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EXHIBIT 10.18
STOCKHOLDERS' VOTING AGREEMENT
Agreement made this 17th day of May, 1995, by and among Best Programs,
Inc., a Virginia corporation (the "Company"), Xxxxx X. Xxxxxxxx (the
"Founder") and Edison Venture Fund L.P. (the "Investor"). The Founder and the
Investor are sometimes referred to in this Agreement collectively as the
"Stockholders".
WHEREAS, Stockholders wish to provide for the Founder's continuing
representation on the Board of Directors of the Company in the manner set forth
below;
NOW THEREFORE, consideration of the mutual covenants contained herein,
and for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Voting of shares.
(a) In any and all elections of directors of the Company
and all votes of stockholders pertaining to the number of directors of the
Company (whether at a meeting or by written consent in lieu of a meeting), each
Stockholder shall vote or cause to be voted all Shares (as defined in Section 2
below) owned by him or it, or over which he or it has voting control, and
otherwise use his or its respective best efforts to: (i) fix the number of
directors at a number designated by the Investor, up to 10; (ii) if the
aggregate number of Shares owned by the Founder or over which the Founder has
voting control is equal to 20% or more of the outstanding voting stock of the
Company, elect to the
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Board of Directors two members designated by the Founder; (iii) if the
aggregate number of shares owned by the Founder or over which the Founder has
voting control is equal or greater than 10% but less than 20% of the
outstanding voting stock of the Company, elect one member designated by the
Founder; and (iv) if for any reason any director designated by the Founder
ceases to serve as a director, to elect a replacement who is designated by the
Founder. The directors initially designated by the Founder are Xxxxx X.
Xxxxxxxx and Xxxxxxx Xxxxxxxx.
(b) The Company shall provide the Stockholders with 30
days' prior written notice of any intended mailing of a notice to stockholders
for a meeting at which directors are to be elected. The Founder shall give
written notice to all other parties to this Agreement, no later than 15 days
prior to such mailing, of the person(s) designated by the Founder as the
nominee or nominees, as the case may be, for election as director or directors.
The Company agrees to nominate and recommend for election as a director the
individual or individuals, as the case may be, designated, or to be designated
pursuant to Section l(a). If the Founder shall fail to give notice to the
Company as provided above, it shall be deemed that the designee(s) of the
Founder then serving as director(s) shall be his designee(s) for reelection.
(c) The Investor shall not vote to remove any director
designated by the Founder, except for bad faith or willful misconduct. Any
director elected to replace a director designated by the Founder shall be
elected in accordance with Section 1(a).
2. Shares. "Shares" shall mean and include any and all shares of
Common Stock and/or shares of capital stock of the Company, by whatever name
called, which carry voting rights (including voting rights
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which arise by reason of default) and shall include any shares now owned or
subsequently acquired by a Stockholder or other person, however acquired,
including, without limitation, by option exercise, stock splits and stock
dividends.
3. No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked, except by written consent of
all of the Stockholders.
4. Indemnification. In the event that any director elected
pursuant to Section 1 of this Agreement shall be made or threatened to be made
a party to any action, suit or proceeding with respect to which he may be
entitled to indemnification by the Company pursuant to its Amended and Restated
Articles of Incorporation or Amended and Restated By-Laws, or otherwise, he
shall be entitled to be represented in such action, suit or proceeding by
counsel of his choice and the reasonable expenses of such representation shall
be reimbursed by the Company to the extent provided in or authorized by said
Amended and Restated Articles of Incorporation or Amended and Restated By-Laws.
Each of the Stockholders agrees not to take any action to amend any provisions
of the Amended and Restated Articles of Incorporation or Amended and Restated
By-Laws of the Company relating to indemnification of directors, as presently
in effect, without the prior written consent of all of the Stockholders.
