Exhibit 4.2
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NUANCE COMMUNICATIONS
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
OCTOBER 1, 1999
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TABLE OF CONTENTS
Page
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1. Registration Rights................................................ 1
1.1 Definitions.................................................. 1
1.2 Request for Registration..................................... 3
1.3 Company Registration......................................... 4
1.4 Obligations of the Company................................... 4
1.5 Furnish Information.......................................... 6
1.6 Expenses of Demand Registration.............................. 6
1.7 Expenses of Company Registration............................. 7
1.8 Underwriting Requirements.................................... 7
1.9 Delay of Registration........................................ 8
1.10 Indemnification.............................................. 8
1.11 Reports Under Securities Exchange Act of 1934................ 10
1.12 Form S-3 Registration........................................ 11
1.13 Assignment of Registration Rights............................ 12
1.14 Limitations on Subsequent Registration Rights................ 12
1.15 "Market Stand-Off" Agreement................................. 12
1.16 Termination of Registration Rights........................... 13
2. Covenants of the Company........................................... 13
2.1 Delivery of Financial Statements............................. 13
2.2 Right of First Refusal....................................... 14
2.3 Right of First Refusal on Secondary Sale of Common Stock..... 16
2.4 Inspection Rights............................................ 16
2.5 Proprietary Agreements....................................... 16
3. Miscellaneous...................................................... 16
3.1 Successors and Assigns....................................... 17
3.2 Governing Law................................................ 17
3.3 Counterparts................................................. 17
3.4 Titles and Subtitles......................................... 17
3.5 Notices...................................................... 17
3.6 Expenses..................................................... 17
3.7 Amendments and Waivers....................................... 17
3.8 Severability................................................. 17
3.9 Aggregation of Stock......................................... 18
3.10 Entire Agreement............................................. 18
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of the 1st day of October, 1999 (the "Closing"), by and
among Nuance Communications, a California corporation (the "Company"), and the
investors listed on Schedule A (each an "Investor" and collectively, the
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"Investors").
RECITALS
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WHEREAS, the Company and certain investors first entered into an Investor
Rights Agreement on December 20, 1994 providing for, among other things, certain
registration rights, rights to financial information and rights of first
refusal; and
WHEREAS, the Company and certain investors agreed to amend and restate such
Investor Rights Agreement on August 29, 1995, January 6, 1997, and on March 27,
1998, and such parties now desire to amend and restate such Investor Rights
Agreement again; and
WHEREAS, the Company and certain Investors listed on Schedule A have
entered into agreements for sale by the Company and purchase by such Investors
of shares of Series E Preferred Stock issued by the Company; and
WHEREAS, in connection with the purchase and sale of such Series E
Preferred Stock, the Company and the Investors desire to provide the purchasers
of the Company's Series E Preferred Stock the rights set forth herein;
NOW, THEREFORE, THE PRIOR INVESTOR RIGHTS AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Affiliate" of a Holder (as defined below), means
any stockholder, parent or subsidiary of any Holder which is not a natural
person.
(c) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC (as defined
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below) which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(d) The term "Holder" (and collectively, "Holders") means any
person owning or having the right to acquire Registrable Securities or any
assignee thereof in accordance with Section 1.13 hereof;
(e) The term "Initial Public Offering" shall mean the closing
of a bona fide, firm commitment underwritten public offering of the Company's
securities registered under the Securities Act.
(f) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(g) The term "Preferred Stock" shall mean shares of the
Company's issued and outstanding Series A Preferred Stock, Series A-1 Preferred
Stock, Series B Preferred Stock, Series B-1 Preferred Stock, Series C Preferred
Stock, Series C-1 Preferred Stock, Series D Preferred Stock, Series D-1
Preferred Stock, Series E Preferred Stock, and Series E-1 Preferred Stock.
