Stock;



               (iii) in any election of the Joint Director, all shares of Common Stock and Preferred Stock shall
be voted in favor of such person who shall be nominated by at least four other members of the Board
of Directors (the “Director Group”), and who initially shall be Ms. Deborah Coleman;



               (iv) in the event that Payam Zamani ceases to be the CEO of the
Company (other than in the circumstance where there is a termination of employment for “cause,” as
defined in the Employment Agreement between Payam Zamani and the Company
dated as of August 18, 2005 (the “Zamani Employment Agreement”)), then the holders of a
majority of the Common Stock agree to remove one of the then existing Non-CEO Common Directors, and
the holders of a majority of the Common Stock shall appoint Payam Zamani as a member of the Board
as a Non-CEO Common Director. Payam Zamani shall be entitled to continue as the Chairman of the
Board while serving as a member of the Board, provided however that such right shall terminate
immediately prior
to the registration of the Company’s Common Stock with the Securities and Exchange Commission;



               (v) in the event that Payam Zamani ceases to be the CEO of the Company (in the circumstance where
there is a termination of employment for “cause,” as defined in the Zamani Employment Agreement),
then the holders of a majority of the Common Stock agree to remove Payam Zamani as a member of the
Board;



               (vi) in the event the Company files a registration statement for a public offering of its Common
Stock, a majority of the Board of Directors may request that the Outlook Director resign from the
Board of Directors immediately prior to the initial filing of such registration statement;



               (vii) in the event the Outlook Director is asked to resign pursuant to Section l(a)(vi) above,
Outlook Ventures shall have observation rights for the period



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commencing upon the filing of the registration statement and ending upon the effectiveness of such
registration statement; and




               (viii) in the event such registration statement is withdrawn, Outlook Ventures shall be entitled to
nominate an individual to serve as the Outlook Director, subject to the conditions set forth in
Sections l(a)(vi) and 1(a)(vii).



          (b) Each director designated and nominated as aforesaid by any Elector, group of Electors or
Director Group, as the case may be, and duly elected to the Board of Directors shall be subject to
removal only at the request of the Elector, group of Electors or Director Group that designated and
nominated such director in accordance with Section 1(a). Upon written request by any such Elector,
group of Electors or Director Group, as the case may be, each Elector shall vote all Voting Shares
it holds for the removal of such director.




          (c) If a vacancy is created by the death, resignation or removal of a director, each Elector shall
vote all outstanding Voting Shares then held by it for the election of a nominee to be designated
and nominated by the Elector, group of Electors or Director Group, as the case may be, which
designated and nominated, in accordance with Section 1(a), the director whose position has become
vacant (unless such vacancy has resulted from the termination of the right of such Elector, group
of Electors or Director Group to nominate such director). The Company shall take such lawful action
as shall be reasonably required in order to facilitate the nomination, removal and election of
directors as aforesaid.




          (d) This Agreement shall not extend to voting upon any other questions and matters (other than the
election, replacement and removal of directors) upon which shareholders of the Company have a right
to vote under the Company’s Second Amended and Restated Articles of Incorporation or under the
California Corporations Code.




     2. No Liability for Election of Recommended Director. None of the Company, the Preferred Holders
and the Common Holders, and any officer, director, shareholder, partner, employee or agent of any
such party, makes any representation or warranty as to the fitness or competence of the nominee of
any party to this Agreement to serve on the Board of Directors 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.



     3. [INTENTIONALLY DELETED]



     4. Grant of Proxy. Upon the failure of any Elector to vote its Voting Shares in accordance with the
terms of this Agreement, such Elector hereby grants to a shareholder designated by the Board a
proxy coupled with an interest in all Voting Shares owned by such Elector, which proxy shall be
irrevocable until this Agreement terminates pursuant to its terms or this Section 4 is amended to
remove such grant of proxy in accordance with Section 1 hereof, to vote all such Voting Shares in
the manner provided in Section 1 hereof.



     5. Manner of Voting. The voting of Voting Shares pursuant to this Agreement may be effected in
person, by proxy, by written consent or in any other manner permitted by applicable law.



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     6. Term of Agreement. This Agreement shall terminate upon the occurrence of any of the following
events:



          (a) The conversion of all outstanding shares of the Company’s Preferred Stock into Common Stock.




          (b) A sale of all or substantially all of the assets of the Company or a consolidation or merger of
the Company with or into any other entity or a transaction or series of related transactions in
which more than fifty percent (50%) of the voting power of the Company is transferred, unless the
Company’s shareholders immediately prior to such transaction own, immediately following the
consummation of such transaction, at least fifty percent (50%) of the voting power of the surviving
or purchasing entity.




