EXHIBIT 10.3
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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by and among
REUTERS LIMITED,
REUTERS NEDERLAND B.V.,
CISCO SYSTEMS, INC.,
XXXXXXXX IX,
XXXXXXXX ASSOCIATES FUND III,
TIBCO SOFTWARE INC.
and
XXXXX XXXXXXXX
dated as of
July 13, 1999
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TABLE OF CONTENTS
Page
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1. Effectiveness of Agreement..................................................... 1
2. Certain Definitions............................................................ 1
3. Corporate Governance--Restatement of Investor Rights and Obligations........... 3
Certain Governance Matters..................................................... 3
4.1 Definition of Fundamental Decision....................................... 3
4.2 Corporate Action Regarding Fundamental Decisions......................... 4
4.3 Seats on Board of Directors.............................................. 5
4.4 Voting of Reuters Shares................................................. 6
5. Registration Rights............................................................ 6
5.1 General Request for Registration......................................... 6
5.2 Company Registration..................................................... 8
5.3 S-3 Registrations........................................................ 9
5.4 Expenses of Registration................................................. 10
5.5 Registration Procedures.................................................. 11
5.6 Indemnification.......................................................... 12
5.7 Contribution............................................................. 14
5.8 Information by Holder.................................................... 15
5.9 Rule 144 Reporting....................................................... 15
5.10 Transfer of Registration Rights.......................................... 15
5.11 Termination of Registration Rights....................................... 15
5.12 Amendment of Registration Rights......................................... 15
5.13 Future Grants of Registration Rights..................................... 16
5.14 TIBCO Finance Technology Options......................................... 16
6. Information Rights............................................................. 16
6.1 Financial Statements and Reports......................................... 16
6.2 Annual Business Plan and Budget.......................................... 17
6.3 Inspection and Audit Rights.............................................. 17
7. Sales of Securities............................................................ 17
7.1 Restrictive Legend....................................................... 17
8. Representations and Warranties of Reuters, Reuters B.V., Cisco and Each of
the Xxxxxxxx Entities.......................................................... 18
8.1 Reuters represents and warrants as follows:.............................. 18
8.2 Reuters B.V. represents and warrants as follows:......................... 19
8.3 Cisco represents and warrants as follows:................................ 19
8.4 Each of the Xxxxxxxx Entities represents and warrants as follows:........ 20
9. Representations and Warranties of the Stockholders............................. 21
9.1 Status and Authority..................................................... 21
9.2 No Conflicts............................................................. 21
9.3 No Litigation............................................................ 21
10. Representations and Warranties of the Company.................................. 21
10.1 Status and Authority..................................................... 21
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TABLE OF CONTENTS
(continued)
Page
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10.2 No Conflicts............................................................. 22
10.3 No Litigation............................................................ 22
11. Miscellaneous Provisions....................................................... 22
11.1 No Waiver of Rights...................................................... 22
11.2 Assignment............................................................... 22
11.3 Entire Agreement; Amendment.............................................. 22
11.4 Severability............................................................. 23
11.5 Notices.................................................................. 23
11.6 Further Action........................................................... 25
11.7 Termination.............................................................. 25
11.8 Injunctive Relief........................................................ 26
11.9 Counterparts............................................................. 26
11.10 Headings................................................................. 26
11.11 Governing Law; Waiver of Jury Trial...................................... 26
11.12 Stock Plans.............................................................. 26
11.13 Termination of Prior Agreement........................................... 26
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ANNEXES
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Annex 1 - Additional Signatories
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THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement"),
is made as of the 13th day of July 1999, by and among Reuters Limited, a company
organized under the laws of England and Wales ("Reuters"), Cisco Systems, Inc.,
a California corporation ("Cisco"), Xxxxxxxx IX, a Delaware limited partnership
and Xxxxxxxx Associates & Fund III, a California limited partnership (each a
"Xxxxxxxx Entity" and together, the "Xxxxxxxx Entities"), Reuters Nederland
B.V., a company organized under the laws of the Netherlands ("Reuters B.V."),
Xxxxx Xxxxxxxx ("Xxxxxxxx"), the persons listed on Annex 1 hereto (such persons
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and each of Cisco, the Xxxxxxxx Entities, Reuters B.V. and Xxxxxxxx, a
"Stockholder"), and TIBCO Software Inc., a Delaware corporation (the "Company").
Additional Persons may be added to this Agreement as "Stockholders" if they, the
Company and Reuters so consent. The consent of any such additional Person shall
be evidenced by execution of a signature page hereto or other written
acknowledgment that such person agrees to be bound by certain provisions of this
or any predecessor agreement.
RECITALS
A. The Company is a subsidiary of Reuters B.V., which is a subsidiary of
Reuters. As of the date hereof, Xxxxxxxx is a director and officer of the
Company.
B. In connection with the initial public offering of the Company's common
stock, the parties hereto desire to amend and restate herein the Second Amended
and Restated Shareholders Agreement dated December 31, 1997 by and among
Reuters, Cisco, the Xxxxxxxx Entities, Reuters B.V., Xxxxxxxx, the Company and
certain equity holders of the Company (the "Prior Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, the parties hereto hereby agree as follows:
1. Effectiveness of Agreement. This Agreement shall become effective
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immediately following an Initial Public Offering. The date upon which this
Agreement becomes effective is referred to herein as (the "Effective Date").
2. Certain Definitions. In addition to those terms defined elsewhere in
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this Agreement, the following terms shall have the respective meanings set forth
below:
"Affiliate" shall mean, with respect to any Person, any other Person
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that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly of the power to vote
forty percent (40%) or more of the securities having voting power for the
election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliated Transferee" shall mean (a) with respect to Reuters B.V.,
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Reuters, Reuters Group PLC or any direct or indirect subsidiary of Reuters Group
PLC, (b) with respect to Reuters, Reuters Group PLC or any direct or indirect
subsidiary of Reuters Group PLC, (c) with respect to Cisco, any direct or
indirect subsidiary of Cisco, (d) with respect to the Xxxxxxxx Entities, any
affiliated partnership or partners of the Xxxxxxxx Entities, and (e) with
respect to other individual Stockholders, (i) a spouse, parent or direct
descendent of such Stockholder (such individuals, with respect to a Stockholder,
"Family Members"), or (ii) a trust, the settlor of which is such Stockholder,
the beneficiaries of which consist exclusively of such Stockholder, or Family
Members of such Stockholder, and the trustees of which that exercise voting
authority over equity securities in such trust consist exclusively of any or all
of such Family Members, and such other trustees as Reuters B.V. or Reuters may
approve in writing.
"Commission" shall mean the U.S. Securities and Exchange Commission.
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"Common Stock" shall mean the Common Stock of the Company.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
"Fundamental Decision" shall have the meaning set forth in Section
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4.1.
"Indebtedness for Borrowed Money" shall mean (i) obligations for
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borrowed money (whether secured or unsecured), (ii) obligations representing the
deferred purchase price of property other than accounts payable arising in
connection with the purchase of inventory in the ordinary course of business,
(iii) obligations in respect of operating or finance (capital) leases, whether
or not such obligations would be required to be shown as a liability on a
balance sheet under generally accepted accounting principles (as applied in the
United States of America), and (iv) any guarantee in respect of any obligations
referred to in clauses (i), (ii) or (iii).