(h) The term "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(i) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Preferred Stock and (ii) any
Common Stock of the Company issued as (or 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 or in replacement of
the shares referenced in (i) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which such person's
rights under this Section 1 are not assigned in accordance with Section 1.13.
(j) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
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1.2 Request for Registration
(a) If the Company shall receive (i) at any time after March 6,
2001, a written request from the Holders of at least 40% of the Registrable
Securities that the Company file a registration statement under the Act pursuant
to which the aggregate offering price to the public would exceed $5,000,000,
(ii) at any time after the date of the first sale to the public pursuant to a
registration statement of the Company filed under the Act and after the market
stand-off time period specified in Section 1.15, a written request from the
Holders of Registrable Securities that the Company file a registration statement
under the Act pursuant to which the aggregate offering price to the public would
exceed $10,000,000, or (iii) at any time after one year anniversary of the date
of the first sale to the public pursuant to a registration statement of the
Company filed under the Act, a written request from the Holders of Registrable
Securities that the Company file a registration statement under the Act pursuant
to which the aggregate offering price to the public would exceed $5,000,000 then
the Company shall:
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Holders; and
(ii) effect, as soon as practicable, and in any event
within 60 days of the receipt of such request, the registration under the Act of
all of the Registrable Securities which the Holders request to be registered,
subject to the limitations of this Section 1.2.
(b) If the Holders initiating the registration request
hereunder ( "Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection 1.2(a)
hereof, and the Company shall include such information in the written notice
referred to in said subsection. The underwriter will be selected by the Company
and shall be reasonably acceptable to a majority in interest of the Initiating
Holders. In such event, the right of any Holder to include his Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall, together with the Company as provided in subsection
1.4(e), enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.2, if the underwriter advises the Initiating
Holders and the Company in writing that marketing factors require a limitation
of the number of shares to be underwritten, then the Company shall so advise all
Holders of Registrable Securities which would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be included
in the underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
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that the number of shares of Registrable Securities to be included in
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such underwriting shall not be reduced unless all other securities are first
entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President 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 registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 120 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may not utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected a total of three (3)
registrations pursuant to Section 1.2(a) hereof and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty (60)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) Prior to March 6, 2001.
1.3 Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
relating to an acquisition or similar transaction or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities which are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.5, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that (i) such 120-day period shall be
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extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a post-
effective amendment which (i) includes any prospectus required by Section
10(a)(3) of the Act or (ii) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (i) and
(ii) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement.
(b) 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 may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) 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 the Holders;
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.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such
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registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters
and (ii) a letter dated such, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters.
1.5 Furnish Information
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. The Company shall pay all
expenses other than underwriting discounts and commissions incurred in
connection with up to three (3) registrations, filings or qualifications
pursuant to Section 1.2, including, without limitation, all registration, filing
and qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company (including fees and disbursements of counsel for the
Company in its
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capacity as counsel to the selling Holders hereunder; if Company counsel does
not make itself available for this purpose, the Company will pay the reasonable
fees and disbursements of one counsel for the selling Holders) but excluding all
underwriting discounts and commissions associated with Registrable Securities;
provided, however, that the Company shall not be required to pay for any of
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expenses any registration proceeding begun pursuant to Section 1.2(a) if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses pro rata), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to one
demand registration; provided further however, that if at the time of such
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withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holders shall not be required to pay any of such expenses and shall
retain their rights pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of counsel for the Company (including
fees and disbursements of counsel for the Company in its capacity as counsel to
the selling Holders hereunder; if Company counsel does not make itself available
for this purpose, the Company will pay the reasonable fees and disbursements of
one counsel for the selling Holders), but excluding underwriting discounts and
commissions associated with Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling shareholders according to
the total amount of securities entitled to be included therein owned by each
selling shareholder or in such other proportions as shall mutually be agreed to
by such selling shareholders) but in no event shall (i) the amount of securities
of the selling Holders, to the extent that such securities include Registrable
Securities, be reduced below thirty percent
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(30%) of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company's securities in which
case the selling shareholders may be excluded if the underwriters make the
determination described above and no other shareholder's securities are included
or (ii) notwithstanding (i) above, any shares being sold by a shareholder
exercising a demand registration right similar to that granted in Section 1.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a Holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and shareholders of such holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "selling
shareholder," and any pro-rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities joint or several to which they may become subject under the 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 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, the 1934 Act or any state securities law;
and the Company will pay to each such Holder, underwriter or controlling person,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(a) 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 reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
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(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers, each person, if any, who controls the Company within the meaning of
the Act or the 1934 Act, any underwriter, any other Holder selling securities in
such registration statement and any controlling person of any such underwriter
or other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
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 such Holder expressly for use in connection with such
registration; and each such Holder will pay any legal or other expenses as
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.10(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(b) 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 Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 1.10(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 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 1.10, 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
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate 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 differing
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
1.10, 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 1.10.
