SHAREHOLDERS AGREEMENT
This Agreement is made as of the 18th day of July, 1997 by and among
Moldflow Corporation, a Delaware corporation (the "Company"), and the
individuals listed on Schedule I hereto (the "Shareholders").
WHEREAS, the Company, the Shareholders and Moldflow International Pty
Ltd. ("Moldflow Pty") are parties to a Moldflow Capital Reconstruction
Implementation Agreement dated as of the date hereof (the "Implementation
Agreement"), pursuant to which the Shareholders will exchange all of their
shares of Moldflow Pty. for shares of the Company;
WHEREAS, in connection with such exchange, the Shareholders desire to
set forth certain terms concerning their rights as shareholders of the Company
as set forth herein;
NOW THEREFORE, the parties hereto agree as follows:
1. SHAREHOLDERS' UNDERTAKINGS
a. J.T.C. Investment Management Pty. Ltd. ("JTC"), Xxxxxx
Investments Australia Pty. Ltd. ("Xxxxxx"), Helmet Investments
Australia Pty. Ltd. ("Helmet") and Floatflow Pty. Ltd.
("Floatflow") each agrees that it will not, without the prior
written consent of Ampersand Specialty Materials and Chemicals
II ("Ampersand II"), Ampersand Specialty Materials and
Chemicals III ("Ampersand III") and Ampersand Specialty
Materials and Chemicals III Companion Fund ("Ampersand III
CF") (which consent shall not be unreasonably withheld):
i. sell, transfer, hypothecate, assign or otherwise
dispose of or grant an option over any of its shares
of capital stock of the Company held by it; or
ii. mortgage, pledge or otherwise encumber any of its
shares of capital stock of the Company (each of the
foregoing actions described in clauses i or ii of
this Section are hereinafter referred to as a
"Transfer").
b. If any Shareholder proposes to Transfer any of such
Shareholder's shares of capital stock of the Company (a
"Proposing Transferor"), the Shareholder shall:
i. obtain the consent of Ampersand II, Ampersand III and
Ampersand III CF in accordance with clause 1.a, if
applicable;
ii. comply with the following provisions:
(1) provide written notice to the Board of Directors
of the Company stating that it proposes to Transfer
shares of capital stock of the Company (the "Subject
Shares") and specifying the number of shares that it
proposes to Transfer (the "Transfer Notice");
(2) upon receipt of such Transfer Notice, the Board
of Directors of the Company and the Proposing
Transferor will proceed to establish the fair market
value of the Subject Shares within 28 days after the
Transfer Notice is given, being the amount per share
which is a fair selling value of the Subject Shares
as between a willing purchaser and a willing vendor
as agreed between the Board of Directors and the
Proposing Transferor or, failing agreement, as
determined by the auditors of the Company whose
decision shall be final and binding (the "Fair
Value");
(3) if the Proposing Transferor does not wish to
transfer the Subject Shares at the Fair Value, it may
withdraw the Transfer Notice within 7 days after the
Fair Value of the Shares has been determined;
(4) if the Proposing Transferor does not withdraw its
Transfer Notice, the Board of Directors of the
Company will proceed to offer the Subject Shares to
the holders of the Series A Preferred Stock of the
Company at the Fair Value in proportion to their
holdings of capital stock of the Company. Offers made
pursuant to this Subsection will remain open for
acceptance (in whole or in part) for a period of
thirty days, and the Proposing Transferor will, upon
being notified of an acceptance, tender to the
accepting Shareholder such portion of the Subject
Shares as are accepted;
(5) if all Subject Shares to be transferred by the
Proposing Transferor have not been transferred within
the thirty day period set forth in Subsection
1.b.ii.(4), the Board of Directors of the Company
will proceed to offer those Subject Shares that have
not been so transferred to the other Shareholders at
the Fair Value in proportion to their holdings of
capital stock of the Company. Offers made pursuant to
this Subsection will remain open for acceptance (in
whole or in part) for a period of thirty days, and
the Proposing Transferor will, upon being notified of
an acceptance, tender to the accepting Shareholder
such portion of the Subject Shares as are accepted.
