Exhibit 10.36
BLUESTONE SOFTWARE, INC.
RESTATED VOTING AGREEMENT
THIS AGREEMENT is made as of the 23rd day of April, 1998, by and among
Bluestone Software, Inc., a Delaware corporation (the "Company"), the investors
listed on SCHEDULE A attached hereto (the "Investors"), and the individuals
listed on SCHEDULE B attached hereto (the "Founders").
The Company and certain of the Investors are parties to a certain
Series A Preferred Stock Purchase Agreement dated April 18, 1997 (the "Series A
Agreement"), pursuant to which such Investors purchased 5,526,316 shares, in the
aggregate, of the Company's Series A Convertible Preferred Stock (the "Series A
Preferred Stock"); the Company and certain of the Investors are parties to a
certain Series B Preferred Stock Purchase Agreement dated the date hereof,
pursuant to which such Investors are purchasing 8,782,695 in the aggregate, of
the Company's Series B Convertible Preferred Stock (the "Series B Preferred
Stock" and together with Series A Preferred Stock, the "Preferred Stock").
It is a condition to such issuance by the Company of the Series B
Preferred Stock and to the investment by the Investors in the Series B Preferred
Stock that the Founders and the Company enter into a voting agreement relating
to the election of members to the Company's Board of Directors (the "Board of
Directors") amending and restating the Voting Agreement dated April 18, 1997.
Any and all references to outstanding shares of the Preferred Stock also refers
to Common Stock issued upon conversion thereof. Any and all references to
outstanding shares of Common Stock also refers to Common Stock issued upon
conversion and exercise of all convertible securities.
INTENDING TO BE LEGALLY BOUND, and in consideration of the voting
agreement stated below, the parties agree as follows:
1. FOUNDERS' AGREEMENT TO VOTE. During the term of this Agreement, the
Founders agree to vote all of the shares of the Company's voting securities now
or hereafter owned by them, whether beneficially or otherwise (the "Founders'
Shares"), as follows:
(a) INVESTORS' REPRESENTATIVES. The Founders shall vote or act
with respect to the Founders' Shares so as always to elect as directors of the
Company (i) two (2) designees nominated by holders of the Series A Preferred
Stock, one such designee shall be nominated by Patricof & Co. Ventures (which
term refers to the group of funds that include APA Excelsior IV, L.P., Xxxxxx &
Co. (Cayman) Ltd., Cust. for APA Excelsior IV/Offshore, L.P., The P/A Fund, L.P.
and Patricof Private Investment Club, L.P.), and the other designee shall be
nominated by Xxxxx Capital Management, Inc.; and (ii) one (1) designee nominated
by General Electric
Capital Corporation ("GE Capital") for as long as GE Capital is a holder of any
capital stock of the Company.
(b) CHIEF EXECUTIVE OFFICER. The Founders agree to vote or act
with respect to the Founders' Shares so as always to elect the Company's Chief
Executive Officer as a director of the Company;
(c) FOUNDERS' REPRESENTATIVE. The Founders shall vote or act
with respect to the Founders' Shares so as always to elect one (1) designee
nominated by the holders of a majority of the outstanding shares of Common Stock
of the Company held by the Founders, as a director of the Company; and
(d) OUTSIDE DIRECTORS. The Founders shall vote or act with
respect to the Founders' Shares so as to always elect one (1) designee nominated
by the holders of a majority of the outstanding shares of Common Stock held by
the Founders and reasonably approved by the holders of at least 75% of the
outstanding shares of Preferred Stock held by the Investors as a director of the
Company. In the event, but only for as long as, the Founders and Investors
cannot agree as to such director, the Founders shall vote or act with respect to
the Founders' Shares so as to leave one vacancy on the Board.
(e) EVENT OF DEFAULT. Upon the occurrence of an Event of
Default, as defined in the Company's Second Amended and Restated Certificate of
Incorporation, the Founders agree to vote or act with respect to the Founders'
Shares in accordance with the recommendation of at least a majority of the
Company's Board of Directors.
(f) INCREASE IN AUTHORIZED COMMON STOCK. If at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Preferred Stock,
the Founders agree to vote or act with respect to the Founders' Shares so as to
increase the Company's authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purpose, including without
limitation, voting in favor of any necessary amendment to the Company's
Certificate of Incorporation.
2. INVESTORS' AGREEMENT TO VOTE. During the term of this Agreement, the
Investors agree to vote all of the shares of the Company's voting securities now
or hereafter owned by them, whether beneficially or otherwise (the "Investors'
Shares"), as follows:
(a) INVESTORS' REPRESENTATIVES. The Investors shall vote or
act with respect to the Investors' Shares so as always to elect as directors of
the Company (i) two (2) designees nominated by holders of the Series A Preferred
Stock, one such designee shall be nominated by Patricof & Co. Ventures, and the
other designee shall be nominated by Xxxxx Capital Management, Inc.; and (ii)
one (1) designee nominated by GE Capital for as long as GE Capital is a holder
of any capital stock of the Company.