(d) If the indemnification provided for in this Section 1.10 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and
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of the indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or expense as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
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by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, use its best efforts to cause such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
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obligated to effect any such registration, qualification or compliance, pursuant
to this section 1.12: (1) if Form S-3 is not available for such offering by the
Holders; (2) if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public (net of any underwriters' discounts or commissions) of less than
$1,000,000; (3) if the Company shall furnish to the Holders a certificate signed
by the President 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 sixty (60)
days after receipt of the request of the Holder or Holders under this Section
1.12; provided, however, that the Company shall not utilize this right more than
once in any twelve (12) month period; (4) if the Company has, within the twelve
(12) month period preceding the date of such request, already effected one (1)
registration on Form S-3 for the Holders pursuant to this Section 1.12; or (5)
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.
(c) Subject to the foregoing, the Company shall file a
registration statement covering Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the request
or requests of the Holders. The Company shall bear all expenses incurred in
connection with up to three (3) registrations requested pursuant to Section
1.12, including, without limitation, all registration, filing, qualification,
printer's and accounting fees and the reasonable fees and disbursements of
counsel for the selling Holder or Holders and counsel for the Company, but
excluding all underwriters' discounts or commissions associated with Registrable
-11-
Securities. All expenses incurred in connection with subsequent registrations
requested pursuant to Section 1.12, including, without limitation, all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling holder or holders
and counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne pro rata by
the Holder or Holders participating in the Form S-3 Registration. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.13 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to any Affiliate of
such Holder or any transferee or assignee of such securities who, after such
assignment or transfer, holds at least twenty percent (20%) of the aggregate
Registrable Securities held by such Holder immediately following the Closing (or
a lesser percentage if all shares of Registrable Securities then held by a
Holder are transferred) (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations); provided that: (a)
-------- ----
the Company is, within a reasonable time after such transfer furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(b) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement, including without limitation, the
provisions of Section 1.15 below; and (c) such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act. For the
purposes of determining the number of shares of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together and with the partnership; provided that
all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this Section
1.
1.14 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would grant such holder or prospective holder any or all of
the registration rights contemplated herein.
1.15 "Market Stand-Off" Agreement. Each Holder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the date of the first
sale to the public pursuant to a registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without
-12-
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
common stock included in such registration; provided, however, that such market
stand-off time period shall not exceed one hundred eighty (180) days; provided
further however, that the obligations under this Section 1.15 are conditioned
upon the officers and the directors of the Company entering into similar
agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.15 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.16 Termination of Registration Rights
(a) No Holder shall be entitled to exercise any right provided
for in this Section 1 after five (5) years following the consummation of the
Initial Public Offering.
