1
Exhibit 10.21
STOCKHOLDERS' VOTING AGREEMENT
Agreement made this 7th day of May, 1996, by and among FlexiInternational
Software, Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Partners V, L.P. ("WBC"), Menlo Ventures VI, L.P. ("Menlo VI"), Menlo
Entrepreneurs Fund VI, L.P. ("Entrepreneurs VI"), Primus Capital Fund III
Limited Partnership ("Primus"), ▇▇▇▇▇▇ ▇▇▇▇ SBIC, L.P. ("▇▇▇▇▇▇ ▇▇▇▇") and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (individually, a "Purchaser" and collectively, the
"Purchasers"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(individually, a "Founder" and collectively, the "Founders"), ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), Comdisco, Inc. ("Comdisco"), CDC Realty, Inc. ("Realty")
and The Connecticut Development Authority ("CDA"). The Purchasers, the Founders,
▇▇▇▇▇▇▇, Realty, Comdisco, Realty and CDA are sometimes referred to in this
Agreement collectively as the "Stockholders."
RECITALS:
1. The Founders, certain Purchasers and ▇▇▇▇▇▇▇ own certain outstanding
shares of the Common Stock of the Company; Menlo VI, Entrepreneurs VI, Primus
and ▇▇▇▇▇▇▇ own certain outstanding shares of Series A Convertible Preferred
Stock of the Company; and WBC, Menlo VI, Entrepreneurs VI, Primus and Comdisco
own certain outstanding shares of Series B Convertible Preferred Stock of the
Company;
2. Realty and Comdisco own certain warrants to purchase Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock of the
Company, the Founders and certain Purchasers own certain options and warrants to
purchase Common Stock of the Company, and CDA owns certain warrants to purchase
Common Stock of the Company and is the holder of a promissory note convertible
into Common Stock of the Company;
3. The Purchasers are purchasing, concurrently herewith, certain shares of
capital stock of the Company pursuant to the Series C Preferred Stock Purchase
Agreement of even date herewith (the "Purchase Agreement"); and
4. The Purchasers and Founders wish to provide for their representation on
the Board of Directors of the Company in the manner set forth below.
In consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of shares of capital stock of the Company
pursuant to the Purchase Agreement, and for other valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
2
1. VOTING OF SHARES.
(a) In any and all elections 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 such
Stockholder, or over which such Stockholder has voting control, and otherwise
use such Stockholder's respective best efforts, so as to fix the number of
directors of the Company at nine (9) and to elect (i) one (1) member designated
by Menlo VI, (ii) one (1) member designated by Primus, (iii) one (1) member
designated by WBC, (iv) one (1) member designated by ▇▇▇▇▇▇ ▇▇▇▇, (v) three (3)
members designated by the Founders (by action of the holders of a majority of
the Shares held by all Founders) and (vi) two (2) members agreed to by a
majority of the directors designated by the Founders and by a majority of the
directors designated by Menlo VI, Primus, WBC and ▇▇▇▇▇▇ ▇▇▇▇, respectively. The
director initially designated by Menlo VI is ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the director
initially designated by Primus is ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the director initially
designated by WBC is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the director initially designated by
▇▇▇▇▇▇ ▇▇▇▇ is ▇▇▇▇▇ ▇▇▇▇▇▇▇. The directors initially designated by the Founders
are ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The directors
agreed to by a majority of the directors designated by the Founders and a
majority of the directors designated by Menlo VI, Primus, WBC and ▇▇▇▇▇▇ ▇▇▇▇,
respectively, are, subject to such agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇.
(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. Menlo VI, Primus, WBC, ▇▇▇▇▇▇ ▇▇▇▇ and the
Founders shall give written notice to all other parties to this Agreement, no
later than 20 days prior to such mailing, of the persons designated by Menlo VI,
Primus, WBC, ▇▇▇▇▇▇ ▇▇▇▇ and the Founders as nominees for election as directors.
The Company agrees to nominate and recommend for election as directors only the
individuals designated, or to be designated, pursuant to Section 1(a). If Menlo
VI, Primus, WBC, ▇▇▇▇▇▇ ▇▇▇▇ or the Founders shall fail to give notice to the
Company as provided above, or if no nominee is agreed upon pursuant to Section
1(a)(vi), it shall be deemed that the designees of Menlo VI, Primus, WBC, ▇▇▇▇▇▇
▇▇▇▇ or the Founders, or the designees jointly designated pursuant to Section
1(a)(vi), as the case may be, then serving as directors shall be their
respective designees for reelection.
(c) Neither the Purchasers nor the Founders shall vote to remove any
director designated pursuant to Section 1(a) except for bad faith or willful
misconduct; provided, however, that any Purchaser or Founder that has the right
under Section 1(a) to designate a director, shall have the right to remove such
director for any reason and replace such director (or leave the directorship
vacant with the reservation of the right of such Purchaser or Founder to fill
such vacancy in the future) and upon receiving notice of a request to do so,
each Stockholder shall take all actions necessary to remove such director and
elect his or her replacement.
