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Exhibit 4.02
TALARIAN CORPORATION
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement ("Agreement")
is entered into as of February 3, 2000 by and among TALARIAN CORPORATION, a
California corporation (the "Company"), those persons purchasing shares of the
Company's Series D Preferred Stock (the "Series D Stock") listed on Exhibit A
hereto (the "Investors"), those holders of the Company's Series C Preferred
Stock ("Series C Stock") listed on Exhibit B hereto (the "Series C Purchasers"),
those holders of the Company's Series B Preferred Stock ("Series B Stock")
listed on Exhibit B hereto (the "Series B Purchasers"), those holders of the
Company's Series A Preferred Stock ("Series A Stock") listed on Exhibit B hereto
(the "Series A Purchasers"), Dominion Ventures, Inc. ("DVI"), Unitechnic, S.A.
("Unitechnic") and Silicon Valley Bank ("SVB").
R E C I T A L S
A. Pursuant to an Amended and Restated Investors' Rights Agreement
dated November 30, 1995, as amended, (the "Prior Agreement") the Company granted
certain information, registration and first refusal rights to the Series A
Purchasers, the Series B Purchasers and the Series C Purchasers and certain
registration rights to DVI, Unitechnic and SVB.
B. Pursuant to a Series D Preferred Stock Purchase Agreement dated
of even date herewith (the "Series D Agreement") the Company is issuing shares
of Series D Stock to the Investors.
C. Pursuant to the Series D Agreement the Company is to provide the
Investors with the same information, registration and first refusal rights
provided to the Series A Purchasers, Series B Purchasers, and Series C
Purchasers.
D. The parties desire to enter into this Agreement to set forth the
information, registration and first refusal rights of the Series A Purchasers,
Series B Purchasers, Series C Purchasers and the Investors, and registration
rights of DVI, Unitechnic and SVB in one agreement that will supersede the Prior
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
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1. INFORMATION RIGHTS.
The Company covenants and agrees as follows:
(a) Annual and Quarterly Reports. For so long as any Series A
Purchaser, Series B Purchaser, Series C Purchaser or Investor (together, the
"Purchasers", and individually a "Purchaser") holds any shares of Series A
Stock, Series B Stock, Series C Stock, Series D Stock, or any shares of Common
Stock issuable upon conversion of such shares of Series A Stock, Series B Stock,
Series C Stock, or Series D Stock the Company will furnish to such Purchaser:
(i) Within ninety (90) days after the end of each fiscal year,
an audited balance sheet as of the end of such fiscal year, an audited statement
of operations, and an audited statement of cash flows of the Company for such
year, setting forth in each case in comparative form the figures from the
previous fiscal year, all prepared in accordance with generally accepted
accounting principles; and
(ii) Within forty-five (45) days of the end of each fiscal
quarter (except the last quarter of the fiscal year), quarterly unaudited
financial statements, including an unaudited balance sheet, an unaudited
statement of operations and an unaudited statement of cash flows, prepared in
accordance with generally accepted accounting principles, except for footnotes
and normal year-end adjustments.
(b) Additional Information. For so long as any Purchaser holds at
least 40,000 shares of Series A Stock, Series B Stock, Series C Stock, or Series
D Stock in any combination, or an equivalent number of shares of Common Stock
issued upon conversion of such shares of Series A Stock, Series B Stock, Series
C Stock, or Series D Stock, the Company will furnish to such Purchaser:
(i) As soon as practicable after the end of each month, and in
any event within thirty (30) days thereafter (except the last month of the
fiscal year), monthly unaudited financial statements, including an unaudited
balance sheet, statement of operations and statement of cash flows, prepared in
accordance with generally accepted accounting principles, except for footnotes
and normal year-end adjustments, and setting forth a comparison of the financial
results for each month with the results projected in the Company's annual plan
to be provided pursuant to Section 1(b)(ii) below, with a narrative explaining
any material variations; and
(ii) Not later than thirty (30) days prior to the beginning of
each fiscal year, an annual plan for such year which shall include a projected
balance sheet, statement of operations and statement of cash flows for each
month of the year, itemized in such detail as management may reasonably
determine.
(c) Exception. Anything in this Section 1 to the contrary
notwithstanding, no Purchaser by reason of this Agreement shall have any right
to access any technical trade secrets or technical classified information of the
Company. Each Purchaser hereby agrees to hold in confidence and trust and not to
misuse or disclose any confidential information provided pursuant to this
Section 1.