"Initial Public Offering" shall mean the first bona fide, firm
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commitment underwritten public offering of Common Stock pursuant to a
registration statement on Form S-1 declared effective under the Securities Act.
"Initial Public Offering Date" shall mean the date of closing of the
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Initial Public Offering (i.e. the date of payment for shares following
effectiveness of the registration statement relating to the Initial Public
Offering).
"Party" shall mean the Company, Reuters, Cisco, each of the Xxxxxxxx
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Entities, Reuters B.V. or a Stockholder, as the context requires.
"Person" means a corporation, association, partnership, joint venture,
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organization, business, individual, trust, or any other entity or organization,
including a government or any subdivision or agency thereof.
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"Public Offering" shall mean any bona fide offering of the Company's
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equity securities pursuant to a registration statement declared effective under
the Securities Act.
"Reuters Parties" shall mean Reuters PLC and its Affiliates, including
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Reuters and Reuters B.V. but excluding the Company.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Shares" shall mean (a) (i) all shares of Common Stock held by the
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Stockholders as of the Effective Date, and (ii) any shares of Common Stock
issued after the Effective Date to any of the Stockholders pursuant to any
incentive stock option plan or employee stock purchase plan of the Company in
effect from time to time, together with (b) any shares of the capital stock of
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the Company issued to a Stockholder subsequent to the Effective Date on account
of such Common Stock or subsequently issued shares, by virtue of any stock
splits, dividends payable in the capital stock of the Company or
reclassifications or conversions with respect to any such Common Stock.
"Stockholders" shall have the meaning set forth in the first paragraph
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of this Agreement.
"Total Voting Power of the Company" shall mean the total number of
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votes which may be cast in matters submitted to the vote of (a) all holders of
Common Stock and (b) all holders of other classes of the Company's capital stock
entitled to vote generally with the holders of the Common Stock.
3. Corporate Governance--Restatement of Investor Rights and Obligations.
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The Parties hereto intend that this Agreement govern the ongoing relationship
among the Parties with respect to their respective ownership interests in the
Company. To that end, to the extent that provisions conflict, it is understood
and agreed that this Agreement supersedes all other instruments, including
without limitation, the Amended and Restated Certificate of Incorporation and
Bylaws of the Company, with respect to all matters contemplated herein.
4. Certain Governance Matters.
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4.1 Definition of Fundamental Decision. For purposes of this
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Agreement, a "Fundamental Decision" shall mean a decision of the Company with
respect to any of the following actions:
(a) The issuance of equity securities or securities convertible
into, exchangeable for, or options or rights to acquire any equity securities
(except for securities issued pursuant to the Company's 1996 Stock Option Plan,
as amended, the Company's 1999 Director Stock Option Plan, the Company's 1998 IT
Advisory Counsel Stock Option Sub-Plan, the Company's 1999 Employee Stock
Purchase Plan or in a transaction covered by Section 4.1(c): (i) in any calendar
year in excess of 5% of the outstanding capital stock of the Company on December
31 of the prior year, or (ii) in any three-year period in excess of 10% of the
outstanding capital stock of the Company at the beginning of the period;
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(b) Participation of the Company in any merger, consolidation,
or share exchange, or any sale, lease, exchange or other dissolution of all or
any substantial part of the assets of the Company; or
(c) Any acquisition by the Company, whether by merger, stock
purchase, asset purchase or otherwise, of any business or entity where the
consideration to be paid by the Company in the acquisition is in excess of
either (i) 15% of the market capitalization of the Company (averaged over the
thirty-day period ending five days prior to the announcement of the acquisition)
or (ii) 15% of the total revenues of the Company in the last four completed
fiscal quarters; provided that in each case such amount exceeds $75,000,000.
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4.2 Corporate Action Regarding Fundamental Decisions.
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(a) Each of the Stockholders agrees for the benefit of Reuters
that he or it shall use his or its best efforts to (i) not permit the Board of
Directors of the Company to approve any Fundamental Decision, (ii) not vote or
cause to be voted his or her Shares to approve any Fundamental Decision that may
be submitted to the stockholders of the Company for approval, and (iii) not to
permit the Company to act in any way upon a Fundamental Decision, in each case
unless such Fundamental Decision has been first submitted to Reuters and
approved in writing by Reuters as discussed in Section 4.2(c) below.
(b) Each of the Stockholders agrees for the benefit of Reuters
that he or it shall use his or its best efforts as a stockholder of the Company
to maintain in effect at all times provisions in the Company's Bylaws, and in
any Company operating policies, guidelines or procedures that may exist from
time to time, that limit the authority of all officers, employees and agents of
the Company so that no such person will have authority to take any action on
behalf of the Company which would constitute a Fundamental Decision without the
Company's first obtaining the written approval of Reuters as discussed in
Section 4.2(c) below.
(c) Any request for Reuters' approval of a Fundamental Decision
shall be submitted to the Reuters Directors (as defined in Section 4.3). The
Reuters Directors shall in good faith use their best efforts to respond to such
request as expeditiously as possible, but shall in any event respond within ten
days after such request and the delivery by the Company to the Reuters Directors
of such information as they shall reasonably and in good faith request in order
to evaluate any such request for approval. Such request for Reuters' approval
will be deemed approved by Reuters upon the explicit written confirmation from
Reuters of such approval, which may be withheld at Reuters' sole discretion.
(d) The provisions of this Section 4.2 shall terminate and be
of no further force or effect at such time as the Reuters Parties cease to own
shares of the Company's stock having at least 30% of the Total Voting Power of
the Company.
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4.3 Seats on Board of Directors.
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(a) The Company shall be governed by a Board of Directors
consisting of nine members. The number of directors may not be decreased. The
number of directors may be increased in accordance with the provisions of
Section 4.3(c).
(b) Subject to the other provisions of this Agreement, at any
election of directors of the Company, (i) so long as Reuters Parties own shares
of the Company's stock having at least 40% of the Total Voting Power of the
Company, Reuters shall have the right to nominate three directors of the
Company, (ii) so long as Reuters Parties own shares of the Company's stock
having at least 25% but less than 40% of the Total Voting Power of the Company,
Reuters shall have the right to nominate two directors of the Company and (iii)
so long as Reuters Parties own shares of the Company's stock having at least 10%
but less than 25% of the Total Voting Power of the Company, Reuters shall have
the right to nominate one director of the Company (each director nominated by
Reuters pursuant hereto, a "Reuters Director"). Notwithstanding the foregoing,
prior to the nomination of any person as a Reuters Director, such person shall
be approved by the Chief Executive Officer of Reuters and by the Chief Executive
Officer of the Company. If a vacancy occurs or exists on the Board of Directors
at any time, including but not limited to a vacancy because of the death,
disability, retirement, resignation or removal of any director for cause or
otherwise, and the vacant position was held by a Reuters Director, then Reuters
(in accordance with the previous sentence) shall have the sole right to nominate
an individual to fill such vacancy. The Parties agree to take all necessary
action to cause the individuals nominated pursuant to this Section 4.3 to become
members of the Board of Directors of the Company.
(c) If the total number of directors of the Company is
increased above nine, the number of Reuters Directors shall be increased so that
the adjusted ratio of Reuters Directors to total directors is not less than the
ratio of Reuters Directors (determined immediately prior to such increase in
accordance with Section 4.3(b)) to nine.
