EXHIBIT 11
WRITTEN CONSENT AND VOTING AGREEMENT
This Written Consent and Voting Agreement (this "Agreement") is dated
as of January 11, 2004, among Stellent, Inc., a Minnesota corporation (the
"Buyer"), Optika Inc., a Delaware corporation (the "Company"), and the entities
listed on Exhibit A hereto, each of whom is a holder (a "Series A-1 Holder") of
shares of Series A-1 Convertible Preferred Stock, par value $0.001, of the
Company (the "Company Preferred Stock").
RECITALS
A. The Buyer, STEL Sub, Inc., a Delaware corporation and wholly owned
subsidiary of the Buyer ("Merger Sub"), and the Company, concurrently with the
execution of this Agreement, are entering into an Agreement and Plan of Merger
in the form attached hereto as Exhibit B (including the exhibits and schedules
thereto, the "Merger Agreement"), dated as of the date hereof, pursuant to
which (1) the Company will merge (the "Merger") with and into Merger Sub, (2)
the existing holders of shares of common stock of the Company ("Company Common
Stock"; and collectively with the Company Preferred Stock, the "Company Capital
Stock") will exchange their shares of Company Common Stock for shares of common
stock of the Buyer and (3) the Series A-1 Holders will exchange their shares of
Company Preferred Stock for cash and, in certain circumstances, shares of
common stock of the Buyer.
B. Terms that are capitalized but not defined in this Agreement have
the meaning assigned to them in the Merger Agreement.
C. Prior to the Effective Time, the Company will be required to amend
and restate its Certificate of Designation of Series A-1 Convertible Preferred
Stock (the "Certificate of Designation") in the form attached hereto as Exhibit
C (the "Restatement").
D. The Merger constitutes a Change of Control (as defined in the
Certificate of Designation) pursuant to which the Series A-1 Holders would not
receive the full Preference Amount (as defined in the Certificate of
Designation) to which each such holder is entitled as a result of such a
transaction and, therefore, the written consent of a majority of the Series A-1
Holders is required pursuant to Section 4(b) of the Certificate of Designation
prior to entering into the Merger Agreement.
E. The execution and delivery of this Agreement is an inducement, and
a condition precedent, to the Buyer and the Company entering into the Merger
Agreement.
AGREEMENT
Now, therefore, the parties hereby agree as follows:
1. Consent to Merger Agreement. In accordance with Section 4(b) of the
Certificate of Designation, as currently in effect, each Series A-1 Holder
hereby consents to (i) the Company entering into the Merger Agreement in the
form attached hereto as Exhibit B; (ii) any such modifications, revisions and
amendments to the Merger Agreement as the Company, the Buyer and Merger Sub
shall agree in accordance with the terms of the Merger Agreement; provided,
however, that the parties hereto agree that no modification, revision or
amendment may be made to Merger Agreement that could reasonably be deemed to
either (A) be adverse to the Series A-1 Holders or (B) confer additional
benefits upon any stockholder or member of management of the
Company, in each case, without the prior written consent of Xxxxxx Xxxxxx
Capital Partners, L.P. ("TWCP") (any modification, revision or amendment made
in violation of this proviso, a "Non-Consenting Amendment"); (iii) the Merger;
and (iv) the Restatement of the Certificate of Designation.
2. No Solicitation. Each Series A-1 Holder agrees that it will not,
and will cause its officers and employees, in their capacities as such, and its
agents or representatives (including any investment banker or attorney retained
by it) not to, initiate, solicit, or encourage, directly or indirectly, the
making or implementation of any Company Third-Party Acquisition Offer or
provide any confidential information or confidential data to, or have any
discussions with, any person relating to a Company Third-Party Acquisition
Offer; provided that, any Series A-1 Holder may engage in any of the activities
that the Company may engage in (as set forth in Section 7.2(a)(ii) of the
Merger Agreement) concerning a Company Third-Party Acquisition Offer once the
Board of Directors of the Company has determined that such activities are
required in the good faith exercise of its fiduciary duties pursuant to the
requirements of Section 7.2(a)(ii) of the Merger Agreement. Each Series A-1
Holder shall promptly notify the Buyer if any such inquiries or proposals are
received by, any such information is requested from, or any such negotiations
or discussions are sought to be initiated or continued with, it.
