EXHIBIT 10.11
TOPTIER SOFTWARE, INC.
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VOTING AGREEMENT
October 27, 1999
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VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), by and among TopTier
Software, Inc. (the "Company"), and the investors listed on SCHEDULE A hereto
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(collectively, the "Investors") is entered into on this 27th day of October,
1999.
WHEREAS, the parties have agreed that, in connection with the purchase
by certain of the Investors of shares of the Company's Series D Preferred Stock
the parties hereto agree that the Board of Directors of the Company shall be
constituted as follows: (i) the holders of a majority of the shares of Series A
Preferred Stock, voting separately as a single class, shall be entitled to elect
two (2) directors (the "Series A Directors"), (ii) the holders of a majority of
the shares of Series B Preferred Stock and Series C Preferred Stock, voting
together as a single class, shall be entitled to elect two (2) directors (the
"Series B and C Directors"), (iii) the holders of a majority of the Shares of
Series D Preferred Stock, voting separately as a single class, shall be entitled
to elect one (1) director (the "Series D Director") and (iv) the remaining
director shall be elected by the holders of a majority of the outstanding shares
of Common Stock of the Company (the "Common Stock"), Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock,
voting together as a single class.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. AGREEMENT TO VOTE.
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(a) Each of the Investors agree to vote all of the shares of
capital stock of the Company at a regular or special meeting of shareholders (or
by written consent) now or hereafter acquired by it in accordance with the
provisions of this Agreement.
(b) Each of the holders of Common Stock, if any, agree to vote
all of the shares of capital stock of the Company at a regular or special
meeting of shareholders (or by written consent) now or hereafter acquired by him
or her in accordance with the provisions of this Agreement.
2. BOARD SIZE. Each of the holders of Common Stock and the Investors
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shall vote at each regular or special meeting of shareholders (and each written
consent in lieu thereof) all of its, his or her shares of Company capital stock
to ensure that the size of the Company's Board of Directors shall be set and
remain at six (6) directors.
3. ELECTION OF THE SERIES A DIRECTORS. On all matters relating to
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the election of the Series A Directors, each of the holders of Series A
Preferred Stock shall vote at a regular or special meeting of shareholders (or
by written consent) all of their shares of capital stock to ensure that the
Series A Directors shall be elected to the Board of Directors and the Series A
Directors shall be the persons designated by the holders of a majority in
interest of all of the shares of Series A Preferred Stock held by the Investors,
and who initially shall be ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
4. ELECTION OF SERIES B AND C DIRECTORS. On all matters relating to
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the election of the Series B and C Directors, each of the holders of Series B
Preferred Stock and Series C Preferred Stock shall vote at a regular or special
meeting of shareholders (or by written consent) all of their shares of capital
stock to ensure that the Series B and C Directors shall be elected to the Board
of Directors and the Series B and C Directors shall be the person designated by
the holders of a majority in interest of all of the shares of Series B Preferred
Stock and Series C Preferred Stock held by the Investors, who initially shall be
Jan Baan and ▇▇▇▇ Baan.
5. ELECTION OF SERIES D DIRECTOR. On all matters relating to the
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election of the Series D Director, each of the holders of Series D Preferred
Stock shall vote at a regular or special meeting of shareholders (or by written
consent) all of their shares of Company capital stock to ensure that the Series
D Director shall be elected to the Board of Directors. The Series D Director
shall be a person designated by the holders of a majority in interest of all the
shares of Series D Preferred Stock held by the Investors, and who initially
shall be
6. REMOVAL OF THE SERIES A DIRECTOR. On all matters relating to the
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removal of the Series A Directors, each of the holders of Series A Preferred
Stock shall vote at a regular or special meeting of shareholders (or by written
consent) all of their shares of capital stock to ensure that any Series A
Directors selected by holders of a majority in interest of all of the shares of
Series A Preferred Stock held by the Investors for removal as the Series A
Directors shall be so removed. Any such vacancy created by such removal shall be
filled pursuant to paragraph 3 herein.
7. REMOVAL OF SERIES B AND C DIRECTORS. On all matters relating to
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the removal of the Series B and C Directors, each of the holders of Series B
Preferred Stock and Series C Preferred Stock shall vote at a regular or special
meeting of shareholders (or by written consent) all of their shares of capital
stock to ensure that the Series B and C Directors selected by the holders of a
majority in interest of all of the shares of Series B Preferred Stock and Series
C Preferred Stock held by the Investor in the aggregate for removal as the
Series B and C Directors shall be so removed. Any such vacancy created by such
removal shall be filled pursuant to paragraph 4 herein.
8. REMOVAL OF SERIES D DIRECTOR. On all matters relating to the
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removal of the Series D Director, each of the holders of Series D Preferred
Stock shall vote at a regular or special meeting of shareholders (or by written
consent) all of their shares of capital stock to ensure that the Series D
Director selected by the holders of a majority in interest of all the shares of
Series D Preferred Stock for removal as the Series D Director shall be so
removed. Any such vacancy created by such removal shall be filled pursuant to
paragraph 5 herein.