Where a Shareholder does not accept an offer, the
Board of Directors of the Company will offer the
Subject Shares offered to such Shareholder to
accepting Shareholders proportionally to their
holdings at the time. Offers made pursuant to the
preceding sentence will remain open for acceptance
(in whole or in part) for a period of fifteen days
and the Proposing Transferor will, upon being
notified of an acceptance, tender to the accepting
Shareholder such portion of the Subject Shares as are
accepted;
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(6) if all of the Subject Shares have not been
transferred within forty-five days from the date of
the offer made pursuant to Subsection 1.b.ii.(5), the
Board of Directors may within thirty days find a
third party who is willing to purchase the remaining
Subject Shares at the Fair Value, and the Proposing
Transferor will tender to such third party such
portion of the Subject Shares as such third party is
willing to purchase;
(7) if all of the Subject Shares have not been
transferred within seventy-five days from the date of
the offer made pursuant to Subsection 1.b.ii.(5), the
Proposing Transferor may sell the remaining Subject
Shares at a price not less than the Fair Value to any
person;
(8) if the Proposing Transferor has not sold all of
the Subject Shares remaining for sale pursuant to
Subsection 1.b.ii.(7) within thirty days of the end
of the seventy-five day period referred to in such
Subsection, then the Proposing Transferor shall
withdraw the Transfer Notice and shall not thereafter
Transfer any shares of capital stock of the Company
without complying with the terms of this Section 1.b;
iii. if Ampersand II, Ampersand III and Ampersand III CF
have not waived the operation of this clause 1.b.iii
when providing their consent under clause 1.b.i, the
Proposing Transferor shall give ten business days
written notice to Ampersand II, Ampersand III and
Ampersand III CF of any proposed Transfer pursuant to
Subsection 1.b.ii.(7) (the "Co-Sale Notice") and
allow Ampersand II, Ampersand III and Ampersand III
CF to participate by Transferring in respect of such
number of the shares of Ampersand II, Ampersand III
and Ampersand III CF which represents the same
proportion to the total number of shares to be sold
or transferred as the sum of the number of shares of
common stock into which the all shares held by
Ampersand II, Ampersand III and Ampersand III CF
could be converted as the number of shares of common
stock held by Ampersand II, Ampersand III and
Ampersand III CF represents to the sum of the total
number of issued common stock and the number of
common stock into which all of the shares held by
Ampersand II, Ampersand III and Ampersand III CF and
the shares held by NJI No. 1(A) Investment Fund ("NJI
1A") and NJI No. 2(B) Investment Fund ("NJI 1B")
could be converted at the time that the Co-Sale
Notice was given.
iv. The provisions of this Section 1.b. shall not apply
where the Board of Directors have determined that a
transfer is (i) from a trustee (not being a
stockholder of the Company who has divested himself
of all or part of the equitable interest in the
shares of the Company) to a new trustee of the same
trust; (ii) by the legal personal representative of a
deceased stockholder to a person beneficially
entitled to the shares on the distribution of the
stockholder's estate; (iii) by a trustee (not being a
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stockholder of the Company who has divested himself
of all or part of the equitable interest in the
shares of the Company) to a beneficiary or (iv) by
the written consent of all of the Shareholders.
c. Each of the Shareholders agrees that it will not vote any
shares of capital stock of the Company held by it, or take any
other action, to alter the By-laws or the Certificate of
Incorporation of the Company without the consent of Ampersand
II, Ampersand III and Ampersand III CF.
d. The rights and obligations set out in this Section 1 are
subject to the issue of the Replacement Shares (as defined in
the Implementation Agreement) by the Company to the
Shareholders. Upon such issue, clauses 6.1, 6.2 and 6.3 of the
Ampersand Subscription Agreement (as defined in the
Implementation Agreement) are terminated and of no further
force and effect.