2
3
(d) Any Purchaser which is a holder of any shares of Series A, Series
B or Series C Preferred Stock (the "Preferred Stock") shall, with respect to any
matter requiring a vote of the Preferred Stock (voting together as a single
class of Preferred Stock) under Article FOURTH (B)(3)(b) of the Company's
Certificate of Incorporation, vote all the shares of Preferred Stock held by
such Purchaser in the manner directed by mutual agreement of three (3) of the
following: WBC, Menlo VI, Primus and ▇▇▇▇▇▇ ▇▇▇▇; provided, however, that in the
event that three (3) of the foregoing Purchasers cannot agree with respect to
any matter requiring a vote of Preferred Stock under such Article FOURTH
(B)(3)(b), all Purchasers shall abstain from voting with respect to such matter.
2. SHARES. "Shares" shall mean and include any and all shares of Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C
Convertible Preferred Stock, Common Stock and/or shares of capital stock of the
Company, by whatever name called, which carry voting rights (including voting
rights which arise by reason of default) and shall include any shares now owned
or subsequently acquired by a Stockholder, however acquired, including without
limitation stock splits and stock dividends.
3. TERMINATION. This Agreement shall terminate in its entirety on the
earliest of (a) the tenth anniversary of the date of this Agreement, or (b) the
closing of the Company's initial public offering of shares of Common Stock
pursuant to an effective registration statement under the Securities Act of
1933, as amended, at a price of not less than $3.30 per share (appropriately
adjusted to reflect any stock dividend, stock split, combination or other
recapitalization affecting such shares) and resulting in at least $10,000,000 of
gross proceeds to the Company.
4. 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.
5. 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 Certificate of Incorporation or
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 Certificate of Incorporation or By-laws. Each of the
Stockholders agrees not to take any action to amend any provisions of the
Certificate of Incorporation or the By-Laws of the Company relating to
indemnification of directors, as presently in effect, without the prior written
consent of all of the Stockholders.
3
4
6. RESTRICTIVE LEGEND. All certificates representing Shares owned or
hereafter acquired by the Stockholders or any transferee 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' 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."
7. TRANSFERS OF RIGHTS. Any transferee to whom Shares are transferred by
a Purchaser, 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 Purchaser hereunder.
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.
(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
Purchaser 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 State of Delaware.
(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 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chairman, or at such other address or addresses as may have been
furnished in writing by the Company to the Purchasers, with a copy to ▇▇▇▇ ▇.▇.
▇▇▇▇▇, III, Esq., ▇▇▇▇ and ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
4
5
If to the Purchasers, at the address shown on Exhibit A attached hereto, or
at such other address or addresses as may have been furnished to the Company in
writing by such Purchaser, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Hachigan, LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
If to the Founders, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other address or addresses as may have been furnished to the Company in
writing by such Founders.
If to ▇▇▇▇▇▇▇, at Offshore Asset Management, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other address as may have been furnished to the
Company in writing by ▇▇▇▇▇▇▇.
If to Comdisco, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other address or addresses as may have been furnished to the Company in
writing by Comdisco.
If to Realty, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other address or addresses as may have been furnished to the Company in
writing by Realty.
If to CDA, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other address or addresses as may have been furnished to the Company in
writing by CDA.
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, and the Stockholders' Voting Agreement dated as of January 20,
1995, as amended to date, among the Company, the Founders, ▇▇▇▇▇▇▇, Comdisco,
CDA and certain of the Purchasers and their affiliates, is hereby terminated. No
amendment, modification or termination of any provision of this Agreement shall
be valid unless in writing and signed by the Company, the holders of a majority
of the voting power of the Shares then held by all the Founders and the holders
of 80% of the voting power of the Shares then held by all the
5
6
Purchasers; provided, however that no amendment that affects a Stockholder's
right to designate a director hereunder shall be effective without the consent
of such Stockholder.
(f) PRONOUNS. Whenever the content may require, any pronouns used in
this 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 of sections have been added only for
convenience and shall not be deemed to be a part of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
COMPANY:
FlexiInternational Software, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title:
-------------------------
FOUNDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
6
7
PURCHASERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners V, L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management
Company, L.L.C.,
its General Partner
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Managing Director
Menlo Ventures VI, L.P.
By: MV Management VI, L.P.,
its General Partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
General Partner
Menlo Entrepreneurs Fund VI, L.P.
By: MV Management VI, L.P.,
its General Partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
General Partner
Primus Capital Fund III
Limited Partnership
By: Primus Venture Partners III
Limited Partnership,
its General Partner
By: Primus Venture Partners, Inc.,
its General Partner
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: Executive Vice President
7
8
▇▇▇▇▇▇ ▇▇▇▇ SBIC, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇ SBIC Investments LLC,
its General Partner
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Comdisco, Inc.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title:
CDC Realty, Inc.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title:
The Connecticut Development Authority
By:/s/ [not eligible]
--------------------------------
Title: Senior Vice President and
Managing Director
8
9
EXHIBIT A
SCHEDULE OF PURCHASERS
NAME AND ADDRESS
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners V, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Menlo Ventures VI, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Menlo Entrepreneurs
Fund VI, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Primus Capital Fund III
Limited Partnership
Suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ SBIC, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
9
