EXHIBIT 10.11
TOP TIER SOFTWARE, INC.
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AMENDED AND RESTATED VOTING AGREEMENT
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July 11, 2000
AMENDED AND RESTATED VOTING AGREEMENT
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THIS AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement"), by and
among Top Tier Software, Inc., a Delaware corporation (the "Company"), the
purchasers of the Company's Series A Preferred Stock, the purchasers of the
Company's Series B Preferred Stock, the purchasers of the Company's Series C
Preferred Stock, certain purchasers of the Company's Series D Preferred Stock,
the purchasers of the Company's Series E Preferred Stock (the "Series E
Purchasers") (collectively, the "Investors") is entered into on this 11 day of
July, 2000.
RECITALS
A. Each of the Investors is the owner of the number of shares of the
Company's capital stock set forth beneath such Investor's name on the signature
page hereto.
B. Pursuant to the Voting Agreement, dated October 27, 1999, by and
among the Company and the Investors listed on the signature page thereto (the
"Prior Agreement"), the holders of the Company's Preferred Stock agreed to vote
their respective shares so as to elect to the Company's Board of Directors (i)
two (2) directors designated by the holders of the Series A Preferred Stock,
(ii) two (2) directors designated by the holders of the Series B Preferred Stock
and Series C Preferred Stock, voting together as a single class, and (iii) one
(1) director designated by the holders of the Series D Preferred Stock, with any
remaining directors to be elected by the holders of a majority of the
outstanding shares of Common Stock and Preferred Stock, voting together as a
single class.
C. Section 20 of the Prior Agreement provides that the written
consent of the Company and a majority of the outstanding shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock, each series voting separately as a class, is required to amend
the Prior Agreement.
D. The Company and the Series E Purchasers are entering into a
Series E Preferred Stock Purchase Agreement of even date herewith (the "Purchase
Agreement").
E. The Company and certain holders who together hold not less than a
majority of the outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock now
desire to amend and restate the Prior Agreement in its entirety as set forth
below to add the Series E Purchasers as parties thereto and to make certain
other changes.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Agreement to Vote. Each of the Investors agree to vote or act
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with respect to their shares now or hereafter acquired by it and any other
voting securities of the Company over which such Investor has voting control at
a regular or special meeting of stockholders (or by written consent) in
accordance with the provisions of this Agreement.
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2. Board Size. Each of the Investors agree to vote or act with
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respect to their shares now or hereafter acquired by it and any other voting
securities of the Company over which such Investor has voting control at a
regular or special meeting of stockholders to ensure that the size of the
Company's Board of Directors shall be set and remain at seven (7) directors.
3. Election of the Series A Directors. On all matters relating to
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the election of the directors designated by the holders of the Series A
Preferred Stock (the "Series A Directors"), each of the Investors shall vote at
a regular or special meeting of stockholders (or by written consent) all of
their shares of capital stock to ensure that the Series A Directors shall be
elected to the Board of Directors and the Series A Directors shall be the
persons designated by the holders of a majority in interest of all of the shares
of Series A Preferred Stock held by the Investors, and who initially shall be
Xxxx Xxxxxx and Xxxxx Xxxxxxxxx.
4. Election of Series B and Series C Directors. On all matters
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relating to the election of the directors designated by the holders of the
Series B Preferred Stock and Series C Preferred Stock, voting together as a
single class (the "Series B and Series C Directors"), each of the Investors
shall vote at a regular or special meeting of stockholders (or by written
consent) all of their shares of capital stock to ensure that the Series B and
Series C Directors shall be elected to the Board of Directors and the Series B
and Series C Directors shall be the person designated by the holders of a
majority in interest of all of the shares of Series B Preferred Stock and Series
C Preferred Stock held by the Investors, and who initially shall be Jan Baan and
Xxxx Baan.
5. Election of Series D Director. On all matters relating to the
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election of the director designated by the holders of the Series D Preferred
Stock (the "Series D Director"), each of the Investors shall vote at a regular
or special meeting of stockholders (or by written consent) all of their shares
of capital stock to ensure that the Series D Director shall be elected to the
Board of Directors and the Series D Director shall be a person designated by the
holders of a majority in interest of all the shares of Series D Preferred Stock
held by the Investors, and who initially shall be Xxxxxx Xxxxxxx.
