EXHIBIT 4.2(a)
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is made and entered into
as of June 7, 1999 by and between Inprise Corporation, a Delaware corporation
(the "Company") and Microsoft Corporation, a Washington corporation
("Microsoft").
RECITALS
A. Microsoft has agreed to purchase from the Company, and the Company has
agreed to sell to Microsoft, an aggregate of six hundred twenty-five (625)
shares of the Company's Series C Convertible Preferred Stock, par value $0.01
(the "Series C Shares"), on the terms and conditions set forth in the
Certificate of Designation (the "Certificate") attached as Exhibit A to that
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certain Preferred Stock Purchase Agreement, dated June 7, 1999, by and between
the Company and Microsoft (the "Preferred Stock Purchase Agreement").
B. The Preferred Stock Purchase Agreement provides that Microsoft shall
be granted certain additional rights, all as more fully set forth herein.
C. Terms beginning with an initial capital which are not otherwise
defined herein shall have the same meaning as set forth in the Preferred Stock
Purchase or the Certificate, as appropriate.
NOW, THEREFORE, the parties hereto agree as follows:
1. Registration Rights.
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1.1 Definitions. For purposes of this Section 1:
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(a) Registration. The terms "register," "registered," and
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"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
("Securities Act"), and the declaration or ordering of effectiveness of such
registration statement by the U.S. Securities and Exchange Commission (the
"SEC").
(b) Registrable Securities. The term "Registrable Securities"
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means: (1) to the extent permitted by applicable SEC rules, the Series C Shares;
(2) all the shares of common stock of the Company, par value $0.01 per share
("Common Stock") issued or issuable upon the conversion of any Series C Shares;
and (3) all shares of Common Stock of the Company issuable upon the conversion
or exercise of any warrant, right or other security which is issued as a
dividend or other distribution with respect to, or in exchange for, in
replacement of or in connection with a share split of, all such shares described
in clauses (1) and (2) of this subsection (b); excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which rights
under this Section 1 are not assigned in accordance with this Agreement or sold
to the public or sold pursuant to Rule 144 promulgated under the Securities Act.
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1.2 Form S-3 Registration. At any time after the second anniversary
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of the Series C Original Issue Date, Microsoft may make a written request that
the Company effect a registration on Form S-3 with respect to all or a part of
the Registrable Securities owned by Microsoft, in which case the Company will,
as soon as reasonably practicable, effect such registration on Form S-3 as may
be so requested and as would permit or facilitate the sale and distribution of
all or such portion of Microsoft's Registrable Securities as are specified in
such request; provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 1.2:
(i) if Form S-3 is not available for such offering by
Microsoft;
(ii) if the aggregate value of the Registrable Securities
proposed to be sold by Microsoft in such offering is not at least $10,000,000;
(iii) if the Company shall furnish to Microsoft a
certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than 90 days after receipt of the request of
Microsoft under this Section 1.2;
(iv) if the Company has already effected three (3)
registrations for Microsoft pursuant to this Section 1.2; or
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
Each Form S-3 registration must be commenced in time to be declared
effective within the 15-day period following the date the Company would
reasonably be expected to file its Annual Report on Form 10-K or any Quarterly
Report on Form 10-Q with the SEC.
1.3 Obligations of the Company.
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(a) Expenses. All expenses incurred in connection with all
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registrations pursuant to Section 1.2, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company (but excluding underwriters' and
brokers' discounts and commissions and fees and disbursements of counsel for
Microsoft), shall be borne by Microsoft.
(b) Registration. Whenever required to effect the registration
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of any Registrable Securities under this Agreement, the Company shall, as
expeditiously as reasonably possible:
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(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities, use its best efforts to cause such
registration statement to become effective and, upon the request of Microsoft,
keep such registration statement effective for up to ninety (90) days plus any
additional periods represented by any "Black-Out Period" (as defined in the last
paragraph of Subsection 1.3() below).
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as the Company may determine to be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(iii) Furnish to Microsoft such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it and included in such registration.
