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EXHIBIT 10.2
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AGREEMENT, made as of the 9th day of August, 1995, by and among GEOTEL
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company"), those
persons listed on Schedule I hereto as Management Stockholders (each a
"Management Stockholder" and collectively the "Management Stockholders"), Xxxx
X. Xxxxxxxx ("Xxxxxxxx"), those persons listed on Schedule I hereto as Existing
Investors (each an "Existing Investor" and collectively the "Existing
Investors"), and those persons listed on Schedule I hereto as New Investors
(each a "New Investor" and collectively the "New Investors" and with the
Existing Investors, collectively, the "Investors"). The Management Stockholders,
Xxxxxxxx and the Investors are collectively referred to herein as the
"Stockholders".
WHEREAS, the Management Stockholders and Xxxxxxxx own shares of common
stock, $.01 par value per share, of the Company (the "Common Stock");
WHEREAS, the Existing Investors own an aggregate of 3,400,000 shares of
the Company's Series A Convertible Participating Preferred Stock, $.01 par value
per share (the "Series A Preferred Stock") and 2,604,286 shares of the Company's
Series B Convertible Participating Preferred Stock, $.01 par value per share
(the "Series B Preferred Stock");
WHEREAS, certain of the Management Stockholders and certain of the
Existing Investors have previously entered into a Stockholders Agreement dated
as of September 30, 1993, which agreement was amended and restated by the
execution of an Amended and Restated Stockholders Agreement dated as of July 29,
1994 (the "Prior Agreement");
WHEREAS, the New Investors have agreed to acquire an aggregate of
1,712,329 shares of the Company's Series C Convertible Participating Preferred
Stock, $.01 par value per share (the "Series C Preferred Stock"), pursuant to
the terms of a Stock Purchase Agreement dated as of the date hereof among the
Company, the Existing Investors and the New Investors (the "Purchase
Agreement"); and
WHEREAS, it is a condition to the obligations of the New Investors under
the Purchase Agreement that this Agreement be executed by the parties hereto in
order to amend and restate in its entirety the Prior Agreement, and the parties
are willing to execute this Agreement and to be bound by the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below, and the parties' desire to further the interests of the Company and
its present and future stockholders, the parties hereby agree with each other as
follows:
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1. Definition of Shares. As used in this Agreement, "Shares" shall
mean and include all shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Common Stock now owned or hereafter acquired
by the Stockholders.
2. Board of Directors
2.1 Size of Board of Directors. Each Stockholder agrees that it will,
at each meeting of the Company's stockholders held for the purpose of electing
the Board of Directors and at each other taking of action by the stockholders
for such purpose, vote all of its Shares to fix the size of the Company's Board
of Directors at not less than three (3) nor more than five (5) members to be
comprised as set forth in this Agreement.
2.2 Designation of Nominees. The Board of Directors following the
execution and delivery of this Agreement shall be comprised of five (5) members
as follows: (A) so long as 50% of the Shares held by Matrix Partners III, L.P.
("Matrix"), Sigma Partners II, L.P. ("Sigma"), Sigma Associates II, L.P. and
Atlas Venture Fund II, L.P. (collectively the "Original Investors") on the date
hereof remain outstanding, the Original Investors (acting by a majority in
interest) shall have the right to designate two nominees for election as
Directors; provided, that: (i) so long as Matrix shall hold in the aggregate at
least 50% of the Shares held by it on the date hereof, Matrix shall have the
right to designate one (1) nominee for election as a Director; and (ii) so long
as Sigma shall hold in the aggregate at least 50% of the Shares held by it on
the date hereof, Sigma shall have the right to designate one (1) nominee for
election as a Director; (B) so long as the Management Stockholders shall hold in
the aggregate at least 50% of the Shares held by them on the date hereof, the
Management Stockholders (acting by a majority in interest) shall have the right
to designate one (1) nominee for election as a Director; (C) the Chief Executive
Officer of the Company shall have the right to designate one (1) nominee for
election as a Director; and (D) Matrix, Sigma, Atlas Venture Fund II, L.P.
