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EXHIBIT 10.15
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is made as of this 30th
day of September, 1992, by and among EXTENDED SYSTEMS, INC., a Delaware
corporation (the "Company"), the persons named as Stockholders in Exhibit A
hereto (the "Stockholders"), and the persons named as Investors in Exhibit B
hereto (the "Investors").
The Stockholders are holders of shares of the issued and outstanding
Common Stock, of the Company (the "Common Stock"). The Stockholders have entered
into that Fourth Amended ES1 Shareholder Agreement (the "Shareholder Agreement")
that provides for the purchase of certain shares of the Stockholders' Company
stock under certain circumstances.
The Investors are, on the date hereof, acquiring an aggregate of
$7,625,000 Maturity Value of the Company's Convertible Subordinated Zero Coupon
Promissory Notes (the "Zero Coupon Notes") and $500,000 principal amount of the
Company's 10% Convertible Subordinated Promissory Notes (the "10% Notes," the
10% Notes and the Zero Coupon Notes are, collectively, the "Notes") and
three-year Warrants to purchase 76,062 shares of the Company's Common Stock (the
"Warrants") pursuant to the terms of a Convertible Subordinated Promissory Notes
and Warrant Purchase Agreement, dated the date hereof, among the Company and the
Investors (the "Purchase Agreement"). The Notes and Warrants are referred to,
collectively, in this Agreement as the "Securities," and the Common Stock
acquired or available to be acquired thereunder are referred to as the
"Conversion Shares" and "Warrant Shares", respectively, and shall have the
meanings assigned to them in the Purchase Agreement. Common Stock otherwise
acquired by the Investors for the purpose of this Agreement shall be included in
the term "Conversion Shares".
It is a condition to the obligations of the Investors under the Purchase
Agreement that this Agreement be executed by the parties hereto, and the parties
are willing to execute this Agreement and to be bound by the provisions hereof
In consideration of the foregoing and the agreements set forth below,
the parties agree with each
1. Designated Representative of the Investors. The Investors will
designate, in writing, a representative who shall be authorized to act on their
behalf with respect to all matters related to this Agreement. The Designated
Representative will nominate the Investors' selection of a nominee for election
to the Board of Directors.
2. Board of Directors. The Stockholders and the Company agree that the
Company's Board of Directors will be comprised of not more than seven (7)
members. Prior to October 31, 1992, and thereafter during the term of this
Agreement, the Stockholders shall vote all shares of the
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Company's Stock held by them to elect one member who has been designated by the
Investors to the Board of Directors and to elect a replacement member whenever
designated.
3. Restrictions on Transfer of Shares.
3.01 Rights of Investors.
(a) Any Stockholder who proposes to sell or otherwise
transfer stock shall do so in accordance with the provisions of the Certificate
of Incorporation and the Shareholder Agreement. Any stock not purchased by the
Company or the Stockholders shall then be offered to the Investors upon the same
terms and conditions of the proposed sale. The Investors shall have forty-five
(45) days from the time they receive notice of a proposed sale, but in no event
less than fifteen (15) days from the date they are notified that the Company and
the other Stockholders have elected not to purchase the stock, within which to
purchase the stock. The Investors' rights under this paragraph shall terminate
if not exercised within the later of the forty-five (45) day and fifteen (15)
day periods above.
(b) In the event the consideration (other than cash or
cash equivalents), terms or conditions offered by the buyer are such that the
Investors may not reasonably be required to furnish the same consideration,
terms or conditions, then the Investors, may purchase the stock for a cash
amount determined by the Company's Board of Directors to be reasonably
equivalent in value to the consideration offered by the buyer based on the
proposed terms and conditions.
(c) Subject to Section 3.2, if an offer to the Investors
is not accepted as provided in Section 3. 1 (a) as to all or part of the stock
or paid for as provided therein, the Stockholder so selling may thereafter sell
such stock so offered pursuant to the terms contained in the Company's
Certificate of Incorporation and the Shareholder Agreement.
(d) The failure of any Investor to exercise any option
pursuant to this Section 3.1 shall not constitute a waiver of any of the
provisions of this Agreement with respect to any proposed subsequent transfer of
Common Stock.
3.02 Tag-Along Rights. Each Investor will have the right to sell,
on the terms and to the buyer described in a Stockholder's notice (i) if the
Stockholder is Xxxx Xxxxxx, then a number of shares equal to the number of
shares to be sold multiplied by a fraction, the numerator of which will be the
number of Conversion and Warrant Shares owned by such Investor, and the
denominator of which will be the sum of the number of Conversion Shares and
Warrant Shares owned by the Investors plus the number of shares of Common Stock
owned by Xxxx Xxxxxx and (ii) if the Stockholder selling is any Stockholder
other than Xxxx Xxxxxx, then a number of shares as determined above however the
denominator shall be the number of all shares of stock restricted by the
Shareholder Agreement. Provided, however, so long as the Company purchases stock
from the Stockholders at sixty-five percent of the current independent appraisal
as that term is used in the Shareholder Agreement, Investors have no right to
sell to the Company under this Section 3.2. The Company covenants that it will
not exercise its right to purchase shares of its capital stock contained in its
Certificate of Incorporation with respect to a sale by the Investors under this
Section 3.2.
