EXHIBIT 10.3
TENFOLD CORPORATION
AMENDED AND RESTATED VOTING AGREEMENT
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This Amended and Restated Voting Agreement (the "Agreement") is made as of
the 24th day of November, 1997, by and among TenFold Corporation, a Delaware
corporation (the "Company"), Xxxxxxx X. Xxxxxx, the Xxxxxx Children's Trust and
Xxxx X. Xxxxxxx (the "Founders"), Indus International, Inc. ("Indus"), a
California corporation, and Winter Harbor, L.L.C., a Delaware limited liability
company ("Winter Harbor" and collectively with Indus, the "Investors" and
individually an "Investor").
RECITALS
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1. The Company and Indus entered into a Voting Agreement (the "Existing
Agreement") on March 4, 1997, in connection with the purchase by Indus of
certain shares of Series A Preferred Stock of the Company.
2. The Company and Winter Harbor have entered into a Series B Preferred
Stock Purchase Agreement (the "Purchase Agreement") of even date herewith
pursuant to which the Company desires to sell to Winter Harbor and Winter Harbor
desires to purchase from the Company shares of the Company's Series B Preferred
Stock. A condition to Winter Harbor's obligations under the Purchase Agreement
is that the Company, the Founders and the Investors enter into this Agreement
for the purpose of setting forth the terms and conditions pursuant to which the
Investors and the Founders shall vote their shares of the Company's voting stock
on Change of Control Transactions (as defined below) and certain other
agreements. The Company, the Investors and the Founders each desire to
facilitate the arrangements set forth in this Agreement, and the sale and
purchase of shares of Series B Preferred Stock pursuant to the Purchase
Agreement, by agreeing to the terms and conditions set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. Agreement to Vote.
(a) Except in the case of an Excluded Transaction as defined in
paragraph (b) below, during the term of this Agreement and unless otherwise
provided in the Company's Amended and Restated Certificate of Incorporation, in
any Change of Control Transaction, as such term is defined below, the Investors
agree to vote the shares of the Company's capital stock now or hereafter owned
by them to approve or not approve such Change of Control Transaction in the same
manner and in the same percentage, rounded up to the nearest whole share, as the
percentage by which the holders of the Company's Common Stock, in the aggregate
voted their shares on such matter. For purposes of this Section 1, a "Change of
Control Transaction" shall
mean: (i) 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, or transfer of outstanding equity
shares, but excluding any merger effected exclusively for the purpose of
changing the domicile of the Company); or (ii) a sale of all or substantially
all of the assets of the Company, unless the Company's stockholders of record as
constituted immediately prior to such acquisition or sale will, immediately
after such acquisition or sale (by virtue of securities issued as consideration
for the Company's acquisition or sale or otherwise) hold at least 50% of the
voting power of the surviving or acquiring entity in approximately the same
relative percentages after such acquisition or sale as before such acquisition
or sale.
(b) The Company agrees that it will not, during the term of this
Agreement, enter into a Change of Control Transaction with an Excluded Entity
(an "Excluded Transaction") without the written consent of Indus. For purposes
of this Agreement, "Excluded Entities" shall mean: SAP AG; Project Software
Development; Inc.; Marcam, Inc.; Revere, Inc.; Xxxxxx Xxxxx, and Synercom, a
Division of Health Care Computer Corporation.
2. Legends. Each certificate representing securities of the Company
purchased by the Founders or Investor shall be endorsed by the Company with a
legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT BY AND AMONG
THE COMPANY, THE FOUNDERS AND THE INVESTOR (A COPY OF WHICH MAY BE OBTAINED
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 SAID VOTING AGREEMENT."
3. Termination.
(a) This Agreement shall terminate upon the earlier of (i) the
consummation of the Company's initial public offering on a firm underwriting
basis of any of its securities or (ii) ten (10) years from the date hereof.
(b) Section 1 (b) of this Agreement shall terminate upon the earlier
to occur of (i) any of the events described in Section 3(a) of this Agreement,
(ii) March 4, 2002, and (iii) the date that Indus holds less than 50% of the
number of shares (as appropriately adjusted to take account for stock splits and
dividends) of the Company's capital stock held by it as of March 4, 1997.
4. Grant of Proxy. Should the provisions of this Agreement be construed
to constitute the granting of proxies, such proxies shall be deemed coupled with
an interest and, to the extent permitted by law, shall be irrevocable for the
term of this Agreement.
5. Specific Enforcement. It is agreed and understood that monetary
damages would not adequately compensate an injured party for the breach of this
Agreement by any other party
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hereto, 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.
6. Manner of Voting. Each party to this Agreement may vote its shares of
the Company's capital stock that are subject to this Agreement in person, by
proxy, by written consent, or in any other manner permitted by applicable law.
7. Amendments; Waivers. Any term hereof may be amended or waived only
with the written consent of the Company, holders of a majority of the Series A
Preferred Stock, holders of a majority of the Series B Preferred Stock, and
holders of a majority of the Founders' shares (or their respective successors
and assigns). Any amendment or waiver effected in accordance with this Section 7
shall be binding upon the Company, holders of the Series A Preferred
Stockholders of the Series B Preferred Stock, and any holder of Founders'
Shares, and each of their respective successors and assigns. Notwithstanding
the foregoing, any amendment or waiver of the provisions of Sections 1(b) or
3(b) hereof may be effected with the written consent of the Company and holders
of a majority of the Series A Preferred Stock. This Agreement supersedes in its
entirety the Existing Agreement.
8. 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 on Exhibit A hereto, or as
subsequently modified by written notice.
9. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms. In
the event that this Agreement is held to be unenforceable in its entirety by a
court of competent jurisdiction, then the parties to this Agreement agree to (i)
establish a voting trust agreement (the "Voting Trust") to effectuate the intent
of this Agreement and (ii) transfer all the securities owned by them that are
subject to this Agreement into the Voting Trust.
10. 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.
11. 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.
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12. 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]
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The parties hereto have executed this Voting Agreement as of the date first
written above.
COMPANY:
TENFOLD CORPORATION
By:
Xxxx X. Xxxxxxx
President
Address: 000 Xxxx Xxxxxxxx Xxxx, Xxx 000
Xxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
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INDUS INTERNATIONAL, INC.
By:
Name: Xxxxxx X. Xxxxxx
Title: Chairman & Ceo
Address: 00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
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WINTER HARBOR
WINTER HARBOR, L.L.C.
By: First Media, L.P., Manager
By: First Media Corporation
its sole general partner
By:
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Name: Xxxxx X. Xxxxx Xx.
Title: Secretary
Address: 00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
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FOUNDERS:
Xxxx X. Xxxxxxx
Address: 0000 Xxxxx Xxxxxxxxxxxx Xxxxx
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx
Address: 00 Xxxx Xxxx
Xxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
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THE XXXXXX CHILDREN'S TRUST
By:
Name:
Title: Trustee
Address: 00 Xxxx Xxxx
Xxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED VOTING AGREEMENT
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EXHIBIT A
INVESTORS
NAME/ADDRESS NO. OF SHARES
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Indus International, Inc. 2,920,799
Winter Harbor, L.L.C. 3,340,330
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