("Atlas"), New Enterprise Associates VI, Limited Partnership ("NEA") and
Fidelity Ventures Limited ("Fidelity") (acting by a majority in interest) shall
have the right to designate one (1) nominee for election as a Director, which
nominee shall not be an affiliate (as such term is defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934) of any Investor and shall
not be an employee of the Company. As of the date hereof, the respective
nominees of the Stockholders shall be as follows: Xxxxxxx Xxxxxxxxx (as the
nominee of Matrix), Xxxxxxx Xxxxxxx (as the nominee of Sigma), G. Xxxxx Xxxxxxx
(as the nominee of the Management Stockholders), Xxxx Xxxxxxxx (as nominee of
the Chief Executive Officer of the Company), and Alexander d'Arbeloff (as the
nominee of the Investors under clause (D) above). At least ten (10) days prior
to any meeting (or written action in lieu of a meeting) of stockholders of the
Company at or by which Directors are to be elected by the holders of Common
Stock, the Management Stockholders and each Investor entitled to designate one
or more Directors shall notify the others in writing of its nominee. In the
absence of any such notification, it shall be presumed that its then incumbent
representative (if any) has been redesignated.
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2.3 Election of Directors. At any and all meetings (including any
written action in lieu of a meeting) of stockholders of the Company at which
Directors are to be elected, each Stockholder shall vote all of its Shares to
elect, as Directors of the Company, the respective representatives designated in
the manner provided in Section 2.2.
2.4 Vacancies. In the event the representative of any Stockholder or
the Chief Executive Officer shall cease to serve as a Director of the Company
for any reason, the person or entity who initially designated such
representative as a nominee for election to the Board of Directors of the
Company shall have the right to designate a successor representative (provided
that the person or entity designating such representative, continues to hold the
requisite percentage of its Shares so as to entitle them or it to designate a
representative pursuant to Section 2.2). The Stockholders shall vote all of
their Shares and otherwise use their best efforts to ensure that the successor
representative of any Stockholder or the Chief Executive Officer, as the case
may be, is duly appointed or elected to the Board of Directors.
2.5 Observer Rights. In addition to any representatives of the
Investors who serve as Directors of the Company, one representative of each of
Atlas and Fidelity shall be entitled to attend and observe all meetings of the
Company's Board of Directors in a non-voting observer capacity and shall be
entitled to receive at least 14 days notice of all such meetings, whenever
possible, and to receive information furnished by the Company to its Directors
as such and copies of the minutes of all meetings, so long as Atlas or Fidelity,
as the case may be, shall hold at least 50% of the Shares held by it on the date
hereof. One representative of NEA shall be entitled to attend and observe all
meetings of the Company's Board of Directors in the manner provided in the
letter dated July 29, 1994 executed by the Company in favor of NEA.
Notwithstanding anything to the contrary contained in this Section 3 or the
letter with NEA, none of Atlas, Fidelity or NEA will be entitled to attend and
observe meetings of the Company's Board or to receive the information or minutes
furnished to the Directors in connection therewith if the Board determines that
a competitive conflict would exist by affording such Stockholder such rights, in
which event such rights will be limited so as to avoid the competitive conflict.
3. Term. This Agreement shall terminate (a) immediately prior to the
consummation of the first firm commitment underwritten public offering of Common
Stock pursuant to an effective registration statement on Form S-1 (or its then
equivalent) under the Securities Act of 1933, as amended, or (b) on the tenth
anniversary of the date of this Agreement, whichever occurs first.
4. Specific Enforcement. Each Stockholder expressly agrees that the
other Stockholders and the Company will be irreparably damaged if this Agreement
is not specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by a Stockholder, the other
Stockholders and the Company, shall, in addition to all other remedies, each be
entitled to a temporary or permanent injunction, without showing any actual
damage, and/or a decree for specific performance, in accordance with the
provisions hereof.
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5. Legend. Each certificate evidencing any of the Shares shall bear
a legend substantially as follows:
"The shares represented by this certificate are subject to the
terms and conditions of a certain Stockholders Agreement dated
as of September 30, 1993, as amended and restated on July 29,
1994 and on August 9, 1995, a copy of which the Company will
furnish to the holder of this certificate upon request and
without charge."
6. Notices. Notices given hereunder shall be deemed to have been duly
given on the date of personal delivery or on the date of postmark if mailed by
certified or registered mail, return receipt requested, to the party being
notified at his or its address specified on Schedule I hereto or such other
address as the addressee may subsequently notify the other parties of in
writing.