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(d) Termination of Rights. The obligation to provide the items and
rights described above will terminate upon consummation of the Company's initial
public offering of securities pursuant to an effective registration statement
filed under the Securities Act of 1933, as amended (the "Securities Act").
2. REGISTRATION RIGHTS.
2.1 Definitions. For purposes of this Section 2:
(a) 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 effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means (1) any Common
Stock issued or issuable upon conversion of any (i) Series A Stock issued
pursuant to those certain Stock Purchase Agreements dated January 1, 1990 or
February 22, 1991, (ii) Series B Stock issued pursuant to that certain Series B
Preferred Stock Purchase Agreement dated Xxxxx 00, 0000, (xxx) Series C Stock
issued pursuant to that certain Stock Purchase Agreement dated February 28,
1994, (iv) Series C Stock issued pursuant to that certain Stock Purchase
Agreement dated November 30, 1995, (v) Series D Stock issued pursuant to the
Series D Agreement, (vi) Series A Stock issuable upon exercise of the warrants
held by DVI, or (vii) Series B Stock issuable upon exercise of the warrants held
by each of Unitechnic and SVB (such warrants described in (vi) and (vii)
collectively are hereinafter referred to as the "Warrants", and all of such
Common Stock is hereinafter referred to as the "Conversion Shares"), and (2) any
Common Stock of the Company (or any corporation into which the Company merges
for purposes of changing its state of incorporation) 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 securities; excluding in all cases, however, any
Registrable Securities (i) sold to the public, or (ii) sold or otherwise
transferred by a person in a transaction in which the rights under this Section
2 are not assigned or assignable.
(c) The number of shares of "Registrable Securities then
outstanding" shall be the number of shares of Common Stock which are Registrable
Securities and (1) are then issued and outstanding or (2) are then issuable
pursuant to then exercisable or convertible securities.
(d) The term "Holder" means any person who holds Registrable
Securities; provided, however, that for purposes of this Agreement, a record
holder of securities convertible into or exercisable for Registrable Securities,
directly or indirectly, shall be treated as the holder of such Registrable
Securities; and provided, further, that holders of Registrable Securities will
not be required to convert shares of Series A Stock, Series B Stock, Series C,
or Series D Stock into Common Stock, or exercise the Warrants, in order to
exercise registration rights granted hereunder, until immediately before the
closing of the offering to which the registration relates.
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(e) The term "Form S-3" means such form under the Securities
Act as is in effect on the date hereof or any successor registration form under
the Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(f) The term "SEC" or "Commission" means the Securities and
Exchange Commission.
2.2 Demand Registration.
(a) If the Company shall receive at any time (but not within
six months of the effective date of (i) a registration in which Registrable
Securities were registered hereunder, or (ii) the initial public offering of the
Company's securities pursuant to a registration statement filed with and
declared effective by the Securities Exchange Commission), a written request
from the Holders of at least fifty percent (50%) of the Registrable Securities
then outstanding that the Company file a registration statement under the
Securities Act covering the registration of Registrable Securities having an
anticipated aggregate offering price of $4,000,000 or more, then the Company
shall, within ten (10) days of the receipt thereof, give written notice of such
request (the "Company Notice") to all Holders, and subject to the limitations of
subsection 2.2(b), effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities which each Holder requests to be
registered in a written notice given to the Company within 30 days after the
Company Notice is given.
(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 this Section 2.2 and the
Company shall include such information in the Company Notice. 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 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 2.2, if the
underwriter advises the Company in writing that marketing factors require a
limitation of the number of securities 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 that may be included in
the underwriting shall be allocated to the Holders of Registrable Securities on
a pro rata basis based on the number of Registrable Securities held by all
Holders requesting registration (including the Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(c) The Company is obligated to effect only one (1) such
registration pursuant to this Section 2.2.
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(d) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
2.2, 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 such filing
for a period of not more than one hundred twenty (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 (12) month period.
(e) All expenses incurred in connection with a registration
pursuant to this Section 2.2 (excluding underwriters' discounts and
commissions), including without limitation all registration and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders, shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.2 if the registration request is
subsequently withdrawn, unless the Holders agree to forfeit their right to a
demand registration pursuant to this Section 2.2 or unless such withdrawal is a
result of the Holders learning of material adverse information about the Company
of which they were not aware at the time of the registration request.