6. Removal of the Series A Director. On all matters relating to the
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removal of the Series A Directors, each of the Investors shall vote at a regular
or special meeting of stockholders (or by written consent) all of their shares
of capital stock to ensure that any Series A Directors selected by holders of a
majority in interest of all of the shares of Series A Preferred Stock held by
the Investors for removal as the Series A Directors shall be so removed. Any
such vacancy created by such removal shall be filled pursuant to paragraph 3
herein.
7. Removal of Series B and C Directors. On all matters relating to
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the removal of the Series B and Series C Directors, each of the Investors shall
vote at a regular or special meeting of stockholders (or by written consent) all
of their shares of capital stock to ensure that the Series B and Series C
Directors selected by the holders of a majority in interest of all of the shares
of Series B Preferred Stock and Series C Preferred Stock held by the Investor in
the aggregate for removal as the Series B and Series C Directors shall be so
removed. Any such vacancy created by such removal shall be filled pursuant to
paragraph 4 herein.
8. Removal of Series D Director. On all matters relating to the
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removal of the Series D Director, each of the Investors shall vote at a regular
or special meeting of stockholders (or by
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written consent) all of their shares of capital stock to ensure that the Series
D Director selected by the holders of a majority in interest of all the shares
of Series D Preferred Stock for removal as the Series D Director shall be so
removed. Any such vacancy created by such removal shall be filled pursuant to
paragraph 5 herein.
9. Election and Removal of the Remaining Director. On all matters
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relating to the election of the remaining director, such remaining director
shall be elected only by the vote of holders of a majority of the outstanding
shares of Common Stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
(voting together as a single class). On all matters relating to the removal of
the remaining director, the remaining director shall be removed if the Series A
Directors, the Series B and Series C Directors and the Series D Director
unanimously approve the removal of the remaining director. Any vacancy created
by such removal shall be filled pursuant to the first sentence of this paragraph
9.
10. Covenants of the Company. The Company agrees to use its best
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efforts to ensure that the rights granted hereunder are effective and that the
parties hereto enjoy the benefits thereof. Such actions include, without
limitation, the use of the Company's best efforts to cause the nomination and
election of the directors as provided above. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all of the provisions of this Agreement
and in the taking of all such actions as may be necessary, appropriate or
reasonably requested by the holders of a majority of the outstanding voting
securities held by the parties hereto assuming conversion of all outstanding
securities, in order to protect the rights of the parties hereunder against
impairment.
11. No Liability for Election of Recommended Directors. Neither the
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Company nor the Investors, nor any officer, director, stockholder, partner,
employee or agent of such party, if any, makes any representation or warranty as
to the fitness or competence of the nominee of any party hereunder to serve on
the Company's Board by virtue of such party's execution of this Agreement or by
the act of such party in voting for such nominee pursuant to this Agreement.
12. Grant of Proxy. Should the provisions of this Agreement be
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construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and are irrevocable for the term of this Agreement.
13. Specific Enforcement. It is agreed and understood that monetary
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damages would not adequately compensate an injured party for the breach of this
Agreement by any party, that this Agreement shall be specifically enforceable,
and that any breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
14. Successors in Interest.
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(a) The provisions of this Agreement shall be binding upon the
successors in interest to any of securities of the Company held by any party to
this Agreement and their
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successors and assigns. The Company shall not permit the transfer of any of the
securities on its books or issue new certificates representing any such
securities unless and until the person(s) to whom such shares are to be
transferred shall have executed a written agreement, substantially in the form
of this Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if such person
was a party hereunder.
(b) Each certificate representing each of the securities shall bear a
legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS OF A VOTING
AGREEMENT (A COPY OF WHICH MAY BE OBTAINED WITHOUT CHARGE FROM THE
COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON
ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL THE PROVISIONS OF THE VOTING AGREEMENT. "
15. Execution by the Company. The Company, by its execution in the space
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provided below, agrees that it will cause the certificates evidencing the shares
of capital stock subject to this Agreement to bear the legend required by
Section 14 herein, and it shall supply, free of charge, a copy of this Agreement
to any holder of a certificate evidencing shares of capital stock of the Company
upon written request from such holder to the Company at its principal office.
