MANAGEMENT AND VOTING AGREEMENTS IN BUSINESSES

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1 MANAGEMENT AND VOTING AGREEMENTS IN BUSINESSES Live Replay: September 14, 2016 First Run Broadcast: February 11, :00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) Management control of a company is often important to certain investors as economic rights. They want to concentrate governance in certain stakeholders to guide the company, whether in its early stages, on the occurrence of certain events, or just as a matter of ordinary operation. This is particularly the case in family- or otherwise closely-held companies and in early stage, venture-based companies. Economics rights entitlement to distributions and certain tax allocations and all other rights are another matter. What s more important to these stakeholders is control. There are a variety of mechanisms for achieving control depending on the type of entity involved, its ownership structure, and the client goals involved. These mechanisms include something as simple as a proxy or more something more complex like a voting trust or contractual rights to shift management control on the occurrence of certain events. This program will provide you with a practical guide to voting, management and control rights and agreements in business transactions. Using voting trusts and other management control mechanisms in companies Voting trusts, proxies and other mechanisms for concentrating voting power Drafting contractual rights to change control on certain triggering events Ensuring compliance with substantive law when drafting these mechanisms Allocating additional board seats to a control group on the occurrence of certain events Fiduciary risks of concentrating control Practical drafting of control mechanisms stockholder agreements, operating agreements, separate agreements Speaker: Tyler J. Sewell is an attorney in the Denver office of Morrison & Foerster, LLP, where he specializes in mergers and acquisitions. He focuses his practice on advising financial and strategic buyers and sellers in public and private M&A transactions and complex corporate transactions. He negotiates and documents leveraged acquisitions, divestitures, asset acquisitions, stock acquisitions, mergers, auction transactions, and cross-border transactions. Mr. Sewell received his B.S., with merit, in ocean engineering from the United States Naval Academy and his J.D., magna cum laude, from the University of Pennsylvania Law School.

2 PROFESSIONAL EDUCATION BROADCAST NETWORK Speaker Contact Information MANAGEMENT AND VOTING AGREEMENTS IN BUSINESSES Matt Dubofsky Cooley LLP Broomfield, Colorado (o) (720) Tyler J. Sewell Morrison & Foerster LLP Denver (o) (303)

3 VT Bar Association Continuing Legal Education Registration Form Please complete all of the requested information, print this application, and fax with credit info or mail it with payment to: Vermont Bar Association, PO Box 100, Montpelier, VT Fax: (802) PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # Address Management & Voting Agreements in Businesses Teleseminar September 14, :00PM 2:00PM 1.0 MCLE GENERAL CREDITS VBA Members $75 Non-VBA Members $115 NO REFUNDS AFTER September 7, 2016 PAYMENT METHOD: Check enclosed (made payable to Vermont Bar Association) Amount: Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # Exp. Date Cardholder:

4 Vermont Bar Association CERTIFICATE OF ATTENDANCE Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: September 14, 2016 Seminar Title: Location: Credits: Program Minutes: Management & Voting Agreements in Businesses Teleseminar - LIVE 1.0 MCLE General Credit 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

5 Select provisions from NVCA model venture capital financing documents Certificate of Incorporation board of directors composition and preffered stock protective provisions 3.2 Election of Directors. The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect [ ] directors of the Corporation (the Series A Directors ) and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect [ ] directors of the Corporation. 1 Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Series A Preferred Stock or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 3.2, then any directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred Stock or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. 2 The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series A 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 Corporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 3.2. [The rights of the holders of the Series A Preferred Stock and the rights of the holders of the Common Stock under the first sentence of this Subsection 3.2 shall terminate on the first date following the Series A Original Issue Date (as defined below) on which there are issued and outstanding less than [ ] shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series A Preferred Stock).] 3.3 Series A Preferred Stock Protective Provisions. At any time when [shares of Series A Preferred Stock] [at least [ ] shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock)] are outstanding, the 1 The size of the Board of Directors is typically fixed in the Bylaws (which permits it to be amended without the need for a charter amendment), though it could be fixed here. The Voting Agreement also typically obligates the parties to vote to fix the size of the Board at a specified number of directors. 2 This sentence has been added in response to FGC Holdings Ltd. v. Teltronics, Inc., Case No. C.A. 883-N (Del. Ch. Ct. Sept. 14, 2005). 1