(iv) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by
Microsoft, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(v) Notify Microsoft at any time when a prospectus
relating to the Registrable Securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
necessary, in light of the circumstances under which made, to make the
statements therein not misleading, and, at the request of Microsoft, the Company
will promptly prepare and provide to it a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of Microsoft's
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact necessary, in light of the
circumstances under which made, to make the statements therein not misleading.
(vi) Microsoft agrees that if the Company has delivered
preliminary or final prospectuses to Microsoft and after having done so (a) the
Company determines that the prospectus needs to be amended or supplemented to
comply with the requirements of the Securities Act, (b) a stop order suspending
the effectiveness of the registration statement is issued by the SEC or (c) the
Company shall, in good faith and for business reasons, enter into negotiations
relating to or otherwise commence a material business transaction, including,
without limitation, the acquisition or divestiture of assets or the offering or
sale of securities, then the Company shall promptly notify Microsoft and
Microsoft shall immediately cease making offers and sales of Registrable
Securities and return all remaining prospectuses to the Company. Following such
amendment or supplement, the lifting of any stop order or the completion or
termination of any material transaction, the Company shall promptly
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provide Microsoft with revised prospectuses and, following receipt of the
revised prospectuses, Microsoft shall be free to resume making offers of the
Registrable Securities, or any portion thereof. The period during which the
Company exercises its rights as described in this paragraph to postpone, delay
or interrupt the offer and sale of the Registrable Securities or during the
pendency of any stop order, injunction or other order or requirement of the SEC
or any other governmental agency or court shall be referred to herein as "Black-
Out Period."
1.4 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to Section 1.2 that
Microsoft shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities and such other information as the Company may reasonably request
to timely effect the registration of its Registrable Securities.
1.5 Indemnification. In the event any Registrable Securities are
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included in a registration statement under Section 1.2:
(a) By the Company. To the extent permitted by law, the Company
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will indemnify and hold harmless Microsoft, the officers and directors of
Microsoft, any underwriter (as defined in the Securities Act) for Microsoft and
each person, if any, who controls Microsoft or its underwriter within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended, (the "1934 Act"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or
(iii) any violation or alleged violation by the Company of
the Securities Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
federal or state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse Microsoft, its officers or directors, underwriter
or controlling persons for any legal or other expenses reasonably incurred by
them, as incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however, that the indemnity
agreement contained in this subsection 1.5() shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in
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reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by or on behalf of Microsoft, its
officers, directors, underwriter or controlling persons or by Microsoft's
failure to deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished Microsoft or
its underwriters with copies of the same.
(b) By Microsoft. To the extent permitted by law, Microsoft will
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indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the 1934 Act,
any underwriter and each person, if any, who controls such underwriter within
the meaning of the Securities Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, underwriter, or controlling person of the Company may become
subject under the Securities Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by Microsoft expressly for use
in connection with such registration; and Microsoft will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer,
underwriter or controlling person, as incurred, in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this subsection 1.5() shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Microsoft, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by Microsoft under this
subsection 1.5() in respect of any Violation shall not exceed the proceeds (net
of underwriters' and brokers' discounts and commissions) received by Microsoft
in the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party
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under this Section 1.5 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.5,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.5, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.5.
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(d) Contribution. If the indemnification provided in this
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Section 1.5 is unavailable or insufficient to hold harmless an indemnified party
under subsection 1.5() or (), then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other from the offering of the
securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other equitable
considerations. The relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering received by the
indemnifying party bear to the total net proceeds received by the indemnified
party. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by the indemnifying party or information supplied by the indemnified
party, and the parties' relevant intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this paragraph () shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim that is the subject of this section. Notwithstanding the
provisions of this section, Microsoft shall not be required to contribute any
amount in excess of the amount of the total net proceeds (net of underwriters'
and brokers' discounts and commissions) received by Microsoft from the sale of
the securities pursuant to this Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section II(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Survival. The obligations of the Company and Microsoft
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under this Section 1.5 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
1.6 Rule 144 Reporting. With a view to making available the benefits
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of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
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(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements); and
(c) So long as Microsoft owns any Registrable Securities, to
furnish to Microsoft forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144,
and of the Securities Act and the 1934 Act, (ii) a copy of the most recent
annual or quarterly report of the Company, and (iii) such other reports and
documents of the Company as Microsoft may reasonably request in availing itself
of any rule or regulation of the Commission allowing Microsoft to sell any such
securities without registration.