(b) In addition, the right of any Holder to request
registration or inclusion in any registration pursuant to Section 1 shall
terminate on the closing of the first Initial Public Offering if all shares of
Registrable Securities held or entitled to be held upon conversion by such
Holder may immediately be sold under Rule 144 during any 90-day period, or on
such date after the closing of the first Initial Public Offering as all shares
of Registrable Securities held or entitled to be held upon conversion by such
Holder may immediately be sold under Rule 144 during any 90-day period;
provided, however, that the provisions of this Section 1.16(b) shall not apply
to any Holder who owns more than two percent (2%) of the Company's outstanding
stock until such time as such Holder owns less than two percent (2%) of the
outstanding stock of the Company.
2. Covenants of the Company. All investors listed on Schedule A, with
----
the exception of Phoenix Leasing Incorporated, shall be entitled to the
---------------------------------------------
following:
2.1 Delivery of Financial Statements. The Company shall deliver:
-13-
(a) as soon as practicable, but in any event within sixty (60)
days after the end of each fiscal year of the Company, commencing with fiscal
year ending December 31, 1999, to each Holder who continues to hold Registrable
Securities; an income statement for such fiscal year, a balance sheet of the
Company and statement of shareholder's equity as of the end of such year, and a
schedule as to the sources and applications of funds for such year, such year-
end financial reports to be in reasonable detail, prepared in accordance with
generally accepted accounting principles ( "GAAP"), and audited and certified by
nationally recognized independent public accountants approved by the Board of
Directors of the Company; and
(b) as soon as practicable, but in any event within thirty (30)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company and after the end of each month an unaudited profit or loss
statement, schedule as to the sources and application of funds for such fiscal
quarter and an unaudited balance sheet as of the end of such fiscal quarter; and
(c) as soon as practicable, but in any event within thirty (30)
days after the end of each fiscal year, to each Holder who holds not less than
10% of the total Common Stock issued or issuable upon conversion of the Series E
Preferred, not less than 10% of the total Common Stock issued or issuable upon
conversion of the Series D Preferred, not less than 10% of the total Common
Stock issued or issuable upon conversion of the Series C Preferred, not less
than 10% of the total Common Stock issued or issuable upon conversion of the
Series B Preferred, or not less than 10 % of the total Common Stock issued or
issuable upon conversion of the Series A Preferred, a budget and business plan
for the next fiscal year, prepared on a monthly basis, including balance sheets
and sources and applications of funds statements for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company; and
(d) The covenants set forth in this Section 2.1 shall terminate
as to an Holder and be of no further force or effect upon an Initial Public
Offering or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall
first occur.
2.2 Right of First Refusal. Subject to the terms and conditions
specified in this Section 2.2, the Company hereby grants to each holder of
Preferred Stock (an "Eligible Holder") a right of first refusal with respect to
future sales by the Company of its Shares (as hereinafter defined). For purposes
of this Section 2.2, the term "Eligible Holder" includes any general partners
and affiliates of an Eligible Holder. The Eligible Holder shall be entitled to
apportion the right of first refusal hereby granted it among itself and its
partners and affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock ( "Shares"), the Company shall first make an offering of such Shares to
each Eligible Holder in accordance with the following provisions:
-14-
(a) The Company shall deliver a notice by certified mail (
"Notice") to each Eligible Holder(s) stating (i) its bona fide intention to
offer such Shares, (ii) the number of such Shares to be offered, and (iii) the
price and terms, if any, upon which it proposes to offer such Shares.
(b) By written notification received by the Company within
twenty (20) calendar days after giving of the Notice, each Eligible Holder may
elect to purchase or obtain, at the price and on the terms specified in the
Notice, up to that portion of such Shares which equals the proportion that the
number of Registrable Securities then held by such Eligible Holder bears to the
total number of shares of Common Stock of the Company then outstanding (assuming
full conversion and exercise of all convertible or exercisable securities).
(c) If all Shares which Eligible Holders are entitled to obtain
pursuant to Section 2.2(b) are not elected to be obtained as provided in
subsection 2.2(b) hereof, the Company may, during the 90-day period following
the expiration of the period provided in Section 2.2(b) hereof, offer the
remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for the
sale of the Shares within such period, or if such agreement is not consummated
within 90 days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Eligible Holders in accordance herewith.