9. ELECTION AND REMOVAL OF THE REMAINING DIRECTOR. On all matters
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relating to the election of the remaining director, such remaining director
shall be elected only by the vote of holders of a majority of the outstanding
shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock (voting together as a
single class), such remaining director shall initially be _______ . On all
matters relating to the removal of the remaining director, the remaining
director shall be removed if the Series A Directors, the Series B and C Director
and the Series D Directors
unanimously approve the removal of the remaining director. Any vacancy created
by such removal shall be filled pursuant to the first sentence of this paragraph
9.
10. COVENANTS OF THE COMPANY. The Company agrees to use its best
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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
securities held by the parties hereto assuming conversion of all outstanding
securities, in order to protect the rights of the parties hereunder against
impairment.
11. NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTORS. Neither the
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Company nor the Investors, 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 Company's 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.
12. GRANT OF PROXY. Should the provisions of this Agreement be
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construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and are irrevocable for the term of this Agreement.
13. SPECIFIC ENFORCEMENT. It is agreed and understood that monetary
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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. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
14. SUCCESSORS IN INTEREST.
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(a) The provisions of this Agreement shall be binding upon the
successors in interest to any of securities of the Company held by any party to
this Agreement and their successors and assigns. The Company shall not permit
the transfer of any of the securities on its books or issue new certificates
representing any such securities unless and until the person(s) to whom such
shares are to be transferred shall have executed a written agreement,
substantially in the form of this Agreement, pursuant to which such person
becomes a party to this Agreement and agrees to be bound by all the provisions
hereof as if such person was a party hereunder.
(b) Each certificate representing each of the securities shall
bear a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO
THE TERMS OF A VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED
WITHOUT CHARGE FROM THE COMPANY), 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 THE VOTING
AGREEMENT."
15. EXECUTION BY THE COMPANY. The Company, by its execution in the
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space provided below, agrees that it will cause the certificates evidencing the
shares of capital stock subject to this Agreement to bear the legend required by
Section 14 herein, and it shall supply, free of charge, a copy of this Agreement
to any holder of a certificate evidencing shares of capital stock of the Company
upon written request from such holder to the Company at its principal office.
The parties hereto do hereby agree that the failure to cause the certificates
evidencing the shares of capital stock subject to this Agreement to bear the
legend required by Section 14 herein and/or failure of the Company to supply,
free of charge, a copy of this Agreement as provided under Section 14 shall not
effect the validity or enforcement of this Agreement.
16. TERMINATION. This Agreement shall terminate upon the earlier of
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(a) the date the Company consummates a sale of its Common Stock
in a firm commitment underwritten public offering pursuant to a registration
statement under the Securities Act of 1933, as amended, at a public offering
price per share not less than $14.94 and an aggregate offering price of
$20,000,000;
(b) the acquisition of the Company by another entity by means of
any transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) that results in the
transfer of fifty percent (50%) or more of the outstanding voting power of the
Company or a sale of all or substantially all of the assets of the Company.
17. CAPTIONS. The captions, headings and arrangements used in this
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Agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
18. MANNER OF VOTING. The voting of shares pursuant to this Agreement
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may be effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
19. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any issuance
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of shares of the Company's voting securities hereafter to any of the parties
hereto (including, without limitation, in connection with any stock split, stock
dividend, recapitalization, reorganization, or the like), such shares shall
become subject to this Agreement and shall be endorsed with the legend set forth
in Section 14.
20. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
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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 Investors and their respective successors and assigns, holding
at least a majority of the shares of Series A Preferred Stock, (b) the Investors
and their respective successors and assigns, holding at least a majority of the
shares of Series B Preferred Stock, (c) the Investors and their respective
successors and assigns, holding at least a majority of the shares of Series C
Preferred Stock and (d) the Investors and their respective successors and
assigns, holding at least a majority of the shares of Series D Preferred Stock.
Any amendment or waiver so effected shall be binding upon the Company, each such
class of Investors, and all of their respective successors and assigns whether
or not such party, assignee or other shareholder entered into or approved such
amendment or waiver.
21. ENTIRE AGREEMENT. This Agreement is intended to be the sole
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agreement of the parties as it relates to this subject matter.
22. ENFORCEABILITY/SEVERABILITY. The parties hereto agree that each
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provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of this Agreement
shall nevertheless be held to be prohibited by or invalid under applicable law,
(a) such provision shall be invalid only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, and (b) the parties shall, to the extent
permissible by applicable law, amend this Agreement, so as to make effective and
enforceable the intent of this Agreement.
23. GOVERNING LAW. This Agreement shall be governed by and construed
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under the laws of the State of California as applied to contracts among
California residents entered into and to be performed entirely within
California.
24. COUNTERPARTS. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
25. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
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benefit of, and be binding upon, the successors and assigns of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
COMPANY:
TOPTIER SOFTWARE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: President
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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QUICKSOFT, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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VANENBURG GROUP
By: /s/ ▇▇▇▇ Baan
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INVESTORS:
PRIME ASSET MANAGEMENT A.G.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SPARTA BETEILIGUNGEN AG
By: /s/ Sparta Beteil
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Sparta Beteil
PRE IPO AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (CEO)
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