6 Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of at least [specify percentage] of the then outstanding shares of Series A Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, 3 and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any merger or consolidation 5 or any other Deemed Liquidation Event, 6 or consent to any of the foregoing; amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation [in a manner that adversely affects the powers, preferences or rights of the Series A Preferred Stock]; create, or authorize the creation of, [or issue or obligate itself to issue shares of,] any additional class or series of capital stock [unless the same ranks junior to the Series A Preferred Stock with respect to the distribution of assets on the liquidation, 3 Consider including here some or all of the additional restrictions in Section 5.5 of the Model Investors Rights Agreement (which, as set forth in that form, require the consent of some number of the investordesignated directors). Bear in mind that if the matter may be waived by a vote of a specified portion of the Board, any investor-designated director will be constrained by his or her fiduciary duties to the Corporation. Also, if the consent rights are contained in the charter, the investor can argue that an act by the Corporation in contravention of those provisions would be void or voidable rather than simply a breach of contract. But see footnote This language has been added in response to the Delaware Chancery Court s opinion in Fletcher Int l, Ltd. v. ION Geophysical Corp., Case No. C.A VCP (Del. Ch. Ct. May 28, 2010), where the court declined to unwind promissory notes issued by the defendant corporation in apparent violation of a preferred stock consent right in its charter. Rather than simply declaring the issuance void and ordering the transaction to be rescinded, the court applied an injunction standard and concluded that, although the preferred stockholder had proven the likelihood that its consent right had been contravened, compensatory damages were calculable (or another equitable remedy might be available), and, in balancing the potential harms to the parties, held that the corporation would suffer the greater harm were it forced to return the borrowed funds. 5 The purpose of including the broader language relating to any merger or consolidation is to prevent mergers that have no independent economic substance but rather are effected for the sole purpose of subverting the terms of the outstanding Series A Preferred Stock (see, e.g., Benchmark Capital Partners IV, L.P. v. Vague, Case No. C.A (Del. Ch. Ct. July 15, 2002). If the investors have not negotiated for a veto right on a sale of the company, the provision might instead read effect any merger or consolidation, other than a Deemed Liquidation Event. If the parties consider such provision too broad, the investors are nevertheless well advised to include an additional protective provision prohibiting any mergers or consolidations that result in conversion of the preferred stock other than in accordance with the provisions of Sections Error! Reference source not found. and Error! Reference source not found., in order to prevent any mischief. 6 A Deemed Liquidation Event is defined to include a sale or disposition, by the Corporation or any subsidiary, of substantially all of the assets of the Corporation and its subsidiaries taken as a whole. See clause (g) for a prohibition on dispositions of assets by subsidiaries that do not rise to the level of a Deemed Liquidation Event. 7 Under Delaware law, the authorization of another series of Preferred Stock with rights senior to those of the Series A Preferred Stock as to dividends, liquidation and redemption would generally not constitute an amendment that adversely affects the Series A Preferred Stock. Accordingly, the following subsection contains additional restrictions specifically dealing with the authorization of senior or pari passu stock. 2

7 dissolution or winding up of the Corporation, the payment of dividends and rights of redemption], or increase the authorized number of shares of Series A Preferred Stock or increase the authorized number of shares of any additional class or series of capital stock [unless the same ranks junior to the Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption]; (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series A Preferred Stock in respect of any such right, preference, or privilege or (ii) reclassify, alter or amend any existing security of the Corporation that is junior to the Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series A Preferred Stock in respect of any such right, preference or privilege; purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Series A Preferred Stock as expressly authorized herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock and (iii) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at the lower of the original purchase price or the then-current fair market value thereof [or (iv) as approved by the Board of Directors, including the approval of at least one Series A Director]; create, or authorize the creation of, or issue, or authorize the issuance of any debt security, or permit any subsidiary to take any such action with respect to any debt security[, if the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would exceed $ ] [other than equipment leases or bank lines of credit] [unless such debt security has received the prior approval of the Board of Directors, including the approval of [at least one] Series A Director]; 9 [or] create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more other subsidiaries) by the Corporation, or sell, transfer or otherwise dispose of any capital stock of any direct or indirect subsidiary of the 8 Inclusion of a requirement that Board approval include approval by a Series A Director is frequently seen as a compromise between requiring approval of the holders of Series A Preferred Stock (quastockholders) and simply requiring Board approval. However, prior to inclusion of the bracketed language, consideration should be given to the fact that any board-level approval of the Series A Director (as opposed to stockholder approval by the holders of Series A Preferred Stock) will be in such director s capacity as a member of the board of directors and therefore subject to such director s fiduciary duties to the corporation. 9 See footnote 34. 3

8 Corporation, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary[.][; or] [increase or decrease the authorized number of directors constituting the Board of Directors] Incorporation. This provision often is addressed in the Voting Agreement rather than in the Certificate of 4