(d) The members of the Board of Directors nominated as
described in this Agreement shall be duly elected by the vote of a majority of
the shares entitled to vote thereon.
(e) Any Reuters Director may be removed from office only (a)
for cause by the vote of stockholders representing not less than a majority of
the issued and outstanding shares entitled to vote upon the election of
directors, or (b) upon Reuters' determination that the Reuters Director should
no longer serve as such, and upon such determination, the Stockholders shall
vote their voting stock to remove such Reuters Director.
(f) So long as Reuters has the right to nominate at least one
director, a Reuters Director shall serve on the Compensation Committee of the
Company's Board of Directors.
(g) The provisions of this Section 4.3 shall terminate and be
of no further force or effect at such time as the Reuters Parties cease to own
shares of the Company's stock having at least 10% of the Total Voting Power of
the Company.
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4.4 Voting of Reuters Shares.
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(a) On any matter submitted to a vote of the stockholders of
the Company, the Reuters Parties agree to waive their right to vote a number of
shares (the "Reuters Waiver Number") of the Company's stock owned by the Reuters
Parties, and such shares shall be automatically voted by the Company for,
against or in abstention in the same proportion as all shares of the Company's
stock held by holders other than the Reuters Parties and entitled to vote upon
such matter are cast for, against or in abstention (whether in a meeting or by
written consent). The Reuters Waiver Number shall be equal, at any given time,
to the number of shares owned by the Reuters Parties at such time less a number
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of shares having voting power equal to 49% of the Total Voting Power of the
Company at such time. Reuters agrees that it shall use all commercially
reasonable efforts to cause the Reuters Parties to abide by this Section 4.4(a),
and Reuters agrees that it shall be a condition to the transfer of the Company's
stock by it to another Reuters Party that the transferee agrees to be bound by
the provisions of this Section 4.4(a) as if such transferee were a party to this
Agreement.
(b) The provisions of this Section 4.4 shall terminate and be
of no further force or effect at such time as the Reuters Parties cease to own
shares of the Company's stock having at least 49% of the Total Voting Power of
the Company.
5. Registration Rights.
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5.1 General Request for Registration.
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(a) Definitions. As used in this Section 5:
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(i) The terms "register," "registered" and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act and the declaration
or ordering of the effectiveness of such registration statement;
(ii) The term "Registrable Securities" shall mean (i)
the Common Stock held by the Stockholders as of the Effective Date and (ii) any
Common Stock 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, such
Common Stock, excluding in all cases, however, (A) any Registrable Securities
sold by a person in a transaction in which such Person's rights under Section 5
hereof are not assigned, (B) Common Stock or other securities that have been
disposed of pursuant to a registration statement with respect to the sale of
such securities which shall have become effective under the Securities Act, or
(C) Common Stock or other securities that shall have ceased to be outstanding.
(iii) The term "Holder" means any of Reuters, Reuters
B.V., Cisco or an Affiliated Transferee thereof, holding Registrable Securities;
for the purposes of Sections 5.2, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10 and 5.11 only,
the term shall also include Xxxxxxxx and each of the Xxxxxxxx Entities.
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(iv) The term "Initiating Holders" means any Holder or
Holders making a request for registration pursuant to, and in compliance with,
the provisions of Section 5.1(b).
(b) Request for Registration. In case at any time after the
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earlier to occur of (x) (i) the date nine months from the Initial Public
Offering Date and (ii) January 1, 2002, the Company shall receive from the
Holders of, in the aggregate, at least fifty percent (50%) of the Registrable
Securities then outstanding a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities (but
not in any case, within six months following the effective date of a
registration of the Common Stock), provided that the number of shares of
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Registrable Securities of such requesting Holders designated to be included in
such registration would result in an anticipated aggregate offering price of at
least $10,000,000, net of underwriter discounts and commissions or (y) (i) the
date six months from the Initial Public Offering Date and (ii) January 1, 2002,
the Company shall receive from Reuters a written request that the Company effect
any registration with respect to all or a part of the Registrable Securities
then held by the Reuters Parties (but not in any case, within six months
following the effective date of a registration of the Common Stock), provided
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the number of shares of Registrable Securities designated to be included in such
registration would result in an anticipated aggregate offering price of at least
$25,000,000, net of underwriter discounts and commissions, the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file pre-effective and post-effective amendments and supplements,
appropriate qualification under the applicable blue sky or other state
securities laws and appropriate compliance with exemptive regulations issued
under the Securities Act and any other governmental requirements or regulations)
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 (A) all or such
portion of the Registrable Securities of any other Holder or Holders joining in
such request as are specified in a written notice given by any such other
Holders to the Company within thirty (30) days after receipt by such other
Holders of such written notice from the Company; and (B) such securities of the
Company which the Company elects to register and offer for its own account as
part of such registration ("Company Securities"); provided that the Company
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shall not be obligated to take any action to effect any such registration
pursuant to Section 5.1(b)(x) after the Company has effected two registrations
pursuant to requests under Section 5.1(b)(x) on Form X-0, XX-0 or S-3; and
provided further that the Company shall not be obligated to take any action to
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effect any such registration pursuant to Section 5.1(b)(y) after the Company has
effected six registrations pursuant to requests under Section 5.1(b)(y). A
registration proceeding begun pursuant to this Section 5.1 which is subsequently
withdrawn and the expenses of which are borne by the Holders of securities
requesting or causing such withdrawal pursuant to Section 5.4(a) shall not be
considered an effected registration, qualification or compliance for purposes of
this Section 5.1.
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Subject to the foregoing provisions, the Company shall file a
registration statement covering the Registrable Securities and Company
Securities (if any) so requested or otherwise elected to be registered as soon
as practicable, but in any event within ninety (90) days, after receipt of the
request or requests of the Initiating Holder(s), provided that the Company shall
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have the right to defer such registration for a period of up to seventy-five
(75) days in any twelve month period following the receipt of such a request if
in the good faith opinion of the Board of Directors of the Company, it would be
seriously detrimental to the Company and the Stockholders for a registration
statement to be filed.
(c) Underwriting. If the Initiating Holders intend to
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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 Section 5.1(b) and the Company shall include such information in the
written notice referred to in Section 5.1(b)(i). In such event, the right of any
Holder or the Company to registration pursuant to Section 5.1 shall be
conditioned upon the participation of such Holder or the Company, as the case
may be, in such underwriting and the inclusion of such Holder's Registrable
Securities (or the Company Securities of the Company) in the underwriting to the
extent provided herein. The Company shall (together with all Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 5.1, if the
managing underwriter advises the Initiating Holders in writing that marketing
factors indicate that an underwriting of Registrable Securities would not be
successful at such time or require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise the Company and all
Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares included in the
registration and underwriting, if any, shall be allocated, first by reducing
(and finally eliminating, if necessary) the Company Securities to be included in
such underwriting, and second, by allocating among the Holders of Registrable
Securities requesting registration in proportion, as nearly as practicable, to
the total number of Registrable Securities held by such Holders at the time of
filing of the registration statement; provided that the Company shall not
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proceed with any registration pursuant to this Section 5.1 of fewer than the
minimum number of Registrable Securities required to commence such registration
pursuant to Section 5.1(b), and provided further that no registration so
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discontinued shall diminish the number of registrations to which the Holders are
entitled pursuant to this Section 5.1. If any Holder or the Company disapproves
of the terms of the underwriting, it may elect to withdraw therefrom by written
notice to the Company (in the case of a withdrawal by a Holder), the
underwriters and the Initiating Holders. The Registrable Securities so
withdrawn shall also be withdrawn from registration.