2. REGISTRATION RIGHTS
a. The Shareholders will co-operate to procure quotation of the
Company's shares of common stock on the Nasdaq National Market
or listing of such common stock any internationally recognized
stock exchange approved by Ampersand II, Ampersand III and
Ampersand III CF by June 30, 1998, and will take all actions
reasonably necessary to achieve a listing by that date.
b. The Shareholders will have the registration rights contained
in Schedule II hereto.
c. The Shareholders will have the following registration rights
outside the United States:
(a) whenever the Company proposes to lodge or register a
prospectus or other offering document with the
Australian Securities Commission or any other
relevant authority it will give 30 days notice to the
Shareholders of its intention to do so, and, upon
receiving a written request from any Shareholder
within the 30 day notice period, the Company will use
its best endeavors to include any shares of common
stock held by that Shareholder as part of the offer
or invitation to subscribe for or purchase shares
which is contained in the prospectus or offering
document;
(b) upon receipt of written notice from any of the
Shareholders, the Company will use its best endeavors
in assisting in the preparation and filing of a
prospectus or offer document with the Australian
Securities Commission or any other relevant authority
in respect of the shares of common stock held by that
Shareholder;
(c) the shares held by Ampersand II, Ampersand III and
Ampersand III CF will be treated no less favorably
than those held by any other
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shareholder of the Company in respect of any offer or
invitation to purchase shares;
d. The rights and obligations set out in this Section 2 are
subject to the issue of the Replacement Shares by the Company
to the Shareholders. Upon such issue, clauses 7.1, 7.2 and 7.3
of the Ampersand Subscription Agreement are terminated and of
no further force and effect.
3. OBLIGATIONS OF THE COMPANY
a. The Company will use its best endeavors to procure quotation
of the Company's shares of common stock on the Nasdaq National
Market or listing of such common stock any internationally
recognized stock exchange approved by Ampersand II, Ampersand
III and Ampersand III CF by 30 June 1998, and will take all
actions reasonably necessary to achieve a listing by that
date.
b. The Company will not dispose of all or substantially all of
its assets without the prior written consent of Ampersand II,
Ampersand III and Ampersand III CF (which consent shall not be
unreasonably withheld). Prior to obtaining the consent of
Ampersand II, Ampersand III and Ampersand III CF and of the
shareholders of the Company pursuant to applicable law, if
any, the directors of the Company will commission an
independent expert to report on whether the proposed sale is
fair and reasonable to the Company and all shareholders,
taking into account all existing arrangements including the
rights of Ampersand II, Ampersand III and Ampersand III CF
under this Agreement and the Company's Certificate of
Incorporation and By-laws.
c. Unless otherwise consented to by the holders of at least 80%
of the shares of capital stock of the Company, the Company
will not declare or pay any dividends on any shares and will
not buy-back, cancel or redeem or acquire for any
consideration any shares of the capital stock of the Company.
d. The Company will not issue any shares with rights or priority
superior to the rights or priority attaching to the shares of
Series A Preferred Stock shares held by Ampersand II,
Ampersand III and Ampersand III CF without their prior written
consent.
e. The Company will provide to Ampersand II, Ampersand III and
Ampersand III CF:
(a) monthly financial information of the Company and its
subsidiaries ("the Company Group") in such detail as
Ampersand II, Ampersand III and Ampersand III CF
reasonably requests within 30 days of the end of each
month;
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(b) the annual budget and operating plan for the
following financial year for the Company before the
end of the current financial year;
(c) audited accounts for the Company on an consolidated
basis within 90 days of the end of each financial
year; and
(d) any other information in relation to the Company
which Ampersand II, Ampersand III and Ampersand III
CF reasonably requests.
f. The rights of Ampersand II, Ampersand III and Ampersand III CF
under Subsections 1.a., 1.b.i., 1.b.iii, and 1.c., and the
obligations of the Company under Section 3 will lapse if
Ampersand II, Ampersand III and Ampersand III CF in the
aggregate hold less than 5% of the issued capital in the
Company.
g. The rights and obligations set out in this Section 3 are
subject to the issue of the Replacement Shares by the Company
to the Shareholders. Upon such issue, clauses 8.1, 8.2, 8.3,
8.4, 8.5 and 8.6 of the Ampersand Subscription Agreement are
terminated and of no further force and effect.
