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Exhibit 10.16
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (the "Agreement") is made as of this 23rd
day of February, 2001 by and among ▇▇▇▇▇▇ Software, Inc., a Delaware corporation
(together with any predecessor or successor thereto, the "Company"), the
investors listed under the heading "Investors" on the signature pages hereto
(each, an "Investor" and collectively, the "Investors") and the stockholders of
the Company listed under the heading "Founders" on the signature pages hereto,
any other stockholder, warrantholder or optionholder who from time to time
becomes a party to this Agreement by execution of a Joinder Agreement in
substantially the form attached hereto as Exhibit A (each, a "Founder" and
collectively, the "Founders").
WHEREAS, the Founders are holders of 34,420,000 shares of the Company's
Common Stock (as defined herein);
WHEREAS, the Company and the Investors are simultaneously entering into
a Stock Purchase and Exchange Agreement and a Senior Subordinated Convertible
Note Purchase Agreement, each dated as of the date hereof (the "Purchase
Agreements"), pursuant to which the Investors have agreed to purchase from the
Company in accordance with the terms and conditions contained therein (i) shares
of Series A Preferred Stock (as defined herein), which shares are convertible
into Common Stock, and (ii) Convertible Notes (as defined herein), which
Convertible Notes are convertible into (A) the Notes (as defined herein), and
(B) the Warrants (as defined herein); and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the transactions contemplated by the Purchase Agreements.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1 CONSTRUCTION OF TERMS. As used herein, the masculine,
feminine or neuter gender, and the singular or plural number, shall be deemed to
be or to include the other genders or number, as the case may be, whenever the
context so indicates or requires.
SECTION 1.2 NUMBER OF SHARES OF STOCK. Whenever any provision of this
Agreement calls for any calculation based on a number of shares of Common Stock
held by an Investor or a Founder, the number of shares deemed to be held by an
Investor or a Founder shall be the total number of shares of Common Stock then
owned by such Investor (and any of its Affiliates) or Founder, plus the total
number of shares of Common Stock issuable upon conversion of any Series A
Preferred Stock, Convertible Notes or other convertible securities or exercise
of Warrants or any other vested options, warrants or subscription rights then
owned by such Investor (and any of its Affiliates) or Founder or obtainable upon
conversion of any such options, warrants or subscription rights.
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SECTION 1.3 DEFINED TERMS. The following capitalized terms, as used in
this Agreement, shall have the meanings set forth below.
An "AFFILIATE" of any Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the first mentioned Person. A Person shall be deemed
to control another Person if such first Person possesses directly or indirectly
the power to direct, or cause the direction of, the management and policies of
the second Person, whether through the ownership of voting securities, by
contract or otherwise.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"COMMON STOCK" means the Company's common stock, $0.01 par value per
share, as authorized on the date of this Agreement and any other common equity
securities now or hereafter issued by the Company, and any other shares of stock
issued or issuable with respect thereto (whether by way of a stock dividend or
stock split or in exchange for or in replacement of or upon conversion of such
shares or otherwise in connection with a combination of shares,
recapitalization, merger, consolidation or other corporate reorganization).
"CONVERTIBLE NOTES" means the 12% Senior Subordinated Convertible Notes
due February 23, 2006 issued on the date hereof in the initial principal amount
of $10,000,000.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any similar successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
"NOTES" means the 12% Senior Subordinated Notes due February 23, 2006
in the initial principal amount of $9,990,000 issuable upon conversion of the
Convertible Notes.
"PERSON" means an individual, a corporation, an association, a
partnership, a joint venture, a limited liability company, an unincorporated
organization, an estate, a trust, and any other entity or organization,
governmental or otherwise.
"QUALIFIED PUBLIC OFFERING" means the Company's first underwritten
public offering on a firm commitment basis by a nationally recognized investment
banking organization or organizations, pursuant to an effective registration
statement under the Securities Act covering the offer and sale of shares of the
Company's Common Stock (i) at a price per share of Common Stock of not less than
$8.25 (subject to adjustment for stock splits, stock dividends, combinations,
recapitalizations and the like); (ii) with respect to which the Company receives
aggregate net proceeds attributable to sales for the account of the Company
(after deduction of underwriting discounts and commissions) of not less than
$80,000,000; and (iii) with respect to which such Common Stock is listed for
trading on either the New York Stock Exchange or the Nasdaq National Market.