9 Voting Agreement board of directors composition and drag along and forced sale provisions 1. Voting Provisions Regarding Board of Directors 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 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 upon conversion of the then outstanding shares of Preferred Stock.] 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 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 Composition. 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 election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board: 12 (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 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, recapitalizations 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 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. 11 Careful consideration should be given to ensure that the voting agreement does not contradict class or series votes created by the Certificate of Incorporation. In particular, if the Certificate of Incorporation 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 California corporations, consider the effects that cumulative voting may have on the class and series votes created by the Certificate of Incorporation. 12 The number of permutations of board composition are almost limitless. Some of the more common requirements are set forth in Section

10 (c) [Alternative 1: For so long as the Key Holders [who are then providing services to the Company as officers, employees or consultants] hold at least [ ] shares of Common Stock (as adjusted for any stock splits, stock dividends, recapitalizations 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 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-common Stock basis] [, except that if [name of Key Holder] declines 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]; 13 (d) The Company s 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 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 person s replacement as Chief Executive Officer of the Company as the new CEO Director; and (e) One individual not otherwise an Affiliate (as 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 of a majority of the Shares held by the Investors] [mutually 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 be voted upon by all the stockholders of the Company entitled to vote thereon in accordance with, and pursuant to, the Company s Restated Certificate. For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited 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 general 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. 13 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 common 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 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. 6

11 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 director previously designated by them and then serving shall be reelected if still eligible to serve as provided 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 time to time and at all times, in whatever manner as shall be necessary to ensure that: (a) no director elected pursuant to Subsections 1.3 or 1.4 of this Agreement 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 the holders of at least [specify percentage] of the shares of stock, entitled under Subsection 1.3 to designate that director; 14 or (ii) the Person(s) originally entitled to designate or approve such director [or occupy such Board seat] pursuant to Subsection 1.3 is no longer so entitled to designate or approve such director [or occupy such Board seat]; (b) any vacancies created by the resignation, removal or death of a director elected pursuant to Subsections 1.3 or 1.4 shall be filled pursuant to the provisions of this Section 1; 15 and (c) upon the request of any party entitled to designate a director as provided in Subsection 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 stockholders for the purpose 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 cumulatively voted at an election of the entire Board.] 1.5 No 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 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. 14 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 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. 15 For flexibility reasons it may be useful to permit the Board to fill the vacancy in addition to the right of the stockholders to do so. If so, the drafter should provide that the person to fill the vacancy must be approved by the Person who has the right to nominate that director pursuant to this Voting Agreement, and should take care that the provision is in accord with the Certificate of Incorporation, the bylaws and the applicable corporations code. See Section 223 of the DGCL or Section 305 of the CGCL. 7

12 1.6 No Bad Actor Designees. Each Person with the right to designate or participate in the designation of a director as specified above hereby represents and warrants to the Company that, to such Person s knowledge, none of the bad actor disqualifying events described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act of 1933, as amended (the Securities Act ) (each, a Disqualification Event ), is applicable to such Person s initial designee named above except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any director designee to whom any Disqualification Event is applicable, except for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable, is hereinafter referred to as a Disqualified Designee. Each Person with the right to designate or participate in the designation of a director as specified above hereby covenants and agrees (A) not to designate or participate in the designation of any director designee who, to such Person s knowledge, is a Disqualified Designee and (B) that in the event such Person becomes aware that any individual previously designated by any such Person is or has become a Disqualified Designee, such Person shall as promptly as practicable take such actions as are necessary to remove such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee. 3. Drag-Along Right Definitions. A Sale of the Company shall mean either: (a) a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company (a Stock Sale ); or (b) a transaction that qualifies as a Deemed Liquidation Event as defined in the Restated Certificate. 3.2 Actions to be Taken. In the event that (i) the holders of at least [specify percentage] of the shares of Common Stock then issued or issuable upon conversion of the shares of Series A Preferred Stock (the Selling Investors ); [(ii)the Board of Directors;] 17 and [(iii) the holders of a majority of the then outstanding shares of Common Stock (other than those issued or issuable upon conversion of the shares of Series A Preferred Stock)] 16 A drag-along right gives a defined group of stockholders the right to deliver all (or most) of the shares of a company without the need of effecting a freeze-out merger. The drafter should be mindful of the interplay between this provision and minority protections against changes in control that may be in the Certificate of Incorporation or the Investor Rights Agreement. Drag-along rights are less common than voting agreements regarding the composition of the board of directors, which are near universal. While drag-along agreements are not universal, it is arguable that a drag-along with a high voting percentage trigger is in the best interests of all parties. If so structured (and note that multiple voting constituencies can be defined as appropriate, such as all preferred together and/or each separate series, or all non-investor common and/or common held by existing management and employees), the objective of the drag-along is not to grant the investors the unilateral right to force a sale, but rather to ensure that all (or most) of the Company s stockholders will approve a transaction approved by holders of a specified percentage of the Company s stockholders. The voting rights of each group of constituents can be protected, while helping to prevent dissent by minority cat and dog stockholders. In this connection, it is important to note that many acquirors in M&A transactions will require the seller to deliver a certain percentage of the vote (or, stated differently, seek to reduce the risk of stockholders exercising appraisal rights). If such a housekeeping drag-along is included in the Voting Agreement, the Company should include similar provisions, and a waiver of dissenter s rights, in its form of employee option agreements. 17 See footnote 32 (Addendum) for a discussion of why the drafters might elect not to include the Board as one of the parties necessary to trigger the drag-along, in light of the Trados decision. 8