3. Voting; Proxy.
(a) During the term of this Agreement, at each meeting of the
Company's stockholders convened to consider and vote upon the approval of the
Merger Agreement, the Merger and the Restatement, each Series A-1 Holder agrees
to vote (to the extent not voted by the person or persons appointed under the
proxy granted under Section 3(b)) all shares of Company Capital Stock owned of
record by the Series A-1 Holder at the record date for the vote (including any
shares of Company Capital Stock over which the Series A-1 Holder has voting
power, by contract or otherwise) in favor of the approval of the Merger
Agreement, the Merger and the Restatement.
(b) Each Series A-1 Holder acknowledges that it has executed
and delivered to the Buyer an irrevocable proxy in the form of Exhibit D
hereto.
4. Exchange and Consent. Upon the Effective Time, each Series A-1
Holder agrees that it will exchange each share of its Company Preferred Stock
for the Preferred Stock Per Share Consideration and no other consideration,
notwithstanding any liquidation preference or other rights or preferences of
the Company Preferred Stock, as set forth in the Certificate of Designation, as
currently in effect, the Company's Certificate of Incorporation, as amended, or
any other documents or agreements between the holders of the Company Preferred
Stock and the Company. The Series A-1 Holders and the Company consent and agree
that upon the Effective Time, the following agreements are terminated and will
have no further force and effect: (i) the Exchange Agreement dated as of May 7,
2001, among the Company, TWCP and certain of its affiliates and RKB Capital,
L.P., (ii) the letter agreement regarding future treatment of Company Preferred
Stock dated May 7, 2001 among the Company, TWCP and certain of its affiliates
and RKB Capital, L.P. and (iii) the Registration Rights Agreement dated as of
February 23, 2000 among the Company, the Founders and Investors described
therein, TWCP and certain of its affiliates and RKB Capital, L.P., as amended
(the "Registration Rights Agreement"). As used in this Section 4, termination
of the Registration Rights Agreement means that the Registration
2
Rights Agreement is deemed to be amended to terminate the rights and
obligations of the Purchasers (as defined in the Registration Rights Agreement)
and any holders of the Securities (as defined in the Registration Rights
Agreement).
5. Further Assurances. During the term of this Agreement, each Series
A-1 Holder agrees that it will from time to time upon the request of the Buyer
or the Company, use its commercially reasonable efforts to do, execute,
acknowledge and deliver, and cause to be done, executed, acknowledged or
delivered, all such further acts, deeds, transfers, conveyances, assignments,
powers of attorney or assurances as may be reasonably required to complete the
Merger in accordance, in all material respects (subject to the approval rights
of the Series A-1 Holders set forth in Section 1 above), with the terms set
forth in the Merger Agreement and this Agreement, and to take such other
commercially reasonable actions as the Buyer or the Company may reasonably
request in order to carry out the intent of this Agreement and to complete the
Merger.
6. No Transfer. During the term of this Agreement, each Series A-1
Holder agrees that it will not sell, pledge, assign, distribute, hypothecate or
otherwise transfer, or authorize, propose, or agree to the sale, pledge,
assignment, distribution, hypothecation or other transfer of, any of its shares
of Company Preferred Stock without the Company's and the Buyer's prior written
consent, except to its affiliates who agree in writing to be bound by the terms
of this Agreement.
7. Adjustment Shares. Each Series A-1 Holder agrees that it will
comply with the Securities Act in selling any Adjustment Shares that it may
receive.
8. Representations and Warranties of the Series A-1 Holders. Each
Series A-1 Holder, severally and not jointly, represents and warrants to the
Buyer on the date hereof with respect to itself as follows:
(a) Authority. It has the requisite power and authority to
enter into this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency, fraudulent
transfer, moratorium, or similar laws affecting the enforcement of creditors'
rights generally, and except for judicial limitations on the enforcement of the
remedy of specific performance and other equitable remedies.
(b) Title; Authority to Vote Shares. It owns of record and
has voting power over the number of shares of Company Capital Stock set forth
beside its name on Exhibit A hereto; and such shares are held by it free and
clear of all liens, charges, pledges, restrictions, and encumbrances that would
prevent it from performing his or her obligations hereunder.
