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EXHIBIT 4.2
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
January 12, 1996 (the "Effective Date") by and among Award Software
International, Inc., a California corporation (the "Company"), Vobis
Microcomputer AG, a company organized under the laws of the Federal Republic of
Germany (the "Investor"), and the parties listed on Exhibit A attached hereto
(the "Shareholders"). The Investor and the Shareholders are sometimes
hereinafter collectively referred to herein as the "Holders".
RECITALS
WHEREAS, concurrently herewith, the Investor is purchasing from the
Company shares of its Common Stock and a warrant to purchase its Common Stock
(collectively, the "Securities") pursuant to a Securities Purchase Agreement
dated of even date herewith between the Company and the Investor (the "Purchase
Agreement");
WHEREAS, as an inducement to Vobis to purchase the Securities pursuant
to the Purchase Agreement, the Investor, the Shareholders and the Company desire
to enter into this Agreement to set forth their agreements and understandings
with respect to how shares of the Company's capital stock held by them will be
voted on certain matters;
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. Size of Board of Directors. During the term of this Agreement,
each Holder agrees to vote all shares of capital stock of the Company now or
hereafter directly or indirectly owned (of record or beneficially) by such
Holder to maintain the authorized number of members of the Board of Directors of
the Company (the "Board") at no less than five (5) directors, and to oppose any
effort by any party to change the authorized number of directors of the Company
to less than five (5) directors. In addition, the Company agrees to maintain the
authorized number of members of the Board at no less than five (5) directors.
2. Election of Board of Directors.
2..1 Voting; Board Composition. During the term of this
Agreement, each Holder agrees to vote all shares of capital stock of the Company
now or hereafter directly or indirectly owned (of record or beneficially) by
such Holder, in such manner as may be necessary to elect (and maintain in
office) as a members of the Board an individual designated by the Investor who
is reasonably agreeable to the Company (the "Investor Designee").
2.2 Initial Board Members. As of the Effective Date, the
initial Vobis Designee shall be Xxxx Xxxxxx.
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2.3 Changes in Board Designees. From time to time during
the term of this Agreement, the Investor may, in its sole discretion;
(a) elect to remove from the Board any incumbent
Investor Designee who occupies a Board seat for which the Investor is entitled
to designate the Investor Designee under Section 2.1; and/or
(b) designate a new Investor Designee for election
to a Board seat for which the Investor is entitled to designate the Investor
Designee under Section 2.1 (whether to replace a prior Investor Designee or to
fill a vacancy in such Board seat); provided such removal and/or designation of
the Investor Designee is approved in a writing signed by the Investor, in which
case such election to remove the Investor Designee and/or elect a new Investor
Designee will be binding on the Investor. In the event of such removal and/or
designation of the Investor Designee under this Section 2.3, the Holders shall
vote their shares of the Company's capital stock as provided in Section 2.1 to
cause: (a) he removal from the Board of the Investor Designee so designated for
removal by the Investor; and (b) the election to the Board of any new Investor
Designee so designated for election to the Board by the Investor.
2.4 Notice; Cumulative Voting. The Company shall promptly
give each of the Holders written notice of any change in composition of the
Board and of any proposal by the Investor to remove or elect a new Investor
Designee. In any election of directors pursuant to this Section 2, the Holders
shall vote their shares in a manner sufficient to elect to the board the
individuals to be elected thereto as provided in this Section 2, utilizing
cumulative voting, if and to the extent necessary to do so.
3. Further Assurances. Each of the Holders and the Company agree not
to vote any shares of the Company's capital stock, or to take any other actions,
that would in any manner defeat, impair, be inconsistent with or adversely
affect he stated intentions of the parties under Sections 1 and 2 of this
Agreement.
4. Transferees; Legends on Certificates.
4.1 Effect on Transferees. Each and every transferee or
assignee of any shares of capital stock of the Company from any Holder which or
who is Affiliate (as defined below) of such Holder shall be bound by and subject
to the terms and conditions of this Agreement that are applicable to such
transferee's transferor or assignor, and the Company shall require, as a
condition precedent to the transfer of any shares of capital stock of the
Company subject to this Agreement, that the transferee agrees in writing to be
bound by, and subject to, all the terms and conditions of this Agreement. For
purposes of this Agreement, "Affiliate" shall mean as to any Holder: (a) any
other person directly or indirectly controlling, controlled by or under common
control with such Holder; (b) any other person owning or controlling 10% or more
of the outstanding voting securities of such Holder; (c) any officer, director
or partner of such Holder; (d) any business entity for which Holder acts as an
officer, director or partner;
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(e) the spouse or any relative of such Holder; and (f) any trust or other estate
in which such Holder or any other person covered by items (a) through (e) has a
beneficial interest or as to which such Holder serves as trustee or in a similar
capacity.