13 (collectively, the Electing Holders ) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then each Stockholder and the Company hereby agree: (a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could [reasonably be expected to] delay or impair the ability of the Company to consummate such Sale of the Company; (b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Subsection 3.3 below, on the same terms and conditions as the Selling Investors; (c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including, without limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances), and any similar or related documents; (d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company; (e) to refrain from exercising any dissenters rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company; (f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to accredited investors as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good 9

14 faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and (g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the Stockholder Representative ) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative in connection with its service as the Stockholder Representative, absent fraud or willful misconduct. 3.3 Exceptions. 18 Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 0 above in connection with any proposed Sale of the Company (the Proposed Sale ), unless: (a) [any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);] 18 Drafter should assess and make determination as to whether any or all of the listed conditions are appropriate for the relevant transaction. The non-bracketed conditions are the ones typically considered minimal to ensure that no one is treated unfairly as a result of invocation of the drag-along. 10

15 (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and [subject to the provisions of the Restated Certificate related to the allocation of the escrow,] 19 is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) [liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;] (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least [specify percentage] 20 of the [Series A Preferred Stock] elect to receive a lesser amount by written notice given to the Company at least [ ] days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to accredited investors as defined in 19 Include the bracketed language if you use the Allocation of Escrow provision (Section 2.3.4) of the Model Charter. 20 The vote required to waive the treatment of a particular transaction as a Deemed Liquidation Event should comport with the vote that would be required to amend the Certificate of Incorporation to remove the transaction from the definition of Deemed Liquidation Event and the notice period in this sentence should be the same as the notice period in the Deemed Liquidation Event definition in the Certificate of Incorporation. 11

16 Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (f) [subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company s stockholders. 3.4 Restrictions on Sales of Control of the Company. 21 No Stockholder shall be a party to any Stock Sale unless all holders of Preferred Stock are allowed to participate in such transaction and the consideration received pursuant to such transaction is allocated among the parties thereto in the manner specified in the Company s Certificate of Incorporation in effect immediately prior to the Stock Sale (as if such transaction were a Deemed Liquidation Event), unless the holders of at least [specify percentage] 22 of the [Series A Preferred Stock] elect otherwise by written notice given to the Company at least [ ] days prior to the effective date of any such transaction or series of related transactions.] Section. Sale Rights.. Initiation of Sale Process. Upon written notice to the Company from the Electing Holders, the Company shall initiate a process (the Sale Process ), in accordance with this Section _, intended to result in a Sale of the Company. Such written notice shall include a designation of one individual (the Holder Representative ) to act on behalf of the Electing Holders and to exercise the authority granted to the Holder Representative pursuant to Section below. Each of the Stockholders and the Company agree to use his, her or its commercially reasonable efforts, in consultation with the Financial Advisor (as defined below) and Deal 21 The reason for this provision is that the Deemed Liquidation Event provisions of the Certificate of Incorporation cannot completely provide for the allocation of the purchase price paid in a sale of the Company if the sale is structured as a sale of stock by the Company s stockholders. This is because the Company may not be a party to the stock sale transaction and will not have the opportunity to ensure that the purchase price is allocated as dictated in the Certificate of Incorporation. This covenant is intended to prevent a group of controlling stockholders from circumventing the liquidation preference provision by structuring the sale as a stock sale if those stockholders do not otherwise have sufficient voting power to amend the definition of a Deemed Liquidation Event. Co-sale provisions do not provide adequate protection for such a scenario either because (a) the co-sale right does not apply to the holders of preferred stock; or (b) if co-sale rights do apply, the preferred stockholders exercising those rights might receive the same purchase price for their preferred stock as the selling common stockholders receive for this common stock, thereby losing the benefits of their liquidation preferences. 22 See footnote