5. Restrictive Legend. All certificates representing Shares
owned or hereafter acquired by the Stockholders or any transference of the
Stockholders bound by this Agreement shall have affixed thereto a legend
substantially in the following form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN VOTING AGREEMENTS AS SET FORTH IN A
STOCKHOLDERS'
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VOTING AGREEMENT BY AND AMONG THE REGISTERED OWNER OF THIS
CERTIFICATE, THE COMPANY AND CERTAIN OTHER STOCKHOLDERS OF THE
COMPANY, A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE
OFFICES OF THE SECRETARY OF THE COMPANY.
6. Transfers of Rights. Any transferee to whom Shares are
transferred by the Investor, whether voluntarily or by operation of law, shall
be bound by the voting obligations imposed upon the transferor under this
Agreement, and shall be entitled to the rights granted to the transferor under
this Agreement, to the same extent as if such transferee were a Stockholder
hereunder.
7. Termination. This Agreement shall terminate upon the first to
occur of the following: (i) the date when the aggregate number of Shares owned
by the Founder or over which the Founder has voting control is less than 10% of
the outstanding voting stock of the Company; (ii) the date when Common Stock of
the Company becomes publicly traded through completion of an initial public
offering (an "IPO") of Common Stock of the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the
"Act"); or (iii) the date when, through a merger or similar transaction of the
Company with an entity that is publicly traded, securities received by the
Founder and Investor in exchange for their respective Shares are securities
that are registered for public sale under the Act.
8. General.
(a) Severability. The provisions of this Agreement are
severable, so that the invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
term or provision of this Agreement, which shall remain in full force and
effect.
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(b) Specific Performance. In addition to any and all
other remedies that may be available at law in the event of any breach of this
Agreement, each Stockholder shall be entitled to specific performance of the
agreements and obligations of the Company and the Stockholders hereunder and to
such other injunctive or other equitable relief as may be granted by a court of
competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the Commonwealth of
Virginia.
(d) Notices. All notices, requests, consents and
other communications under this Agreement shall be in writing and shall be
delivered by hand or mailed by first class certified or registered mail, return
receipt requested, postage prepaid:
If to the Company, at 00000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000-0000, Attention: President, or at such other address or
addresses as may have been furnished in writing by the Company to the
Stockholders, with a copy to Xxxxx Xxxxxxxxx, Xxxx and Xxxx, 0000 Xxxxxxxxxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000;
If to the Investor, at Edison Ventures, 000 Xxxxx Xxxxx, #0,
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000, or at such other address or addresses as may
have been furnished to the Company in writing by the Investor, with a copy to
Xxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx & Xxxxxxxxx, 000 Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000; or
If to the Founder, at 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000, or at such other address or addresses as may have been
furnished to the Company in writing by the Founder.
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Notices provided in accordance with this Section 8 shall be
deemed delivered upon personal delivery or two business days after deposit in
the mail.
(e) Complete Agreement; Amendments. This Agreement
Constitutes the full and complete agreement of the parties hereto with respect
to the subject matter hereof. No amendment, modification or termination of any
provision of this Agreement shall be valid unless in writing and signed by the
Company, the Founder and the holders of 75% of the voting power of the Shares
then held by all Stockholders. This Agreement shall have no effect on the
Consolidating Registration Rights Agreement dated June 3, 1993, as amended, by
and among the Company, the Founder and the other signatories thereto or the
Shareholders Agreement dated October 26, 1988, as amended, by and among the
Company the Founder and the other signatories thereto.
(f) Pronouns. Whenever the content may require, any
pronouns used in the Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
(g) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute one Agreement binding on
all the parties hereto.
(h) Captions. Captions or sections have been added only
for convenience and shall not be deemed to be a part of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
THE COMPANY.
BEST PROGRAMS, INC.
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
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Title: CFO
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THE FOUNDER:
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
THE INVESTOR:
EDISON VENTURE FUND L.P.
By: /s/ XXXX X. XXXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
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Title: General Partner
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