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EXHIBIT 10.12
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
May 29, 1998 (the "EFFECTIVE DATE") by and among Portable Software Corporation,
a Washington corporation (the "COMPANY"), and the parties listed on Exhibit A
attached hereto (the "SHAREHOLDERS").
A. Concurrently herewith, the Shareholders are purchasing from the
Company shares of its Series E Preferred Stock (the "SERIES E PREFERRED STOCK")
pursuant to a Series E Preferred Stock Purchase Agreement dated of even date
herewith between the Company and the Shareholders (the "PURCHASE AGREEMENT").
B. The Amended and Restated Articles of Incorporation of the Company
provide for the election of one (1) member of the Company's Board of Directors
by the holders of the Series E Preferred Stock.
C. As an inducement to RRE Investors, L.P. and RRE Investors Fund, L.P.
(collectively, "RRE"), who are two of the Shareholders, to purchase the Series E
Preferred Stock pursuant to the Purchase Agreement, the Shareholders and the
Company desire to enter into this Agreement to set forth their agreements and
understandings with respect to how shares of the Company's Series E Preferred
Stock will be voted on certain matters.
NOW THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. ELECTION OF BOARD OF DIRECTORS.
1.1 Voting; Board Composition. During the term of this
Agreement, each Shareholder agrees to vote all shares of Series E Preferred
Stock of the Company now or hereafter directly or indirectly owned (of record or
beneficially) by such Shareholder, in such manner as may be necessary to elect
(and maintain in office) as a member of the Company's Board of Directors, the
individual designated by RRE from time to time in a writing delivered to the
Company and signed by RRE (the "RRE DESIGNEE");
1.2 Initial RRE Designee. The initial RRE Designee shall be
Xxxxx X. Xxxxxxxx III.
1.3 Changes in RRE Designee. From time to time during the term
of this Agreement, RRE may, in its sole discretion:
(a) elect to remove from the Company's Board of
Directors any incumbent RRE Designee who occupies a Board seat for
which RRE is entitled to designate the RRE Designee under Section 1.1;
and/or
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(b) designate a new RRE Designee (who shall be
reasonably acceptable to the Board of Directors of the Company) for
election to a Board seat for which RRE is entitled to designate the RRE
Designee under Section 1.1 (whether to replace a prior RRE Designee or
to fill a vacancy in such Board seat); provided such removal and/or
designation of the RRE Designee is approved in a writing signed by RRE,
in which case such election to remove the RRE Designee and/or elect a
new RRE Designee will be binding on the Shareholders. In the event of
such a removal and/or designation of the RRE Designee under this
Section 1.3, the Shareholders shall vote their shares of the Company's
Series E Preferred Stock as provided in Section 1.1, and the other
directors of the Board shall take any required action, to cause: (a)
the removal from the Company's Board of Directors of the RRE Designee
so designated for removal by RRE; and (b) the election to the Company's
Board Directors of any new RRE Designee so designated for election to
the Company's Board of Directors by RRE.
1.4 Notice; Cumulative Voting. The Company shall promptly give
each of the Shareholders written notice of any change in composition of the
Company's Board of Directors and of any proposal by RRE to remove or elect a new
RRE Designee. In any election of directors pursuant to this Section 1, the
Shareholders shall vote their shares in a manner sufficient to elect to the
Company's Board of Directors the individual to be elected thereto as provided in
this Section 1.
2. FURTHER ASSURANCES. Each of the Shareholders and the Company agree
not to vote any shares of Company's Series E Preferred Stock, or to take any
other actions, that would in any manner defeat, impair, be inconsistent with or
adversely affect the stated intentions of the parties under Section 1 of this
Agreement.