(c) Noncontravention. Neither its execution and delivery of
this Agreement, nor its consummation of any of the transactions contemplated
hereby, nor its compliance with any of the provisions of this Agreement will
violate, conflict with, or result in a breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or suspension of, or accelerate
the performance required by, or result in a right of termination or
acceleration under, any agreement or instrument
3
to which it is a party or any statute, rule, regulation, judgment, order,
decree, or other legal requirement applicable to it.
9. No Other Agreements to Make Payments.
(a) Each of the Company and the Buyer, severally and not
jointly, represents and warrants to each of the Series A-1 Holders on the date
hereof and on the Closing Date with respect to itself that, except as expressly
set forth in the Merger Agreement and other than the Employment Agreement with
Xxxx X. Xxxxxx in the form of Exhibit D to the Merger Agreement, there are no
agreements or understandings (binding or otherwise) between any of the Company,
the Buyer, Merger Sub and any member of senior management of the Company to
make any payments (or (A) in the case of Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx,
xxxxx any options, and (B) in the case of other members of senior management,
grant any options other than customary grants) (i) to any such member of senior
management (excluding any severance which may be payable upon the involuntary
termination of management following the Effective Time pursuant to written
employment agreements attached to the letter agreement dated December 5, 2003
between the Company and TWCP (the "TWCP LOI") or delivered to counsel for the
Series A-1 Holders on or before the date of this Agreement) or (ii) to any
other person in connection with the Merger (other than (X) the fees and
expenses of the Company's and the Buyer's outside legal, accounting and
financial advisors, payments made in the ordinary course of the Company's and
the Buyer's businesses and customary fees and payments made in order to
facilitate the consummation of the Merger, and (Y) director fees substantially
similar to those paid to other members of Buyer's Board of Directors ("Buyer's
Board") to be paid by the Buyer to Xxxx X. Xxxxxx following his election to
Buyer's Board).
(b) The Company and the Buyer agree, and represent and
warrant to the Series A-1 Holders, that, except as expressly set forth in the
Merger Agreement, no director (with respect to Xxxx X. Xxxxxx, in his capacity
as director of the company only) shall receive any payments in connection with
the Merger (other than director fees substantially similar to those paid to
other members of Buyer's Board to be paid by the Buyer to Xxxx X. Xxxxxx
following his election to Buyer's Board).
10. Indemnification.
(a) Effective at and after the date of this Agreement, the
Company, the Buyer and Merger Sub each agree to indemnify the Series A-1
Holders and each of their affiliates (each, an "Indemnified Party") against,
and agrees to hold each of them harmless from, any and all damage, loss,
liability and expense (including reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding) ("Damages") incurred or suffered by any Indemnified Party arising
out of or in connection with (i) the performance by the Series A-1 Holders of
their obligations under this Agreement (other than by the Company or the Buyer
to enforce the terms of this Agreement) or (ii) any action, suit or proceeding
brought by any holder of Company Capital Stock or any other person against any
Indemnified Party in connection with the Merger, regardless of whether such
Damages arise under any theory of law or equity; provided, however, that none
of the Company, the Buyer or Merger Sub shall be liable under this Section 10
for Damages arising out of, or based upon, any breach of the representations
and warranties of the Series A-1 Holders contained in Section 8 hereof.
4
(b) The Company and the Buyer agree to share equally in any
amounts paid to, or expenses incurred on behalf of, any Indemnified Party under
Section 10(a) of the this Agreement, irrespective of whether such Indemnified
Party asserted its right to indemnification against the Company, the Buyer, the
Merger Sub or any combination thereof. If the Company makes payments to, or
incurs expenses on behalf of, any Indemnified Party in excess of its obligation
under this Section 10(b), it will have the right to recover the amount of such
excess from the Buyer. If the Buyer and/or Merger Sub, on a combined basis,
make payments to, or incur expenses on behalf of, any Indemnified Party in
excess of the Buyer's obligation under this Section 10(b), the Buyer will have
the right to recover the amount of such excess from the Company.