2.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans and corporate reorganizations) and will afford each such Holder an
opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder. Each Holder desiring to include in
any such registration statement all or any part of the Registrable Securities
held by it shall, within twenty (20) days after receipt of the above described
notice from the Company, so notify the Company in writing, which notice shall
state the intended method of disposition of the Registrable Securities by such
Holder. If a Holder decides not to include all of its Registrable Securities in
any given registration statement filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) If the registration statement under which the Company
gives notice under this Section 2.3 is for an underwritten offering, the Company
shall so advise the Holders of Registrable Securities. In such event, the right
of any such Holder to be included in a Registration pursuant to this Section 2.3
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 Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Agreement, if the
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, the number of shares that may be
included
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in the underwriting shall be allocated as follows: first, to the Company; and
second, to the Holders on a pro rata basis based on the total number of
Registrable Securities held by the Holders; provided however, that the right of
the underwriters described above shall be restricted so that the number of
Registrable Securities included in any registration is not reduced below 25% of
the shares included in the registration, except for a registration relating to
the Company's initial public offering from which all Registrable Securities may
be excluded. If any Holder disapproves of the terms of any such underwriting,
such holder may elect to withdraw therefrom by written notice to the Company and
the underwriter, delivered at least five (5) days prior to the effective date of
the registration statement. Any Registrable Securities excluded or withdrawn
from such underwriting shall be withdrawn from the registration.
(b) All expenses incurred in connection with a registration
pursuant to this Section 2.3 (excluding underwriters' discounts and
commissions), including, without limitation all registration and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders, shall be borne by the Company.
2.4 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders of Registrable Securities 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 of Registrable
Securities; and
(b) as soon as practicable, effect 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 obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4: (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 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 once during any twelve month period for a
period of not more than one hundred twenty (120) days after receipt of the
request of the Holder or Holders under this Section 2.4; (4) if the Company has,
within the twelve (12) month period preceding the date of such request, already
effected one registration on Form S-3 for the Holders pursuant to this Section
2.4; 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.
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(c) Subject to the foregoing, the Company shall file a Form
S-3 registration statement covering the 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 pay all expenses
incurred in connection with the first two registrations requested pursuant to
this Section 2.4, (excluding underwriters' discounts and commissions), including
(without limitation) all registration, filing, qualification, printers' and
accounting fees and the reasonable fees and disbursements of one counsel for the
selling Holder or Holders and counsel for the Company. All expenses incurred in
connection with any subsequent registration requested pursuant to this Section
2.4 shall be borne by the Holders in proportion to the number of Registrable
Securities owned by the Holders included in such registration at the time it
goes effective.
2.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(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 up to ninety (90) days, provided
however, in the event of an underwritten initial public offering, the Company
shall keep such registration effective until the completion of the distribution
of the securities registered in such offering, or for one hundred twenty (120)
days from the date of effectiveness, whichever is earlier;
(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 Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders such number of copies of a
prospectus (including amendments and supplements thereto), including a
preliminary prospectus, in conformity with the requirements of the Securities
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(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement; and
(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
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under the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to Section 2.2, Section 2.3, or
Section 2.4, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with such registration, if such securities
are being sold through underwriters, or, if such securities are not 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, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a letter
dated such date, 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, if any, and to the Holders requesting registration of
Registrable Securities.
2.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 2.2, 2.3 or
2.4 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to effect the
registration of their Registrable Securities.
2.7 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 2.
2.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers and directors of each
Holder, any underwriter (as defined in the Securities Act) for such Holder and
each person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the l934 Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (iii) any violation or alleged violation by the
Company of the Securities Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
state securities law in connection with the offering covered by such
registration statement. The Company will reimburse each such
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Holder, partner, officer or director, underwriter or controlling person for 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
2.8(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 such Holder, partner,
officer, director, underwriter or controlling person of such Holder.
(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 who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter
and any other Holder selling securities under such registration statement or any
of such other Holder's partners, directors or officers or any person who
controls such Holder, against any losses, claims, damages or liabilities (joint
or several) to which the Company or any such director, officer, controlling
person, underwriter or other such Holder, partner or director, officer or
controlling person of such other Holder may become subject under the Securities
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter or other Holder, partner, officer, director or controlling
person of such other Holder in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 2.8(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 further, that in no event shall any
indemnity under this Section 2.8(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.8 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 2.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential 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
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under this Section 2.8, 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 2.8.