          (c) The execution of an agreement to terminate this Agreement by (i) the Company, (ii) the
Preferred Holders holding a majority of the Company’s Preferred Stock then outstanding and (iii)
the Common Holders holding a majority of the Company’s Common Stock then held by all Common
Holders.




     7. Company Obligations. The Company shall use its best efforts to ensure that the rights granted to
the Preferred Holders and the Common Holders hereunder are effective and that the Preferred Holders
and the Common Holders enjoy the benefits hereof. Such actions shall include the use of the
Company’s best efforts to cause the nomination and election of the directors as provided in Section
1. The Company shall not, by any voluntary action or omission, avoid or seek to avoid the
observance or performance of any of the terms it is to perform hereunder, but shall at all times in
good faith assist in the carrying out of all the provisions of this Agreement and in the taking of
all such actions as may be necessary or appropriate in order to protect the shareholders’ rights
hereunder against impairment.



     8. Cumulative Voting. In the event that any shareholder of the Company exercises its right to
cumulate its votes in connection with any election of directors, the Electors shall coordinate
their voting to ensure that the maximum number of their designees is elected to the Board of
Directors. In determining the maximum number of designees which may be ensured election, the
parties hereto shall assume that all outstanding shares of capital stock are voted and shall assume
that any shares of capital stock held by persons who are not parties to this Agreement will vote
their shares for candidates other than the designees. If less than all of the designees can be
assured election, then the priority given to the Preferred Directors shall be determined by the
holders of a majority of the Preferred Holders, the priority given to the Common Directors shall be
determined by the holders of a majority of the Common Stock, and the priority given to the Joint
Director shall be determined by the holders of a majority of the Common Stock and the holders of a
majority of the Preferred Holders, acting separately.



     9. Notices. All notices and other communications given or made pursuant hereto shall be in writing
and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed facsimile if sent during normal business hours
of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day
after deposit with a nationally recognized overnight courier, specifying next day delivery, with
written



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verification of receipt. All communications shall be sent to the respective parties at the
addresses set forth on the signature pages attached hereto (or at such other addresses as shall be
specified by notice given in accordance with this Section 9), and if to the Company, addressed to
Reply! Inc., 12667 Alcosta Blvd., Suite 200, San Ramon, California 94583, Attn: Payam Zamani,
President, with a copy to DLA Piper US LLP, 2000 University Avenue, East Palo Alto, California
94303, Attn: Andrew D. Zeif, Esq.




     10. Assignment, Binding Effect. The Preferred Holders and the Common Holders agree, and any
transferee or assignee of any Voting Shares now owned or hereafter acquired by a Preferred Holder
or the Common Holder is hereby on notice that, any transfer or assignment of such Voting Shares is
conditioned upon such transferee’s or assignee’s execution and delivery of this Agreement prior to
such transfer or assignment. Any transfer or assignment of any such Voting Shares in violation of
this section shall be void and be of no force or effect.



     11. Costs of Enforcement; Specific Enforcement. If any action or proceeding is instituted by any
party to enforce or construe any provision of this Agreement, the prevailing party in such action
or proceeding shall be entitled to recover from the other party (or parties) to such action or
proceeding all of its reasonable attorneys’ fees, costs and disbursements. It is agreed and
understood that monetary damages would not adequately compensate an injured Elector for the breach
of this Agreement by any other Elector, 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. Further, each Elector waives any claim or defense
that there is an adequate remedy at law for such breach or threatened breach.



     12. Entire Agreement; Amendments and Waiver. This Agreement contains the entire understanding of
the parties with respect to its subject matter and supersedes all prior agreements, negotiations,
discussions, commitments and understandings among the parties with respect thereto, whether
written or oral. 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
Voting Shares held by the Preferred Holders, and (c) the holders of a majority of the
then-outstanding Voting Shares held by the Common Holders. Notwithstanding the foregoing, the
written consent of Outlook Ventures shall be required, in addition to any other required consent,
to amend, or to waive the observance of, Section 1(a)(ii)(B) herein. Notwithstanding the
foregoing, the written consent of Scale Venture Partners II, LP shall be required, in addition to
any other required consent, to amend, or to waive the observance of, Section l(a)(ii)(A) herein.