4. COMPENSATION COMMITTEE
a. The parties agree that the remuneration paid by the Company to
Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxx Xxxxxxxxx and Xxxx Xxxxxxx
Xxxxxx will be determined (consistent with all relevant
employment agreements) by a committee of three directors
including a director appointed by JTC (as Chairman) and a
director appointed by either Ampersand II or Ampersand III.
b. In addition to any rights they have under the Company's
Certificate of Incorporation or otherwise to appoint a
director, each of Xxxxxx, Helmet and Floatflow while they are
shareholders in the Company may appoint Xxxxx Xxxxxxx Xxxxxxx,
Xxxx Xxxx Xxxxxxxxx and Xxxx Xxxxxxx Xxxxxx as corporate
representatives to attend meetings of the Board of Directors,
and the Company shall cause to be delivered to such
individuals all notices of meetings that are delivered to the
Directors of the Company.
c. The rights of Xxxxxx, Helmet and Floatflow under Section 4.b.
will lapse if Xxxxxx, Helmet and Floatflow in aggregate hold
less than 5% of the outstanding capital stock of the Company.
d. The rights and obligations set out in this Section 4 are
subject to the issue of the Replacement Shares by the Company
to the Shareholders. Upon such issue, clauses 10.1, 10.2 and
10.3 of the Ampersand Subscription Agreement are terminate and
of no further force and effect.
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5. TRANSFER
a. Notwithstanding any other provision of this Agreement,
Ampersand II, Ampersand III and Ampersand III CF may at any
time transfer all or any of their shares of capital stock of
the Company to any affiliate, including any limited
partnership associated with Ampersand II or Ampersand III,
subject to the transferee agreeing in writing to be bound by
the terms of this Agreement.
b. Notwithstanding any other provision of this Agreement, each of
NJI 1A or NJI 1B may at any time transfer all or any of its
shares of capital stock of the Company to any affiliate or to
any fund under the management of Nomura/Jafco Investment
(Asia) Ltd, subject to the transferee agreeing in writing to
be bound by the terms of this agreement.
c. The rights and obligations set out in this Section 5 are
subject to the issue of the Replacement Shares by the Company
to the Shareholders. Upon such issue, clauses 11.1 and 11.2 of
the Ampersand Subscription Agreement are terminated and of no
further force and effect.
6. UNDERTAKINGS TO NOMURA/JAFCO
a. Each of JTC, Xxxxxx, Helmet and Floatflow agrees that it will
not, without the prior written consent of NJI 1A and NJI 1B
(which consent shall not be unreasonably withheld) Transfer
any of its shares of capital stock of the Company.
b. The Company agrees that while NJI 1A or NJI 1B holds any
shares of capital stock of the Company:
(a) a person nominated from time to time by NJI 1A and/or
NJI 1B shall have the right to attend all meetings of
the board of directors of the Company and receive all
notices of meetings delivered to Directors of the
Company; and
(b) the Company shall provide to NJI 1A and NJI 1B in a
timely manner monthly, quarterly and annual financial
statements of the Company and the annual budget of
the Company.
x. XXX 1A and/or NJI 1B shall comply with any reasonable
confidentiality requirements of the Company and shall obtain
the written agreement that any person nominated by NJI 1A
and/or NJI 1B pursuant Section 6.b.(a) shall comply with any
such requirements.
d. The rights of NJI 1A and NJI 1B under Section 6 shall lapse
upon the sale or transfer by NJI 1A and NJI 1B of all of their
shares of capital stock of the Company.
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e. The rights and obligations set out in this Section 6 are
subject to the issue of the Replacement Shares. Upon such
issue, clauses 6.1 and 6.2 of the Nomura Subscription
Agreement (as defined in the Implementation Agreement) are
terminated and of no further force and effect.
