VOTING AGREEMENT
Exhibit
10.3
VOTING
AGREEMENT, dated as of March , 2019 (this “Agreement”), by and among
Bridgeline Digital, Inc., a Delaware corporation (the
“Company”), and
the shareholder listed on the signature page hereto under the
heading “Shareholder” (the
“Shareholder”).
WHEREAS, as
contemplated by the attached Term Sheet (the “Term Sheet”), the Company and
certain investors (each, an “ Investor ”, and collectively, the
“ Investors ”)
intend to enter into a Securities Purchase Agreement (the “
Securities Purchase
Agreement ”), pursuant to which, among other things,
the Company will agree to issue and sell to the Investors and the
Investors will agree to purchase, (i) shares of Series C
convertible preferred stock, par value $0.001 per share (the
“Preferred
Stock”), of the Company and (iii) three (3) series of
warrants (the “Warrants”) which will be
exercisable to purchase shares of common stock, par value $0.001
per share, of the Company (the “Common Stock”);
WHEREAS, as of the
date hereof, the Shareholder owns collectively [ ] shares of Common
Stock, which represent in the aggregate approximately [ ]% of the
total issued and outstanding capital stock of the Company;
and
WHEREAS, as a
condition to the willingness of the Investors to enter into the
Securities Purchase Agreement and to consummate the transactions
contemplated thereby (collectively, the “Transaction”), the Investors have
required that each Shareholder agrees, and in order to induce the
Investors to enter into the Securities Purchase Agreement, each
Shareholder has agreed, to enter into this Agreement with respect
to all the Common Stock now owned and which may hereafter be
acquired by the Shareholder and any other securities, if any, which
such Shareholder is currently entitled to vote, or after the date
hereof, becomes entitled to vote, at any meeting of shareholders of
the Company (the “Other
Securities”).
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENT OF THE SHAREHOLDER
SECTION
1.01. Voting
Agreement. Subject to the last sentence of this Section
1.01, each Shareholder hereby agrees that at any meeting of the
shareholders of the Company, however called, and in any action by
written consent of the Company’s shareholders, the
Shareholder shall vote the Common Stock and the Other Securities:
(a) in favor of increasing the authorized number of shares of
Common Stock (or effecting a reverse stock split of the Common
Stock) up to the maximum amount recommended by the Company’s
Board of Directors to permit the issuance
in full of Common Stock upon conversion of the Preferred Stock and
exercise of the Warrants, respectively, without giving effect to
any limitations on conversion of the Preferred Stock or exercise of
the Warrants thereunder or under the Securities Purchase Agreement;
(b) in favor of the Transaction and the issuance of the shares of
Common Stock which may be issued under the terms of the Securities
Purchase Agreement in order for the Company to be able to issue the
shares of Common Stock issuable upon conversion of the Preferred
Stock and upon exercise of the Warrants, without giving effect to
any limitations on conversion of the Preferred Stock or exercise of
the Warrants thereunder or under the Securities Purchase Agreement;
and (c) against any proposal or any other corporate action or
agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company under the Securities Purchase Agreement or which could
result in any of the conditions to the Company’s obligations
under the Securities Purchase Agreement not being fulfilled
(together, “Shareholder
Approval”). Each Shareholder acknowledges receipt and
review of a copy of the Securities Purchase Agreement and the other
Transaction Documents (as defined in the Securities Purchase
Agreement). The obligations of the Shareholder under this Section
1.01 shall terminate immediately following the occurrence of the
Shareholder Approval.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
Each
Shareholder hereby represents and warrants, severally but not
jointly, to each of the Investors as follows:
SECTION
2.01. Authority Relative
to This Agreement. Each Shareholder has all necessary legal
capacity, power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Shareholder and
constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with its terms, except (a) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in effect
relating to, or affecting generally the enforcement of
creditors’ and other obligees’ rights, (b) where the
remedy of specific performance or other forms of equitable relief
may be subject to certain equitable defenses and principles and to
the discretion of the court before which the proceeding may be
brought, and (c) where rights to indemnity and contribution
thereunder may be limited by applicable law and public
policy.
SECTION
2.02. No Conflict.
(a) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such
Shareholder shall not, (i) conflict with or violate any federal,
state or local law, statute, ordinance, rule, regulation, order,
judgment or decree applicable to such Shareholder or by which the
Common Stock or the Other Securities owned by such Shareholder are
bound or affected or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Common Stock
or the Other Securities owned by such Shareholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to
which such Shareholder is a party or by which such Shareholder or
the Common Stock or Other Securities owned by such Shareholder are
bound.
(b) The
execution and delivery of this Agreement by such Shareholder does
not, and the performance of this Agreement by such Shareholder
shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity by
such Shareholder.