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"QUALIFIED SALE" means each of the following: (i) a merger,
consolidation or other transaction in which the holders of the Company's voting
capital stock immediately prior to such transaction do not hold at least a
majority of the voting capital stock of the Company or any successor entity
immediately following such transaction; (ii) a sale of all or substantially all
of the Company's voting capital stock to a third party not Affiliated with the
Company or its stockholders; or (iii) a sale of all or substantially all of the
Company's assets to a third party not Affiliated with the Company or its
stockholders, provided that, in each case (A) such transaction values the Common
Stock at a price per share of not less than $10.31 (subject to appropriate
adjustment for stock splits, stock dividends, combinations, recapitalizations
and the like), (B) the Investors receive cash and/or unrestricted equity
securities of a company, the equity securities of which trade on either the New
York Stock Exchange or the Nasdaq National Market System, which securities so
received are listed for trading on either the New York Stock Exchange or the
Nasdaq National Market System and which securities have been registered under
the Securities Act for immediate resale to the public by the recipients thereof
in compliance with the Securities Act, and (C) the Investors are not required to
provide any indemnification or to give any representations and warranties other
than as to title to their Shares.
"SECURITIES ACt" means the Securities Act of 1933, as amended from time
to time or any similar successor federal statute, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
"SERIES A PREFERRED STOCK" means the Company's Series A Convertible
Preferred Stock, par value $.01 per share.
"SHARES" means, at any time, (i) shares of Common Stock, (ii) shares of
Series A Preferred Stock, (iii) Warrant Shares and (iv) any other equity
securities now or hereafter issued by the Company, together with any options
thereon and any other shares of stock issued or issuable with respect thereto
(whether by way of a stock dividend, stock split or in exchange for or upon
conversion or exercise of such shares or otherwise in connection with a
combination of shares, recapitalization, merger, consolidation or other
corporate reorganization). At all times, the number of Shares issued and
outstanding or held or to be voted by any Founder or Investor shall be
calculated in accordance with Section 1.2.
"TRANSFER" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any portion of a security or of any
rights. "Transferred" means the accomplishment of a Transfer, and "Transferee"
means the recipient of a Transfer.
"WARRANTS" means the warrants issuable upon conversion of the
Convertible Notes.
"WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the Warrants.
ARTICLE II RESTRICTIONS ON TRANSFER; RIGHTS OF FIRST OFFER; CO-SALE RIGHTS
SECTION 2.1 RESTRICTIONS ON TRANSFER. Each Founder agrees that he, she
or it will not Transfer all or any portion of the shares of capital stock of the
Company now owned or hereafter
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acquired by him, her or it, except in connection with, and strictly in
compliance with the conditions of, any of the following:
(a) Transfers effected pursuant to Sections 2.2 and 2.3
hereof, in each case made strictly in accordance with the procedures
set forth therein;
(b) Transfers effected pursuant to a Qualified Public Offering
or a Qualified Sale;
(c) Transfers by such Founder to his or her spouse, children
or grandchildren, to a trust of which he or she is the settlor and a
trustee for the benefit of his or her spouse, children or
grandchildren, or to a charitable organization, provided that the
Transferee shall have executed a Joinder Agreement in the form of
Exhibit A attached hereto; and
(d) Transfers upon the death of such Founder to his or her
heirs, executors or administrators or to a trust under his or her will
or Transfers between such Founder and his or her guardian or
conservator, provided that the Transferee shall have executed a Joinder
Agreement in the form of Exhibit A attached hereto.
Any permitted Transferee described in the preceding clauses (c) or (d)
shall be referred to herein as a "Permitted Transferee." Notwithstanding
anything to the contrary in this Agreement or any failure to execute a Joinder
Agreement as contemplated hereby, Permitted Transferees shall take any shares so
Transferred subject to all provisions of this Agreement as if such shares were
still held by the transferor, whether or not they so agree with the transferor
and/or the Company. Without limitation of the foregoing, in connection with any
otherwise permitted Transfer of shares of capital stock that are restricted
shares and are subject to any stock restriction agreement, any Transferee of any
such shares shall agree in writing to be bound by the terms of any such stock
restriction or similar agreement, including, without limitation, any repurchase
or similar right contained therein.
SECTION 2.2 RIGHT OF FIRST OFFER. Except for transfers pursuant to
Sections 2.1(b), (c) or (d), in the event that any Founder or any Permitted
Transferee of any Founder (a "Transferring Founder") desires to Transfer all or
any portion of the Shares held by such Transferring Founder to a Person other
than a Permitted Transferee (a "Buyer"), such Transferring Founder may, subject
to the provisions of Section 2.3 hereof, Transfer such Shares pursuant to and in
accordance with the following provisions of this Section 2.2:
(a) Such Transferring Founder shall deliver a written notice
(the "Offer Notice") of its desire to Transfer all or a portion (as
stated in such notice) of the Shares held by such Transferring Founder
to the Investors and the Company and shall otherwise comply with the
provisions of this Section 2.2 and, if applicable, Section 2.3. The
Offer Notice shall specify (i) the number of Shares that the
Transferring Founder desires to Transfer (the "Offered Shares"), (ii)
the consideration per share that the Transferring Founder desires to be
paid for the Offered Shares and (iii) all other material terms and
conditions pursuant to which the Transferring Founder desires to
Transfer the Offered Shares. The Transferring Founder's Offer Notice
shall constitute an irrevocable offer to sell all such shares to the
Investors or the
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Company, as applicable, on the basis described below at a purchase
price equal to the price contained in, and on the same terms as set
forth in, the Offer Notice.
