VotingAgmtRev4[NVCA最新VC合同文本]

1、this sample document is the work product of a national 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

2、 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. last updated april 2007 am

3、ended and restated voting agreement i last updated april 2007 table of contents note to drafter: section headings have been formatted to automatically populate the table of contents. however, when editing this document for your own use, the page numbers may change. in order to reflect the correct pa

4、ge numbers in the table of contents, you must “update page numbers” to the table of contents by (1) right-clicking anywhere in the table of contents and (2) choose “update field,” then “update page numbers only.” if you add or delete section headings, follow step (1) and (2) above and choose “update

5、 entire table.” page 1. voting provisions regarding board of directors.2 1.1size of the board .2 1.2board composition.3 1.3failure to designate a board member.4 1.4removal of board members.4 1.5no liability for election of recommended directors .5 2. vote to increase authorized common stock.5 3. dra

6、g-along right.6 3.1definitions .6 3.2actions to be taken.6 3.3exceptions.7 3.4restrictions on sales of control of the company .9 4. remedies.9 4.1covenants of the company.9 4.2irrevocable proxy.9 4.3specific enforcement.10 4.4remedies cumulative.10 5. term.10 6. miscellaneous.11 6.1additional partie

7、s .11 6.2transfers.12 6.3successors and assigns .12 6.4governing law.12 6.5counterparts; facsimile.13 6.6titles and subtitles .13 6.7notices.13 6.8consent required to amend, terminate or waive .13 6.9delays or omissions.14 6.10 severability.14 6.11 entire agreement.14 6.12 legend on share certificat

8、es.15 6.13 stock splits, stock dividends, etc.15 ii last updated april 2007 6.14 manner of voting .15 6.15 further assurances .15 6.16 dispute resolution.15 6.17 costs of enforcement.16 6.18 aggregation of stock.16 6.19 spousal consent.16 schedule a -investors schedule b-key holders exhibit a-adopti

9、on agreement exhibit b-consent of spouse last updated april 2007 amended and restated voting agreement this amended and restated voting agreement is made and entered into as of this _ day of _, 20_, by and among _, a delaware corporation (the “company”), each holder of the companys series a preferre

10、d stock, $._ par value per share (“series a preferred stock”) and series _ preferred stock (referred to herein collectively with the series a preferred stock, as the “preferred stock”) listed on schedule a (together with any subsequent investors, or transferees, who become parties hereto as “investo

11、rs” pursuant to sections 6.1(a) or 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

12、parties hereto as “key holders” pursuant to sections 6.1(b) or 6.2 below, the “key holders”1, and together collectively with the investors, the “stockholders”). recitals alternative 1:2 a.concurrently with the execution of this agreement, the company and the investors are entering into a series a pr

13、eferred stock purchase agreement (the “purchase agreement”) providing for the sale of shares of the companys series a preferred stock, and in connection with that agreement the parties desire to provide the investors with the right, among other rights, to designate the election of certain members of

14、 the board of directors of the company (the “board”) in accordance with the terms of this agreement.3 alternative 2:4 a.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 agree

15、ment”) providing for the sale of shares of the companys 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”).

16、 the parties to the prior agreement desire to amend and restate that agreement to provide those investors purchasing shares of the companys 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

17、the terms of this agreement. 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

18、 the companys 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

19、 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

20、agreement, brackets indicate places where the drafter will have to take account of the existence of multiple series. last updated april 20072 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 t

21、he companys 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 re

22、cord 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

23、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

24、 the companys 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 companys preferred stock. now, therefore, the parties agree as follows: 1.voting

25、provisions regarding board of directors.6 1.1size of the board. each stockholder agrees to vote, or cause to be voted, all shares (as defined below) owned by such stockholder, or over which such stockholder has voting control, from time to time and at all times, in whatever manner as shall be necess

26、ary to ensure that the size of the board shall be set and remain at five (5) directors and may be increased only with the written consent of investors holding preferred stock representing at least _% of the shares of common stock issuable upon conversion of the then outstanding shares of preferred s

27、tock.7 for purposes of this agreement, the term “shares” shall mean and include any securities of the company the holders of which are entitled to vote for members of the board, including without limitation, all shares of common stock, series a preferred stock, and series b preferred stock, by whate

28、ver name called, now owned or subsequently acquired by a stockholder, however acquired, whether through stock splits, stock dividends, reclassifications, recapitalizations, similar events or otherwise. 5 appropriate modifications to this form will be required to reflect the actual series of preferre

29、d stock outstanding and the relative rights of such series. 6 careful consideration should be given to ensure that the voting agreement does not contradict class or series votes created by the charter. in particular, if the charter provides for the creation of an additional series (e.g., series a-1)

30、 to effectuate “pay-to-play” provisions, care should be taken to ensure that such shares are also included in the appropriate places in this agreement. in addition, especially for california corporations, consider the effects that cumulative voting may have on the class and series votes created by t

31、he charter. 7 in some companies, the charter or bylaws fix the size of the board or set a permissible range. depending upon the amendment provision of the charter, placing this provision in the voting agreement may give additional protection to some parties. last updated april 20073 1.2board composi

32、tion. each stockholder agrees to vote, or cause to be voted, all shares owned by such stockholder, or over which such stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which

33、 an election of directors is held or pursu- ant to any written consent of the stockholders, the following persons shall be elected to the board: 8 (a)one person designated by name of investor (the “name of investor designee”), which individual shall initially be _, for so long as such stockholders a