11. Confidentiality. The Company, the Buyer and Merger Sub each agree
(i) not to disclose, prior to the filing of this Agreement as an Exhibit to the
Joint Proxy Statement and Registration Statement (the "Joint Proxy Statement")
or to the Form 8-K filed by the Company in connection with the execution of the
Merger Agreement (the "Form 8-K"), the existence of this Agreement or the
contents or subject matter hereof to any other party, and (ii) not to issue any
press release or other public announcement (A) containing a reference to TWCP
or any of its affiliates, or (B) in any way concerning the Company Preferred
Stock or the Preferred Stock Per Share Consideration, in each case, without the
prior written consent of TWCP, unless, in each case, required by applicable law
or stock exchange rules or regulations (in which case, the disclosing party
shall allow TWCP reasonable time to comment on the contents of such disclosure
in advance of such disclosure); provided, however, that (x) TWCP hereby
consents to the filing this Agreement as an Exhibit to the Joint Proxy
Statement and to the Form 8-K, and (y) once a press release or other public
announcement covered by clause (ii)(B) of this Section 11 has been issued in
accordance with this Section 11, the information included in such press release
or other public announcement may be reiterated by the Company, the Buyer or
Merger Sub without limitation.
12. Fees and Expenses. Notwithstanding anything contained herein that
may be deemed to be to the contrary, the Company hereby agrees to reimburse
TWCP in cash for its fees and expenses incurred in connection with its
participation in the negotiation of the Merger and the Merger Agreement, this
Agreement and the transactions contemplated hereby and thereby (including,
without limitation, the fees and disbursements of its attorneys, accountants,
consultants and other advisors) regardless of whether this Agreement or the
Merger Agreement is terminated, up to $100,000 plus fifty percent (50%) of any
such fees and expenses in excess of $100,000, up to a maximum of $175,000.
13. Termination. This Agreement will terminate automatically and
without further action at the earliest to occur of (a) the Effective Time, (b)
the date and time the Merger Agreement is terminated in accordance with its
terms, (c) the date and time any Non-Consenting Amendment is made and (d) the
date and time that the representation and warranty contained in Section 9 shall
be untrue in any material respect. In the event of a termination of this
Agreement pursuant to this Section 13, this Agreement will forthwith become
void and there will be no liability or obligation on the part of any party;
provided,
5
however, that the obligations under Section 7 (Adjustment Shares), Section 9
(No Other Agreements to Make Payments), Section 10 (Indemnification), Section
11 (Confidentiality), Section 12 (Fees and Expenses) and clauses (a), (e), (h),
(i) and (j) of Section 15 (Miscellaneous) shall survive any such termination;
provided, further, that nothing herein will release any party from any
liability for any breach of this Agreement. If this Agreement is terminated,
the proxies of the Series A-1 Holders delivered under Section 3(b) will also
terminate and be of no further force or effect, and the Buyer will promptly
return the proxies to the respective Series A-1 Holders.
14. Director Matters Excluded. With respect to each Series A-1 Holder
that has a designee that is a member of the Company's Board of Directors, no
provision of this Agreement will limit or otherwise restrict such Series A-1
Holder's designee with respect to any act or omission that he or she may
undertake or authorize in his or her capacity as a member of the Company's
Board of Directors, including, without limitation, any vote that such designee
of a Series A-1 Holder may make as a director of the Company with respect to
any matter presented to the Company's Board of Directors.
15. Miscellaneous.
(a) Notices. All notices and other communications hereunder
must be in writing and will be deemed given if delivered personally, effective
when delivered, or if delivered by express delivery service, effective when
delivered, or if mailed by registered or certified mail (return receipt
requested), effective three business days after mailing, or if delivered by
telecopy, effective when telecopied with confirmation of receipt, to the
parties at the following addresses (or at such other address for a party as may
be specified by like notice):
If to the Series A-1 Holders to:
Xxxxxx Xxxxxx Capital Partners, L.P.
c/x Xxxxxx Xxxxxx Capital Partners, LLC
Lever House
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxx, Partner
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxx
If to the Buyer to:
Stellent, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Chief Executive Officer
6
with a copy to:
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx Xxxxxx
Xxxxxx Xxxxx
If to Company to:
Optika Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
E* Law Group
0000 Xxxx 000xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
(b) Interpretation. The headings contained in this Agreement
are for reference purposes only and do not affect the interpretation of this
Agreement.
