Exhibit 10.1
VOTING AGREEMENT
This Voting Agreement (this "Agreement") dated February 28, 2002 is entered
into among Artisoft, Inc., a Delaware corporation (the "Company"), and Special
Situations Fund III, L.P., Special Situations Cayman Fund, L.P., Special
Situations Private Equity Fund, L.P., Special Situations Technology Fund, L.P.,
Lagunitas Partners, LP, Xxxxxx & XxXxxxx International, Xxx X. Xxxxxx, F/B/O
Xxxxxxx Xxxxx Xxxxxx Trust dated December 27, 1976 and F/B/O Xxxxxxxx Xxxxx
Xxxxxx Trust dated December 30, 1975 (each individually, a "Stockholder"; and
collectively, the "Stockholders").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Common Stock" means the common stock, $0.01 par value per share, of
the Company.
"Effective Date" means the date of this Agreement.
"Excess Shares" means, with respect to any Stockholder at any time,
the shares of Preferred Stock constituting the difference obtained by
subtracting (i) the Voting Shares held by such Stockholder from (ii) the total
Preferred Shares held by such Stockholder. The number of Excess Shares held by
each Stockholder as of the date hereof is set forth on SCHEDULE SH appended
hereto.
"Nasdaq" means the Nasdaq National Market or any successor thereto.
"Purchase Agreement" means that certain Purchase Agreement dated as of
August 8, 2001 by and among the Company and the Stockholders.
"Preferred Shares" means shares of Series B Convertible Preferred
Stock, $1.00 par value per share, of the Company. The number of Preferred Shares
held by each Stockholder as of the date hereof is set forth on SCHEDULE SH
appended hereto.
"Voting Shares" means, with respect to any Stockholder at any time,
the Preferred Shares constituting the product (rounded off to the nearest whole
number, with fractional amounts equal to 0.50 rounded up) obtained by
multiplying (i) the total Preferred Shares held by such Stockholder by (ii)
0.681. The number of Voting Shares held by each Stockholder as of the date
hereof is set forth on SCHEDULE SH appended hereto. The parties hereto
acknowledge and agree that any and all of the Stockholders may agree to deem any
number of Voting Shares held by any Stockholder party to such agreement to be
Excess Shares and an equal number of Excess Shares held by any Stockholder party
to such agreement to be Voting Shares; PROVIDED, THAT, the total number of
Voting Shares held by such Stockholders after such agreement does not exceed the
total number of Voting Shares held by such Stockholders prior to such agreement.
No such agreement shall be effective unless and until the Company has received
written notice (executed by all Stockholders party to such agreement) thereof.
2. VOTING. Each Stockholder covenants and agrees that, from and after the
Effective Date and until the termination of this Agreement in accordance with
the terms hereof, at any meeting of stockholders of the Company, however called,
and in any action by written consent of stockholders of the Company, such
Stockholder will not vote, or cause to be voted (by means of proxy, voting
trust, voting agreement or otherwise), Preferred Shares other than the Voting
Shares held by such Stockholder on any matter on which the holders of Preferred
Shares vote together with the holders of the Common Stock (and any other class
or series of capital stock of the Company) as a single class. Notwithstanding
the foregoing, nothing in this Agreement shall restrict any Stockholder from
voting or causing to be voted at any meeting of stockholders of the Company or
in any action by written consent of stockholders of the Company (i) any
Preferred Shares (including, without limitation, any Excess Shares) on any
matter upon which the holders of Preferred Shares are voting as a separate
class, solely to the extent such holders of Preferred Shares are voting as a
separate class and (ii) any shares of Common Stock, whether acquired upon
conversion of Preferred Shares or otherwise. Any Excess Shares held by a
Stockholder and not voted pursuant to the provisions of this Section 2 (and any
Excess Shares voted in contravention of the provisions of this Section 2) shall
be deemed to be abstentions and shall be counted for purposes of determining
whether or not a quorum exists at any meeting of stockholders of the Company.
3. TERM. This Agreement shall become effective on the Effective Date. This
Agreement shall terminate as to any Stockholder (i) upon receipt by the Company
of written notification from Nasdaq that the ownership and voting of the
Preferred Shares (including, without limitation, the Excess Shares) by the
Stockholders does not conflict with Nasdaq Marketplace Rule 4351 or any
successor thereto, (ii) upon the conversion of all Preferred Shares owned by
such Stockholder into Common Stock pursuant to the terms of the Preferred Shares
or (iii) upon such Stockholder no longer owning any Preferred Shares.
4. LEGEND. Each certificate representing Preferred Shares held by a
Stockholder shall bear a legend substantially in the following form:
"The securities represented by this certificate are subject to a
voting agreement with the Corporation, a copy of which is
available for inspection at the office of the Secretary of the
Corporation."