1.7 Termination of the Company's Obligations. The Company shall have
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no obligations pursuant to Section 1.2 with respect to any Registrable
Securities proposed to be sold by Microsoft in a registration pursuant to
Section 1.2 if, in the opinion of counsel to the Company, all such Registrable
Securities proposed to be sold by Microsoft may be sold in a three month period
without registration under the Securities Act pursuant to Rule 144 under the
Securities Act.
2. Transfer Restrictions.
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Subject to the restrictions and limitations on transfer set forth herein,
Microsoft may transfer its shares in the Company only after the second
anniversary of the Series C Original Issue Date and only: (i) to a subsidiary in
which Microsoft owns shares representing at least 80% of the total voting power,
(ii) pursuant to Rule 144, (iii) in bona fide public offerings registered under
the Securities Act of 1933, (iv) in a private transaction exempt from
registration under the Securities Act, or (v) in response to an offer to
purchase not opposed by the Company's Board of Directors and which would result
in the offerer's acquiring shares representing more than 50% of the total voting
power of the Company's outstanding shares or an offer opposed by the Company's
Board of Directors which has been accepted by the holders of more than 50% of
the voting power of the Company. Any transfer in a permitted public offering or
private transaction must be for shares equal to no more than 3% of the Company's
outstanding shares during any 90 day period and shall be made so as not to
result, to Microsoft's knowledge after due inquiry, in any person or group
having, as a result of the transfer, beneficial ownership of shares representing
more than 5% of the total voting power of outstanding equity securities.
3. Microsoft Covenants.
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3.1 Standstill. Microsoft covenants that prior to the fifth
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anniversary of the Series C Original Issue Date, it will not, unless the prior
written consent of the Company has been obtained, acquire, or permit any
subsidiary of Microsoft to acquire, by purchase or otherwise, beneficial
ownership (which term shall include for the purposes of this Agreement, without
limitation, direct or indirect ownership or any direct or indirect ability to
influence voting) of any securities of the Company entitled to vote with respect
to the election of any directors of the Company ("Voting Securities"), any
security convertible into, exchangeable for
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or exercisable for or that may become any Voting Securities or any other right
to acquire Voting Securities.
3.2 Proxy Solicitations. Microsoft covenants that prior to the fifth
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anniversary of the Series C Original Issue Date, it will not, acting by itself
or with others, participate in any proxy solicitation or election contest, make
any proposal for any acquisition of the Company unless solicited by the
Company's Board of Directors, propose any matter for submission to a vote of the
Company's stockbrokers, or take related or similar actions. Neither Microsoft
nor any affiliated entity shall join a partnership, limited partnership,
syndicate or other group, or otherwise act in concert with any third person, for
the purpose of acquiring, holding, voting or disposing of Voting Securities.
3.3 Voting. Microsoft covenants that, to the extent that the Series
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C Stock enjoys any voting rights under law, it will vote all shares it holds in
the Company in favor of all director-nominees nominated by the Company's Board
of Directors. On all other matters (other than a proposed amendment of the terms
of the Series C Shares), Microsoft will vote in accordance with the
recommendation of the Company's Board of Directors. If Microsoft has voting
rights, its representative will be present, in person or by proxy, at all
meetings of the Company's stockholders, so that Microsoft's shares can be
counted for the purpose of determining the presence of a quorum. Microsoft will
not subject Microsoft's shares to any voting trust or other voting agreement.
Microsoft covenants that prior to the fifth anniversary of the Series C Original
Issue Date, it will not, unless the prior written consent of the Company has
been obtained, acquire, or permit any subsidiary of Microsoft to acquire, by
purchase or otherwise, any equity securities of the Company.
3.4 Hedging. Microsoft covenants that prior to the date 90 days
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following the Series C Original Issue Date, it shall not engage in any hedging
or similar strategies with respect to the Company's securities.