(b) The Investors shall have the right (the "Right of First
Offer") to accept the offer to purchase all of the Offered Shares for
the cash consideration per share and on the terms and conditions
specified in the Offer Notice. Each Investor shall then have the right
to accept the offer to purchase up to that number of Offered Shares
covered by the Offer Notice as shall be equal to the product obtained
by multiplying (i) the total number of Offered Shares by (ii) a
fraction, the numerator of which is the total number of shares of
Common Stock owned by such Investor on the date of the Offer Notice (as
determined in accordance with Section 1.2 hereof) and the denominator
of which is the total number of shares of Common Stock then held by all
of the Investors on the date of the Offer Notice (as determined in
accordance with Section 1.2 hereof), subject to increase as hereinafter
provided. The number of shares that each such Investor is entitled to
purchase under this Section 2.2 shall be referred to as a "ROFO
Fraction." In the event any such Investor does not wish to purchase its
ROFO Fraction, then all other Investors who so elect shall have the
right to exercise the Right of First Offer, on a pro rata basis with
all who so elect (as hereinafter provided), with respect to the ROFO
Fraction not purchased by such Investor, provided, that such Investors,
as a group, shall only be permitted to purchase all or none of the
Offered Shares. Each Investor shall have the right to elect to exercise
the Right of First Offer by giving notice of such election to the
Transferring Founder within twenty (20) days after receipt of the Offer
Notice (the "ROFO Option Period"), which notice (a "Purchase Election")
shall indicate the maximum number of shares subject thereto which such
Investor is willing to purchase in the event fewer than all Investors
elect to purchase their ROFO Fractions. The Transferring Founder shall
then deliver within five (5) business days of the expiration of the
ROFO Option Period, written notice to each Investor that delivered a
Purchase Election indicating the number of Offered Shares that such
Investor shall be entitled to purchase. The closing for any purchase of
Offered Shares by the Investors hereunder shall take place within
thirty (30) days after the expiration of the ROFO Option Period.
(c) In the event that the Investors do not elect to exercise
the Right of First Offer with respect to all of the Offered Shares, the
Offered Shares shall be offered to the Company pursuant to the terms of
that certain Amended and Restated Agreement for Purchase of Capital
Stock of ▇▇▇▇▇▇ Associates, Inc., dated as of October 31, 2000, by and
between the Company and certain shareholders of the Company, attached
hereto as Exhibit B (the "Old Agreement"). In the event that the
Company does not elect to exercise its option to purchase and redeem
all or any of the Offered Shares, the Transferring Founder may sell all
of the Offered Shares not elected to be purchased by the Company (the
"Remaining Shares") to a Buyer at a cash price per share not less than
the price per share set forth in the Offer Notice, and on terms and
conditions not more favorable to the Buyer than those set forth in the
Offer Notice, subject to the provisions of Section 2.3. If the
Transferring Founder's Transfer to the Buyer is not consummated in
accordance herewith within the time limitation set forth in Section 2.5
of the Old Agreement, then the proposed Transfer of the Offered Shares
to the Buyer shall be deemed to lapse, and any Transfers of shares to
such Buyer shall be deemed to be in violation of the provisions of this
Agreement unless the Transferring Founder sends a new Offer Notice and
once again complies with the provisions of this Section 2.2 with
respect to such proposed Transfer.
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(d) The Company agrees to subordinate its option to purchase
the Offered Shares set forth under Section 2.1 of the Old Agreement to
the Investors' Right of First Offer set forth hereunder.
SECTION 2.3 CO-SALE OPTION. In the event that any Transferring Founder
proposes to Transfer all or any portion of such Transferring Founder's Shares to
a Buyer, and the Rights of First Offer under Section 2.2 above are not exercised
with respect to all or any of the Offered Shares proposed to be sold, such
Transferring Founder may Transfer any Remaining Shares (a "Proposed
Transaction") only pursuant to and in accordance with the following provisions
of this Section 2.3:
(a) As soon as practicable following the expiration of the
Company Option Period, and in no event later than five (5) business
days thereafter, the Transferring Founder shall provide notice to each
of the Investors (the "Co-Sale Notice") of its right to participate in
the Proposed Transaction on a pro rata basis with the Transferring
Founder (the "Co-Sale Option"). To the extent one or more Investors
exercise their Co-Sale Option in accordance with this Section 2.3, the
number of Offered Shares that the Transferring Founder may Transfer in
connection with the Proposed Transaction shall be correspondingly
reduced.