-2-
Promptly following the execution of this Agreement, each Stockholder will return
to the Company any and all certificates representing shares held by such
Stockholder so that the Company may place thereon the legend required by this
Section 4. The legend required by this Section 4 shall be removed from
certificates representing Preferred Shares held by a Stockholder at the request
of such Stockholder, upon the termination of this Agreement and the delivery to
the Company of such certificates.
5. NO REVOCATION. This Agreement shall be deemed to be coupled with an
interest and may not be revoked, except with the written consent of the Company.
6. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of the
successors and assigns of the Company and be binding upon the Stockholders and
each of their respective heirs, executors, administrators, successors and
assigns. Any sale or other transfer of any Preferred Shares shall be null and
void, unless and until the transferee agrees in a writing delivered to the
Company to be bound by the terms of this Agreement, which writing shall also
contain notice to the Company of such transfer and of the notice information for
such transferee.
7. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement were not performed in
accordance with the terms hereof. In the event of any breach of this Agreement,
in addition to any and all other remedies available at law, the parties hereto
shall be entitled to specific performance of this Agreement and to such other
injunctive or equitable remedy as may be granted by a court of competent
jurisdiction.
8. NOTICES. All notices and other communications provided for or permitted
under this Agreement shall be made as set forth in Section 9.4 of the Purchase
Agreement.
9. AMENDMENT. Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of at least 80% of the Preferred Shares
then subject to this Agreement. Any amendment of waiver effected in accordance
with this Section 9 shall be binding upon each holder of Preferred Shares, each
future holder of all such Preferred Shares and the Company.
10. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with, the laws of the State of Delaware without regard to principles
of conflicts of laws.
11. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforecable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof but shall be interpreted as if it were written so as
to be enforceable to the maximum extent permitted by applicable law, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto hereby waive any provision of
law which renders any provisions hereof prohibited or unenforceable in any
respect.
-3-
12. 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. This Agreement may also
be executed via facsimile, which shall be deemed an original.
13. ENTIRE AGREEMENT. This Agreement represents the complete agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to the subject matter hereof.
14. CONFLICTS. If there is any conflict between the terms of this Agreement
and the Purchase Agreement (or any agreement entered into pursuant to the
Purchase Agreement), the terms of this Agreement shall control.
15. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
ARTISOFT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
STOCKHOLDERS:
SPECIAL SITUATIONS FUND III, L.P.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: General Partner
SPECIAL SITUATIONS CAYMAN
FUND, L.P.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: General Partner
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STOCKHOLDERS (CONTINUED):
SPECIAL SITUATIONS PRIVATE
EQUITY FUND, L.P.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: General Partner
SPECIAL SITUATIONS TECHNOLOGY
FUND, L.P.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: General Partner
LAGUNITAS PARTNERS, LP
By: Xxxxxx & XxXxxxx Capital
Management, LLC,
its General Partner
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Member
XXXXXX & MCBAINE
INTERNATIONAL
By: Xxxxxx & XxXxxxx Capital
Management, LLC,
Attorney-in-Fact
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Member
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STOCKHOLDERS (CONTINUED):
XXX X. XXXXXX
/s/ Xxx X. Xxxxxx
--------------------------------------------
Individually
F/B/O XXXXXXX XXXXX XXXXXX
TRUST DATED DECEMBER 27, 1976
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Trustee
F/B/O XXXXXXXX XXXXX XXXXXX
TRUST DATED DECEMBER 30, 1975
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Trustee
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SCHEDULE SH
PREFERRED SHARES, VOTING SHARES AND EXCESS SHARES
Total Preferred Total Voting Total Excess
Shares as of Shares as of Shares as of
date of this date of this date of this
Stockholder Agreement Agreement Agreement
----------- --------- --------- ---------
Special Situations
Fund III, L.P. 1,140,000 776,340 363,660
Special Situations Cayman
Fund, L.P. 380,000 258,780 121,220
Special Situations Private
Equity Fund, L.P. 380,000 258,780 121,220
Special Situations
Technology Fund, L.P. 200,000 136,200 63,800
Lagunitas Partners, LP 448,000 305,088 142,912
Xxxxxx & McBaine International 140,000 95,340 44,660
Xxx X. Xxxxxx 80,000 54,480 25,520
F/B/O Xxxxxxx Xxxxx
Xxxxxx Trust dated
December 27, 1976 16,000 10,896 5,104
F/B/O Xxxxxxxx Xxxxx
Xxxxxx Trust dated
December 30, 1975 16,000 10,896 5,104
--------- --------- ---------
TOTALS 2,800,000 1,906,800 893,200
SH-1