5.2 Company Registration.
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(a) Notice of Registration. If at any time or from time to
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time after the Initial Public Offering Date, the Company shall determine to
register any of its securities in connection with the public offering of such
securities for cash, for its own account (other than a registration relating
solely to employee stock option or purchase plans or relating solely to a Rule
145 transaction), the Company will:
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(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within thirty (30) days after receipt of such written notice
from the Company, by any Holder or Holders, except as set forth in Section
5.2(b) below.
(b) Underwriting. If the registration of which the Company
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gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 5.2(a)(i). In such event the right of any Holder to
registration pursuant to Section 5.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting on a
pro rata basis based on the total number of the Registrable Securities entitled
to registration held by the Holders, provided that no such reduction shall be
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made with respect to securities being offered by the Company for its own
account; provided further that all other shares of Common Stock held by all
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parties, other than the Holders, shall be excluded before the exclusion of any
shares of Registrable Securities held by the Holders who desire to have their
shares included in the registration and offering. The Company shall advise all
Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto of any such limitations, and the number of shares
of Registrable Securities that may be included in the registration. If any
Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall not be
included in such registration.
(c) Notwithstanding anything to the contrary in this Section
5.2, the Company shall not be obligated to effect any registration of
Registrable Securities under this Section 5.2 pursuant to a registration
statement covering any of its securities to be issued in connection with
mergers, acquisitions, exchange offers, dividend reinvestment plans or stock
option or other employee benefit plans.
5.3 S-3 Registrations. If, at any time or from time to time after
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the Initial Public Offering Date, the Company is requested in writing by the
Holders of, in the aggregate, at least fifty percent (50%) of the Registerable
Securities then outstanding (and qualifies under applicable Commission rules) to
undertake an S-3 or equivalent short-form registration of its securities by the
Holders of Registrable Securities, the Company shall promptly give notice of
such proposed registration to all Holders of Registrable Securities and the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration on Form S-3 of the Registrable Securities which the Company has
been requested to register (a) in each request and (b) in any response given
within twenty (20) days of the
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receipt of the notice from the Company pursuant to this Section 5.3, provided
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that the Company shall not be obligated to take any action to effect more than
one such registration pursuant to this Section 5.3 in any twelve month period,
and provided further that the Company shall have the right to defer such
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registration for a period of up to seventy-five (75) days following the receipt
of such a request if in the opinion of the Board of Directors of the Company, it
would be seriously detrimental to the Company and the Stockholders for a
registration statement to be filed. Notwithstanding the foregoing, however, the
Company shall not be required to effect any registration hereunder unless the
number of shares of Registrable Securities which Holders have requested to be
included in such registration would result in an anticipated aggregate offering
price of more than $5,000,000 (net of underwriting discounts and commissions).
The Company may include in the registration under this Section 5.3 any other
shares of Common Stock so long as the inclusion in such registration of such
shares will not, in the opinion of the managing underwriter, interfere with the
successful marketing in accordance with the intended method of sale or other
disposition of all the shares of Registrable Securities sought to be registered
by the Holder or Holders of Registrable Securities pursuant to this Section 5.3.
If it is determined as provided above that there will be such interference, the
other shares of Common Stock sought to be included by the Company shall be
excluded to the extent deemed appropriate by the managing underwriter, and all
other shares of Common Stock held by other parties shall be excluded before the
exclusion of any shares of Registrable Securities held by the Holders who desire
to have their shares included in the registration and offering. If, as
contemplated above, and after excluding all other shares of Common Stock held by
parties other than the Holders, shares of the Registrable Securities of the
Holders shall be included in such underwriting, up to the total number deemed
advisable by the managing underwriter, by allocating among the Holders of
Registrable Securities requesting registration in proportion, as nearly as
practicable, to the total number of Registrable Securities held by such Holders
at the time of filing of the registration statement.
5.4 Expenses of Registration.
------------------------
(a) All expenses incurred in connection with any registration
pursuant to the two registrations under Section 5.1(b)(x), the first four
registrations under Section 5.1(b)(y), any registrations under Section 5.2 and
the first two registrations pursuant to Section 5.3, including, without
limitation, all registration, filing and qualification fees, printing expenses,
reasonable fees and disbursements of counsel for the Company, expenses of
complying with state securities or Blue Sky laws (including fees of counsel for
the Company and counsel for the underwriters), accountants' fees and expenses
incident to or required by any such registration, expenses incident to the
listing of securities on any exchange in which the Registrable Securities have
been listed, expenses of any special audits incidental to or required by such
registration and the fees and disbursements of one counsel retained by the
Holders of Registrable Securities covered by such registration shall be borne by
the Company, provided, however:
-------- -------
The Company shall not be required to pay for expenses of any registration
proceeding begun pursuant to Section 5.1, the request of which has been
subsequently withdrawn by the Initiating Holders, in which case, such expenses
shall be borne by the Holders of securities (including Registrable Securities)
requesting or causing such withdrawal; provided that such Holders shall not be
required to pay (a) for the cost of normal audits of the Company that would have
been performed in any event, and
-10-
(b) for the time of any executives or other personnel of the Company involved in
the preparation of the registration statement; and provided further, however,
-------- -------
that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from
those known to the Holders at the time of their request, then the Holders shall
not be required to pay any of such expenses and shall retain their rights
pursuant to Sections 5.1; and
(b) All expenses incurred in connection with the fifth or
subsequent registration(s) pursuant to Section 5.1(b)(y) and the third or
subsequent registration(s) pursuant to Section 5.3, including all expenses of
the types specified in Section 5.4(a), above, shall be borne by the Holders of
Registrable Securities so registered. Such expenses shall be borne by such
Holders pro rata in proportion to the number of shares of Registrable Securities
of each such Holder so registered;
(c) Notwithstanding anything to the contrary elsewhere in this
Agreement, all underwriters' discounts, commissions, or applicable stock
transfer and documentary stamp taxes (if any) relating to any particular sale of
Registrable Securities shall be borne by the seller of such Registrable
Securities in all cases.