4.2 Legend. The Holders agree that all Company share
certificates now or hereafter held by them that represent shares of capital
stock of the Company subject to this Agreement will be stamped or otherwise
imprinted with a legend to read as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS AND
RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH SHARES AND THEIR
TRANSFER, AS PROVIDED IN THE PROVISIONS OF A VOTING AGREEMENT, A COPY
OF WHICH IS ON FILE IN THE OFFICE OF THE SECRETARY OF THE CORPORATION.
5. Enforcement of Agreement. Each of the Holders acknowledge
and agree that any breach of any of them of this Agreement shall cause the
Investor irreparable harm which may not be adequately compensable by money
damages. Accordingly, in the event of a breach or threatened breach by a Holder
of any provision of this Agreement, the Company and the Investor shall each be
entitled to the remedies of specific performance, injunction or other
preliminary or equitable relief, including the right to compel any such
breaching Holder, as appropriate, to vote such Holder's shares of capital stock
of the Company in accordance with the provisions of this Agreement, in addition
to such other rights remedies as may be available to the Company or the Investor
for any such breach or threatened breach, including but not limited to the
recovery of money damages.
6. Term. This Agreement shall commence on the Effective Date and
shall terminate upon the first to occur of the following:
(a) The date that is three (3) years from the Effective
Date;
(b) The consummation of the sale of securities of the
Company to the public pursuant to an effective registration statement filed by
the Company under the Securities Act of 1933, as amended, pursuant to which the
aggregate offering price to the public is at least $10,000,000.00 and the price
per share is at least $6.80.
(c) Immediately prior to the closing of (i) any
consolidation or merger of the Company with or into any other corporation or
corporations in which the holders of the Company's outstanding shares
immediately before such consolidation or merger do not, immediately after such
consolidation or merger, retain stock representing a majority of the voting
power of the surviving corporation of such consolidation or merger or stock
representing a majority of the voting power of a corporation that wholly owns,
directly or indirectly, the surviving corporation or such consolidation or
merger; (ii) the sale, transfer or assignment of securities of the Company
representing a majority of the
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voting power of all the Company's outstanding voting securities by the holders
thereof to an acquiring party in a single transaction or series of related
transactions; (iii) any other sale, transfer or assignment of securities of the
Company representing over fifty percent (50%) of the voting power of the
Company's then outstanding voting securities by the holders thereof to an
acquiring party;' or (iv) the sale of all or substantially all the Company's
assets; or
(d) The date that the aggregate percentage ownership
interest in the Company of the Investor and any wholly-owned subsidiaries of the
Investor collectively equals less than eight percent (8%), as determined in
accordance with Section 3.1 of that certain Investor's Rights Agreement dated as
of even date herewith among the Company, the Investor and certain shareholders
of the Company.
7. Miscellaneous.
7.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
applicable to contracts made among residents of, and wholly to be performed
within, the State of California, without reference to principles of conflict of
laws or choice of laws.
7.2 Further Instruments. From time to time, each party
hereto shall execute and deliver such instruments and documents as may be
reasonably necessary to carry out the purposes and intent of this Agreement.
7.3 Successors. This Agreement shall be binding upon and
shall inure to the benefit of the executors, administrators, legal
representatives, heirs, successors, and assigns of the parties hereto; provided,
however, that any transferee of any shares of stock of the Company affected by
this Agreement which or who is an Affiliate of the transferring Holder of such
shares shall be required, as a condition precedent to acquiring such shares, to
first agree in writing to be bound by all the terms and conditions of this
Agreement applicable to such transferee's transferor; and provided further that
no rights under this Agreement may be assigned apart from the related shares of
the Company's capital stock.
7.4 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.
7.5 Entire Agreement. This document constitutes and
contains the entire agreement and understanding of the parties regarding the
subject matter of this Agreement and supersedes any and all prior negotiations,
correspondence, understandings and agreements among the parties respecting the
subject matter hereof.
7.6 Amendments and Waivers. Any terms of this Agreement may
be amended and the observance of any term of the Agreement may be waived (either
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generally or in a particular instance and either retroactively or prospectively)
with the written consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this Section shall be binding upon the
Company, all the Holders and their permitted transferees and assignees.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY: INVESTOR:
Name: Name:
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By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
SHAREHOLDERS:
Name:
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By:
--------------------------------
Title:
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY: INVESTOR:
Name: Name:
------------------------------ -------------------------------
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
SHAREHOLDERS:
Name:
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By:
--------------------------------
Title:
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[Signature Page to Voting Agreement]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY: INVESTOR:
Name: Name:
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By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
SHAREHOLDERS:
Name: Name:
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By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
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XXXXXX CAPITAL PARTNERS II, L.P.
By:
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Title:
---------------------------------
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 0
Xxx Xxxxxxxxx, XX 00000-0000
XXXXXX TECHNOLOGY VENTURES II, L.P.
By:
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Title:
---------------------------------
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 0
Xxx Xxxxxxxxx, XX 00000-0000
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