34、nd their affiliates continue to own beneficially at least _ shares of common stock of the company (including shares of common stock issued or issuable upon conversion of series a preferred stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapi

35、talizations and the like. (b)one person designated by name of 2d investor (the “name of 2d investor designee”), which individual shall initially be _ for so long as such stockholders and their affiliates continue to own beneficially at least _ shares of common stock of the company (including shares

36、of common stock issued or issuable upon conversion of series a preferred stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like. (c)alternative 1: for so long as the key holders hold at least _ shares of common stock (a

37、s adjusted for any stock splits, stock dividends, recapitaliza- tions or the like), one individual designated by the holders of a majority of the shares of common stock held by the key holders, which individual shall initially be _; alternative 2: name of key holder, for so long as name of key holde

38、r remains an officer employee of the company holds at least _ shares (as adjusted for stock splits, stock dividends, recapitalizations or the like) holds at least _% of the outstanding capital stock of the company on an as-converted-to-com- mon stock basis , except that if name of key holder decline

39、s or is unable to serve, his or her successor shall be designated by name of alternate key holder the holders of a majority of the shares of common stock of the company; 9 8 the number of permutations of board composition are almost limitless. some of the more common requirements are set forth in se

40、ction 1.2. 9 careful consideration should be given whenever an individual is named to serve as a director who may have the ability to continue to serve at his or her pleasure. alternative 1 provides that a founder director shall be elected by the majority of the key holders shares or the shares of c

41、ommon stock, depending upon which alternative is selected, but in fact the designated founder may have sufficient shares of stock to control that vote. alternative 2 has a variety of choices: the first ties the board seat to continued status as an officer or employee, which may be within the control

42、 of the majority of the board of directors; the other alternatives tie the right to designate a director only to continued minimum holdings of stock. last updated april 20074 (d)the companys chief executive officer, who shall initially be _ (the “ceo director”), provided that if for any reason the c

43、eo director shall cease to serve as the chief executive officer of the company, each of the stockholders shall promptly vote their respective shares (i) to remove the former chief executive officer from the board if such person has not resigned as a member of the board and (ii) to elect such persons

44、 replacement as chief executive officer of the company as the new ceo director; and (e)one individual not otherwise an affiliate (defined below) of the company or of any investor who is mutually acceptable to (i) the holders of a majority of the shares held by the key holders who are then providing

45、services to the company as officers, employees or consultants and (ii) the holders of a majority of the shares held by the investorsmutually acceptable to the other members of the board; and to the extent that any of clauses (a) through (d) above shall not be applicable, any member of the board who

46、would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the company entitled to vote thereon in accordance with, and pursuant to, the companys restated certificate. for purposes of this agreement, an individual, firm, corporati

47、on, partnership, association, lim- ited liability company, trust or any other entity (collectively, a “person”) shall be deemed an “affiliate” of another person who, directly or indirectly, controls, is controlled by or is under common control with such person, including, without limitation, any gen

48、eral partner, managing member, officer or director of such person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such person. 1.3failure to designate a board member. in the a

49、bsence of any designation from the persons or groups with the right to designate a director as specified above, the director previously designated by them and then serving shall be reelected if still eligible to serve as pro- vided herein. 1.4removal of board members. each stockholder also agrees to

50、 vote, or cause to be voted, all shares owned by such stockholder, or over which such stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that: (a)no director elected pursuant to sections 1.2 or 1.3 of this agree- ment may be removed

51、 from office other than for cause unless (i) such removal is directed or approved by the affirmative vote of the person, or of the holders of at least specify percentage of the shares of stock, entitled under section 1.2 to designate that director10 or (ii) the person(s) originally entitled to desig

52、nate or approve such director or 10 alternatively, the agreement can enumerate the identity of each group whose consent is necessary to remove each director, but care should be given to ensure that the consent requirements conform to the exact subsets entitled to designate directors, e.g., “the hold

53、ers of a majority of the shares held by the key holders who are then providing services to the company as officers, employees or consultants.” last updated april 20075 occupy such board seat pursuant to section 1.2 is no longer so entitled to designate or approve such director or occupy such board s

54、eat; (b)any vacancies created by the resignation, removal or death of a director elected pursuant to sections 1.2 or 1.3 shall be filled pursuant to the provisions of this section 1;11 and (c)upon the request of any party entitled to designate a director as provided in section 1.2(a) or 1.2(b) to re

55、move such director, such director shall be removed. all stockholders agree to execute any written consents required to perform the obligations of this agreement, and the company agrees at the request of any party entitled to designate directors to call a special meeting of stockholders for the purpo

56、se of electing directors. so long as the stockholders of the company are entitled to cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his or her removal would be sufficient to elect such director if then cumulativel

57、y voted at an election of the entire board. 1.5no liability for election of recommended directors. no stockholder, nor any affiliate of any stockholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or

58、 her capacity as a director of the company, nor shall any stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this agreement. 2.vote to increase authorized common stock. each stockholder agrees to vote or cause to be voted all shares owned

59、by such stockholder, or over which such stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to increase the number of authorized shares of common stock from time to time to ensure that there will be sufficient shares of common stock available

60、for conversion of all of the shares of preferred stock outstanding at any given time. 3.drag-along right.12 3.1definitions. a “sale of the company” shall mean either: (a) a transac- tion or series of related transactions in which a person, or a group of related persons, acquires 11 for flexibility r