3.5 Minimum Holding Period. Microsoft covenants that prior to the
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second anniversary of the Series C Original Issue Date, it shall not transfer
any of the Series C Shares or the shares of Common Stock issuable upon
conversion of the Series C Shares.
4. Company's Repurchase Right.
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4.1 Grant. The Company shall have the right, at any time after two
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years following the Series C Original Issue Date, to repurchase the Series C
Shares at the market value of the Common Stock into which the Series C Shares
are then convertible (the "Repurchase Right"). In lieu of exercising such
Repurchase Right and subject to compliance with all regulatory requirements, the
Company may require that all or part of the Series C Shares be converted into
Common Stock at the then applicable Conversion Price and in accordance with the
Certificate.
4.2 Exercise of the Repurchase Right. The Repurchase Right shall be
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exercisable by written notice delivered to Microsoft. The notice shall indicate
the number of Series C Shares to be repurchased and the date on which the
repurchase is to be effected, such date to be
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not more than thirty (30) days after the date of notice. Microsoft shall, prior
to the close of business on the date specified for the repurchase, deliver to
the Secretary of the Company the certificates representing the Series C Shares
to be repurchased, each certificate to be properly endorsed for transfer. The
Company shall, concurrently with the receipt of such stock certificates, pay to
Microsoft in cash or cash equivalents the repurchase price pursuant to Section
4.1.
5. Company's Right of First Refusal.
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5.1 Grant. The Corporation shall have a right of first refusal (the
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"First Refusal Right") exercisable in connection with any proposed transfer of
the Series C Shares. For purposes of this Section 5, the term "transfer" shall
include any sale, assignment, pledge, encumbrance or other disposition of the
Purchased Shares intended to be made by Microsoft, but shall not include any of
the permitted transfers under clauses (i), (iii) and (v) of Section 2.
5.2 Notice of Intended Disposition. In the event Microsoft desires
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to sell all or any part of the Series C Shares or to accept a bona fide third-
party offer for the transfer of any or all of such Series C Shares (the Series C
Shares subject to such offer to be hereinafter called the "Target Shares"),
Microsoft shall promptly (i) deliver to the Secretary of the Company written
notice (the "Disposition Notice") of the terms and conditions of the offer,
including the purchase price and the identity of the third-party offeror or that
the sale is to be made into the public market, and (ii) provide satisfactory
proof that the disposition of the Target Shares to such third-party offeror
would not be in contravention of the provisions set forth in Section 2.
5.3 Exercise of Right. The Company shall, for a period of thirty
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(30) days following receipt of the Disposition Notice, have the right to
repurchase any or all of the Target Shares subject to the Disposition Notice
upon the same terms and conditions as those specified therein. Such right shall
be exercisable by delivery of written notice (the "Exercise Notice") to
Microsoft prior to the expiration of the thirty (30) day exercise period. If
such right is exercised with respect to all the Target Shares, then the Company
shall effect the repurchase of such shares, including payment of the purchase
price, not more than five (5) business days after delivery of the Exercise
Notice; and at such time Microsoft shall deliver to the Company the certificates
representing the Target Shares to be repurchased, each certificate to be
properly endorsed for transfer. If the Disposition Notice is with respect to a
sale into the public market, then the price payable by the Company upon exercise
of the right of first refusal shall be the average closing price for the
Company's Common Stock from and including the date of the Disposition Notice
through the date of the Exercise Notice.
5.4 Non-Exercise of Right. In the event the Exercise Notice is not
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given to Microsoft within thirty (30) days following the date of the Company's
receipt of the Disposition Notice, Microsoft shall have a period of forty-five
(45) days thereafter in which to sell or otherwise dispose of the Target Shares
to the third-party offeror identified in the Disposition Notice upon terms and
conditions (including the purchase price) no more favorable to such third-party
offeror than those specified in the Disposition Notice; provided, however, that
any such sale or disposition must not be effected in contravention of the
provisions of Section 2, and provided further, that if the sale or disposition
is a sale into the public market, the shares may be
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sold at any price obtained in such market. In the event Microsoft does not
effect such sale or disposition of the Target Shares within the specified forty-
five (45) day period, the First Refusal Right shall continue to be applicable to
any subsequent disposition of the Target Shares by Microsoft.