(d) The right of first refusal in this Section 2.2 shall not be
applicable to (i) the issuance or sale of shares of Common Stock (or options
therefor) to employees, consultants, directors, or vendors (if in transactions
with primarily nonfinancing purposes) of the Company or SRI International, Inc.,
pursuant to a plan, arrangement or agreement approved by the Board of Directors
of the Company, (ii) to or after consummation of a bona fide, firmly
underwritten public offering of shares of common stock, registered under the
Act, at an offering price of at least $10.00 per share (appropriately adjusted
for any stock split, dividend, combination or other recapitalization) and
$20,000,000 in the aggregate (the "Qualifying IPO"), (iii) the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities, (iv) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise approved by the Company's
Board of Directors, (v) the issuance of stock, warrants or other securities or
rights to persons or entities for the purposes of equipment lease financings
approved by the Company's Board of Directors, (vi) the Series E Preferred Stock
and all other securities currently issued and outstanding.
(e) The right of first refusal granted under this section may
be assigned by each Eligible Holder to a transferee or assignee of the Eligible
Holder's shares of the Company's stock. In the event that the Eligible Holder
shall assign its right of first refusal pursuant to this Section 2.2(e) in
connection with the transfer of less than all of its shares of the Company's
stock, the Eligible Holder shall also retain its right of first refusal.
-15-
(f) The covenants contained in this Section 2.2 shall terminate
and be of no further force or effect upon the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with a Qualifying IPO.
2.3 Right of First Refusal on Secondary Sale of Common Stock. In
the event the Company is unable to, or elects not to, exercise its right of
first refusal to repurchase shares of Common Stock issued to employees or
consultants, the Eligible Holders shall have a right of first refusal,
subordinate to the Company's right, to purchase any shares of Common Stock
proposed to be resold at any time prior to the Company's initial public
offering. This subordinate right of first refusal shall be shared pro rata
amongst the Eligible Holders based on the number of shares of Common Stock held
(including, for such purpose Common Stock issuable upon conversion of the
outstanding Preferred Stock). The notice and other procedural requirements of
Section 2.2(a) and (b) shall apply to the rights under this Section 2.3.
2.4 Inspection Rights. The Company shall permit each Holder, as
long as such Holder holds not less than 10% of the total Series E Preferred
Stock issued at the Closing (or 10% of the Common Stock issued upon conversion
of the Series E Preferred Stock, or a combination of such conversion stock and
Series E Preferred Stock), not less than 10% of the total Series D Preferred
Stock outstanding at the Closing (or 10% of the Common Stock issued upon
conversion of the Series D Preferred Stock, or a combination of such conversion
stock and Series D Preferred Stock), not less than 10% of the total Series C
Preferred Stock outstanding at the Closing (or 10% of the Common Stock issued
upon conversion of the Series C Preferred Stock, or a combination of such
conversion stock and Series C Preferred Stock), not less than 10% of the total
Series B Preferred Stock outstanding as of the Closing (or 10% of the Common
Stock issued upon conversion of the Series B Preferred Stock, or a combination
of such conversion stock and Series B Preferred Stock), or not less than 10% of
the total Series A Preferred Stock outstanding as of the Closing (or 10% of the
Common Stock issued upon conversion of the Series A Preferred Stock, or a
combination of such conversion stock and Series A Preferred Stock) at the
Holder's expense, to visit and inspect the Company's properties, to examine its
books of account and records and to discuss the Company's affairs, finances and
accounts with its officers all at such reasonable times as may be requested by
the Holder; provided, however, that the Company shall not be obligated pursuant
to this Section 2.4 to provide any information which it reasonably considers to
be a trade secret or confidential information. The rights of a Holder under this
Section 2.4 may not be assigned as part of such Holder's sale of any of the
Registrable Securities except with the consent of the Company, which consent
will not be unreasonably withheld.