SECTION
2.03. Title to the
Stock. As of the date hereof, each Shareholder is the owner
of the number of shares of Common Stock set forth opposite its name
on Appendix A
attached hereto, entitled to vote, without restriction, on all
matters brought before holders of capital stock of the Company,
which Common Stock represent on the date hereof the percentage of
the outstanding stock and voting power of the Company set forth on
such Appendix. Such Common Stock are all the securities of the
Company owned, either of record or beneficially, by such
Shareholder. Such Common Stock are owned free and clear of all
security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on such Shareholder’s
voting rights, charges and other encumbrances of any nature
whatsoever. No Shareholder has appointed or granted any proxy,
which appointment or grant is still effective, with respect to the
Common Stock or Other Securities owned by such shareholder.
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ARTICLE III
COVENANTS
SECTION
3.01. No Disposition or
Encumbrance of Stock. Notwithstanding anything herein to the
contrary, each Shareholder hereby covenants and agrees that until
the date the Shareholder Approval has been obtained, except as
contemplated by this Agreement, such Shareholder shall not offer or
agree to sell, transfer, tender, assign, hypothecate or otherwise
dispose of, grant a proxy or power of attorney with respect to, or
create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on
such Shareholder’s voting rights, charge or other encumbrance
of any nature whatsoever (“Encumbrance”) with respect to the
Common Stock or Other Securities, directly or indirectly, initiate,
solicit or encourage any person to take actions which could
reasonably be expected to lead to the occurrence of any of the
foregoing; provided, however , that any such
Shareholder may assign, sell or transfer any Common Stock or Other
Securities provided that any such recipient of the Common Stock or
Other Securities has delivered to the Company and each Investor a
written agreement in a form reasonably satisfactory to the
Investors that the recipient shall be bound by, and the Common
Stock and/or Other Securities so transferred, assigned or sold
shall remain subject to this Agreement.
SECTION
3.02. Company
Cooperation. The Company hereby covenants and agrees that it
will not, and such Shareholder irrevocably and unconditionally
acknowledges and agrees that the Company will not (and waives any
rights against the Company in relation thereto), recognize any
Encumbrance or agreement on any of the Common Stock or Other
Securities subject to this Agreement unless the provisions of
Section 3.01 have been complied with. The Company agrees to use its
reasonable best efforts to ensure that at any time in which any
Shareholder Approval is required pursuant to Section 4(p) of the
Securities Purchase Agreement, it will cause holders of Common
Stock or Other Securities representing the percentage of
outstanding capital stock required to vote in favor of the
Transaction in order for the Company to comply with its obligations
under Section 4(p) of the Securities Purchase Agreement to become
party to and bound by the terms and conditions of this Agreement
and the Common Stock and Other Securities held by such holders to
be subject to the terms and conditions of this
Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances. Each Shareholder will execute and deliver such
further documents and instruments and take all further action as
may be reasonably necessary in order to consummate the transactions
contemplated hereby.
SECTION
4.02. Specific
Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that any
Investor (without being joined by any other Investor) shall be
entitled to specific performance of the terms hereof, in addition
to any other remedy at law or in equity. Any Investor shall be
entitled to its reasonable attorneys’ fees in any action
brought to enforce this Agreement in which it is the prevailing
party.
SECTION
4.03. Entire
Agreement. This Agreement constitutes the entire agreement
among the Company and the Shareholder with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the Company and the
Shareholder with respect to the subject matter hereof.
SECTION
4.04. Amendment.
The provisions of this Agreement may not be amended or waived, nor
may this Agreement be terminated by the Company other than pursuant
to the provisions of Section 4.07.
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SECTION
4.05. Severability.
If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of
competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and
enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions
of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
SECTION
4.06. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. The parties hereby agree that all
actions or proceedings arising directly or indirectly from or in
connection with this Agreement shall be litigated only in the
Supreme Court of the State of New York or the United States
District Court for the Southern District of New York located in New
York County, New York. The parties consent to the jurisdiction and
venue of the foregoing courts and consent that any process or
notice of motion or other application to any of said courts or a
judge thereof may be served inside or outside the State of New York
or the Southern District of New York by registered mail, return
receipt requested, directed to the party being served at its
address set forth on the signature ages to this Agreement (and
service so made shall be deemed complete three (3) days after the
same has been posted as aforesaid) or by personal service or in
such other manner as may be permissible under the rules of said
courts. Each of the Company and each Shareholder irrevocably
waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such
suit, action, or proceeding brought in such a court and any claim
that suit, action, or proceeding has been brought in an
inconvenient forum. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
SECTION
4.07. Termination.
Except as set forth in Section 3.01 with respect to the
Shareholder’s obligations set forth in Section 3.01, this
Agreement shall terminate immediately following the occurrence of
the Shareholder Approval.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Shareholder and the Company has
duly executed this Agreement.
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THE COMPANY:
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By:
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Name:
Xxxxx Xxxx
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Title:
Chief Executive Officer
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Dated:
March , 2019
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Address:
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000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000
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SHAREHOLDER:
[
]
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Dated:
March , 2019
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Address:
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APPENDIX A
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Shareholder
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Common Stock
Owned
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Percentage of Stock
Outstanding
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Voting Percentage of
Stock Outstanding
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[
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[]
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[]%
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[]%
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