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(b) CHIEF EXECUTIVE OFFICER. The Investors agree to vote or
act with respect to the Investors' Shares so as always to elect the Company's
Chief Executive Officer as a director of the Company;
(c) FOUNDERS' REPRESENTATIVE. The Investors shall vote or act
with respect to the Investors' Shares so as always to elect one (1) designee
nominated by the holders of a majority of the outstanding shares of Common Stock
of the Company held by the Founders, as a director of the Company; and
(d) OUTSIDE DIRECTORS. The Investors shall vote or act with
respect to the Investors' Shares so as to always elect one (1) designee
nominated by the holders of a majority of the outstanding shares of Common Stock
held by the Founders and reasonably approved by the holders of at least
seventy-five (75%) of the outstanding shares of Preferred Stock held by the
Investors as a director of the Company. In the event, but only for as long as,
the Founders and Investors cannot agree as to such director, the Investors shall
vote or act with respect to the Investors' Shares so as to leave one vacancy on
the Board.
3. BOARD OBSERVER. The Company, the Founders and the Investors agree
that, for as long as each of Patricof & Co. Ventures and GE Capital is a holder
of any capital stock of the Company, Patricof & Co. Ventures and GE Capital
shall each be entitled to have one observer selected by Patricof & Co. Ventures
or GE Capital, as the case may be, present at all meetings (whether in person,
by telephone or video conference) of the Board (in addition to any nominees of
GE Capital and Patricof & Co. Ventures. serving as directors of the Company) and
such two observers shall have the same access to information concerning the
business and operations of the Corporation and at the same time as directors of
the Corporation and shall be entitled to participate in discussions and consult
with the Board at each such meeting, without voting. Notwithstanding anything to
the contrary set forth in this Section 3 or in the Company's Second Amended and
Restated Certificate of Incorporation, Patricof & Co. Ventures and GE Capital
(each a "Designator") agree that in the event that the director nominated by a
Designator pursuant to Sections 1(a) and 2(a) hereof is not eligible to act upon
a matter before the Board due to a conflict of interest between the Company and
such Designator with respect to such matter, then all rights of such
Designator's observer granted under this Section 3 shall be suspended with
respect to such matter.
4. SUCCESSORS IN INTEREST OF THE FOUNDERS AND INVESTORS.
(a) The provisions of this Agreement shall be binding upon the
successors in interest of (i) the Founders to any of the Founders' Shares, and
(ii) the Investors to any of the shares of the Company's voting securities now
or hereafter owned by them, whether beneficially or otherwise (the "Investors"
Shares). The Company shall not permit the transfer of any Founders' Shares or
Investors' Shares on its books or issue a new certificate representing any
Founders' Shares or Investors' Shares unless and until the person to whom such
security is to be
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transferred shall have executed a written agreement, satisfactory in form and
substance to the Investors, pursuant to which such person becomes a party to
this Agreement and agrees to be bound by all the provisions hereof as if such
person was a Founder or Investor, whichever is applicable, hereunder.
(b) Each certificate representing any Founders' Shares or
Investors' Shares shall be endorsed by the Company with a legend reading as
follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING
AGREEMENT (A COPY OF WHICH MAY BE OBTAINED FROM THE
ISSUER), 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.
5. COVENANTS OF THE COMPANY. The Company agrees to take all actions
required to ensure that the rights given to the Investors hereunder are
effective and that the Investors enjoy the benefits thereof. Such actions
include, without limitation, the use of the Company's best efforts to cause the
nomination of the designees of the Investors for election as directors of the
Company. The Company will not, by any voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be performed hereunder by
the Company, but will at all times in good faith assist in the carrying out of
all of the provisions of this Agreement and in the taking of all such actions as
may be necessary or appropriate in order to protect the rights of the Investors
hereunder against impairment.
6. TERMINATION. This Agreement shall terminate upon the earlier of the
date when the Investors, or their successors and assigns, no longer hold any
shares of the Preferred Stock or Common Stock issued upon conversion thereof, or
upon the consummation of the Company's initial public offering on a firm
underwriting basis, the gross offering price of which was not less than $5.18
per share (adjusted to reflect stock dividends, stock splits or
recapitalizations) and $10,000,000 in the aggregate.
7. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company, and holders of 75% in interest of the Investors or their
assigns and holders of a majority in interest of the Founders' Shares, their
successors and assigns.
8. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any stock split,
stock dividend, recapitalization, reorganization, or the like, any securities
issued with respect to the Founders' Shares shall become Founders' Shares for
purposes of this Agreement and shall be endorsed with the legend set forth in
Section 3(b) hereof.
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9. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without regard to the conflict of laws
provisions thereof.
11. COUNTERPARTS. This Agreement and the other New Transaction
Agreements (as defined in the Series B 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.
12. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided in
this Agreement, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
13. ENTIRE AGREEMENT. This Agreement and the other New Transaction
Agreements (as defined in the Series B Agreement) constitute the entire
agreement with respect to the subject matter hereof among the parties, and no
party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein. This Agreement supersedes the Voting Agreement dated April
18, 1997, which shall be of no further force or effect.