(d) The foregoing indemnity agreements of the Company and
Holders are subject to the condition that, insofar as they relate to any
Violation made in a preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the SEC at the time the registration statement
in question becomes effective or the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus"), such indemnity agreement
shall not inure to the benefit of any person if a copy of the Final Prospectus
was furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(e) The obligations of the Company and Holders under this
Section 2.8 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
2.9 "Market Stand-Off" Agreement. Each Holder hereby agrees that it
shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities (other than to donees or partners of the Holder who agree
to be similarly bound) for up to one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers securities to be sold on its
behalf to the public in an underwritten offering but not to Registrable
Securities sold pursuant to such registration statement; and
(b) all officers, directors and ten percent (10%) shareholders
of the Company as of the date of filing the registration statement enter into
similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.10 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
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(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act (at any time after it has become subject to such reporting
requirements); and
(c) So long as a Holder owns any Registrable Securities to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the 1934 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 of the
Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
2.11 Termination of the Company's Obligations. The Company shall
have no obligations pursuant to Sections 2.2 through 2.4 with respect to any
request or requests made by any Holder on a date more than five (5) years after
the closing date of the Company's initial public offering.
3. Right of First Offer. Subject to the terms and conditions specified in
this Section 3, the Company hereby grants to each Purchaser (so long as such
Purchaser holds either (i) at least 50% of the shares of Series A Stock held by
him or her as of February 22, 1991, or the Common Stock issued on conversion
thereof, in any combination, or (ii) at least 100,000 shares of the Series A
Stock, Series B Stock, Series C Stock, or Series D Stock in any combination, or
an equivalent number of shares of Common Stock issued upon conversion of such
Series A Stock, Series B Stock, Series C Stock, or Series D Stock) a right of
first refusal with respect to future sales by the Company of its Shares (as
hereinafter defined). For purposes of this Section 3, Purchaser includes any
partners and affiliates of a Purchaser. A Purchaser shall be entitled to
apportion the right of first offer hereby granted among itself, its partners and
affiliates in such proportions as it deems appropriate.
Except as set forth in Section 3(d), each time the Company proposes to
issue any shares of, or securities convertible into, or exercisable for, any
shares of any class of its capital stock ("Shares") after the effective date of
this Agreement, the Company shall make an offering of such Shares to each
Purchaser in accordance with the following provisions:
(a) The Company shall deliver a notice pursuant to Section
5(a) ("Notice") to each of the Purchasers stating (i) its bona fide intention to
issue such Shares, (ii) the number of such Shares to be issued, and (iii) the
price, if any, for which it proposes to issue such Shares.
(b) Each Purchaser shall have fifteen (15) calendar days after
mailing of the Notice to agree in writing to purchase, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion of (x) the number of shares of Common Stock then held by such
Purchaser, plus the number of shares of Common Stock then issuable upon
conversion of the Series A Stock, Series B Stock, Series C Stock, and Series D
Stock then held by such Purchaser, to (y) the total number of shares of Common
Stock issued
-11-
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and outstanding plus the total number of shares of Common Stock issuable upon
conversion of all of the then outstanding shares of Series A Stock, Series B
Stock, Series C Stock, and Series D Stock of the Company plus the total number
of shares of Common Stock issuable upon any outstanding rights, options or
warrants to subscribe for, purchase or acquire either Common Stock, Series A
Stock, Series B Stock, Series C Stock, or Series D Stock.
(c) The Company may, during the one hundred twenty (120) day
period following the expiration of the period provided in subsection 3(b)
hereof, issue any Shares which Purchasers have not agreed in writing to purchase
pursuant to subparagraph (b) hereof 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 consummate the proposed sale of the Shares
within such one hundred twenty (120) day period, the right provided hereunder
shall be deemed to be revived and such Shares shall not be issued unless first
reoffered to the Purchasers in accordance herewith.