     13. New Shareholders. Notwithstanding anything herein to the contrary, if additional parties
purchase Series B Preferred Stock from the Company (each such party, a “New Shareholder”), then each
such New Shareholder shall become a party to this Agreement as a “Preferred Holder” hereunder,
without the need for any consent, approval or
signature of any Preferred Holder, the Common Holders or the Company when such New Shareholder has
both:
(a) purchased Series B Preferred Stock and paid the Company all consideration payable for such
shares and (b) executed one or more counterpart signature pages to this Agreement as a “Preferred
Holder.”




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          14. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which, together, shall constitute one instrument.



          15. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision is held to be
prohibited by or invalid under applicable law, it shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement.



          16. Successors and Assigns; Third Party Beneficiaries. 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. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.



          17. Applicable Law. The validity, legality, enforceability and interpretation of this Agreement
shall be governed by the laws of the State of California, without giving effect to conflicts of law
principles.



          18. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to
any party under this Agreement, upon any breach or default of the other party under this Agreement,
shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such
breach or default, or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of
any other breach or default theretofore or thereafter occurring. It is further agreed that all
remedies, either under this Agreement, or by law or otherwise afforded to a party under this
Agreement, shall be cumulative and not alternative.



          19. Legend on Stock Certificates. Each certificate representing any Voting Shares shall be endorsed
by the Company with a legend reading substantially as follows:




“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING
AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON
WRITTEN REQUEST 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 SAID VOTING
AGREEMENT.”



[Signature Page Follows]




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          IN WITNESS WHEREOF, the parties have executed this Amended and Restated Voting Agreement as of the
date first written above.



	 	 	 	 	 
	 	COMPANY:



REPLY! INC.

 	 
	 	By: 	/s/ Payam Zamani
 	 
	 	 	Payam Zamani 	 
	 	 	President 	 



 









 






	 	 	 	 	 



COUNTERPART SIGNATURE PAGE

TO AMENDED AND RESTATED VOTING AGREEMENT




	 	 	 	 	 
	 	COMMON HOLDERS:



 	 
	 	/s/ Payam Zamani
 	 
	 	Payam Zamani 	 
	 	 	 
	 
	 	 	 
	 	/s/ John Truchard
 	 
	 	John Truchard 	 
	 	 	 



 









 






	 	 	 	 	 



COUNTERPART SIGNATURE PAGE

TO AMENDED AND RESTATED VOTING AGREEMENT




	 	 	 	 	 
	 	PREFERRED HOLDER:



Scale Venture Partners II, LP

By: Scale Venture Management II, LLC

Its general partner

 	 
	 	By: 	/s/ Sharon Wienbar
 	 
	 	 	Name: Sharon Wienbar  	 
	 	 	Title: Managing Director

950 Tower Lane, Suite 700

Foster City, CA 94404

Tel: (650) 378-6017     

Fax: (650) 378-6040 	 



 









 






	 	 	 	 	 



COUNTERPART SIGNATURE PAGE

TO AMENDED AND RESTATED VOTING AGREEMENT






	 	 	 	 	 
	 	PREFERRED HOLDER: 	 
	 
	 	Outlook Ventures IIP, L.P.

By Outlook Management II LLC

 	 
	 	By:  	/s/ Randy M. Haykin
 	 
	 	 	Name:  	Randy Haykin 	 
	 	 	Its:  Managing Director 	 
	 
	 	Outlook Ventures III, L.P.



By Outlook Management III LLC

 	 
	 	By:  	/s/ Randy M. Haykin
 	 
	 	 	Name:  	Randy Haykin 	 
	 	 	Its: Managing Director 	 



 









 






	 	 	 	 	 



COUNTERPART SIGNATURE PAGE

TO AMENDED AND RESTATED VOTING AGREEMENT




	 	 	 	 	 	 
	 	PREFERRED HOLDER:



DEBORAH COLEMAN

 	 
	 	Signature: 	 /s/ Deborah Coleman
 	 
	 	 	 	 
	 	 	 



 









 






	 	 	 	 	 



EXHIBIT A




List of Common Holders




	 	 	 	 	 
	 	 	No. of Shares of	 
	Name of Common Holder	 	Common Stock	 
	Payam Zamani
	 	 	8,780,000	 
	Benham Behrouzi
	 	 	1,040,000	 
	John Truchard
	 	 	1,040,000	 
	 
	 	 	 
	TOTAL
	 	 	10,860,000	 






List of Preferred Holders



Scale Venture Partners II, LP



Outlook Ventures IIP, L.P.



Outlook Ventures III, L.P.



Deborah Coleman