17 Counsel (as defined below), to facilitate a Sale of the Company. In furtherance of the foregoing, upon receipt of the notice described above the Company shall, and shall cause its officers, employees, consultants, counsel and advisors to take the actions set forth in Section below..1. Specific Obligations..1.1 Advisors. The Company shall engage an investment bank (the Financial Advisor ) and a law firm (the Deal Counsel ) reasonably satisfactory to the Holder Representative (which may be the Company s existing investment bank and law firm) to assist with the Sale Process. The Financial Advisor and Deal Counsel, as well as any other advisors engaged pursuant to this Section (i), shall represent the Company, and only the Company, in the sale process, and the costs, fees and expenses of such advisors shall be paid by the Company pursuant to the terms of engagement letters that are approved by the Holder Representative (such approval not to be unreasonably withheld, conditioned or delayed). None of the Financial Advisor, Deal Counsel or any other advisor selected in accordance with this Section (i) shall be terminated by the Company without the written consent of the Holder Representative..1.2 Cooperation With Sale Process. Without limiting the generality of the provisions of Section.1, at the request of the Holder Representative, the Company shall, and shall cause its employees, officers, consultants, counsel and advisors to: acquirers; 2. Assist the Financial Advisor in creating a list of potential 3. Set up and maintain a virtual or actual data room (as elected by the Holder Representative) containing due diligence materials customarily provided in connection with transactions of the nature of a Sale of the Company, along with any other due diligence materials requested by the Holder Representative or reasonably requested by any potential acquirer; acquirers; 4. Execute customary non-disclosure agreements with potential 5. Provide incentive compensation to members of the Company s management, and in an amount and form, all as determined by the Holder Representative to be necessary or helpful to the successful consummation of the Sale of the Company; 6. Prepare, or assist the Financial Advisor with the preparation of, any marketing, financial or other materials deemed by the Holder Representative or the Financial Advisor to be necessary or helpful in connection with a Sale of the Company; 7. Attend and participate in any meetings, conference calls, or presentations regarding the Company and its business with potential acquirers; 8. Execute a letter of intent or term sheet on terms reasonably acceptable to the Holder Representative with one or more potential acquirers; 9. Subject to Section _.3, execute and perform the Company s 13

18 obligations contained in such definitive agreements relating to a Sale of the Company as are negotiated by the Holder Representative and the potential acquirer; and 10. Communicate regularly and promptly with each of the Financial Advisor and Deal Counsel regarding the Sale Process..1.3 Approval of the Terms and Conditions of a Proposed Sale of the Company; Failure to Approve a Sale of the Company. (a) The Company shall cause its management, together with the Financial Advisor and Deal Counsel, to deliver regular updates to its Board regarding material developments in the Sale Process and summarizing the status of the negotiation of the terms and conditions of the Sale of the Company. The Company shall, upon request of the Holder Representative, either call a meeting of its Board or seek the written consent of the Board approving the Sale of the Company and the entering into of the definitive agreements relating thereto. (b) In the event that the Board approval described in (i) above has not been obtained within the time period requested by the Holder Representative (such time period not to be less than three (3) business days), the Electing Holders shall have the right by written notice (the Redemption Notice ) to require the Company to redeem all of the then outstanding shares of capital stock held by the Electing Holders at a price equal to the amount of proceeds that would have been paid in respect of their shares of capital stock were the Sale of the Company consummated or, in the case of a Sale of the Company that is structured as a sale of all or substantially all of the Company s assets, the amount of proceeds that would have been paid in respect of their investment in the Company had all proceeds from the proposed Sale of the Company been distributed in a Deemed Liquidation Event (a Preferred Redemption ). The Company and each Investor shall be obligated to effect the Preferred Redemption within ten (10) days of the delivery of the Redemption Notice..1.4 Appointment and Authority of Holder Representative. (a) The Stockholders have agreed that it is desirable to designate a representative to act on behalf of the Stockholders for the purposes described in this Section. The Holder Representative shall be selected by the Electing Holders and shall serve as the agent and representative of each Stockholder with respect to the matters set forth in this Agreement. (b) The Holder Representative shall have full power and authority to take all actions under this Agreement that are to be taken by the Holder Representative. The Holder Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement, including giving and receiving any notice or instruction permitted or required under this Agreement by the Holder Representative, interpreting all of the terms and provisions of this Agreement, consenting to any actions on behalf of the Stockholders in connection with a Sale of the Company (except with respect to any approvals of the final terms and conditions of such Sale of the Company by the Investors in their capacities as such), conducting negotiations with any potential acquirer and its agents regarding such Sale of the Company, dealing with the Company under this Agreement, taking any and all other actions 14