3. TRANSFEREES; LEGENDS ON CERTIFICATES.
3.1 Effect on Transferees. Each and every transferee or
assignee of the Series E Preferred Stock of the Company from any Shareholder
shall be bound by and subject to the terms and conditions of this Agreement that
are applicable to such transferee's transferor or assignor, and the Company
shall require, as a condition precedent to the transfer of the Series E
Preferred Stock of the Company subject to this Agreement, that the transferee
agrees in writing to be bound by, and subject to, all the terms and conditions
of this Agreement.
3.2 Legend. The Shareholders agree that all Company shares
certificates now or hereafter held by them that represent shares of Series E
Preferred Stock of the Company subject to this Agreement will be stamped or
otherwise imprinted with a legend to read as follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS AND
RESTRICTIONS WITH REGARD TO THE VOTING OF SUCH SHARES AND THEIR
TRANSFER, AS PROVIDED IN THE PROVISIONS OF A VOTING AGREEMENT, A COPY
OF WHICH IS ON FILE IN THE OFFICE OF THE SECRETARY OF THE CORPORATION."
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4. ENFORCEMENT OF AGREEMENT. Each of the Shareholders acknowledge and
agree that any breach by any of them of this Agreement shall cause the other
Shareholders irreparable harm which may not be adequately compensable by money
damages. Accordingly, in the event of a breach or threatened breach by a
Shareholder of any provision of this Agreement, the Company and each other
Shareholder shall each be entitled to the remedies of specific performance,
injunction or other preliminary or equitable relief, including the right to
compel any such breaching Shareholder, as appropriate, to vote such
Shareholder's shares of Series E Preferred Stock of the Company in accordance
with the provisions of this Agreement, in addition to such other rights remedies
as may be available to the Company or any Shareholder for any such breach or
threatened breach, including but not limited to the recovery of money damages.
5. TERM. This Agreement shall commence on the Effective Date and shall
terminate upon the first to occur of the following:
(a) May 29, 2008;
(b) Shareholders holding seventy-five percent (75%) of the
shares of the Company's then outstanding Series E Preferred Stock
issued under the Purchase Agreement execute a written agreement to
terminate this Agreement;
(c) The consummation of the first sale of securities of the
Company to the public pursuant to an effective registration statement
filed by the Company under the Securities Act of 1933, as amended;
(d) Immediately prior to the closing of (i) any consolidation
or merger of the Company with or into any other corporation or
corporations in which the holders of the Company's outstanding shares
immediately before such consolidation or merger do not, immediately
after such consolidation or merger, retain stock representing a
majority of the voting power of the surviving corporation of such
consolidation or merger or stock representing a majority of the voting
power of a corporation that wholly owns, directly or indirectly, the
surviving corporation of such consolidation or merger; (ii) the sale,
transfer or assignment of securities of the Company representing a
majority of the voting power of all the Company's outstanding voting
securities by the holders thereof to an acquiring party in a single
transaction or series of related transactions; (iii) any other sale,
transfer or assignment of securities of the Company representing over
fifty percent (50%) of the voting power of the Company's then
outstanding voting securities by the holders thereof to an acquiring
party; or (iv) the sale of all or substantially all the Company's
assets.
6. GENERAL PROVISIONS.
6.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Washington
applicable to contracts made among residents of, and wholly to be performed
within, the State of Washington, without regard to principles of conflict of
laws or choice of laws.
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6.2 Further Instruments. From time to time, each party hereto
shall execute and deliver such instruments and documents as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
6.3 Successors. This Agreement shall be binding upon and shall
inure to the benefit of the executors, administrators, legal representatives,
heirs, successors, and assigns of the parties hereto; provided, however, that
any transferee of any shares of stock of the Company affected by this Agreement
shall be required, as a condition precedent to acquiring such shares, to first
agree in writing to be bound by all the terms and conditions of this Agreement
applicable to such transferee's transferor; and provided further, that no rights
under this Agreement may be assigned apart from the related shares of the
Company' stock.
6.4 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.
6.5 Entire Agreement. This document constitutes and contains
the entire agreement and understanding of the parties regarding the subject
matter of this Agreement and supersedes any and all prior negotiations,
correspondence, understandings and agreements among the parties respecting the
subject matter hereof.