5.5 Registration Procedures.
-----------------------
(a) In the case of each registration effected by the Company
pursuant to this Section 5, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense (except as otherwise provided in Section
5.6 below) the Company will:
(i) subject to paragraph 5.5(b), keep such registration
pursuant to Section 5.1, 5.2, or 5.3 effective for a period of 120 days to the
extent such registration is made pursuant to Form S-3 (or any successor Form)
and for a period of forty-five days otherwise, or until the Holder or Holders
have completed the distribution described in the registration statement relating
thereto, whichever first occurs;
(ii) furnish such number of prospectuses and other
documents incident thereto as a Holder from time to time may reasonably request;
and
(ii) notify each Holder, (A) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and, with
respect to the registration statement or any post-effective amendment, when the
same has become effective; (B) of any request by the Commission or any other
federal or state governmental authority during the period of effectiveness of
the registration statement for amendments or supplements to the registration
statement or related prospectus or for additional information relating to the
registration statement, (C) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the registration statement or the initiation of any proceedings
for that purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose; or (E) of the happening of any
event which makes any
-11-
statement made in the registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in the
registration statement or prospectus so that, in the case of the registration
statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the prospectus,
it will not contain any untrue statement of a material fact or omit to state any
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) The Company may, upon the happening of any event (x) of the
kind described in clauses (B), (C), (D), or (E) of Section 5.5(a)(iii) or (y)
that, in the judgment of the Company's Board of Directors, renders it advisable
to suspend use of the prospectus due to pending corporate developments, public
filings with the Commission or similar events, suspend use of the prospectus on
written notice to each Holder for no more than sixty (60) days in the aggregate
in any six (6) month period of time, in which case each Holder shall discontinue
disposition of Registrable Securities covered by the registration statement or
prospectus until copies of a supplemented or amended prospectus are distributed
to the Holders or until the Holders are advised in writing by the Company that
the use of the applicable prospectus may be resumed. The Company shall use its
reasonable efforts to ensure that the use of the prospectus may be resumed as
soon as practicable. The Company shall use every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the securities for sale in any jurisdiction, at
the earliest practicable moment. As is practicable, the Company shall prepare a
supplement or post-effective amendment to the registration statement or a
supplement to the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.6 Indemnification.
---------------
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder of Registrable Securities, each of its officers
and directors, and each person controlling such Holder, with respect to which a
registration has been effected pursuant to this Section 4 and each underwriter,
if any, and each person who controls any underwriter of the Registrable
Securities held by or issuable-to such Holder, against all claims, losses,
damages, costs, expenses and liabilities whatsoever (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
preliminary or final prospectus contained therein or any amendment or supplement
thereto, offering circular or other documents (including any related
registration statement, notification or the like) incident to any such
registration, or based on any 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 any violation by the Company of the Securities Act or
any state securities law or of any rule or regulation promulgated under the
Securities Act or any state securities law applicable to the Company and
relating to action or inaction
-12-
required of the Company in connection with any such registration, and will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage, cost,
expense, liability or action, provided that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, cost, expense, or
liability arises out of or is based on any untrue statement or omission based
upon written information furnished to the Company in writing by any Holder or
underwriter and stated to be specifically for use therein.
(b) To the extent, but only to the extent, that there is an
untrue statement or omission made in a registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company in writing by a Holder and stated
to be specifically for use therein, such Holder will, if Registrable Securities
held by or issuable to such Holder are included in the securities as to which
such registration is being effected, indemnify and hold harmless the Company,
each of its directors and officers who sign such registration statement, each
underwriter, if any, of the Company's securities covered by such registration
statement, each person who controls the Company within the meaning of the
Securities Act, and each other Holder, each of such other Holder's officers and
directors and each person controlling such other Holder, against all claims,
losses, damages, costs, expenses and liabilities whatsoever (or actions in
respect thereof) arising out of or based on any such untrue statement of a
material fact contained in any such registration statement, preliminary or final
prospectus contained therein or any amendment or supplement thereto, offering
circular or other documents (including any related registration statement,
notification or the like) incident to any such registration, or based on any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such other Holders, such directors, officers, persons or underwriters
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, cost, expense,
liability or action; provided, however, that the foregoing indemnity agreement
is subject to the condition that, insofar as it relates to any such untrue
statement or omission made in the preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or the amended prospectus filed with
the Commission pursuant to the Rule 424(b) (the "Final Prospectus"), such
indemnity agreement shall not inure to the benefit of the Company, any
underwriter or any Holder, if there is no underwriter, if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
(c) Each party entitled to indemnification under this Section
5.6 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any
-13-
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. If any such Indemnified Party
shall have been advised by counsel chosen by it that there may be one or more
legal defenses available to such Indemnified Party which are different from or
additional to those available to the Indemnifying Party, the Indemnifying Party
shall not have the right to assume the defense of such action on behalf of such
Indemnified Party and will promptly reimburse such Indemnified Party and any
person controlling such Indemnified Party for the reasonable fees and expenses
of any counsel retained by the Indemnified Party, it being understood that the
Indemnifying Party shall not, in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for such Indemnified Party
or controlling person, which firm shall be designated in writing by the
Indemnified Party to the Indemnifying Party.
5.7 Contribution. If the indemnification provided for in Section 5.6
------------
is unavailable or insufficient to hold harmless an Indemnified Party thereunder,
then each Indemnifying Party thereunder shall contribute to the account paid or
payable by such Indemnified Party as a result of the losses, claims, damages,
costs, expenses, liabilities or actions referred to in Section 5.6(a) or (b) in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other in
connection with statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
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 relates to information
supplied by the Indemnifying Party or the Indemnified Party and the Parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statements or omission. The Parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 5.7
were to be determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the first sentence of this Section 5.7. 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 Section 5.7 shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any action or claim which is the
subject of this Section 5.7. Promptly after receipt by an Indemnified Party of
notice of the commencement of any action against such party in respect of which
a claim for contribution may be made against an Indemnifying Party under this
Section 5.7, such Indemnified Party shall notify the Indemnifying Party in
writing of the commencement thereof if the notice specified in Section 5.6(c)
has not been given with respect to such action; provided that the omission so to
--------
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to any Indemnified Party otherwise under this
Section 5.7, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. The Company and each Stockholder
agree with each other and shall agree with the underwriters of the Registrable
Securities, if requested by such underwriters, that (a) the underwriters'
portion of such contribution shall not exceed the underwriting discount,
commission and other compensation and (b) except for the Company, the amount of
such contribution shall not exceed an amount equal to the proceeds received by
such Indemnifying Party from the sale of securities in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate. No
Person guilty of fraudulent misrepresentation (within the
-14-
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.8 Information by Holder. The Holder or Holders of Registrable
---------------------
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may reasonably request in writing and as
shall be required in connection with any registration referred to in this
Section 5.
5.9 Rule 144 Reporting. With a view to making available to the
------------------
Holders the benefits of certain rules and regulations of the Commission which
may permit the sale of Registrable Securities to the public without
registration, 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 ninety (90) days after the effective date of the first registration filed
by the Company which involves a sale of securities of the Company to the general
public;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder so long as such Holder owns any
Registrable Securities forthwith upon request a written statement by the Company
that it has compiled with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of said first registration
statement filed by the Company), and of the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements), a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents so files by the Company as may be reasonably requested in
availing any Holder of any rule or regulation of the Commission permitting the
selling of any such securities without registration.
5.10 Transfer of Registration Rights. Any registration rights
-------------------------------
granted by the Company under this Section 5 directly to a Holder of Registrable
Securities may be assigned by such Holder to one or more of its Affiliated
Transferees. In addition, any registration rights granted by the Company under
this Section 5 to Reuters or Cisco may be assigned by Reuters or Cisco, as the
case may be, to any Person who would, after such transfer, be the holder of
twenty percent (20%) or more of the shares of Common Stock.
5.11 Termination of Registration Rights. All registration rights
----------------------------------
provided hereunder shall terminate upon the earlier to occur of (a) the tenth
anniversary of the Initial Public Offering Date and (b) with respect to any
Holder, such time as such Holder is able to sell all of its Registrable
Securities under Rule 144 during any one three-month period (treating for these
purposes a Holder and its Affiliated Transferees as one Holder).