IN WITNESS WHEREOF, the parties have executed this Restated Voting
Agreement as of the date first above written.
BLUESTONE SOFTWARE, INC.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: President
Address: 0000 Xxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
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INVESTORS:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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THE P/A FUND, L.P.
By: APA PENNSYLVANIA PARTNERS II, L.P.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By: /s/ Xxxxxxx X. Case
--------------------------
Name: Xxxxxxx X. Case
Title: Vice President
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
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APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By: /s/ XXXXXXX X. CASE
--------------------------
Name: Xxxxxxx X. Case
Title: Vice President
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
XXXXXX & CO. (CAYMAN) LTD., CUST. FOR
APA EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC.,
its Investment Advisor
By: /s/ Xxxxxxx X. Case
----------------------------
Name: Xxxxxxx X. Case
Title: Managing Director
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
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/s/ Xxx Xxxxxx
-------------------
XXX XXXXXX
Address: 0000 Xxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
/s/ Xxxxxx Xxxx
-------------------
XXXXXX XXXX
Address: 00 Xxxxxxxxx Xxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FOUNDERS:
/s/ Xxx Xxxxxx
-------------------
XXX XXXXXX
Address: 0000 Xxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
/s/ Xxxx Xxxxxx
-------------------
XXXX XXXXXX
Address: 000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone No.:
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Facsimile No.:
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FIRST AMENDMENT TO THE
RESTATED VOTING AGREEMENT
THIS AGREEMENT is made as of June 16, 1999, by and among
Bluestone Software, Inc., a Delaware corporation (the "Company"), and the
parties listed on the signature pages hereto (as applicable, the "Investors" and
the "Stockholders").
BACKGROUND
The Company and the Investors and the Stockholders are parties to that
certain Restated Voting Agreement dated as of April 23, 1998 (the "Voting
Agreement"). The parties hereto desire to amend the Voting Agreement as provided
herein.
INTENDING TO BE LEGALLY BOUND, the parties hereto agree as follows:
1. Section 1(d) of the Voting Agreement shall be amended and
restated in its entirety to read as follows:
(d) OUTSIDE DIRECTORS. The Founders shall vote or act
with respect to the Founders' Shares so as to always
elect two (2) designees nominated by the holders of a
majority of the outstanding shares of Common Stock
held by the Founders and reasonably approved by the
holders of at least 75% of the outstanding shares of
Preferred Stock held by Investors as directors of the
Company. In the event, but only for so long as, the
Founders and Investors cannot agree as to one or both
of such directors, the Founders shall vote or act
with respect to the Founders' Shares so as to leave
one or both vacancies on the Board. As of the date
hereof, the outside directors shall be Xxxxxx
Xxxxxxxxxx and Xxxx Xxxxxxx.
2. Section 2(d) of the Voting Agreement shall be amended and
restated in its entirety to read as follows:
(d) OUTSIDE DIRECTORS. The Investors shall vote or act with
respect to the Investors' Shares so as to always elect two
(2) designees nominated by the holders of a majority of
the outstanding shares of Common Stock held by the
Founders and reasonably approved by the holders of at
least 75% of the outstanding shares of Preferred Stock
held by Investors as directors of the Company. In the
event, but only for so long as, the Founders and Investors
cannot agree as to one or both of such directors, the
Founders shall vote or act with respect to the Founders'
Shares so as to leave one or both vacancies on the Board.
As of the date hereof, the outside directors shall be
Xxxxxx Xxxxxxxxxx and Xxxx Xxxxxxx.
3. The Voting Agreement is amended in accordance with Section 7
thereof.
4. Except as specifically amended herein, the Voting Agreement
shall remain in full force and effect in accordance with its
terms.
5. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which
shall constitute on agreement, and the signatures of any party
to any counterpart shall be deemed to be a signature to, and
may be appended to, any other counterpart.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
BLUESTONE SOFTWARE, INC.
By: /s/ P. Xxxxx Xxxxxx
---------------------------
Name: P. Xxxxx Xxxxxx
Title: President
THE INVESTORS:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
THE P/A FUND, L.P.
By: FOSTIN CAPITAL PARTNERS II,
L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
[SIGNATURES CONTINUE]
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PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By: /s/ Xxxxxxx X. Case
----------------------------
Name: Xxxxxxx X. Case
Title: Vice President
APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By: /s/ Xxxxxxx X. Case
----------------------------
Name: Xxxxxxx X. Case
Title: Vice President
XXXXXX & CO. (CAYMAN) LTD., CUST. FOR APA
EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC.,
its Investment Advisor
By: /s/ Xxxxxxx X. Case
----------------------------
Name: Xxxxxxx X. Case
Title: Managing Director
[SIGNATURES CONTINUE]
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/s/ Xxxxxx Xxxx
-------------------------------
Xxxxxx Xxxx
STOCKHOLDERS:
/s/ Xxx Xxxxxx
---------------------
XXX XXXXXX
/s/ Xxxx Xxxxxx
-------------------
XXXX XXXXXX
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