This sample document is the work product of a coalition of attorneys who specialize in venture capital financings working under the auspices of the NVCA See the NVCA website for a list of the Working Group members This document is intended to serve as a starting point only and should be tailored to meet your specific requirements This document should not be construed as legal advice for any particular facts or circumstances Note that this sample document presents an array of often mutually exclusive options with respect to particular deal provisions AMENDED AND RESTATED VOTING AGREEMENT Last Updated August 2005 TABLE OF CONTENTS Page 1 Voting Provisions Regarding Board of Directors 1 1 Size of the Board 1 2 Board Composition 1 3 Failure to Designate a Board Member 1 4 Removal of Board Members 1 5 No Liability for Election of Recommended Directors 2 2 2 4 4 5 2 Vote to Increase Authorized Common Stock 5 3 Drag Along Right 3 1 Definitions 3 2 Actions to be Taken 3 3 Exceptions 3 4 Restrictions on Sales of Control of the Company 5 5 5 6 8 4 Remedies 4 1 Covenants of the Company 4 2 Irrevocable Proxy 4 3 Specific Performance 4 4 Remedies Cumulative 8 8 8 9 9 5 Term 9 6 Miscellaneous 6 1 Additional Investors 6 2 Transfers 6 3 Successors and Assigns 6 4 Governing Law 6 5 Counterparts Facsimile 6 6 Titles and Subtitles 6 7 Notices 6 8 Consent Required to Amend Terminate or Waive 6 9 Delays or Omissions 6 10 Severability 6 11 Entire Agreement 6 12 Legend on Share Certificates 6 13 Stock Splits Stock Dividends etc 6 14 Manner of Voting 6 15 Further Assurances 6 16 Dispute Resolution 6 17 Cost of Enforcement 6 18 Spousal Consent 10 10 10 11 11 11 11 11 11 12 12 13 13 13 13 13 14 14 15 Schedule A Schedule B Investors Key Holders Exhibit A Exhibit B Adoption Agreement Consent of Spouse Last Updated August 2005 i AMENDED AND RESTATED VOTING AGREEMENT THIS AMENDED AND RESTATED VOTING AGREEMENT the Agreement is made and entered into as of this day of 20 by and among a Delaware corporation the Company each holder of the Company s Series A Preferred Stock and Series Preferred Stock Preferred Stock listed on Schedule A together with any subsequent investors or transferees who become parties hereto as Investors pursuant to Sections 6 1 a and 6 2 below the Investors and those certain stockholders of the Company and holders of options to acquire shares of the capital stock of the Company listed on Schedule B together with any subsequent stockholders or option holders or any transferees who become parties hereto as Key Holders pursuant to Section s 6 1 b and 6 2 below the Key Holders and together collectively with the Investors the Stockholders 1 RECITALS A Alternative 1 Concurrently with the execution of this Agreement the Company and the Investors are entering into a Series A Preferred Stock Purchase Agreement the Purchase Agreement providing for the sale of shares of the Company s Series A Preferred Stock and in connection with that agreement the parties desire to provide the Investors with the right among other rights to elect certain members of the board of directors of the Company the Board in accordance with the terms of this Agreement 2 3 A Alternative 2 Concurrently with the execution of this Agreement the Company and the certain of the Investors are entering into a Series B Preferred Stock Purchase Agreement the Purchase Agreement providing for the sale of shares of the Company s Series B Preferred Stock Series B Preferred Stock Certain of the Investors the Existing Investors and the Key Holders are parties to the Voting Agreement dated by and among the Company and the parties thereto the Prior Agreement The parties to the Prior Agreement desire to amend and restate that agreement to provide those Investors purchasing shares of the Company s Series B Preferred Stock with the right among other rights to elect certain members of the board of directors of the Company the Board in accordance with the terms of this Agreement 4 1 In most cases investors will want the term Key Holders to include major common stock or option holders in addition to the individuals who actually founded the Company 2 The first alternative for the recital paragraph A assumes that the agreement concerns the sale of the Company s first series of preferred stock 3 Section 706 a of the California General Corporation Law the CGCL and Section 218 c of the Delaware General Corporation Law the DGCL specifically allow voting agreements between stockholders provided such agreements are in writing and signed by the parties thereto The powers created by these sections are not limited to board matters 4 The second alternative for recital paragraph A assumes that a preexisting voting agreement is being superseded It contemplates two or more different series of preferred stock In the remainder of this Agreement brackets indicate places where the drafter will have to take account of the existence of multiple series Last Updated August 2005 B The Amended and Restated Certificate of Incorporation of the Company the Restated Certificate provides that a the holders of record of the shares of the Company s Series A Preferred Stock Series A Preferred Stock exclusively and as a separate class shall be entitled to elect directors of the Company the Series A Directors and the holders of record of the shares of Series B Preferred Stock shall be entitled to elect directors of the Company b the holders of record of the shares of common stock of the Company par value Common Stock exclusively and as a separate class shall be entitled to elect directors of the Company and c the holders of record of the shares of Common Stock and of any other class or series of voting stock including Series A and B Preferred Stock exclusively and voting together as a single class shall be entitled to elect the balance of the total number of directors of the Company 5 C The parties also desire to enter into this Agreement to set forth their agreements and understandings with respect to how shares of the Company s capital stock held by them will be voted on or tendered in connection with an acquisition of the Company an increase in the number of shares of Common Stock required to provide for the conversion of the Company s Preferred Stock NOW THEREFORE the parties agree as follows 1 Voting Provisions Regarding Board of Directors 6 1 1 Size of the Board Each Stockholder agrees to vote or cause to be voted all Shares as defined below owned by such Stockholder or over
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