7. ELECTION OF DIRECTORS; CERTAIN VOTING RIGHTS.
a. Subject to Section 7.b. below, each of the Shareholders agrees
to vote his, her or its shares of capital stock of the Company
over which he, she or it exercises voting control, and take
such other actions as are necessary, so as to elect (to the
extent of the voting rights of the shares of capital stock
held by such party) and thereafter continue in office as
Directors of the Company:
(1) the following number of individuals designated by
Ampersand II and Ampersand III:
(a) while Ampersand II holds between 6.25%
and 13% of the issued shares in the Company,
Ampersand II will have the right to appoint one
Director of the Company;
(b) while Ampersand II holds more than 13.0%
of the issued shares in the Company, and if Ampersand
III does not have the right to appoint a Director,
Ampersand II will have the right to appoint two
Directors of the Company;
(c) while Ampersand III holds 6.25% or more
of the issued shares in the Company Ampersand III
will have the right to appoint one Director of the
Company.
(2) the following number of individuals designated by
JTC:
(a) at such times as JTC holds 25% or more
of the outstanding shares of capital stock of the
Corporation, three directors,
(b) at such times as JTC holds at least 13%
but less than 25% of the outstanding shares of
capital stock of the Corporation, two directors;
(c) at such times as JTC holds at least
6.25% but less than 13% of the outstanding shares of
capital stock of the Corporation, one director.
(3) an individual designated by the Management Team at
such times as any of Helmet, Floatflow, Xxxxxx or the
Management Team hold 6.25% or more of the outstanding
shares of capital stock of the Company.
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b. Each of the Shareholders agrees to vote his, her or its shares
of the capital stock of the Company over which he, she or it
exercises voting control, and take such other actions as are
necessary, for the removal of any Director upon the request of
the party or parties designating such Director and for the
election to the Board of Directors of a substitute designated
by such party or parties in accordance with the provisions of
Section 7.a hereof.
c. Each of the Shareholders agrees to vote, his, her or its
shares of the capital stock of the Company over which he, she
or it exercises voting control, and take such other actions as
are necessary, in such manner as shall be necessary or
appropriate to ensure that any vacancy on the Board of
Directors of the Company shall be filed in accordance with
Section 7.a.
8. MISCELLANEOUS
a. TERMINATION. This Agreement shall terminate and be of no
further effect if any shares in the Company are listed on any
stock exchange or quoted on any nationally recognized
automated quotation system.
b. CONFIDENTIALITY. Subject to the provisions of this Section,
none of the parties will disclose any information or document
in connection with this Agreement which is not in the public
domain.
A party may disclose any confidential information or document:
1. in enforcing this Agreement or in a proceeding
arising our of or in connection with this Agreement;
2. if required under a binding order of a governmental
agency or under a procedure for discovery in any
proceedings;
3. if required under any law or any administrative
guideline, directive, request or policy whether or
not having the force of law and, if not having the
force of law, the observance of which is in
accordance with the practice of responsible bankers
or financial institutions similarly situated;
4. as required or permitted by this Agreement;
5. to its legal advisers and its consultants;
6. if necessary to comply with any duty or obligation to
keep investors properly informed; or
7. with the prior written consent of each other party.
This Section 8.b. survives the termination of this Agreement.
- 9 -
c. ASSIGNMENT. Subject to Section 5 and this Section, the rights
and obligations of each party to this Agreement are personal.
They cannot be assigned, encumbered or otherwise dealt with
and no party shall attempt, or purport, to do so without the
prior written consent of all parties.