(d) The right of first refusal in this Section 3 shall not be
applicable to (i) the issuance or sale of shares of Common Stock, Series A
Stock, Series B Stock, Series C Stock, or Series D Stock (or options or warrants
therefor) to employees, officers, directors, or consultants for the primary
purpose of soliciting or retaining their employment, (ii) shares issued or
issuable by the Company in connection with any merger or reorganization
transaction in which the Company is the surviving company, (iii) shares of
capital stock, or options or warrants therefor, issued to banks, leasing
companies, service providers, customers, licensees, licensors or vendors in
connection with a loan, equipment lease, payment advance, payment reduction or
deferral arrangement, or license, (iv) shares issued upon conversion of the
Series A Stock, Series B Stock, Series C Stock, or Series D Stock, (v) any
shares of Common Stock, Series A Stock, Series B Stock or Series C Stock of the
Company that are outstanding on the date of this Agreement, and (vi) up to
1,581,083 shares of Series D Stock, and shall not be applicable after
consummation of a bona fide, firmly underwritten public offering of shares of
the Company's Common Stock.
4. ASSIGNMENT; AMENDMENT.
4.1 Assignment of Rights. The rights to information described in
Section 1 hereof, the rights to cause the Company to register Registrable
Securities pursuant to Section 2 and the right of first offer pursuant to
Section 3 may be assigned by a Holder having such rights to a transferee or
assignee of Registrable Securities (including securities convertible into or
exercisable for Registrable Securities, directly or indirectly) upon notice to
the Company, provided, however, that the Company may refuse any such assignment
if (i) it reasonably determines that the proposed assignee is or is likely to be
a competitor of the Company, or (ii) if the assignment is for less than 100,000
shares of Registrable Securities, and is for less than all of the Registrable
Securities held by the Holder. Notwithstanding the foregoing, such an assignment
may be made to a partner or shareholder of the Holder, to any parent, child or
spouse of the Holder or to the Holder's estate, without obtaining the Company's
consent, and DVI may assign its rights to cause the Company to register
Registrable Securities pursuant to Section 2 under this Agreement to one or more
of its limited partnerships with which DVI is affiliated without obtaining
Company's consent; provided, however, that written notice of such assignments
must be promptly provided to the Company.
-12-
13
4.2 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and (a) as to Sections 1 and 3 hereof by
Purchasers holding a majority of the total outstanding Series A Stock, Series B
Stock, Series C Stock, and Series D Stock, and Common Stock issued on conversion
thereof, calculated on an "as-if-converted" basis, and (b) as to Section 2
hereof by the Holders of a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this Section
4.2 shall be binding upon each Holder or Purchaser and the Company. By
acceptance of any benefits under this Agreement, Holders of Registrable
Securities and Purchasers hereby agree to be bound by the provisions hereunder.
4.3 Provision of Registration Rights to Future Warrant Holders.
Notwithstanding any other provision hereof, the Company may grant registration
rights hereunder in connection with the issuance of warrants to purchase up to
150,000 shares of Common Stock in connection with loans, equipment leases or
similar transactions (all such warrants, the "New Warrants"), without the need
for any further approval of the Holders of Registrable Securities hereunder.
Such grant of registration rights shall be effective at such time as the Company
and grantee execute an addendum referencing this Agreement in which the grantee
agrees to be bound by Sections 2, 4 and 5 hereof, in which case the Common Stock
issuable upon exercise of the New Warrants shall be "Registrable Securities"
under Section 2.1(b)(1) hereof, and the New Warrants shall be considered
Warrants.
5. GENERAL PROVISIONS.
(a) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if mailed by certified mail return receipt
requested, postage prepaid, as follows:
(i) if to a Purchaser or Holder at such person's
respective addresses as set forth on the Exhibits hereto;
(ii) if to the Company, at 000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX
00000-0000.
Any party hereto may by notice so given change its address for future notice
hereunder. Notice shall conclusively be deemed to have been given when
personally delivered or three business days after deposited in the mail in the
manner set forth above.
(b) Entire Agreement. This Agreement constitutes and contains the
entire agreement of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, understandings,
agreements, duties or obligations between the parties respecting the subject
matter hereof. Without limiting the forgoing, the Prior Agreement is superseded
by this Agreement in its entirety, and is null and void, and the Series A
Purchasers, Series B Purchasers and Series C Purchasers waive any rights they
may have had to be offered the right to purchase any of the Series D Stock being
sold pursuant to the Series D Agreement.