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3.03 Permitted Transfers. Notwithstanding any other provision of
this Section 3, a Stockholder may transfer shares of Common Stock pursuant to
the terms of the Shareholder Agreement as it is written as of the date hereof.
3.04 Invalid Transfers. Any sale, assignment or other transfer of
Common Stock by a Stockholder contrary to the provisions of this Section 3 shall
be null and void, and the transferee shall not be recognized by the Company as
the holder or owner of the shares of Common Stock sold, assigned or transferred
for any purposes (including, without limitation, voting or dividend rights),
unless and until the Stockholder so selling has satisfied the requirements of
this Section 3 with respect to such sale, assignment or other transfer.
3.05 Termination of Agreement. This Agreement shall terminate on
the earlier of the day immediately prior to the closing of a Qualified Public
Offering or the seventh anniversary hereof.
4. Company's Right of first Purchase
(a) Any Investor who proposes to sell, assign or otherwise
transfer to a third party any or all of the Securities held by it shall give the
Company and the Stockholders written notice of its intent to sell, the dollar
amount of the Notes, the number of the Warrants and the number of shares of
stock involved in such sale, assignment or transfer.
(b) The Company and the Stockholders shall have thirty
(30) days after receipt of such notice in which to accept, in writing, the offer
set forth therein to purchase the Securities to be sold. The Company's and
Stockholder's notice of their acceptance or rejection of such offer shall be
delivered to the Investor. If the offer is accepted then the Company and
Stockholders shall pay for the Securities within thirty (30) days of the notice
by the Investor. Failure to deliver a notice within the time provided herein
shall be deemed a rejection of the right to purchase as provided herein.
Following rejection the Investor shall have six months to sell the Securities or
it must again comply with this Section 4.
(c) The Company and the Stockholders shall pay the
Investor an amount equal to the greater of (i) the Issue Price and accrued
Original Issue Discount for the Zero Coupon Notes being offered for sale, the
principal amount and the accrued interest on the 10% Notes and the original
purchase price of the Warrants through the date of their expiration and (ii) the
appraised value per share as is determined quarterly of the Conversion Shares
and Warrant Shares then offered by the Investors or for the number of shares
subject to acquisition under the Notes and Warrants being offered for sale.
5. Miscellaneous.
5.01 Legend. Each certificate representing Shares of Common Stock
owned by the Stockholders shall contain in addition to all other restrictive
legends described in the Purchase Agreement or the Securities, the following
legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A STOCKHOLDERS' AGREEMENT DATED SEPTEMBER 30, 1992, BY AND
AMONG THE COMPANY AND THE STOCKHOLDERS AND INVESTORS NAMED THEREIN, A
COPY OF WHICH WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
5.02 Notices. All notices or other communications required or permitted
to be delivered hereunder shall be in writing signed by the party giving the
notice to the Company at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxx 00000,
Attention: President, and to the other parties hereto at their respective
addresses set forth in Exhibits A and B to this Agreement. The Company, a
Stockholder, or Investor may at any time change the address to which notice to
him shall be mailed by giving notice of such change to the Company and to the
other parties, and such notice shall be deemed given when received by the other
parties hereto.
5.03 Entire Agreement and Amendments. This Agreement constitutes the
entire agreement of the parties with respect to the matters contemplated herein.
This Agreement supersedes any and all prior understandings as to the subject
matter of this Agreement. Amendments, waivers and consents with respect to this
Agreement must be signed by all the parties hereto.
5.04 Binding Effect: Assignment. This Agreement shall be binding upon
and inure to the benefit of the personal representatives and successors of the
respective parties hereto, except that the Company shall not have the right to
assign its rights hereunder or any interest herein without obtaining the prior
written consent of the Investors, and the rights and interests of the Investors
shall be assignable to transferees of the Securities, Conversion Shares and
Warrant Shares.
5.05 Governing Laws. This Agreement shall be governed by and construed
under the laws of the State of Idaho.
5.06 Severability. If any provision of this Agreement shall be found by
any court of competent jurisdiction to be invalid or unenforceable, the parties
hereby waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
5.07 Counterparts. This Agreement may be executed in counterparts, all
of which together shall constitute one and the same instrument.
5.08 Attorneys' Fees. In the event of any controversy, claim or dispute
among the parties hereto arising out of or relaxing to this Agreement, or breach
hereof, the prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees, expenses and Costs.
5.09 Covenant. The Company covenants that it shall not exercise its
right to purchase shares of its capital stock from Investors pursuant to any
sale by Investors in connection with any merger
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or exchange described in Section 4.02(a) of the Purchase Agreement or at any
time from and after the effective date of Any Public Offering as that term is
defined in the Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
EXTENDED SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
STOCKHOLDERS
/s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxx X. Xxxxx
-------------------------------
Xxx X. Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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INVESTORS
SUMMIT VENTURES II, L.P.
By: Summit Partners II, L.P.
General Partner
By: Stamps, Xxxxxxx & Co. II
General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
General Partner
SUMMIT INVESTORS II, L.P.
By: /s/ Xxxxxxx X. Xxxx
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General Partner
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EXHIBIT A
LIST OF STOCKHOLDERS
Xxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxx X. Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
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EXHIBIT B
LIST OF INVESTORS
Summit Ventures II, L.P.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Summit Investors II, L.P.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