If a Shareholder transfers its shares to a related corporation or
limited partnership or fund pursuant to Section 5, it must assign its
rights and obligations under this Agreement to that related corporation
or limited partnership or fund, and such transferee must execute an
instrument which provides that such transferee shall be bound by the
provisions hereof.
d. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and
each other provision of this Agreement shall be severable and
enforceable to the extent permitted by law.
e. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the Company, the Shareholders and their
respective heirs, executors, administrators, legal
representatives, successors and assigns.
f. NOTICE. All notices required or permitted hereunder shall be
in writing and deemed effectively given upon personal delivery
by registered or certified mail, postage prepaid, addressed to
the other parties hereto at the address shown beneath his or
its respective signature to this Agreement, or at such other
address or addresses as any party shall designate to the
others in accordance with this Section 8.c.
g. PRONOUNS. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and
pronouns shall include the plural, and vice xxxx.
h. ENTIRE AGREEMENT; RELATIONSHIP TO CERTIFICATE OF INCORPORATION
AND BY-LAWS. This Agreement constitutes the entire agreement
between the parties, and supersedes all prior agreements and
understandings relating to the subject matter of this
Agreement. To the extent permitted by law, in the event of any
inconsistency between this Agreement and the provisions of the
Certificate of Incorporation or By-laws of the Company, the
provisions of this Agreement shall apply.
i. AMENDMENT. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively
or prospectively), with the written consent of all the parties
hereto.
j. NO WAIVER. No failure to exercise nor any delay in exercising
any right, power or remedy by a party operates as a waiver. A
single or partial exercise of any right, power or remedy does
not preclude any other or further exercise of that or any
other right, power or remedy. A waiver is not valid or binding
on the party granting that waiver unless made in writing.
- 10 -
k. GOVERNING LAW. This Agreement shall be construed, interpreted
and enforced in accordance with the laws of the State of
Delaware.
l. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Shareholders
Agreement to be executed as an instrument under seal as of the date first set
forth above.
SIGNED for and on behalf of MOLDFLOW )
CORPORATION )
in the presence of )
/s/ Xxxxxx Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxx
---------------------------------- --------------------------------
Secretary President
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxx
---------------------------------- --------------------------------
Name of secretary (print) Name of president (print)
THE COMMON SEAL of XXXXXX )
INVESTMENTS AUSTRALIA PTY LTD )
is affixed in accordance with its articles )
of association in the presence of )
---------------------------------- --------------------------------
Secretary Director
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
- 12 -
IN WITNESS WHEREOF, the parties hereto have caused this Shareholders
Agreement to be executed as an instrument under seal as of the date first set
forth above.
SIGNED for and on behalf of MOLDFLOW )
CORPORATION )
in the presence of )
---------------------------------- --------------------------------
Secretary President
---------------------------------- --------------------------------
Name of secretary (print) Name of president (print)
SIGNED for and on behalf of XXXXXX )
INVESTMENTS AUSTRALIA PTY LTD )
by a director in the presence of )
/s/ Xxxxxxxxx X. Xxxxxxx /s/ A. Xxxxxx Xxxxxx
---------------------------------- --------------------------------
Witness Director
Xxxxxxxxx X. Xxxxxxx A. Xxxxxx Xxxxxx
---------------------------------- --------------------------------
Name of witness (print) Name of director (print)
- 12 -
THE COMMON SEAL of HELMET )
INVESTMENTS AUSTRALIA PTY LTD is )
affixed in accordance with its articles )
of association in the presence of )
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxx
---------------------------------- --------------------------------
Secretary Director
Xxxxx Xxxxxxx Xxxxxxx X. Xxxxx
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
THE COMMON SEAL of FLOATFLOW )
PTY LTD is affixed in accordance with its )
articles of association in the presence of )
---------------------------------- --------------------------------
Secretary Director
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
THE COMMON SEAL of JTC )
INVESTMENT MANAGEMENT PTY is )
affixed in accordance with its articles of )
association in the presence of )
---------------------------------- --------------------------------
Secretary Director
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
- 13 -
THE COMMON SEAL of HELMET )