(b) Each of the Investors shall have the right to exercise its
Co-Sale Option by giving written notice of such intent to participate
(the "Co-Sale Acceptance Notice") to the Transferring Founder within
ten (10) business days after receipt by such Investor of the Co-Sale
Notice (the "Co-Sale Election Period"). Each Co-Sale Acceptance Notice
shall indicate the maximum number of Shares subject thereto which the
Investor wishes to sell, including the number of Shares it would sell
if one or more other Investors do not elect to participate in the sale.
Any Investor holding Series A Preferred Stock or Warrants shall be
permitted to sell to the relevant Buyer in connection with any exercise
of the Co-Sale Option, at its option, (i) shares of Common Stock
acquired upon conversion of such Series A Preferred Stock or exercise
of such Warrants, or (ii) shares of Series A Preferred Stock or
Warrants.
(c) Each Investor shall have the right to sell a portion of
its Shares in connection with the Proposed Transaction which is equal
to or less than the product obtained by multiplying (i) the total
number of Offered Shares by (ii) a fraction, the numerator of which is
the total number of shares of Common Stock held by such Investor on the
date of the Co-Sale Notice (as determined in accordance with Section
1.2 hereof) and the denominator of which is the total number of shares
of Common Stock then held by the Transferring Founder and the Investors
on the date of the Co-Sale Notice (as determined in accordance with
Section 1.2 hereof). In the event any Investor does not elect to sell
the full amount of such Shares which such Investor is entitled to sell
pursuant to this Section 2.3, then any Investors who have elected to
sell Shares shall have the right to sell, on a pro-rata basis (based on
the number of Shares held by each such Investor) with any other
Investors and up to the maximum number of Shares stated in each such
Investor's Co-Sale Acceptance Notice, any Shares not elected to be sold
by such Investor.
(d) Within ten (10) days after the expiration of the Co-Sale
Election Period, the Transferring Founder shall notify each Investor of
the number of Shares held by such Investor that will be included in the
sale and the date on which the Proposed Transaction will be
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consummated, which shall be no later than the later of (i) ninety (90)
days after the expiration of the ROFO Option Period and (ii) five (5)
days after the satisfaction of any governmental approval or filing
requirements necessary in connection with such Proposed Transaction, if
any.
(e) Any Investor may effect its participation in any Proposed
Transaction hereunder by delivery to the Buyer, or to the Transferring
Founder for delivery to the Buyer, of one or more instruments or
certificates, properly endorsed for Transfer, representing the Shares
it elects to sell therein, provided that each Investor's liability with
respect to such representations and warranties shall not exceed the
value of the proceeds received by such Investor upon consummation of
the Proposed Transaction. At the time of consummation of the Proposed
Transaction, the Buyer shall remit directly to each such Investor that
portion of the sale proceeds to which such Investor is entitled by
reason of its participation therein (less any adjustments due to the
conversion of any convertible securities or the exercise of any
exercisable securities). No Shares may be purchased by the Buyer from
the Transferring Founder unless the Buyer simultaneously purchases from
the participating Investors all of the Shares that they have elected
(and are entitled) to sell pursuant to this Section 2.3.
(f) Any Offered Shares held by a Transferring Founder that are
the subject of a Proposed Transaction and that the Transferring Founder
desires to Transfer following compliance with this Section 2.3 may be
sold to the Buyer only during the period specified in Section 2.3(d),
and only on terms and conditions not more favorable to the Buyer than
those contained in the Offer Notice. Promptly after such Transfer, the
Transferring Founder shall notify each participating Investor of the
consummation thereof and shall furnish such evidence of the completion
and time of completion of such Transfer and of the terms thereof as may
reasonably be requested by any such Investor. So long as the Buyer is
neither a party, nor an Affiliate of a party, to this Agreement, such
Buyer shall take the shares so Transferred free and clear of any
further restrictions of this Article II. In the event that the Proposed
Transaction is not consummated within the period required by Section
2.3(d) hereof or the Buyer fails timely to remit to each such Investor
its portion of the sale proceeds, the Proposed Transaction shall be
deemed to lapse, and any Transfers of Shares pursuant to such Proposed
Transaction shall be deemed to be in violation of the provisions of
this Agreement unless the Transferring Founder once again complies with
the provisions of Sections 2.1, 2.2 and 2.3 hereof with respect to such
Proposed Transaction.
