EXHIBIT 10.15
SUPPLEMENTAL SHAREHOLDERS AGREEMENT
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THIS SUPPLEMENTAL SHAREHOLDERS AGREEMENT (the "Agreement") is made and
entered into as of the 11th day of April, 2000 by and among DeskTalk Systems,
Inc., a California corporation (the "Company"), the parties whose names are set
forth on Schedule I (individually, an "Investor" and collectively, the
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"Investors"), certain shareholders as set forth on Schedule II (individually, a
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"Management Shareholder" and collectively, the "Management Shareholders") and
Geocapital IV, L.P. (the "Other Shareholder").
WHEREAS, the Investors are acquiring on the date hereof shares of Series D
Preferred Stock, no par value per share, of the Company pursuant to the terms of
the Series D Preferred Stock Purchase Agreement of even date herewith between
the Company and the Investors (the "Series D Preferred Stock Purchase
Agreement");
WHEREAS, the Management Shareholders, the Other Shareholder and the
Investors desire to enter into this Agreement for the purposes of (i) limiting
the manner and terms by which the shares held by the Management Shareholders may
be transferred; and (ii) stipulating events the occurrence of which will require
the Management Shareholders, the Other Shareholder and the Investors to vote
their shares in the same manner as certain other shareholders;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, agreements, representations and warranties contained in this
Agreement, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Retention of Management Shares. Unless otherwise approved in writing
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by a majority of the holders of the Series D Preferred Shares, no Management
Shareholder shall sell, exchange, transfer or otherwise dispose (a "Transfer")
of any interest in his shares (the "Management Shares") prior to April 10, 2002,
except: (i) pursuant to a Qualified Public Offering (as defined in the First
Amended and Restated Shareholders Agreement of even date herewith by and among
the Company and certain shareholders of the Company (the "Shareholders
Agreement"); (ii) pursuant to an Approved Sale (defined below) of the Company;
(iii) subsequent to termination of a Management Shareholder without Cause (as
defined below); (iv) to the extent necessary to fund payment of a post-
termination option exercise and any taxes related thereto; or (v) pursuant to a
Change of Control (as defined below) ; provided, however, that nothing in this
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paragraph shall prohibit any Management Shareholder from transferring Management
Shares pursuant to a transaction described in Section 2.4 of the Shareholders
Agreement.
"Cause" means (a) with respect to any Management Shareholder with an
employment agreement that defines "Cause," the definition set forth in such
employment agreement and (b) with respect to any other Management Shareholder,
(i) such Management Shareholder's (1) willful failure to timely comply in all
material respects with the lawful directives of the Company's Board of Directors
(the "Board") (as set at a meeting of the Board in accordance with the Company's
bylaws) or such Management Shareholder's supervisory personnel (provided
such directives are consistent with such Management Shareholder's position with
the Company) or (2) gross negligence or willful misconduct in the performance of
the material duties or responsibilities of his or her position with the Company
or any subsidiary; (ii) reasonable evidence to indicate that such Management
Shareholder has committed (1) any felony, (2) any other criminal act or act of
material dishonesty, disloyalty, or misconduct (other than minor traffic
offenses and similar acts) or (3) any act of moral turpitude that is materially
injurious to the property, operations, business or reputation of the Company or
its subsidiaries (as determined by the Board in its reasonable good faith
discretion); (iii) the use or imparting by such Management Shareholder of any
material confidential or proprietary information of the Company or any
subsidiary in violation of any confidentiality or proprietary agreement to which
such Management Shareholder is a party; or (iv) such Management Shareholder's
willful failure to comply in any material respect with the terms of any option
plans of the Company or the Shareholders Agreement.
2. Sale of the Company/Change of Control.
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(a) Subject to the provisions of Section 6(xii) of the Company's
Second Amended and Restated Articles of Incorporation, if at any time prior to
an Initial Public Offering, a majority of the holders of each of the Series B
and D Preferred Shares (the "Majority Sellers"), approve a sale of all or
substantially all of the Company's assets determined on a consolidated basis or
a sale of more than 50% of the Company's outstanding capital stock (whether by
merger, recapitalization, consolidation, reorganization, combination or
otherwise) (collectively, an "Approved Sale") to any person or entity which is
not, and following such sale will not be, affiliated with any such Majority
Sellers, the Management Shareholders, the Investors and the Other Shareholders
shall vote for, consent to and raise no objections against such Approved Sale.