5.12 Amendment of Registration Rights. The provisions of this
--------------------------------
Section 5 may be amended with the written consent of the Company and the Holders
then holding fifty-one (51%) or more
-15-
of the Registrable Securities outstanding at the time of such amendment,
provided that no amendment adversely affecting the rights of Reuters B.V.,
Reuters, Cisco, the Xxxxxxxx Entities or Xxxxxxxx hereunder shall be effective
without Reuters B.V.'s, Reuters,' Cisco's, the Xxxxxxxx Entities' or Ranadive's,
as the case may be, prior written consent. Notwithstanding the foregoing, Cisco,
Xxxxxxxx and Xxxxxxxx agree that granting additional registration rights to
Reuters Parties in accordance with this Section 5 does not adversely affect
their interests, and therefore does not require their written consent.
5.13 Future Grants of Registration Rights. Except for those
------------------------------------
registration rights granted to Reuters under this Section 5, the Company agrees
for the benefit of the Holders that it will not grant registration rights with
respect to any of its securities upon terms more favorable to the holders of
such securities than those contained herein or that conflict with the
preferences provided to the Holders in the case of limitations by the
underwriter on the number of securities included in a registration pursuant to
Sections 5.2 and 5.3.
5.14 TIBCO Finance Technology Options. The Company shall register
--------------------------------
under the Securities Act as soon as possible on an appropriate form the shares
of common stock to be sold to employees of TIBCO Finance Technology, Inc.
("TFT") pursuant to the exercise of options under the TFT Stock Option Plan for
shares of the Company's common stock and the resale of shares acquired upon the
exercise of options under the TFT Stock Option Plan. The Company shall pay all
registration expenses relating to such registration.
6. Information Rights. Until such time as the Reuters Parties cease to
------------------
own shares of the Company's stock having at least 20% of the Total Voting Power
of the Company:
6.1 Financial Statements and Reports. The Company shall deliver to
--------------------------------
Reuters:
(a) As soon as available, but in any event within fifteen (15)
days after the end of each fiscal month and each fiscal quarter (provided, that
--------
the Company shall use its best efforts to deliver the monthly financial
information for June of each year within ten (10) calendar days after the end of
June), a consolidated balance sheet of the Company and its consolidated
subsidiaries as of the end of such fiscal month or such fiscal quarter, as the
case may be, and the related statements of earnings, stockholder' equity and
changes in financial position for such fiscal month or such fiscal quarter, as
the case may be, and for the year to date, setting forth, in each case, in
comparative form the figures for the corresponding period a year earlier, all in
reasonable detail, including commentary on key features and on variances from
the current Annual Business Plan and Budget, and certified by the chief
financial officer of the Company as (i) accurately setting out and fairly
describing the financial condition and operating results of the Company, subject
only to changes resulting from normal year-end audit adjustments which are
neither individually nor in the aggregate material, and (ii) having been
prepared in accordance with generally accepted accounting principles (except for
the omission of footnotes), applied on a consistent basis throughout the periods
indicated;
(b) As soon as available, but in any event within thirty (30)
days after the end of each fiscal year of the Company, a consolidated balance
sheet of the Company and its consolidated
-16-
subsidiaries as of the end of such fiscal year and the related statements of
earnings, stockholder' equity and changes in financial position for such year,
setting forth, in each case, in comparative form the figures for the previous
fiscal year, all in reasonable detail for audit clearance within Reuters. The
Company will use best efforts within sixty (60) days after the end of each
fiscal year of the Company to deliver such materials accompanied by the report
thereon of the Company's auditors, which report shall state that such financial
statements present fairly the financial condition and results of operations of
the Company and its consolidated subsidiaries as of the close of such fiscal
year in conformity with generally accepted accounting principles consistently
applied.
(c) All written reports, analyses or studies relating to the
business or financial condition of the Company as the Company shall deliver to
any holder of Common Stock (in his capacity as a stockholder and not as an
officer or director of the Company), simultaneously with its delivery to such
holder.
6.2 Annual Business Plan and Budget. The Company will, (a) at least
-------------------------------
one month prior to the commencement of each fiscal year, prepare and submit to
the Board of Directors for approval and to Reuters a budget and operating plan
for the upcoming fiscal year, including projections or forecasts of capital and
operating expenses, cash flow, and profits and losses (the "Annual Business Plan
and Budget"), all itemized in reasonable detail; and (b) at least one month
prior to the commencement of each fiscal quarter, prepare and submit to the
Board of Directors projections or forecasts of capital and operating expenses,
cash flow, and profits and losses for the remainder of the fiscal year together
with profit projections for the following fiscal year. Before the Company takes
any action which would materially deviate from an approved Annual Business Plan
and Budget, the Board of Directors of the Company shall approve such action.
6.3 Inspection and Audit Rights. The Company agrees to permit the
---------------------------
authorized representatives of Reuters to visit and inspect any of the properties
of the Company, including its books of account, and to take extracts therefrom,
and to discuss its affairs, finances and accounts with its officers and
independent accountants, all at such times and as often as may be reasonably
requested, and to make such other inspections as may be necessary to permit
Reuters, to review any of the financial statements of the Company delivered to
Reuters, pursuant hereto, provided, however, that such representatives shall
--------
agree to take reasonable precautions to hold in confidence all non-public
information so provided and so designated by the Company (except that such
representatives may disclose such information to officers of Reuters, to its
counsel, to its independent accountants and as required by law). In addition,
the Company shall use its best efforts to allow the independent accountants of
Reuters to audit the working papers of and to assist in any review undertaken by
the Company's independent accountants, and if such access is denied, the Company
shall reimburse Reuters for the costs of any extra audit work undertaken by
Reuters as a result of such denial.
-17-
7. Sales of Securities.
-------------------
7.1 Restrictive Legend. Each certificate representing Shares held by
------------------
the Parties hereto shall be stamped or otherwise imprinted with a legend
substantially in the following form (unless no longer required in the opinion of
counsel for the Company):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO UNLESS AN
EXEMPTION UNDER SUCH ACT IS THEN AVAILABLE.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. THE
CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS A CERTIFICATE DESCRIBING THE POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH
CLASS OF STOCK OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
THIS CERTIFICATE IS SUBJECT TO THE PROVISIONS OF THE SHAREHOLDER AGREEMENT
AMONG CERTAIN STOCKHOLDERS OF THE COMPANY. A COPY OF THE ABOVE-REFERENCED
AGREEMENT IS ON FILE AT THE OFFICES OF THE CORPORATION.
8. Representations and Warranties of Reuters, Reuters B.V., Cisco and
-------------------------------------------------------------------
Each of the Xxxxxxxx Entities.
-----------------------------
8.1 Reuters represents and warrants as follows:
(a) Status and Authority. Reuters is a company duly organized
--------------------
and validly existing and under the laws of England and Wales. The execution and
delivery by Reuters of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate action on the
part of Reuters, and this Agreement has been duly executed and delivered by the
duly authorized officers of Reuters and constitutes the valid, legal and binding
obligation of Reuters.
(b) No Conflicts.