2.5 Proprietary Agreements. All key employees of and consultants to
the Company with access to confidential technology of the Company shall execute
the Company's standard form of confidentiality and assignment of inventions
agreement.
3. Miscellaneous
-16-
3.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mall,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
3.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term 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 the holders of
a majority of the Registrable Securities then outstanding, provided however,
that any amendment that would adversely affect the rights of an individual
Holder or Holders of a specific series of the Company's Preferred Stock in a
manner different than it affects the rights of other Holders shall require the
consent of such affected Holder or Holders of such affected series of Preferred
Stock. Any amendment or waiver effected in accordance with this paragraph shall
be binding upon each holder of any Registrable Securities then outstanding, each
future holder of all such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the
-17-
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
3.10 Entire Agreement. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
-18-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By: /s/ Xxxxxx X. Xxxxx, President
------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
_______________________________
_______________________________
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
SRI INTERNATIONAL
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Treasurer
---------------------------------
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXXX ASSOCIATES FUND II
By: /s/ Xxxxx X. Dalai
-----------------------------------
Name: Xxxxx X. Dalai
----------------------------------
Title:_________________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXXX VII
By: /s/ Xxxxx X. Dalai
-----------------------------------
Name: Xxxxx X. Dalai
----------------------------------
Title:_________________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
SECOND VENTURES II, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Attorney-in-Fact
--------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
US VENTURE PARTNERS IV, L.P.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Attorney-in-Fact
--------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
USVP ENTREPRENEUR PARTNERS, II, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Attorney-in-Fact
--------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
VISA INTERNATIONAL SERVICE ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
Address: 000 Xxxxx Xxxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ASSET MANAGEMENT ASSOCIATES 1996, L.P.
By: /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------
Name: W. Xxxxxxx Xxxxxxx
---------------------------------
Title: General Partner of AMC Partners
-------------------------------
96, L.P. The General Partner of
-------------------------------
Asset Management Associates
--------------------------------
1996, L.P.
--------------------------------
Address: 000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXXXXXXX VENTURE PARTNERS IV
By: Xxxxxxxxxxxx Management Partners IV
Its Managing Partner
/s/ Xxxx X. Xxxxxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxxxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
2180 ASSOCIATES FUND
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Attorney-in-Fact
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
PHOENIX LEASING INCORPORATED
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ATTRACTOR LP
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, MM of its GP
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ATTRACTOR INSTITUTIONAL LP
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, MM of its GP
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ATTRACTOR QP LP
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, MM of its GP
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ATTRACTOR OFFSHORE LTD.
By: /s/ Xxxxxx Xxxxxxx
____________________________________
Xxxxxx Xxxxxxx, President
Attractor Investment Management, its
Investment Manager
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
ATTRACTOR VENTURES LLC
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx, MM
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
FIDELITY INVESTORS II LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXX, XXXXX & CO. VERWALTUNGS GMBH
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXX XXXXXX XXXX 0000, X.X.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
GS CAPITAL PARTNERS II, L.P.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
COMPANY:
Nuance Communications
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
Stone Street Fund 1997, L.P.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
CISCO SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Chief Technology Officer
---------------------------------
Address: 000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
INTEL CORPORATION
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
----------------------------------
Title: Assistant Treasurer
---------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
MACARTHUR FOUNDATION
By: Illegible Signature
-----------------------------------
Title:_________________________________
Address: 000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXX REVOCABLE TRUST, UDT 7/31/90
By:/s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx, Trustee
Address: 0000 Xxxx Xxxx Xx.