If the Approved Sale is structured as (i) a merger or consolidation, such other
Management Shareholders, Investors, and Other Shareholders shall waive any
dissenter's rights, appraisal rights or similar rights in connection with such
merger or consolidation or (ii) a sale of stock, such other Management
Shareholders and Investors shall agree to sell all of their Shares and rights to
acquire Shares on the terms and conditions approved by, and applicable to the
Shares held by, the Majority Sellers. Such other Management Shareholders,
Investors and Other Shareholders shall take all necessary or desirable action,
as requested by the Majority Sellers, to cause the consummation of the Approved
Sale on the terms proposed by the Majority Sellers.
(b) A "Change in Control" will be deemed to have taken place when one
of the following occurs:
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(i) any person or group of related or affiliated persons shall
have become the beneficial owner or owners of 51% or more of the
outstanding voting stock of the Corporation; or
(ii) there shall have occurred a merger or consolidation in which
the Corporation is not the survivor or in which holders of the common stock
of the Corporation shall have become entitled to receive cash, securities
of the Corporation other than voting common stock or securities of any
other person.
3. Failed Redemption; Default of Indebtedness.
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(a) In the event of a failure by the Company for more than one year to
redeem the Investors' Shares as required in the Company's Second Amended and
Restated Articles of Incorporation, the Management Shareholders shall agree to
vote their Management Shares in the same manner as that of two thirds of the
aggregate holders of the Series B, C, and D Preferred Shares (as defined in the
Shareholders Agreement) until the required redemption is effected.
(b) In the event of a material default by the Company on any of its
Indebtedness (as defined in the Series D Preferred Stock Purchase Agreement)
exceeding $1,000,000 in value, the Management Shareholders shall, if the Company
is unable within a three-month period to cure the default, agree to vote their
Management Shares in the same manner as that of two thirds of the aggregate
holders of the Series B, C, and D Preferred Shares until the default is cured.
4. Transfers in Violation of Agreement. Any Transfer or attempted
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Transfer of any Management Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Management Shares as the owner
of such shares for any purpose.
5. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
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jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
6. Entire Agreement. Except as otherwise expressly set forth herein,
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this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
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preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
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7. Successors and Assigns. Except as otherwise provided herein, this
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Agreement shall bind and inure to the benefit of and be enforceable by the
Company, the Investors, the Management Shareholders, and the Other Shareholder
and the respective successors and assigns of each of them (other than a
transferee of Management Shares in a transaction permitted by Section 1 hereof).
8. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
9. Remedies. The Company, the Investors and the Management Shareholders
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shall be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that money damages would not be an adequate remedy for any
breach of the provisions of this Agreement and that the Company, any Investor
and any Management Shareholder may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
10. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
holder of Management Shares subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices shall be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11. Governing Law. This Agreement shall be construed in accordance with
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and governed by the laws of the State of California without giving effect to any
choice of law or conflict of law rules.
12. Descriptive Headings. The descriptive headings of this Agreement are
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inserted for convenience only and do not constitute a part of this Agreement.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
"COMPANY"
DESKTALK SYSTEMS, INC., a California
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
"MANAGEMENT SHAREHOLDERS"
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
"INVESTORS"
DTALK ACQUISITION CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
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SIGNAL EQUITY PARTNERS, L.P.
By: Signal Equity Advisors, L.P.,
its General Partner
By: Signal Equity Advisors, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Its: VP
"OTHER SHAREHOLDER"
GEOCAPITAL IV, L.P.
By: GEOCAPITAL IV MANAGEMENT, L.P.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
General Partner
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SCHEDULE I
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INVESTORS
DTalk Acquisition Corp.
c/o The Bear ▇▇▇▇▇▇▇ Companies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Signal Equity Partners, L.P.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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SCHEDULE II
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MANAGEMENT SHAREHOLDERS
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C/O Desktalk Systems, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. 90502
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C/O Desktalk Systems, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor
Torrance, CA. 90502
▇▇▇▇▇▇ ▇. ▇▇▇▇
C/O Desktalk Systems, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. 90502
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