------------
(i) The execution, delivery and performance of this
Agreement by Reuters will not result in (A) any conflict with the charter
documents of Reuters, (B) any material breach or violation of or default under
any statute, law, rule, regulation, judgment, decree, order or any material
mortgage, deed of trust, indenture, agreement or any other instrument to which
Reuters is a party or by which any of its material properties or assets is
bound, or (C) the creation or imposition of any lien, charge, pledge or
encumbrance thereon, except for such breaches, violations or defaults and such
liens,
-18-
charges, pledges or encumbrances as would not, individually or in the aggregate,
have a material adverse effect on Reuters's business or adversely affect the
ability of Reuters to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Reuters in connection
with the execution and delivery of this Agreement, and the performance by
Reuters of its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
-------------
actions, proceedings or investigations pending or to the best knowledge of
Reuters, threatened, which question the validity of this Agreement or any action
taken or to be taken by Reuters in connection herewith.
8.2 Reuters B.V. represents and warrants as follows:
(a) Status and Authority. Reuters B.V. is a corporation duly
--------------------
organized, validly existing and in good standing under the laws of the
Netherlands. The execution and delivery by Reuters B.V. of this Agreement and
the performance of its obligations hereunder have been duly authorized by all
necessary corporate action on the part of Reuters B.V., and this Agreement has
been duly executed and delivered by the duly authorized officers of Reuters B.V.
and constitutes the valid, legal and binding obligation of Reuters B.V.
(b) No Conflicts.
------------
(i) The execution, delivery and performance of this Agreement
by Reuters B.V. will not result in (A) any conflict with the charter documents
of Reuters B.V., (B) any material breach or violation of or default under any
statute, law, rule, regulation, judgment, decree, order or any material
mortgage, deed of trust, indenture, agreement or any other instrument to which
Reuters B.V. is a party or by which any of its material properties or assets is
bound, or (C) the creation or imposition of any lien, charge, pledge or
encumbrance thereon, except for such breaches, violations or defaults and such
liens, charges, pledges or encumbrances as would not, individually or in the
aggregate, have a material adverse effect on Reuters B.V.'s business or
adversely affect the ability of Reuters B.V. to perform its obligations
hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Reuters B.V. in
connection with the execution and delivery of this Agreement, and the
performance by Reuters B.V. of its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
-------------
actions, proceedings or investigations pending or to the best knowledge of
Reuters B.V., threatened, which question the validity of this Agreement or any
action taken or to be taken by Reuters B.V. in connection herewith.
-19-
8.3 Cisco represents and warrants as follows:
(a) Status and Authority. Cisco is a corporation duly organized,
--------------------
validly existing and in good standing under the laws of California. The
execution and delivery by Cisco of this Agreement and the performance of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of Cisco, and this Agreement has been duly executed and
delivered by the duly authorized officers of Cisco and constitutes the valid,
legal and binding obligation of Cisco.
(b) No Conflicts.
------------
(i) The execution, delivery and performance of this
Agreement by Cisco will not result in (A) any conflict with the charter
documents of Cisco, (B) any material breach or violation of or default under any
statute, law, rule, regulation, judgment, decree, order or any material
mortgage, deed of trust, indenture, agreement or any other instrument to which
Cisco is a party or by which any of its material properties or assets is bound,
or (C) the creation or imposition of any lien, charge, pledge or encumbrance
thereon, except for such breaches, violations or defaults and such liens,
charges, pledges or encumbrances as would not, individually or in the aggregate,
have a material adverse effect on Cisco's business or adversely affect the
ability of Cisco to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to Cisco in connection with
the execution and delivery of this Agreement, and the performance by Cisco of
its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
-------------
actions, proceedings or investigations pending or to the best knowledge of
Cisco, threatened, which question the validity of this Agreement or any action
taken or to be taken by Cisco in connection herewith.
8.4 Each of the Xxxxxxxx Entities represents and warrants as follows:
(a) Status and Authority. Xxxxxxxx IX is a Delaware limited
--------------------
partnership and Xxxxxxxx Associates & Fund III is a California limited
partnership, and each is duly organized, validly existing and in good standing
under the laws of Delaware and California, respectively. The execution and
delivery by such Xxxxxxxx Entity of this Agreement and the performance of its
obligations hereunder have been duly authorized by all necessary corporate
action on the part of such Xxxxxxxx Entity, and this Agreement has been duly
executed and delivered by the duly authorized officers of such Xxxxxxxx Entity
and constitutes the valid, legal and binding obligation of such Xxxxxxxx Entity.
(b) No Conflicts.
------------
(i) The execution, delivery and performance of this
Agreement by such Xxxxxxxx Entity will not result in (A) any conflict with the
charter documents of such Xxxxxxxx Entity, (B) any material breach or violation
of or default under any statute, law, rule, regulation, judgment, decree, order
or any material mortgage, deed of trust, indenture, agreement or any other
-20-
instrument to which such Xxxxxxxx Entity is a party or by which any of its
material properties or assets is bound, or (C) the creation or imposition of any
lien, charge, pledge or encumbrance thereon, except for such breaches,
violations or defaults and such liens, charges, pledges or encumbrances as would
not, individually or in the aggregate, have a material adverse effect on such
Xxxxxxxx Entity's business or adversely affect the ability of such Xxxxxxxx
Entity to perform its obligations hereunder.
(ii) No consent, approval or authorization of or filing with
any governmental authority is required with respect to such Xxxxxxxx Entity in
connection with the execution and delivery of this Agreement, and the
performance by such Xxxxxxxx Entity of its obligations hereunder.
(c) No Litigation. There are no judicial or administrative
-------------
actions, proceedings or investigations pending or to the best knowledge of such
Xxxxxxxx Entity, threatened, which question the validity of this Agreement or
any action taken or to be taken by such Xxxxxxxx Entity in connection herewith.
9. Representations and Warranties of the Stockholders. Each of the
--------------------------------------------------
Stockholders represents and warrants as follows:
9.1 Status and Authority. This Agreement has been duly
--------------------
executed and delivered by such Stockholder and constitutes the valid, legal and
binding obligation of such Stockholder.
9.2 No Conflicts.
------------
(a) The execution, delivery and performance of this
Agreement by such Stockholder will not result in (i) any material breach or
violation of or default under any statute, law, rule, regulation, judgment,
decree, order or any material mortgage, deed of trust, indenture, agreement or
any other instrument to which such Stockholder is a party or by which any of his
material properties or assets is bound, or (ii) the creation or imposition of
any lien, charge, pledge or encumbrance on any of the assets or properties of
such Stockholder, except for such breaches, violations or defaults and such
liens, charges, pledges or encumbrances as would not, individually or in the
aggregate, have a material adverse effect on such Stockholder's financial
condition or adversely affect the ability of such Stockholder to perform its
obligations hereunder.
(b) No consent, approval or authorization of or filing with
any governmental authority is required with respect to such Stockholder in
connection with the execution and delivery of this Agreement, and the
performance by such Stockholder of its obligations hereunder.
9.3 No Litigation. There are no judicial or administrative
-------------
actions, proceedings or investigations pending or to the best knowledge of such
Stockholder, threatened, which question the validity of this Agreement or any
action taken or to be taken by such Stockholder in connection herewith.
10. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants as follows:
-21-
10.1 Status and Authority. The Company is a corporation duly
--------------------
organized, validly existing and in good standing under the laws of the State of
Delaware. The execution and delivery of this Agreement and the performance of
its obligations hereunder have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been duly executed and
delivered by the duly authorized officers of the Company and constitutes the
valid, legal and binding obligation of the Company.