6.6 Amendments and Waivers. Any terms of this Agreement may be
amended and the observance of any term of the Agreement may be waived (either
generally or in a particular) instance and either retroactively or
prospectively), with the written consent of (a) the Company's Board of Directors
and (b) the Shareholders holding seventy-five percent (75%) of the outstanding
shares of the Company's Series E Preferred Stock issued under the Purchase
Agreement. Any amendment or waiver effected in accordance with this Section
shall be binding upon the Company, all the Shareholders, and their permitted
transferees and assignees.
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION RRE INVESTORS, L.P.
A Washington Corporation By: RRE Investors II, LLC,
its General Partner
By_________________________________
S. Xxxxxx Xxxxx, President By_________________________________
Name:
Address: 0000 000xx Xxxxxx Title:
Xxxxxxx, XX 00000
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By_________________________________
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION AMERICAN EXPRESS COMPANY
A Washington Corporation
By_________________________________
By_________________________________ Name:
S. Xxxxxx Xxxxx, President Title:
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION U.S.V.P. ENTREPRENEUR PARTNERS II, L.P.
A Washington Corporation A Delaware Limited Partnership
U.S. VENTURE PARTNERS IV, L.P.
By_________________________________ SECOND VENTURES II, L.P.
S. Xxxxxx Xxxxx, President
By: Presidio Management Group IV, L.P.
Address: 0000 000xx Xxxxxx Their General Partner
Xxxxxxx, XX 00000
By:______________________________________
Title: __________________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTOR:
PORTABLE SOFTWARE CORPORATION INSTITUTIONAL VENTURE
A Washington Corporation PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By_________________________________
S. Xxxxxx Xxxxx, President By: ______________________________________
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000 Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR:
IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
INVESTOR:
INSTITUTIONAL VENTURE MANAGEMENT VII, L.P.
By: ______________________________________
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION BRENTWOOD ASSOCIATES VI, L.P.
A Washington Corporation
By: Brentwood VI Ventures, L.P.
Its General Partner
By_________________________________
S. Xxxxxx Xxxxx, President By: ______________________________
General Partner
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000 Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION XXXXXXXX ASSOCIATES FUND III
A Washington Corporation A California Limited Partnership
XXXXXXXX VIII
A California Limited Partnership
By_________________________________
S. Xxxxxx Xxxxx, President By: XXXXXXXX VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Address: 0000 000xx Xxxxxx Their General Partner
Xxxxxxx, XX 00000
By: ____________________________________
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION COMDISCO, INC.
A Washington Corporation
By:________________________________
By_________________________________ Title: Xxxxx X. Xxxx, President
S. Xxxxxx Xxxxx, President Comdisco Ventures Division
Address: 0000 000xx Xxxxxx Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000 Building 1, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement on
the date and year first above written.
COMPANY: INVESTORS:
PORTABLE SOFTWARE CORPORATION CAMBRIDGE TECHNOLOGY CAPITAL
A Washington Corporation FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By_________________________________
S. Xxxxxx Xxxxx, President
By: _____________________________________
Address: 0000 000xx Xxxxxx Xxxxx Xxxxxxxxx, Managing Director
Xxxxxxx, XX 00000
Address: 00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
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EXHIBIT A
SHAREHOLDERS
RRE Investors, L.P.
RRE Investors Fund, L.P.
American Express Company
U.S.V.P. Entrepreneur Partners II., L.P.
U.S. Venture Partners IV, L.P.
Second Ventures II, L.P.
Institutional Venture Partners VII, L.P.
IVP Founders Fund I, L.P.
Institutional Venture Management VII, L.P.
Brentwood Associates VI, X.X.
Xxxxxxxx Associates Fund III
Xxxxxxxx VIII
Comdisco, Inc.
Cambridge Technology Capital Fund