(c) Signatures and Counterparts. This Agreement may be
executed by facsimile signature and in one or more counterparts, all of which
will be considered the same agreement.
(d) Entire Agreement. This Agreement (along with the
documents and instruments referred to herein, including the Merger Agreement),
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral (including, without limitation, the TWCP
LOI), among the parties with respect to the subject matter hereof.
(e) No Post-Closing Obligations. Notwithstanding anything
contained herein that may be deemed to be to the contrary, nothing in this
Agreement, the Merger Agreement or any other agreement shall impose, or shall
be deemed to impose, any post-Effective Time obligations or liabilities on any
of the Series A-1 Holders, except for those obligations imposed by Section 7 of
this Agreement.
(f) Amendment and Waiver. Any provision of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement or,
in the case of a waiver, by each party against whom the waiver is to be
effective.
7
(g) Severability. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability of
any other provisions of this Agreement. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law.
(h) Governing Law. This Agreement will be governed by
Delaware law, without regard to the principles of conflicts of law.
(i) Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal court located in the State
of Delaware or any Delaware state court, and each of the parties hereby
irrevocably consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 15(a) of this Agreement shall be
deemed effective service of process on such party.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(k) Assignment. Neither this Agreement nor any of the rights,
interests, or obligations hereunder may be assigned by any party, whether by
operation of law or otherwise, without the express written consent of the other
parties hereto, except in accordance with Section 6 of this Agreement. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective successors,
heirs, legal representatives, and permitted assigns.
(l) Remedies. In addition to all other remedies available,
the parties agree that, in the event of a breach by a party of any of its
obligations hereunder, the non-breaching party will be entitled to specific
performance or injunctive relief.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties have signed this Agreement as
of the date first written above.
STELLENT, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Its: Chief Financial Officer
OPTIKA INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Its: Chief Executive Officer
SERIES A-1 HOLDERS
XXXXXX XXXXXX CAPITAL PARTNERS, L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
9
TWP CEO FOUNDERS' CIRCLE (AI), L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
TWP CEO FOUNDERS' CIRCLE (QP), L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
XXXXXX XXXXXX CAPITAL PARTNERS EMPLOYEE
FUND, L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
10
TWP 2000 CO-INVESTMENT FUND, L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
XXXXXX XXXXXX CAPITAL PARTNERS (DUTCH),
L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
XXXXXX XXXXXX CAPITAL PARTNERS
(DUTCH II), L.P.
By: Xxxxxx Xxxxxx Partners Group LLC,
its general partner
By: Xxxxxx Xxxxxx Partners Group LLC,
its managing member
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Its: Managing Partner
[Series A-1 Agreement]
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EXHIBIT A
TO SERIES A-1 VOTING AGREEMENT
Name Number of Shares of Company Capital Stock
---------------------------------------------------------- -----------------------------------------
Xxxxxx Xxxxxx Capital Partners, L.P. 589,808 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
TWP CEO Founders' Circle (AI), L.P. 13,627 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
TWO CEO Founders' Circle (QP), L.P. 49,786 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
Xxxxxx Xxxxxx Capital Partners Employee Fund, L.P. 5,550 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
TWP 2000 Co-Investment Fund, L.P. 8,889 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
Xxxxxx Xxxxxx Capital Partners (Dutch), L.P. 13,799 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
Xxxxxx Xxxxxx Capital Partners (Dutch II) , L.P. 13,799 shares of Series A-1 Convertible
Preferred Stock
0 shares of Common Stock
A-1
EXHIBIT B
TO SERIES A-1 VOTING AGREEMENT
AGREEMENT AND PLAN OF MERGER
(incorporated by reference to Exhibit 2.1 of the Issuer's
Current Report on Form 6-K, filed January 12, 2004)
B-1
EXHIBIT C
TO SERIES A-1 VOTING AGREEMENT
OPTIKA INC.