10.2 No Conflicts.
------------
(a) The execution, delivery and performance of this Agreement by
the Company will not result in (i) any conflict with the Certificate of
Incorporation or the Bylaws of the Company, (ii) any material breach or
violation of or default under any statute, law, rule, regulation, judgment,
decree, order or any material mortgage, deed of trust, indenture, agreement or
any other instrument to which the Company is a party or by which any of its
material properties or assets is bound, or (iii) the creation or imposition of
any lien, charge, pledge or encumbrance thereon, except for such breaches,
violations or defaults and such liens, charges, pledges or encumbrances as would
not, individually or in the aggregate, have a material adverse effect on the
Company's business or adversely affect the ability of the Company to perform its
obligations hereunder.
(b) No consent, approval or authorization of or filing with any
governmental authority is required with respect to the Company in connection
with the execution and delivery of this Agreement, and the performance by the
Company of its obligations hereunder.
10.3 No Litigation. There are no judicial or administrative actions,
-------------
proceedings or investigations pending or to the knowledge of the Company,
threatened, which question the validity of this Agreement or any action taken or
to be taken by the Company in connection herewith.
11. Miscellaneous Provisions.
------------------------
11.1 No Waiver of Rights. No failure or delay on the part of any
-------------------
party in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
power, right or privilege. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
11.2 Assignment. Unless otherwise provided hereunder, neither this
----------
Agreement nor any right or obligation hereunder is assignable in whole or in
part by any party without the prior written consent of Reuters, and the Company.
11.3 Entire Agreement; Amendment.
---------------------------
(a) This Agreement, constitutes the full and entire agreement and
understanding among the parties hereto with regard to the subjects hereof and
merge all prior agreements and discussions among the parties hereto with respect
to the subjects hereof. No amendment to this
-22-
Agreement that is binding to all parties hereto shall be effective unless in
writing and executed by all of the parties hereto (other than Reuters B.V., for
which Reuters shall act), it being understood that a waiver by any party of any
of its rights hereunder need only be executed by such party (other than Reuters
B.V., for which Reuters shall act), and it being further understood that only
the consent of Stockholders holding a majority of the voting power of the
Company not held by Reuters B.V., Cisco or the Xxxxxxxx Entities or their
Affiliated Transferees is needed to bind all Stockholders (other than Reuters
B.V., Cisco, the Xxxxxxxx Entities and their Affiliated Transferees).
(b) Notwithstanding the foregoing, (i) the provisions of Section
4 (other than Sections 4.3 and 4.4) may be amended without the consent of
Reuters at any time only after the Reuters Parties cease to own shares of the
Company's stock having at least 30% of the Total Voting Power of the Company,
(ii) the provisions of Section 4.3 may be amended without the consent of Reuters
at any time only after the Reuters Parties cease to own shares of the Company's
stock having at least 10% of the Total Voting Power of the Company and (iii) the
provisions of Section 4.4 may not be amended by any party and will be binding
upon the Reuters Parties until such time as the Reuters Parties cease to own
shares of the Company's stock having at least 49% of the Total Voting Power of
the Company, after which time Section 4.4 may be amended without the consent of
Reuters.
11.4 Severability. If any one or more of the provisions contained in
------------
this Agreement or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein (except
any which are direct quid pro quos for the invalid provision) shall not in any
way be affected or impaired.
11.5 Notices. Any notices and other communication required or
-------
permitted hereunder shall be in writing and shall be delivered by hand or mailed
by first class mail, postage prepaid, addressed as follows:
(a) If to Reuters or Reuters B.V., addressed to:
c/o Reuters Limited
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx
XX0X 0XX
Attention: General Counsel
Tel: 000-00000-000-0000
Fax: 000-00000-000-0000
-23-
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
(b) If to Cisco, addressed to:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Vice President Business Development
Tel: 000-000-0000
Fax: 000-000-0000
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
(c) If to any Xxxxxxxx Entity, addressed to:
Mayfield Fund
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-24-
with copies to:
Xxxxxx & Xxxxxxx
00 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-25-
(d) If to the Company, addressed to:
c/o TIBCO Software Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: CFO
Tel: 000-000-0000
Fax: 000-000-0000
with copies to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
(e) If to Xxxxxxxx or any other Stockholder, addressed to:
c/o TIBCO Software Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: CFO
Tel: 000-000-0000
Fax: 000-000-0000
or at such other addresses as any Party shall have furnished to the other
Parties in writing.
11.6 Further Action. The Parties in a timely manner take all further
--------------
measures reasonably within their control which are necessary or appropriate to
cause the Company and its Board of Directors to implement the provisions of this
Agreement and the transactions contemplated hereby, and the parties hereto shall
at all times act in good faith with respect to the obligations incurred by them
hereunder.
11.7 Termination. Except as otherwise expressly provided herein this
-----------
Agreement shall terminate and be of no further force or effect upon the
dissolution of the Company. Notwithstanding the foregoing, no termination of
any provision of this Agreement shall release any Party from any liability to
any other Party which at the time of such termination has already accrued, nor
affect in any way the survival of any right, duty or obligation of any Party
which is expressly stated elsewhere in this Agreement to survive expiration or
termination hereof.
-26-
11.8 Injunctive Relief. Each of the Parties hereby acknowledges that
-----------------
in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the Parties therefore agrees that in the event of a breach of any material
provision of this Agreement the aggrieved Party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of such provision, as well as to
obtain damages for breach of this Agreement. By seeking or obtaining any such
relief, the aggrieved Party will not be precluded from seeking or obtaining any
other relief to which it may be entitled.
11.9 Counterparts. This Agreement may be executed simultaneously in
------------
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
11.10 Headings. The inserted headings are for convenience of
--------
reference only and shall not be used to construe or interpret this Agreement.
11.11 Governing Law; Waiver of Jury Trial. This Agreement shall be
-----------------------------------
governed by, and construed in accordance with, the laws of the State of
California applicable to contracts negotiated, executed and wholly performed in
that State. The Parties hereto agree that in the event of litigation between
them with respect to this Agreement, they each hereby consent to trial by a
judge in a Federal court in the Northern District of California without a jury.
11.12 Stock Plans. The Company acknowledges that nothing set forth in
-----------
this Agreement and none of the transactions contemplated hereby shall be
construed as, shall constitute or shall be deemed to effect a "change of
control" under any of the Company's stock option agreements under its 1996 Stock
Option Plan, Director Option Plan or 1998 IT Advisory Council Stock Option Sub-
Plan.
11.13 Termination of Prior Agreement. The parties to the Prior
------------------------------
Agreement hereby agree that the Prior Agreement is hereby terminated and of no
further force or effect.
* * * *
-27-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above-written.
XXXXXXXX IX
a Delaware Limited Partnership
By: Xxxxxxxx IX Management, L.L.C. a Delaware Limited Liability Company
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name:
------------------------
Title:
------------------------
XXXXXXXX ASSOCIATES FUND III
a California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C. a Delaware Limited Liability Company
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name:
------------------------
Title:
------------------------
Signature page to THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
REUTERS LIMITED REUTERS NEDERLAND B.V.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
------------------------ ----------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx
Title Attorney Title: Attorney
CISCO SYSTEMS, INC. XXXXX XXXXXXXX
By: /s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
------------------------ ----------------------------
Name:
Title:
TIBCO SOFTWARE INC.
/s/ Xxxxx Xxxxxxxx
---------------------------
Xxxxx Xxxxxxxx
President
Signature page to THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
================================================================================