-13-
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(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, excluding that body of
law relating to conflict of laws.
(d) Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
(e) Successors And Assigns. Subject to Section 4.1, the provisions
of this Agreement shall inure to the benefit of, and shall be binding upon, the
successors and permitted assigns of the parties hereto.
(f) Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(h) Costs And Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-14-
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
TALARIAN CORPORATION
____________________________________
Xxxx Xxxxxx, President
NORTEL NETWORKS INC.
By: ____________________________________
Its: ___________________________________
PREVIOUS INVESTORS
____________________________________
Print Name of Purchaser
____________________________________
Signature of Purchaser or Authorized
Signatory, if Applicable
____________________________________
Name and Title of Authorized Purchaser,
if Applicable
SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT
-15-
16
EXHIBIT A
Investors
Nortel Networks Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
17
EXHIBIT B
Series A Purchasers
-------------------
Name and Address
----------------
Avalon Ventures III Profit Sharing Plan Avalon Ventures IV,
c/o Xxxx X. Xxxxxxxx a California Limited Partnership
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 c/o Xxxx X. Xxxxxxxx
Xx Xxxxx, XX 00000 0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Xxxx X. Xxxxxxxx Xxxxxx Xxxxxxxxx
c/o Avalon Ventures c/x Xxxxxx, Xxxxxxx & Company, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 1251 Avenues of the Americas
Xx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxxx, Trustee of the Xxxxxx X.X. Xxxxxxx
Xxxxx X. Xxxxxxxx Declaration of Trust dtd 11/2/94 c/o Cassidy & Associates
1735 Castellana Road Xxxxxxxxxxxx Xxxxxx Xxxx., Xxxxx 0000
Xx Xxxxx, XX 00000 000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
The Xxxxxxxxxx Group Xxxx X. Xxxxxx, Trustee
(formerly Valley Leasing, Ltd.) Xxxx X. Xxxxxx Trust dtd 9/28/89
X.X. Xxx 0000 000 Xxxxxxxxx Xxxxxx, Xxxxx 00
Xx Xxxxx, XX 00000 Xxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Xx. Xxxxxxxx Xxxxxx Xxxx X. Xxxxxx
c/o Synaptics, Inc. & Xxxxxxxxxx X.X. Xxxxxx
0000 Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx, 0000
Xxx Xxxx, XX 00000-0000 Xxxxxxx, XX 00000
Third Millenium Venture Capital Limited Xxxxx Xxxxxxxx
P. O. Box 1669 11 Tullivers Isle
Los Altos, CA 94023-1123 Xxxxxx, XX 00000
Attn: Xxxx Xxxx
Signal Ventures Xxxxx X. Xxxx
x/x Xxxxxx X. Xxxxxx x/x Xxxxxx X. Xxxx, III
12780 High Bluff Drive, Suite 250 c/o Sidley & Austin
Xxx Xxxxx, XX 00000 0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
18
Name and Address
----------------
Xxxxx X. Xxxxxxx Xxxxxxx X. Felt
c/o Cassidy & Associates c/o Xxxxxxx Xxxxx Group
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000 440 S. La Salle Street, Suite 1900
Washington, D.C. 20005 Xxxxxxx, XX 00000
Xxxxxx X. Xxxx, III Xxxxxxx Xxxxxxxx
c/o Sidley Austin 000 Xxxxx Xxxx
0000 X Xxxxxx, X.X. Xxxxxxxx, XX 00000
Xxxxxxxxxx, X.X. 00000
Xxxxx Xxx, as Administrator of the Estate of Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx IV
Xxxxx Xxxxxxxx-Xxxxxxx, Deceased c/o Xx. Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxx 0000 Xxxx Xxxx Xxxx
Xxxx Xxxxxx, XX 00000 Xxxxx Xxxx, XX 00000-0000
Foggy Bottom Associates Limited Partnership Xxxx X'Xxxxxxx
c/o Xxxx X. Xxxxxxx c/o First Options
Chesapeake Management Company One Financial Place
0000 Xxxxxxxxxxx Xxx., X.X., #000 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, X.X. 00000 Xxxxxxx, XX 00000