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION
OF
SERIES A-1 CONVERTIBLE PREFERRED STOCK
Optika Inc. (the "Corporation"), a corporation organized and existing
under the General Corporation Law of the State of Delaware ("DGCL"), DOES
HEREBY CERTIFY that:
A. Pursuant to the authority conferred upon the Board of Directors by
Article IVB of the Second Amended and Restated Certificate of Incorporation of
the Corporation (the "Certificate of Incorporation"), and in accordance with
the provisions of Section 151(g) of the DGCL, the Board of Directors on April
24, 2001, adopted a resolution creating a series of preferred stock designated
as Series A-1 Convertible Preferred Stock.
B. The Corporation's original Certificate of Designation of Series A-1
Convertible Preferred Stock was filed with the Secretary of State of the State
of Delaware on May 7, 2001.
C. Pursuant to the authority vested in the Board of Directors by the
Certificate of Incorporation, the Board of Directors on [____________],
200[__], in accordance with Section 141 of the DGCL, duly adopted resolutions
amending and restating the Certificate of Designation of Series A-1 Convertible
Preferred Stock as set forth below.
D. The Amended and Restated Certificate of Designation of Series A-1
Convertible Preferred Stock set forth below has been adopted pursuant to
Section 242 of the DGCL. The Certificate of Designation of Series A-1
Convertible Preferred Stock of the Corporation is hereby amended and restated
to read in its entirety as follows, and such Amended and Restated Certificate
of Designation of Series A-1 Convertible Preferred Stock will supersede the
original Certificate of Designation of Series A-1 Convertible Preferred Stock.
Capitalized terms used herein shall have the meanings set forth in Section 7
hereof or otherwise in this Amended and Restated Certificate of Designation:
SECTION 1. DESIGNATION; NUMBER; RANK.
(a) Designation; Number. The shares of such series shall
be designated "Series A-1 Convertible Preferred Stock" (the "Series A-1
Preferred Stock"). The number of shares constituting the Series A-1 Preferred
Stock shall be 731,851.
(b) Rank. The Series A-1 Preferred Stock shall, with
respect to rights on liquidation, dissolution or winding up, be pari passu to
the Common Stock, par value $0.001 per share, of the Corporation (the "Common
Stock") and all other capital stock of the Corporation issued prior to or on or
after the date hereof.
C-1
SECTION 2. DIVIDENDS.
No dividend or other distribution, whether in cash, securities or
other property, shall be paid on or declared and set apart for any share of
Series A-1 Preferred Stock.
SECTION 3. LIQUIDATION, DISSOLUTION OR WINDING UP.
The Series A-1 Preferred Stock will have no liquidation preference.
SECTION 4. VOTING RIGHTS.
Except for any voting rights provided by law, the Series A-1 Preferred
Stock will have no right to vote on any matters before the stockholders of the
Corporation.
SECTION 5. STATUS OF CONVERTED STOCK.
Any shares of Series A-1 Preferred Stock converted, purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled promptly after the acquisition thereof. All such shares of Series
A-1 Preferred Stock shall upon their cancellation, and upon the filing of any
document required by the DGCL, become authorized but unissued shares of
Preferred Stock, $0.001 par value, of the Corporation and may be reissued as
part of another series of Preferred Stock, $0.001 par value, of the
Corporation.
SECTION 6. CONVERSION.
(a) Right to Convert. The holders of Series A-1
Preferred Stock shall have the right following the Issue Date at any time in
whole and from time to time in part, at such holder's option, to convert each
outstanding share of Series A-1 Preferred Stock into one fully paid and
nonassessable share of Common Stock as set forth hereinafter.