SECTION 2.4 PROHIBITED TRANSFERS. If any Transfer is made or attempted
contrary to the provisions of this Agreement, such purported Transfer shall be
void ab initio, and the Company shall have the right to refuse to recognize any
unauthorized Transferee as one of its stockholders for any purpose, including,
without limitation, for purposes of dividend and voting rights, until the
relevant party or parties have complied with all applicable provisions of this
Agreement. Without limitation of the foregoing, each of the Investors and the
Founders further agrees that the provisions of Section 5.9 shall apply in the
event of any violation or threatened violation of this Agreement.
SECTION 2.5 ASSIGNMENT OF RIGHTS. Each Investor shall have the right to
assign its rights under this Article II to a Transferee of Series A Preferred
Stock, Convertible Notes, or Warrants, and shall further have the right to
assign and transfer such Investor's Right of First Offer under Section 2.2 to
(a) any other Investor, (b) any investment fund or entity managed by
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or associated or affiliated with any Investor, or (c) any Transferee of not less
than 33% of the number of Shares originally acquired by such Investor pursuant
to the Purchase Agreements; provided, that such Transferee shall be deemed
within the definition of "Investor" for purposes of this Article II and must
consent in writing to be bound by the terms and conditions of this Article II to
acquire the rights granted hereunder.
ARTICLE III RIGHTS TO PURCHASE
SECTION 3.1 RIGHT TO PARTICIPATE IN CERTAIN SALES OF ADDITIONAL
SECURITIES. The Company agrees that it will not sell or issue: (a) any shares of
capital stock of the Company, (b) securities convertible into or exercisable or
exchangeable for capital stock of the Company or (c) options, warrants or rights
carrying any rights to purchase capital stock of the Company, unless the Company
first submits a written notice to each Investor identifying the terms of the
proposed sale (including price, number or aggregate principal amount of
securities and all other material terms), and offers to each Investor the
opportunity to purchase its Pro Rata Allotment (as hereinafter defined) of the
securities (subject to increase for over-allotment if some Investors do not
fully exercise their rights) on terms and conditions, including price, not less
favorable than those on which the Company proposes to sell such securities to a
third party or parties. The Company's offer pursuant to this Section 3.1 shall
remain open and irrevocable for a period of thirty (30) days following receipt
by the Investors of such written notice.
SECTION 3.2 INVESTOR ACCEPTANCE. Each Investor may elect to purchase
the securities so offered by giving written notice thereof to the Company within
such 30-day period, including in such written notice the maximum number of
shares of capital stock or other securities of the Company that the Investor
wishes to purchase, including the number of such shares it would purchase if one
or more other Investors do not elect to purchase their respective Pro Rata
Allotments.
SECTION 3.3 CALCULATION OF PRO RATA ALLOTMENT. Each Investor's "Pro
Rata Allotment" of such securities shall be based on the ratio which the number
of Shares owned by such Investor bears to all of the issued and outstanding
Shares as of the date of such written offer. If one or more Investors do not
elect to purchase their respective Pro Rata Allotment, each of the electing
Investors may purchase such shares on a pro rata basis, based upon the relative
holdings of Shares of each of the electing Investors in the case of
over-subscription.
SECTION 3.4 SALE TO THIRD PARTY. Any securities so offered that are not
purchased by the Investors pursuant to the offer set forth in Section 3.1 above
may be sold by the Company, but only on terms and conditions not more favorable
than those set forth in the notice to Investors, at any time within sixty (60)
calendar days following the termination of the above-referenced 30-day period,
but may not be sold to any other Person or on terms and conditions, including
price, that are more favorable to the purchaser than those set forth in such
offer or after such 60-day period without renewed compliance with this Article
III.
SECTION 3.5 EXCEPTIONS TO PRE-EMPTIVE RIGHTS. Notwithstanding the
foregoing, the right to purchase granted under this Article III shall be
inapplicable with respect to the issuance of (a) up to an aggregate of
27,610,309 shares of Common Stock (as appropriately adjusted for any stock
split, combination, reorganization, recapitalization, reclassification, stock
distribution,
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stock dividend or similar event) issued or issuable in connection with, or upon
the exercise of, options or other awards granted or to be granted to employees,
officers, directors or consultants of the Company pursuant to the Company's 1996
and 2001 Stock Option Plans, as in effect on the date hereof, (b) shares of
Common Stock issued or issuable in connection with, or upon the exercise of,
options or other awards granted or to be granted to employees, officers,
directors or consultants of the Company under any other stock option plan
adopted after the date hereof and unanimously approved by the Board of
Directors, (c) securities issued as a result of any stock split, stock dividend,
reclassification or reorganization or similar event with respect to the Shares;
(d) shares of Common Stock issued upon conversion of, or as a dividend on, the
Series A Preferred Stock; (e) the Convertible Notes or the Warrants; (f) the
Warrant Shares issued upon exercise of the Warrants, (g) shares of Common Stock
issued pursuant to a Qualified Public Offering, or (h) up to 1,650,000 shares of
Common Stock issued upon exercise of any other warrants of the Company
outstanding as of the date hereof.