Xxxxxx X. Xxxxx Xxxxxxxx X. Xxxxxxxxx
0000 X. Xxxxxx x/x Xxxxxxx X. Xxxxxxxxx
Xxxxxxx, XX 00000 0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxx Xxxxx Xxxx and Xxxx X. Xxxx, Xxxx X. Xxxxx
Trustees of the Xxxxx Xxxxx Xxxx Trust dtd 12/17/90 00000 00xx Xxxxx
00 Xxx Xxxx Xxxx Xxxxxx Xxxx, XX 00000
Xxx Xxxxx, Xx 00000
Xxxx X. Xxxx Technology Venture Investors 3
Box K x/x Xxxx X. Xxxxxx
Xxx Xxxxx, XX 00000 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
R. Xxxx Xxxxxx
c/x Xxxxxx & Xxxxxx
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Gabriele Xxxx Xxxxxxxxx
c/o Xxxxxxx X. Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
19
Name and Address
----------------
Xxxx Xxxxxxx and
Xxxxxxxx S.C. Xxxxxxx
Co-Trustees, Royston Family Trust
0000 Xx Xxxxx Xxxx., #000
Xx Xxxxx, XX 00000
Sprout Capital V
c/o Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
TVI Management - 3
c/o Xxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
20
Series B Purchasers
-------------------
Name and Address
----------------
Lawrence, Tyrrell, Xxxxxx & Xxxxx II, L.P. Xxxx X. Xxxxxx, Trustee
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx X. Xxxxxx Trust dtd 9/28/89
Xxx Xxxx, XX 00000 000 Xxxxxxxxx Xxxxxx, Xxxxx 00
Xxxx: Xxxxx Xxxxx Xxxx Xxxx, XX 00000
Third Millenium Venture Capital Limited Signal Ventures
P. O. Box 0000 x/x Xxxxxx X. Xxxxxx
Xxx Xxxxx, XX 00000-0000 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Attn: Xxxx Xxxx Xxx Xxxxx, XX 00000
Xxxx X. Xxxx Xxxxxx X. Xxxxx
Box K 0000 X. Xxxxxx
Xxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxxx Xxxxx Xxxx and Xxxx X. Xxxx,
Trustees of the Xxxxx Xxxxx Xxxx Trust
dtd 12/17/90
00 Xxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
21
Series C Purchasers
-------------------
Name and Address
----------------
Xxxx X. Xxxxxx, Trustee Xxxxxxxx Xxxxxx, Xxxxxx & Xxxxx II, L.P.
Xxxx X. Xxxxxx Trust dtd 9/28/89 000 Xxxxxxx Xxxxxx, 00xx Floor
000 Xxxxxxxxx Xxxxxx, Xxxxx 00 Xxx Xxxx, XX 00000
Xxxx Xxxx, XX 00000 Attn: Xxxxx Xxxxx
Xxxxx X. Xxxxxx Family Trust dtd 1/20/86 Signal Ventures
000 Xxxxxxx'x Xxxxxx Xxxx., Xxxxx 000 c/o Xxxxxx X. Xxxxxx
Xxx Xxxxx, XX 00000 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxx Xxxxx XXX XX, X.X.
000 Xxxxxxx'x Xxxxxx Xxxx. 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx 000 Xxxxx Xxxx, XX 00000
Xxx Xxxxx, XX 00000 Attn: Xxxxx X. Gold
F&W Investments 1994 Xxxxx X. Xxxxxx
Two Palo Alto Square, #000 000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx Xxxx X. xxXxxxxxxxx
000 Xxxxxxx Xxxxx 0000 X. Xxxxxxxx Xx., Xxx. 000
Xxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx and/or
Xxxx X. Xxxxxxxx, Trustees of the
Xxxxxx X. Xxxxxxxx Trust 5/4/73
22
TALARIAN CORPORATION
FIRST AMENDMENT TO
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This First Amendment to Amended and Restated Investors' Rights
Agreement (this "Amendment") is entered into as of March 10, 2000 by and among
TALARIAN CORPORATION, a California corporation (the "Company"), Xxxx Xxxxxxxx
("Xxxxxxxx"), Xxx Xxxxxxx ("Xxxxxxx"), Xxxxxxx Xxxxxx ("Xxxxxx") (Xxxxxxxx,
Xxxxxxx and Xxxxxx are sometimes collectively referred to herein as the
"WhiteBarn Shareholders") and the holders of Registrable Securities set forth on
the signature pages hereto, and amends that certain Amended and Restated
Investors' Rights Agreement dated February 3, 2000 (the "Investors' Rights
Agreement"), by and among the Company and the holders of shares, or warrants to
purchase shares, of its preferred stock who are parties thereto (the "Existing
Investors"). Terms used but not otherwise defined in this Amendment shall have
the meanings given to such terms in the Investors' Rights Agreement.