-----------------------------
Xxxxx Xxxx, XX 00000
-----------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
VOICE TRUST
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
Title: Authorized Signatory
--------------------------------
Address: 0000 Xxxx Xxxx Xxxx
------------------------------
Xxxxx Xxxx, XX 00000
------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
NTT SOFTWARE CORPORATION
By: /s/ Seishiro Tsuruho
---------------------------------
Seishiro Tsuruho
Title: Representative Director and President
Address: 000-0 Xxxxxxxxx-xxx Xxxx-xx
Xxxxxxxx-xxx
Xxxxxxxx, 000-0000, Xxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
OMRON CORPORATION
By: /s/ Tatsuro Ichihara
-----------------------------------
Tatsuro Ichihara
Title: Director Executive Vice President
Address: Xxxxxxxxxxx Xxxxxxxxxx-Xxxx
Xxxxx, 000-0000 Xxxxx
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
SUN MICROSYSTEMS, INC
By: /s/ Xxxx XxXxxxxxx
---------------------------------
Xxxx XxXxxxxxx
Title: President, Network Service
Provider Division
Address: 000 Xxx Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Acquisitions
Address: 000 Xxxxxxxx Xxxxxx Xxxxx 000
Xx Xxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
TCI CLUB
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Title: General Partner
Address: 000 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
TRANS COSMOS USA, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Title: Chairman
Address: 000 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
FTT VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Title:_________________________________
Address: 0000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
Title:_________________________________
Address: 000 Xxx Xx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Title:_________________________________
Address: 320 Tennyson
Xxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
Title:_________________________________
Address: 000 Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxx XxXxxxx
------------------------------------
Xxxx XxXxxxx
Title:_________________________________
Address: 000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Title:_________________________________
Address: 000 Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
Title:_________________________________
Address: 00000 Xx Xxxxxxxx
Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
NUANCE COMMUNICATIONS
By:____________________________________
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
INVESTORS:
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx
Title:_________________________________
Address: 00000 Xxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
SCHEDULE A
----------
HOLDERS
Series A Preferred
------------------
Xxxxxx Xxxxx
Xxxx Xxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxx
Xxxx XxXxxxx
Xxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxxxxx
SRI International
Series B Preferred
------------------
Xxxxxxxx Associates Fund II
Xxxxxxxx VII
Second Ventures II, L.P.
U.S. Venture Partners IV, L.P.
USVP Entrepreneur Partners, II, L.P.
Visa International Service Association
2180 Associates Fund
Series C Preferred
------------------
Alloy Ventures
Xxxxxxxx Associates Fund II
Xxxxxxxx VII
Xxxxxxxxxxxx Venture Partners IV, L.P.
Second Ventures II, L.P.
U.S. Venture Partners IV, L.P.
USVP Entrepreneur Partners, II, L.P.
2180 Associates Fund
Series D Preferred
------------------
Attractor L.P.
Attractor Institutional LP
Attractor Ventures LLC
Bridge Street Fund 1997, L.P.
Fidelity Investors II Limited Partnership
FTT Ventures, Inc.
GS Capital Partners II Offshore, L.P.
2180 Associates Fund
Xxxxxxx, Sachs & Co. Verwaltungs GmbH
GS Capital Partners II, L.P.
Intel Corporation
MacArthur Foundation The Northern Trust Company
Xxxxxxxx Associates Fund II
Xxxxxxxx VII
Xxxxxxxxxxxx Venture Partners IV, L.P.
Motorola, Inc.
Second Ventures II, X.X.
Xxxxx Street Fund 1997, L.P.
U.S. Venture Partners IV, L.P.
USVP Entrepreneur Partners, II, L.P.
Series E Preferred
------------------
Cisco Systems, Inc.
Science Applications International Corporation
Sun Microsystems, Inc.
TCI Club
Trans Cosmos USA, Inc.
Siebel Systems, Inc.
NTT Software Corporation
Omron Corporation
Xxxxxxxxxxxx Venture Partners IV, L.P.
Intel Corporation
Attractor LP
Attractor Institutional LP
Attractor LP QP
Attractor Offshore Ltd.
Attractor Ventures
Xxxxx Revocable Trust, UDT 7/31/90
Voice Trust
Macarthur Foundation
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxx
