EXHIBIT 10.4
TENFOLD CORPORATION
FIRST AMENDED AND RESTATED VOTING AGREEMENT
-------------------------------------------
This First Amended and Restated Voting Agreement (the "Agreement") is
---------
effective as of the 4th day of March, 1997, by and among TenFold Corporation, a
Delaware corporation (the "Company"), Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx"), the
------- ----------
Xxxxxx Children's Trust (the "Trust") and Xxxx X. Xxxxxxx ("Xx. Xxxxxxx").
----- -----------
RECITALS
--------
The Company, Xx. Xxxxxx and Xx. Xxxxxxx had previously entered into an
agreement effective September 1, 1996 (the "Initial Agreement") setting forth
-----------------
the terms and conditions pursuant to which Xx. Xxxxxxx and Xx. Xxxxxx would vote
their shares of the Company's Common Stock on all matters on which the holders
of the Company's Common Stock are entitled to vote. The Company, Xx. Xxxxxx and
Xx. Xxxxxxx hereby desire to amend and restate such agreement to make the Trust
a party thereto, and the Trust hereby desires to become a party to such voting
agreement.
AGREEMENT
---------
The parties hereby agree as follows:
1. VOTING POWER. So long as Xx. Xxxxxxx is employed by the Company as the
------------
Company's President and Chief Executive Officer, on all matters on which the
holders of the Company's Common Stock are entitled to vote, (i) the Trust agrees
to vote all of the shares of the Company's Common Stock then held of record by
the Trust as directed by Xx. Xxxxxxx, and (ii) Xx. Xxxxxxx shall have the power
to vote that number of shares of the Company's Common Stock then held of record
by Xx. Xxxxxx that, when combined with the number of shares of the Company's
Common Stock then held of record by Xx. Xxxxxxx and his Controlled Affiliates
(as hereinafter defined) and the Trust, equals fifty percent (50%) of the
aggregate number of shares of the Company's Common Stock over which Xx. Xxxxxxx
and his Controlled Affiliates, Xx. Xxxxxx and his Controlled Affiliates and the
Trust have the power to vote. As used herein with respect to any person,
"Controlled Affiliate" means any member of such person's immediate family
(including, without limitation, his spouse, children, parents and siblings) and
any other person or entity which, directly or indirectly, is at any time
controlled by such person, but does not mean any officer of the Company. For
purposes of this definition, "control" of a person or entity means the power,
whether by contact or otherwise, to direct or cause the direction of the voting
of the shares of the Company's Common Stock held by such person.
2. MANNER OF VOTING. In connection with all matters on which the holders
-----------------
of the Company's Common Stock are entitled to vote, each of Xx. Xxxxxx, the
Trust and Xx. Xxxxxxx (each a "Party" and, collectively, the "Parties") agrees
to inform each of the other Parties in writing at least 24 hours before casting
its vote or taking action by written consent in which such Party intends to vote
or act by written consent. In the event that the Parties intend to vote (or act
by written consent) differently on any such matter on which the holders of the
Company's Common Stock are entitled to vote (or act by written consent), the
Parties agree to vote their shares of Common Stock (or act) in a manner
consistent with the recommendation of the Company's Board of Directors.
3. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
-----------
consummation of the Company's initial public offering on a firm underwriting
basis of any of its securities, (b) September 1, 2006 or (c) such date as Xx.
Xxxxxxx ceases to be employed by the Company as the Company's Chief Executive
Officer.
4. AMENDMENTS; WAIVERS. Any term hereof may only be amended or waived
-------------------
with the written consent of each of the Company Xx. Xxxxxx, Xx. Xxxxxxx and the
Trust. Any amendment or waiver effected in accordance with this Section 4 shall
be binding upon the Company, Xx. Xxxxxx, Xx. Xxxxxxx, the Trust and each of
their respective successors and assigns.
5. NOTICES. Any notice required or permitted by this Agreement shall be
-------
in writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address as set forth below, or as subsequently modified by
written notice.
6. SEVERABILITY. If any term or provision of this Agreement or the
------------
application thereof to any circumstance shall, in any jurisdiction and to any
extent, be invalid or unenforceable, such term or provision shall be ineffective
as to such jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining terms and
provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable,
and a suitable and equitable term or provision shall be substituted therefor to
carry out, insofar as may be valid and enforceable, the intent and purpose of
the invalid or unenforceable term or provision.
7. GOVERNING LAW. This Agreement and all acts and transactions pursuant
-------------
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law.
8. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument. This Agreement supersedes in its
entirety the Initial Agreement and represents the entire agreement and
understanding between the parties as to the subject matter hereof.
-2-
9. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
----------------------
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
[Signature Pages Follow]
-3-
By signing below, the parties hereto hereby agree that this Voting
Agreement shall be effective as of the date first written above.
COMPANY:
TENFOLD CORPORATION
By:
-------------------
Name: Xxxx X. Xxxxxxx
---------------
Title: President
---------
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDED AND RESTATED VOTING AGREEMENT
---------------------
Xxxxxxx X. Xxxxxx
Address: X.X. Xxx 0000
00 Xxxx Xxxx
Xxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDED AND RESTATED VOTING AGREEMENT
-------------------
Xxxx X. Xxxxxxx
Address: 0000 Xxxxx Xxxxxxxxxxxx Xxxxx
Xxxxx, XX 00000
SIGNATURE PAGE TO FIRST AMENDED AND RESTATED VOTING AGREEMENT
FOUNDERS:
THE XXXXXX CHILDREN'S TRUST
By:
-----------------
Name:
Title: Trustee
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
-7-