R E C I T A L S
A. The Company and WhiteBarn, Inc., an Illinois corporation
("WhiteBarn"), are parties to an Agreement and Plan of Merger dated as of March
7, 2000 (the "Merger Agreement"), which provides for the merger of WhiteBarn
with and into the Company and for the Company to issue shares of its capital
stock to the WhiteBarn Shareholders.
B. As a condition to the consummation of the Merger, the Company is
to provide the WhiteBarn Shareholders with the registration rights provided to
the Existing Investors by Section 2 of the Investors' Rights Agreement.
C. Pursuant to Section 4.2 of the Investors' Rights Agreement,
Section 2 of the Investors' Rights Agreement may be amended with the written
consent of the Company and the holders of a majority of the outstanding
Registrable Securities.
D. The parties desire to enter into this Amendment to amend the
terms of Section 2 of the Investors' Rights Agreement to include the WhiteBarn
Shareholders as Holders of Registrable Securities.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
23
1. Section 2.1(b) of the Investors' Rights Agreement is hereby amended and
restated to read in its entirety as follows (added language is shown in bold):
(b) The term "Registrable Securities" means (1) any
Common Stock issued or issuable upon conversion of any (i) Series A Stock
issued pursuant to those certain Stock Purchase Agreements dated January
1, 1990 or February 22, 1991, (ii) Series B Stock issued pursuant to that
certain Series B Preferred Stock Purchase Agreement dated Xxxxx 00, 0000,
(xxx) Series C Stock issued pursuant to that certain Stock Purchase
Agreement dated February 28, 1994, (iv) Series C Stock issued pursuant to
that certain Stock Purchase Agreement dated November 30, 1995, (v) Series
D Stock issued pursuant to the Series D Agreement, (vi) Series A Stock
issuable upon exercise of the warrants held by DVI, or (vii) Series B
Stock issuable upon exercise of the warrants held by each of Unitechnic
and SVB (such warrants described in (vi) and (vii) collectively are
hereinafter referred to as the "Warrants"), (2) any Common Stock issued to
the WhiteBarn Shareholders pursuant to Section 2.4 of that certain
Agreement and Plan of Merger dated as of March 7, 2000 between the Company
and WhiteBarn, Inc. (all of such Common Stock referenced in (1) and (2)
above is hereinafter referred to as the "Conversion Shares"), and (3) any
Common Stock of the Company (or any corporation into which the Company
merges for purposes of changing its state of incorporation) 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 securities; excluding in
all cases, however, any Registrable Securities (i) sold to the public, or
(ii) sold or otherwise transferred by a person in a transaction in which
the rights under this Section 2 are not assigned or assignable.
2. Section 2.1(g) is hereby added to the Investors' Rights Agreement to
read in its entirety as follows:
(g) The term "WhiteBarn Shareholders" shall mean Xxxx Xxxxxxxx, Xxx
Xxxxxxx and Xxxxxxx Xxxxxx.
3. In all respects, the WhiteBarn Shareholders shall be, and shall enjoy
the benefits and undertake the obligations inuring to them as, Holders of
Registrable Securities under Section 2 of the Investors' Rights Agreement.
3. Effectiveness. This Amendment shall be effective (i) upon the execution
hereof by the Company and the Existing Investors holding, in the aggregate, at
least a majority of the outstanding Registrable Securities and (ii) as to each
of the WhiteBarn Shareholders, as of the date such WhiteBarn Shareholder shall
execute and deliver it to the Company.
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
"WHITEBARN SHAREHOLDERS": THE "COMPANY":
TALARIAN CORPORATION
_________________________________ By:________________________________
XXXX XXXXXXXX Xxxxxxx X. Xxxxxx
Vice President
_________________________________
XXX XXXXXXX
_________________________________
XXXXXXX XXXXXX
"EXISTING INVESTORS":
_________________________________
Print Name of Investor
_________________________________
Signature of Investor or Authorized
Signatory, if Applicable
_________________________________
Name and Title of Authorized
Signatory, if Applicable