SECTION 3.6 ASSIGNMENT OF RIGHTS. Each Investor shall have the right to
assign its rights under this Article III to a Transferee of Series A Preferred
Stock, Convertible Notes, or Warrants, and shall further have the right to
assign and transfer such Investor's right to accept any particular offer under
Section 3.1 to (a) any other Investor, (b) any investment fund or entity managed
by or associated or affiliated with any Investor, or (c) any Transferee of not
less than 33% of the number of Shares originally acquired by such Investor
pursuant to the Purchase Agreements; provided that any such Transferee shall be
deemed within the definition of an "Investor" for purposes of this Article III.
ARTICLE IV ELECTION OF DIRECTORS
SECTION 4.1 BOARD COMPOSITION.
(a) Each Founder (including any Permitted Transferees) agrees
to vote all of his, her or its shares of the Company's capital stock
having voting power (and any other shares over which he, she or it
exercises voting control) in connection with the election of directors
of the Company and to take such other actions as are necessary so as to
elect and continue in office as a director, one (1) individual
designated by TA Associates, Inc. ("TA Associates"), who shall
initially be ▇▇▇▇▇ ▇.▇. ▇▇▇▇ (the "Investor Nominee").
(b) Each Founder agrees to vote all of his, her or its shares
of the Company's capital stock having voting power (and any other
shares over which he, she or it exercises voting control) for the
removal of the Investor Nominee upon the request of TA Associates and
for the election to the Board of Directors of the Company of a
substitute nominated by such party in accordance with the provisions of
Section 4.1(a) hereof; provided, however, that in the event after the
date hereof TA Associates elects to replace the individual designated
at any time as the Investor Nominee, TA Associates will submit to the
Company the names of three potential designees associated with TA
Associates and the Company may select from such designees a new
Investor Nominee. Each Founder further agrees to vote all of his, her
or its shares of the Company's capital stock having voting power (and
any other shares over which he, she or it exercises voting control) in
such manner as shall be necessary or appropriate to ensure that any
vacancy on the Board of Directors of the Company occurring for any
reason shall be filled only in accordance with the provisions of this
Article IV.
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(c) For so long as any Investor Nominee is a director of the
Company, such Investor Nominee shall comply with the stock trading
policies and windows then applicable to the Company's directors and
executive officers.
SECTION 4.2 COMMITTEES OF THE BOARD. The Investor Nominee shall be
named to the Company's Audit Committee (which shall be charged with reviewing
the Company's financial statements and accounting practices) and Compensation
Committee (which shall be charged with exclusive authority over all compensation
and employee stock and options matters).
SECTION 4.3 OBSERVER RIGHTS. In addition to the Investors' right to
nominate an Investor Nominee to serve on the Board of Directors of the Company,
St. ▇▇▇▇ Venture Capital VI, LLC may designate one individual (the "Observer")
to attend all meetings of the Board of Directors (and any committees thereof) in
a non-voting observer capacity, which Observer shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ for so
long as ▇▇. ▇▇▇▇▇▇ is affiliated with St. ▇▇▇▇ Venture Capital; provided, that
if ▇▇. ▇▇▇▇▇▇ is no longer so affiliated and St. ▇▇▇▇ Venture Capital determines
at such time to designate a successor individual to serve as the Observer, the
designation of such other individual shall be subject to the Company's prior
approval, which approval shall not be unreasonably withheld. Subject to the
Board of Director's right to preserve attorney-client privilege during Board of
Directors or committee meetings at which the Company's counsel is present, the
Observer shall be entitled to attend all meetings and to receive all notices,
reports, presentations and materials provided to the Board of Directors as a
whole.
SECTION 4.4 ASSIGNMENT. Each Founder agrees, as a condition to any
Transfer of his, her or its shares, to cause the Transferee to agree to the
provisions of this Article IV, whereupon such Transferee shall be subject to the
provisions hereof. Each Investor agrees to cause any Transferee of its shares to
agree, and in the event of such Transferee's election to change or replace the
individual designated and appointed by them as the Investor Nominee or otherwise
as a director of the Company, such Transferee will submit to the Company the
names of three potential designees and the Company may select from such
designees a new Investor Nominee.