(b) Mechanics of Conversion. Conversion of the Series
A-1 Preferred Stock may be effected by any such holder upon the surrender to
the Corporation at the principal office of the Corporation or at the office of
any agent or agents of the Corporation, as may be designated by the Board of
Directors (the "Transfer Agent"), of the certificate(s) for such Series A-1
Preferred Stock to be converted, accompanied by a written notice (the date of
such notice being referred to as the "Conversion Date") stating that such
holder elects to convert all or a specified number of such shares in accordance
with the provisions of this Section 6 and specifying the name or names in which
such holder wishes the certificate or certificates for shares of Common Stock
to be issued. In case any holder's notice shall specify a name or names other
than that of such holder, such notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Common Stock in such name
or names. Other than such taxes, the Corporation will pay any and all transfer,
issue, stamp and other taxes (other than taxes based on income) that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of Series A-1 Preferred Stock pursuant hereto. As promptly as
practicable, and in any event within five Business Days after the surrender of
such certificate or certificates and the receipt of such notice relating
thereto and, if
C-2
applicable, payment of all transfer taxes which are the responsibility of the
holder as set forth above (or the demonstration to the satisfaction of the
Corporation that such taxes have been paid), the Corporation shall deliver or
cause to be delivered (i) certificates representing the number of validly
issued, fully paid and nonassessable full shares of Common Stock, to which the
holder of shares of Series A-1 Preferred Stock being converted shall be
entitled and (ii) if less than the full number of shares of Series A-1
Preferred Stock evidenced by the surrendered certificate or certificates is
being converted, a new certificate or certificates, of like tenor, for the
number of shares evidenced by such surrendered certificate or certificates less
the number of shares being converted. Such conversion shall be deemed to have
been made at the close of business on the Conversion Date so that the rights of
the holder thereof as to the shares being converted shall cease except for the
rights pursuant to this Section 6 to receive shares of Common Stock, in
accordance herewith, and the person entitled to receive the shares of Common
Stock shall be treated for all purposes as having become the record holder of
such shares of Common Stock at such time.
SECTION 7. DEFINITIONS.
For the purpose of this Amended and Restated Certificate of
Designation of Series A-1 Convertible Preferred Stock, the following terms
shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
Corporation.
"Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in New York City, New York are authorized or
obligated by law or executive order to close.
"Issue Date" shall mean May 7, 2001.
"person" shall mean any individual, firm, corporation, partnership or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
IN WITNESS WHEREOF, the officers named below, acting for and on behalf
of Optika Inc., have hereunto subscribed their names on this [__]th day of
[________________], 200[_].
OPTIKA INC. Attest:
By: By:
------------------------------ ----------------------------
[ ] [ ]
[---------------------------- ] [---------------------------]
President and Chief Executive Officer [ ]
[---------------------------]
C-3
EXHIBIT D
TO SERIES A-1 VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned, revoking any proxy heretofore given, hereby
constitutes and appoints each of Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx the true
and lawful attorney, with full power of substitution, for and in the name of
the undersigned to vote, at any time before the Termination (defined below),
all shares of capital stock of Optika Inc., a Delaware corporation (the
"Company"), (1) registered in the name of the undersigned at the record date
for such vote, or (2) over which the undersigned has voting power by power of
attorney or other contractual arrangements with the owner of record
(collectively, the "Shares"), at any meeting of the stockholders of the
Company, and at all adjournments thereof, and pursuant to any consent of the
stockholders in lieu of a meeting or otherwise, in favor of approval of the
Merger Agreement (defined below), the Merger (defined below) and the
Restatement (defined below).
This Proxy is given with respect to the approval of (i) the Agreement
and Plan of Merger among Stellent, Inc., a Minnesota corporation (the"Buyer"),
STEL Sub, Inc., a Delaware corporation and wholly owned subsidiary of the
Buyer, and the Company, dated as of January [__], 2004, as the same may be
amended from time to time in accordance with the provisions thereof and the
provisions of the Voting Agreement (as defined below) (the "Merger Agreement"),
(ii) the merger contemplated by the Merger Agreement (the "Merger"), and (iii)
the approval of an amended and restatement of the Company's Certificate of
Designation of Series A-1 Convertible Preferred Stock (the "Restatement") in
connection therewith in the form set forth in Exhibit C to the Written Consent
and Voting Agreement dated as of the date hereof among the Buyer and each of
the persons and entities listed on Exhibit A thereto (the "Voting Agreement").
This Proxy is given to induce the Buyer to enter into the Merger Agreement, is
coupled with an interest, and is irrevocable; provided, that this Proxy will
terminate automatically and without further action on behalf of the undersigned
upon the termination of the Voting Agreement pursuant to Section 13 thereof
(the "Termination").
The undersigned hereby ratifies and confirms all that the proxies
named herein may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, an authorized officer of the undersigned or its
managing member has hereunto set his or her hand as of this January [__], 2004.
[ENTITY NAME AND SIGNATURE BLOCK]