7. Entire Agreement and Amendments. This Agreement amends and
restates in its entirety the Prior Agreement and supersedes the Prior Agreement.
This Agreement constitutes the entire agreement of the parties with respect to
the subject matter hereof and neither this Agreement nor any provision hereof
may be waived, modified, amended or terminated except by a written agreement
signed by the parties hereto; provided, however, that Investors owning at least
a majority of the Shares owned by all Investors may effect any such waiver,
modification, amendment or termination on behalf of all the Investors and,
provided, further, that Management Stockholders owning at least a majority of
the Shares owned by all Management Stockholders may effect any such waiver,
modification, amendment or termination on behalf of all the Management
Stockholders. This Agreement is the sole agreement to which the Management
Stockholders are parties regarding the subject matter hereof and supersedes any
prior agreements between the Management Stockholders and the Company as to such
subject matter.
8. Governing Law; Successors and Assigns. This Agreement shall be
governed by the laws of the State of Delaware and shall bind and inure to the
benefit of the heirs, personal representatives, executors, administrators,
successors and assigns of the parties. Without limiting the generality of the
foregoing, all covenants and agreements benefiting the Investors shall bind and
inure to the benefit of any and all subsequent holders from time to time of the
Shares, except to the extent otherwise provided in this Agreement.
9. Waivers. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
10. Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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11. Captions. Captions are for convenience only and are not deemed to
be part of this Agreement.
12. Counterparts. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
* * * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
GEOTEL COMMUNICATIONS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Title: President
[Corporate Seal]
Attest:
_________________ ____________________
Secretary Xxxx X. Xxxxxxxx
MANAGEMENT STOCKHOLDERS:
/s/ G. Xxxxx Xxxxxxx
---------------------------------
G. Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
PERSONS SIGNING IN THEIR CAPACITY AS
BOTH EXISTING INVESTORS AND NEW
INVESTORS:
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NEW ENTERPRISE ASSOCIATES VI,
LIMITED PARTNERSHIP
By: NEA Partners VI,
Limited Partnership
By: /s/ Xxxxx X. Xxxxxx
-----------------------
General Partner
MATRIX PARTNERS III, L.P.
By: /s/ W. Xxxxxxx Xxxxxxxxx
------------------------
General Partner
SIGMA PARTNERS II, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
General Partner
SIGMA ASSOCIATES II, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
General Partner
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II, L.P.
By: /s/ Xxxxx Xxxxxxxx
-------------------------
General Partner
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/s/ Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
/s/ Alexander d'Arbeloff
------------------------------------
Alexander d'Arbeloff
PERSONS SIGNING IN THEIR CAPACITY AS
NEW INVESTORS ONLY:
FIDELITY VENTURES LTD.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
PERSONS SIGNING IN THEIR CAPACITY
AS EXISTING INVESTORS ONLY:
ASPECT TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
/s/ G. Xxxxx Xxxxxxx
----------------------------------
G. Xxxxx Xxxxxxx
/s/ Xxxx X. Xxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
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SCHEDULE I
I. COMPANY
Geotel Communications Corporation
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: President
II. MANAGEMENT STOCKHOLDERS
G. Xxxxx Xxxxxxx
00 Xxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
III. XXXX XXXXXXXX
Xxxx Xxxxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
IV. EXISTING INVESTORS
Matrix Partners III, L.P.
c/o Matrix III Management Company
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Sigma Partners II, L.P.
000 Xxxxxxxxxx Xxxxxx, Xx. 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Atlas Venture Fund II, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
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Aspect Telecommunications, Inc.
0000 Xxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Xxxxxx Xxxx
0 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx, Xx.
00 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
V. NEW INVESTORS
Fidelity Ventures Limited
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxx
New Enterprise Associates VI, Limited Partnership
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Matrix Partners III, L.P.
c/o Matrix III Management Company
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Sigma Partners II, L.P.
000 Xxxxxxxxxx Xxxxxx, Xx. 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Atlas Venture Fund II, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Xxxxxx Xxxx
0 Xxxxx Xxxxx
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Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx, Xx.
00 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Alexander d'Arbeloff
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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