ARTICLE V GENERAL
SECTION 5.1 AMENDMENTS, WAIVERS AND CONSENTS. For the purposes of this
Agreement and all agreements executed pursuant hereto, no course of dealing
between or among any of the parties hereto and no delay on the part of any party
hereto in exercising any rights hereunder shall operate as a waiver of the
rights hereof. This Agreement may not be amended or modified or any provision
hereof waived without the joint written consent of the Company, the Founders
holding not less than a majority of the outstanding Shares then held by the
Founders (with respect to Section 2 only) and the Investors holding not less
than a majority of the outstanding Shares then held by the Investors; provided,
that any party may waive any provision hereof intended for its benefit by
written consent.
SECTION 5.2 LEGEND ON SECURITIES. The Company, each of the Investors
and each of the Founders acknowledge and agree that substantially the following
legend shall be typed on each certificate evidencing any of the securities
issued hereunder held at any time by an Investor or a Founder:
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THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY 23, 2001, INCLUDING THEREIN CERTAIN
RESTRICTIONS ON TRANSFER. A COMPLETE AND CORRECT COPY OF THIS AGREEMENT IS
AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
SECTION 5.3 NOTICES AND DEMANDS. Any notice or demand which is required
or provided to be given under this Agreement shall be deemed to have been
sufficiently given or served and received for all purposes when delivered by
hand, telecopy, telex or other method of facsimile transmission with receipt
acknowledged, or five (5) days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two (2) days after
being sent by overnight delivery providing receipt of delivery, in each case
with oral confirmation to the notice recipient, to the following addresses: if
to the Company, at its address as shown on the signature pages hereto, or at any
other address designated by the Company to the Investors and the other parties
hereto in writing; and if to a Founder or Investor, at his, her or its addresses
as shown on the signature pages hereto, or at any other address designated by
such Founder or Investor to the Company or the other parties hereto in writing.
SECTION 5.4 GOVERNING LAW. This Agreement shall be deemed to be a
contract made under, and shall be construed in accordance with, the laws of the
State of Minnesota without giving effect to the conflict of laws principles
thereof.
SECTION 5.5 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
SECTION 5.6 EFFECT OF HEADINGS. The Section headings here in one for
convenience only and shall not affect the construction hereof.
SECTION 5.7 INTEGRATION. This Agreement, including the exhibits,
documents and instruments referred to herein, constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof, including,
without limitation, the Term Sheet dated December 22, 2000 between the Company
and the Investors in respect of the transactions contemplated herein. For the
sake of clarity, the Old Agreement, attached as Exhibit B, shall continue in
full force and effect, as modified by this Agreement.
SECTION 5.8 DISPUTE RESOLUTION.
(a) All disputes, claims, or controversies arising out of or
relating to this Agreement, or the negotiation, breach, termination,
validity or performance hereof or the transactions contemplated hereby
and thereby, that are not resolved by mutual agreement shall be
resolved solely and exclusively by binding arbitration to be conducted
before J.A.M.S./Endispute, Inc. or its successor. The arbitration shall
be held in Chicago, Illinois before
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a single arbitrator and shall be conducted in accordance with the rules
and regulations promulgated by J.A.M.S./Endispute, Inc. unless
specifically modified herein.
(b) The parties covenant and agree that the arbitration shall
commence within ninety (90) days of the date on which a written demand
for arbitration is filed by any party hereto. In connection with the
arbitration proceeding, the arbitrator shall have the power to order
the production of documents by each party and any third-party
witnesses. In addition, each party may take up to three depositions as
of right, and the arbitrator may in his or her discretion allow
additional depositions upon good cause shown by the moving party.
However, the arbitrator shall not have the power to order the answering
of interrogatories or the response to requests for admission. In
connection with any arbitration, each party shall provide to the other,
no later than seven (7) business days before the date of the
arbitration, the identity of all persons that may testify at the
arbitration and a copy of all documents that may be introduced at the
arbitration or considered or used by a party's witness or expert, and a
summary of the expert's opinions and the basis for said opinions. The
arbitrator's decision and award shall be made and delivered within six
(6) months of the selection of the arbitrator. The arbitrator's
decision shall set forth a reasoned basis for any award of damages or
finding of liability. The arbitrator shall not have power to award
damages in excess of actual compensatory damages and shall not multiply
actual damages or award punitive damages or any other damages that are
specifically excluded under this Agreement, and each party hereby
irrevocably waives any claim to such damages in connection with such
arbitration.
