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1、 AMENDED AND RESTATED VOTING AGREEMENT 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 page numbers in the Table of C
2、ontents,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 entire table.”Page 1.Voting Provisions Regar
3、ding Board of Directors.2 1.1 Size of the Board.2 1.2 Board Composition.3 1.3 Failure to Designate a Board Member.4 1.4 Removal of Board Members.4 1.5 No Liability for Election of Recommended Directors.5 2.Vote to Increase Authorized Common Stock.5 3.Drag-Along Right.6 3.1 Definitions.6 3.2 Actions
4、to be Taken.6 3.3 Exceptions.7 3.4 Restrictions on Sales of Control of the Company.9 4.Remedies.9 4.1 Covenants of the Company.9 4.2 Irrevocable Proxy.9 4.3 Specific Enforcement.10 4.4 Remedies Cumulative.10 5.Term.10 6.Miscellaneous.11 6.1 Additional Parties.11 6.2 Transfers.12 6.3 Successors and A
5、ssigns.12 6.4 Governing Law.12 6.5 Counterparts;Facsimile.13 6.6 Titles and Subtitles.13 6.7 Notices.13 6.8 Consent Required to Amend,Terminate or Waive.13 6.9 Delays or Omissions.14 6.10 Severability.14 6.11 Entire Agreement.14 6.12 Legend on Share Certificates.15 6.13 Stock Splits,Stock Dividends,
6、etc.15 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-Adoption Agreement Exhibit B-Consent of Spouse AMENDED AND RESTATED VOTING AG
7、REEMENT 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 Preferred Stock,$._ par value per share(“Series A Preferred Stock”)and Series _ Preferred Stock(referred to h
8、erein 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“Investors”pursuant to Sections 6.1(a)or 6.2 below,the“Investors”)and those certain stockholders of the Company and hold
9、ers 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 Sections 6.1(b)or 6.2 below,the“Key Holders”1,and together collectively with t
10、he 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 Preferred Stock Purchase Agreement(the“Purchase Agreement”)providing for the sale of shares of the Companys Series A Preferred Stock
11、,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 the board of directors of the Company(the“Board”)in accordance with the terms of this Agreement.3 Alternative 2:4 A.Concurrently with t
12、he 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 Companys Series B Preferred Stock(“Series B Preferred Stock”).Certain of the Investors(the“Exist
13、ing 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 Companys Series B Pr
14、eferred Stock with the right,among other rights,to elect 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 agree
15、ment concerns the sale of 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 wri
16、ting 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 remaind
17、er of this Agreement,brackets indicate places where the drafter will have to take account of the existence of multiple series.certain members of the board of directors of the Company(the“Board”)in accordance with the terms of this Agreement.B.The Amended and Restated Certificate of Incorporation of
18、the Company(the“Restated Certificate”)provides that(a)the holders of record of the shares of the 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 Pre
19、ferred 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
20、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
21、 set forth their agreements and understandings with respect to how shares of 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 Company
22、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 which such Stockholder has voting control,from time
23、 to time and at all times,in whatever manner as shall be necessary 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 u
24、pon conversion of the then outstanding shares of Preferred Stock.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 P
25、referred Stock,and Series 5 Appropriate modifications to this form will be required to reflect the actual series of preferred 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
26、 created by the charter.In particular,if the charter provides for the creation of an additional series(e.g.,Series A-1)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 Califor
27、nia corporations,consider the effects that cumulative voting may have on the class and series votes created by the 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 th
28、e voting agreement may give additional protection to some parties.B Preferred Stock,by whatever name called,now owned or subsequently acquired by a Stockholder,however acquired,whether through stock splits,stock dividends,reclassifications,recapitalizations,similar events or otherwise.1.2 Board Comp
29、osition.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 an
30、 election of directors is held or pursuant 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 and their Af
31、filiates 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,recapitalizations and
32、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 of Common Stock issue
33、d 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(as adjusted for any stock spl
34、its,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 Holder remains an officer employee of the
35、 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 declines or is unable to serve,his or her successor
36、 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 Section 1.2.9 Careful consideration should be giv
37、en 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 common stock,depending upon which alternative is s
38、elected,but in fact the designated founder may have sufficient shares of stock to control that vote.(continued)(d)The Companys Chief Executive Officer,who shall initially be _(the“CEO Director”),provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of t
39、he 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 replacement as Chief Executive Officer of the Company as the new CEO Dir
40、ector;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 services to the Company as officers,employees or consultants and(ii)the holders
41、 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 would otherwise have been designated in accordance with the terms thereof shall instead
42、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,corporation,partnership,association,lim-ited liability company,trust or any other entity(collectively,a
43、“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 general partner,managing member,officer or director of such Person or any venture capital fund now or hereafter ex
44、isting that is controlled by one or more general partners or managing members of,or shares the same management company with,such Person.1.3 Failure to Designate a Board Member.In the absence of any designation from the Persons or groups with the right to designate a director as specified above,the d
45、irector previously designated by them and then serving shall be reelected if still eligible to serve as pro-vided herein.1.4 Removal of Board Members.Each Stockholder also agrees to vote,or cause to be voted,all Shares owned by such Stockholder,or over which such Stockholder has voting control,from
46、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 from office other than for cause unless(i)such removal is directed or approved by the affirmative vote of the Person,or of th
47、e holders of at least specify percentage of the shares of stock,entitled under Section 1.2 to designate that 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 of the majority of the board of directors;th
48、e other alternatives tie the right to designate a director only to continued minimum holdings of stock.director10 or(ii)the Person(s)originally entitled to designate or approve such director or occupy such Board seat pursuant to Section 1.2 is no longer so entitled to designate or approve such direc
49、tor or occupy such Board seat;(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
50、 1.2(a)or 1.2(b)to remove 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 stockhol