5.5 Partial Exercise of Right. In the event the Company makes a
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timely exercise of the First Refusal Right with respect to a portion, but not
all, of the Target Shares specified in the Disposition Notice, Microsoft shall
have the option, exercisable by written notice to the Company delivered within
five (5) days after Microsoft's receipt of the Exercise Notice, to effect the
sale of those Target Shares not repurchased by the Company to the third-party
offeror, subject to the restrictions contained herein. In the event Microsoft
does not effect such sale or disposition of the Target Shares within a period of
forty-five (45) days thereafter, the First Refusal Right shall continue to be
applicable to any subsequent disposition of the Target Shares by Microsoft.
6. Legend. To assist in effectuating the provisions of this
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Agreement, Microsoft hereby consents to the placement of the following legend on
all certificates certifying ownership of any securities purchased by Microsoft
pursuant to the Preferred Stock Purchase Agreement until such securities have
been sold, transferred or disposed of pursuant to the requirements of this
Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT
IMPOSING RESTRICTIONS ON THE VOTING AND DISPOSITION OF SUCH SECURITIES,
INCLUDING A RIGHT OF FIRST REFUSAL AND REPURCHASE IN FAVOR OF THE ISSUER. A
COPY OF SAID AGREEMENT IS ON FILE AT THE OFFICE OF THE SECRETARY OF INPRISE
CORPORATION."
7. General Provisions.
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7.1 Assignment. Except as provided in Section 2 above, no party to
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this Agreement may assign, by operation of law or otherwise, all or any portion
of its rights, obligations, or liabilities under this Agreement.
7.2 Third Parties. Nothing in this Agreement, express or implied, is
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intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
7.3 Governing Law and Venue. This Agreement shall be governed by and
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construed under the internal laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware, without reference to principles of conflict of laws or choice
of laws.
7.4 Counterparts. This Agreement may be executed in two or more
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counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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7.5 Headings. The headings and captions used in this Agreement are
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used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.6 Notices. All notices, requests, demands or other communications
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which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is (a) deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, or (b) sent by a
nationally recognized overnight express courier, or (iii) by facsimile upon
written confirmation (other than the automatic confirmation that is received
from the recipient's facsimile machine) of receipt by the recipient of such
notice:
If to Microsoft: Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Inprise: Inprise Corporation
000 Xxxxxxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000-0000
Attention: XxXxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section.
7.7 Attorneys' Fees. If any action at law or in equity is necessary
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to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees, experts' fees and costs,
including those for pretrial, trial, on appeal, in arbitration and in bankruptcy
and all other costs and necessary disbursements associated with any such
actions, in addition to any other relief to which such party may be entitled.
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7.8 Adjustments for Stock Splits, Etc. Wherever in this Agreement
---------------------------------
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or Series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or Series of stock by such subdivision, combination or stock dividend.
7.9 Aggregation of Stock. All shares held or acquired by affiliated
--------------------
entities or persons shall be aggregated together for the purpose of determining
rights and obligations under this Agreement.
7.10 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Microsoft. Any
amendment or waiver effected in accordance with this Section shall be binding
upon Microsoft and Company. No waiver of any of the provisions of this Agreement
shall be deemed to be or shall constitute a waiver of any other provisions
hereof, whether or not similar, nor shall any such waiver constitute a
continuing waiver. No waiver shall be binding unless expressed as such in a
document executed by the party making the waiver.
7.11 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
7.12 Entire Agreement. This Agreement constitutes the entire agreement
----------------
and understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"COMPANY" "MICROSOFT"
INPRISE CORPORATION MICROSOFT CORPORATION
By: /s/ XXX X. XXXXX By: /s/ XXXX XXXXXX
---------------- ---------------
Xxx X. Xxxxx Xxxx Xxxxxx
Chief Financial Officer Vice President
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