The parties hereto do hereby agree that the failure to cause the certificates
evidencing the shares of capital stock subject to this Agreement to bear the
legend required by Section 14 herein and/or failure of the Company to supply,
free of charge, a copy of this Agreement as provided under Section 14 shall not
effect the validity or enforcement of this Agreement.
16. Termination. This Agreement shall terminate upon the earlier of:
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(a) the date the Company consummates a sale of its Common Stock in a
firm commitment underwritten public offering pursuant to a registration
statement under the Securities Act of 1933, as amended, at an aggregate offering
price of $20,000,000; or
(b) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation) that results in the transfer of
fifty percent (50%) or more of the outstanding voting power of the Company or a
sale of all or substantially all of the assets of the Company.
17. Captions. The captions, headings and arrangements used in this
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Agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
18. Manner of Voting. The voting of shares pursuant to this Agreement may
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be effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
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19. Stock Splits, Stock Dividends, etc. In the event of any issuance of
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shares of the Company's voting securities hereafter to any of the parties hereto
(including, without limitation, in connection with any stock split, stock
dividend, recapitalization, reorganization, or the like), such shares shall
become subject to this Agreement and shall be endorsed with the legend set forth
in Section 14.
20. Amendments and Waivers. Any term hereof may be amended and the
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observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of (a) the Company; (b) the Investors and their respective successors
and assigns, holding at least a majority of the shares of Series A Preferred
Stock; (b) the Investors and their respective successors and assigns, holding at
least a majority of the shares of Series B Preferred Stock; (c) the Investors
and their respective successors and assigns, holding at least a majority of the
shares of Series C Preferred Stock; (d) the Investors and their respective
successors and assigns, holding at least a majority of the shares of Series D
Preferred Stock; and (e) the Investors and their respective successors and
assigns, holding at least a majority of the shares of Series E Preferred Stock.
Any amendment or waiver so effected shall be binding upon the Company, each such
class of Investors, and all of their respective successors and assigns whether
or not such party, assignee or other stockholder entered into or approved such
amendment or waiver.
21. Entire Agreement. This Agreement is intended to be the sole agreement
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of the parties as it relates to this subject matter.
22. Enforceability/Severability. The parties hereto agree that each
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provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of this Agreement
shall nevertheless be held to be prohibited by or invalid under applicable law,
(a) such provision shall be invalid only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, and (b) the parties shall, to the extent
permissible by applicable law, amend this Agreement, so as to make effective and
enforceable the intent of this Agreement.
23. Governing Law. This Agreement shall be governed by and construed
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under the laws of the State of California as applied to contracts among
California residents entered into and to be performed entirely within
California.
24. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
25. Successors and Assigns. The provisions hereof shall inure to the
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benefit of, and be binding upon, the successors and assigns of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year hereinabove first written.
COMPANY INVESTORS
TOP TIER SOFTWARE, INC. VITRIA TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxx By: /s/ XxXxx Xxxxx
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Name: Xxxx Xxxxxx
Its: President Name: XxXxx Xxxxx
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Its: President and CEO
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AZURE CAPITAL PARTNERS
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: Managing Partner
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BLUEVECTOR, LLC, a Delaware limited
liability company
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
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Its: Managing Partner
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KINGDON CAPITAL MANAGEMENT
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx X. Xxxxx
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Its: General Partner
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/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
318,747 shares of Series A
Preferred Stock
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
126,246 shares of Series A
Preferred Stock
QUICKSOFT LTD.
318,747 shares of Series A
Preferred Stock
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Its: Vice Chairman
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VCM1
6,709,264 shares of Series B Preferred
Stock
10,500,000 shares of Series C
Preferred Stock
By: /s/ Jan Baan
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Name: Jan Baan
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Its: CEO
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XXXXXX XX
1,458,032 shares of Series D
Preferred Stock
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Its: CEO
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[Signature Page to Amended and Restated Voting Agreement]
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