(c) The parties covenant and agree that they will participate
in the arbitration in good faith and that they will, except as provided
below, (i) bear their own attorneys' fees, costs and expenses in
connection with the arbitration, and (ii) share equally in the fees and
expenses charged by J.A.M.S./Endispute, Inc. The arbitrator may in his
or her discretion assess costs and expenses (including the reasonable
legal fees, costs and expenses of the prevailing party) against any
party to a proceeding. Any party unsuccessfully refusing to comply with
an order of the arbitrators shall be liable for costs and expenses,
including attorneys' fees, incurred by the other party in enforcing the
award. In the case of temporary or preliminary injunctive relief, any
party may proceed in court prior to, during or after arbitration for
the limited purpose of avoiding immediate and irreparable harm,
provided, that the right to equitable relief by a court is not intended
to derogate from this arbitration procedure.
(d) Each of the parties hereto irrevocably and unconditionally
consents to the exclusive jurisdiction of J.A.M.S./Endispute, Inc. to
resolve all disputes, claims or controversies arising out of or
relating to this Agreement or the negotiation, breach, termination
,validity or performance hereof or the transactions contemplated hereby
and further consents to the sole and exclusive jurisdiction of any
United States District Court of competent jurisdiction for the purposes
of enforcing the arbitration provisions of this Section 5.8 and the
award or decision in any such proceeding. Each party further
irrevocably waives any objection to proceeding before
J.A.M.S./Endispute, Inc. based upon lack of personal jurisdiction or to
the laying of venue and further irrevocably and unconditionally waives
and agrees not to make a claim in any court that arbitration before
J.A.M.S./Endispute, Inc. has been brought in an inconvenient forum.
Each of the parties hereto hereby consents to service of process by
registered mail at the address to which notices are to be given. Each
of the parties hereto agrees that its or his submission to jurisdiction
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and its or his consent to service of process by mail is made for the
express benefit of the other parties hereto.
SECTION 5.9 REMEDIES; SEVERABILITY. Notwithstanding Section 5.8, it is
specifically understood and agreed that any breach of the provisions of this
Agreement by any Person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other remedies which they may
have, such other parties may enforce their respective rights by actions for
specific performance (to the extent permitted by law). Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be deemed prohibited or invalid under such applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
SECTION 5.10 LOCK UP AGREEMENT. If the Company shall consummate a
Qualified Public Offering under the Securities Act and the managing underwriter
for such offering shall so request, then none of the Founders, the parties set
forth on Schedule I attached hereto (the "Founder Family Members"), or the
Investors shall sell, make any short sale of, grant any option for the purchase
of, or otherwise dispose of any Shares (other than those Shares included in such
offering, if any) without the prior written consent of such managing underwriter
for a period of time reasonably designated by such managing underwriter, which
period shall not begin more than ten (10) days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall not last more than 180 days after the effective date of such registration
statement (the "Lockup Period"); provided, that if any executive officer of the
Company or any of the Founders or Founder Family Members is permitted to sell
any Shares prior to the expiration of the Lockup Period, then the Investors
shall also be permitted to do so on a pro-rata basis, based on the number of
Shares held on a fully diluted, as converted basis.
SECTION 5.11 ADJUSTMENT. All references to share amounts and prices
herein shall be equitably adjusted to reflect any stock split, combination,
reorganization, recapitalization, reclassification, stock distribution, stock
dividend or similar event affecting the capital stock of the Company.
SECTION 5.12 TERM. This Agreement, other than the provisions of Section
5.4, Section 5.8 and Section 5.10 hereof, shall terminate upon the closing by
the Company of the earlier of a Qualified Public Offering or Qualified Sale, or
upon a redemption by the Company of all outstanding shares of the Series A
Preferred Stock, provided, however, that, if earlier than the closing of a
Qualified Public Offering or Qualified Sale, the provisions contained in Article
IV hereof shall terminate on the date that the Investors own an aggregate number
of Shares representing fewer than 10% of the aggregate number of Shares
originally issued to them pursuant to the Purchase Agreements.
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IN WITNESS WHEREOF, the parties have executed this Stockholders'
Agreement as of the date first above written.
COMPANY: ▇▇▇▇▇▇ SOFTWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name:
Title:
FOUNDERS: ▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ FAMILY INVESTMENT COMPANY, LTD.
By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name:
Title:
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name:
Title:
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INVESTORS: TA IX, L.P.
By: TA Associates IX LLC,
its General Partner
By: TA Associates, Inc., its Manager
By: ***
--------------------------------------
Name:
Title:
TA/ATLANTIC AND PACIFIC IV L.P.
By: TA Associates AP IV L.P.,
its General Partner
By: TA Associates, Inc.,
its General Partner
By: ***
--------------------------------------
Name:
Title:
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: ***
--------------------------------------
Name:
Title:
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By: ***
--------------------------------------
Name:
Title:
*** /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇
Title: Authorized Signatory
ST. ▇▇▇▇ VENTURE CAPITAL VI, LLC
By: SPVC Management VI, LLC,
its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name:
Title: