EXHIBIT 10.16
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VOTING AGREEMENT
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AGREEMENT dated as of March 15, 1996, among Peritus Software Services,
Inc., a Massachusetts corporation (the "Company") and the persons listed as
Purchasers in the signature pages hereto (collectively, the "Purchasers" and
individually, a "Purchaser").
WHEREAS, on the date hereof the Purchasers are purchasing from the Company
shares of its Series A Convertible Preferred Stock (the "Series A Preferred")
and shares of its Class A Common Stock pursuant to the terms of a Series A
Convertible Preferred Stock and Class A Common Stock Purchase Agreement dated
the date hereof between the Company, and the Purchasers and certain other
parties (the "Purchase Agreement"); and
WHEREAS, the Purchasers wish to make certain provisions for the voting of
their Shares (as defined below); and
WHEREAS, the purchases by the Purchasers will benefit the Company; and
WHEREAS, it is a condition to the obligations of the Purchasers 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;
NOW, THEREFORE, in consideration of the premises, the agreements set forth
below, and the parties' desire to further the interests of the Company and its
present and future Purchasers, the parties agree as follows:
1. Definition. As used in this Agreement, the term "Shares" means all
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shares of Series A Preferred (i) now or hereafter owned (either beneficially or
of record) by a Purchaser, and (ii) which a Purchaser does not own (either
beneficially or of record) but as to which it now or hereafter has the right to
exercise voting control.
2. Designation of Nominees. Each of Matrix Partners IV, L.P. and
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Greylock Equity Limited Partnership (together, the "Nominating Purchasers" and
individually, a "Nominating Purchaser") shall have the right to designate a
nominee for election as one of the directors of the Company who shall be elected
solely by the holders of the Series A Preferred, voting separately as a series
(together, the "Nominees" and individually, a "Nominee"). At least 10 days
prior to any meeting (or written action in lieu of a meeting) of Purchasers of
the Company at or by which directors are to be elected by the holders of Series
A Preferred, voting separately as a series, each Nominating Purchaser shall
notify the other Purchasers in writing of the Nominee designated by such
Nominating Purchaser for election as a director. In the absence of any such
notification, it shall be presumed that the Nominating Purchaser's then
incumbent Nominee has been redesignated as its Nominee. The initial Nominees of
Matrix Partners IV, L.P. and Greylock Equity Limited Partnership are W. Xxxxxxx
Xxxxxxxxx and Xxxxx X. XxXxxxx, respectively.
3. Election of Directors. At each meeting (or written action in lieu of
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a meeting) of Purchasers of the Company at or by which directors are to be
elected by the holders of the Series A Preferred, voting separately as a series,
each Purchaser shall vote all of its Shares to elect, as directors of the
Company, the Nominees designated in the manner provided in Section 2.
4. Successor Directors. If a Nominee shall cease to serve as a director
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for any reason, the Nominating Purchaser which designated such Nominee shall
have the right to designate a successor Nominee and each of the other Purchasers
shall use its best efforts to ensure that such successor Nominee is duly elected
as a director. If a Nominating Purchaser notifies the other Purchasers that it
desires to remove its Nominee as a director, each of the other Purchasers shall
use its best efforts to ensure that such Nominee is duly removed as a director.
If a Nominating Purchaser notifies the Company that it desires to remove its
Nominee as a director and/or designate a successor Nominee, the Company shall,
at the request of such Nominating Purchaser, use its best efforts to ensure that
a meeting of Purchasers of the Company is promptly called for such purpose.
5. Term. This Agreement shall continue until the earlier of (i) such
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time as either Nominating Purchaser no longer holds at least 476,000 shares of
Series A Preferred or (ii) the tenth anniversary of the date of this Agreement.
6. Specific Enforcement. Each Purchaser and the Company expressly agrees
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that the Purchaser 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 Purchaser or the Company, the
other Purchasers shall, in addition to all other remedies, 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.
7. Legend. Each certificate evidencing Shares shall bear a legend
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substantially as follows:
"The shares represented by this certificate are subject to the
terms and conditions of a certain Voting Agreement dated as of
March 15, 1996, a copy of which the Company will furnish to
the holder of this certificate upon request and without
charge."
8. Notices. All notices or other communications given hereunder shall be
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in writing and shall be deemed effective upon delivery at the address of the
party to be notified and shall be mailed by certified or registered mail, return
receipt requested, delivered by courier, telecopied, or sent by other facsimile
method (notices by telecopy or facsimile must be confirmed by next day courier
delivery to be effective), addressed to such address specified in the Purchase
Agreement, or such other address as the addressee may provide the other parties
of in writing.such address as such party may notify the other parties of in
writing.
9. Entire Agreement and Amendments. This Agreement constitutes the
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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 Company, each of the Nominating Purchasers,
and Purchasers owning at least two-thirds of the Shares owned by all
Purchasers.
10. Governing Law; Successors and Assigns. This Agreement shall be
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governed by the laws of the Commonwealth of Massachusetts 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 of the Purchasers
shall bind any and all subsequent holders of their Shares, and the Company
agrees that it shall not transfer on its records any such Shares unless (i) the
transferor Purchaser shall have first delivered to the Company and the other
Purchasers the written agreement of the transferee to be bound by this Agreement
to the same extent as if such transferee had originally been a Purchaser
hereunder and (ii) the certificate or certificates evidencing the Shares so
transferred bear the legend specified in Section 7.
11. Captions. Captions are for convenience only and are not deemed to be
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part of this Agreement.
12. Counterparts. This Agreement may be executed in two or more
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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.
COMPANY:
PERITUS SOFTWARE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Title:
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Address: 000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
PURCHASERS:
MATRIX PARTNERS IV, L.P.
By: /s/ W. Xxxxxxx Xxxxxxxxx
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Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV Management Co., L.P.,
the General Partner of Matrix Partners IV, L.P.
MATRIX IV ENTREPRENEURS FUND, L.P.
By: /s/ W. Xxxxxxx Xxxxxxxxx
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Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV Management Co., L.P.,
the General Partner of Matrix IV Entrepreneurs
Fund, L.P.
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited Partnership
By: /s/ Xxxxx XxXxxxx
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General Partner
MASSACHUSETTS CAPITAL RESOURCE COMPANY
By:/s/Xxx Xxxxxx III
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Title:
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