INVESTMENTS AUSTRALIA PTY LTD is )
affixed in accordance with its articles )
of association in the presence of )
---------------------------------- --------------------------------
Secretary Director
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
SIGNED for and on behalf of FLOATFLOW )
PTY LTD by a director in the presence of )
/s/ X. Xxxxxx /s/ Xxxx Xxxxxxxxx
---------------------------------- --------------------------------
Witness Director
X. Xxxxxx Xxxx Xxxxxxxxx
---------------------------------- --------------------------------
Name of witness (print) Name of director (print)
THE COMMON SEAL of JTC )
INVESTMENT MANAGEMENT PTY is )
affixed in accordance with its articles of )
association in the presence of )
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxx
---------------------------------- --------------------------------
Secretary Director
Xxxxxx Xxxxx Xxxxxxx Xxxxxxx
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
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THE COMMON SEAL of WESTPAC )
CUSTODIAN NOMINEES LIMITED (as )
nominee for NJI No. 1(A) Investment Fund) ) [SEAL]
is affixed in accordance with its articles )
of association in the presence of )
/s/ illegible
------------------------
Director
/s/ illegible
------------------------
Name of director (print)
THE COMMON SEAL of WESTPAC )
CUSTODIAN NOMINEES LIMITED (as )
nominee for NJI No. 1 (B) Investment Fund) ) [SEAL]
is affixed in accordance with its articles )
of association in the presence of )
/s/ illegible
------------------------
Director
/s/ illegible
------------------------
Name of director (print)
SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS II, LIMITED PARTNERSHIP )
by its general partner ASMC II Management )
Company LP in the presence of )
/s/ Xxxxxxx X. Xxx
--------------------------------
Director
/s/ Xxxxxxx X. Xxx
--------------------------------
Name of director (print)
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THE COMMON SEAL of WESTPAC )
CUSTODIAN NOMINEES LIMITED (as )
nominee for NJI No. 1(A) Investment Fund) )
is affixed in accordance with its articles )
of association in the presence of )
/s/ illegible
----------------------------------- --------------------------------
Secretary Director
/s/ illegible
----------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
THE COMMON SEAL of WESTPAC )
CUSTODIAN NOMINEES LIMITED (as )
nominee for NJI No. 1 (B) Investment Fund) )
is affixed in accordance with its articles )
of association in the presence of )
---------------------------------- --------------------------------
Secretary Director
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS II, LIMITED PARTNERSHIP )
by its general partner ASMC II Management )
Company LP in the presence of )
/s/ Xxxxxxx X. Xxx
---------------------------------- --------------------------------
Secretary Director
Xxxxxxx X. Xxx
---------------------------------- --------------------------------
Name of secretary (print) Name of director (print)
By its General Partner of the General Partner ASMC-II MCLP LLP
- 14 -
SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS III, LIMITED PARTNERSHIP )
by its general partner ASMC III Management )
Company LP in the presence of )
By its General Partner of the General Partner ASMC-III MCLP LLP
/s/ Xxxxxxx X. Xxx
--------------------------------
Director and General Partner
Xxxxxxx X. Xxx
--------------------------------
Name of director (print)
SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS III COMPANION FUND )
LIMITED PARTNERSHIP by its general )
partner ASMC IIICF Management Company LP )
in the presence of )
By its General Partner of the General Partner ASMC-III MCLP LLP
/s/ Xxxxxxx X. Xxx
--------------------------------
Director and General Partner
Xxxxxxx X. Xxx
--------------------------------
Name of director (print)
SIGNED for and on behalf of XXXXX & )
XXXXX, INC. )
in the presence of )
---------------------------------- --------------------------------
Secretary
---------------------------------- --------------------------------
Name of secretary (print) Name (print)
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SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS III, LIMITED PARTNERSHIP )
by its general partner ASMC III Management )
Company LP in the presence of )
--------------------------------
Director
--------------------------------
Name of director (print)
SIGNED for and on behalf of AMPERSAND )
SPECIALTY MATERIALS AND )
CHEMICALS III COMPANION FUND )
LIMITED PARTNERSHIP by its general )
partner ASMC IIICF Management Company LP )
in the presence of )
--------------------------------
Director
--------------------------------
Name of director (print)
SIGNED for and on behalf of XXXXX & )
XXXXX, INC. )
in the presence of )
/s/ Xxxxx X. Xxxxx
--------------------------------
Treasurer
Xxxxx X. Xxxxx
--------------------------------
Name (print)
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SCHEDULE I
XXXXXX INVESTMENTS AUSTRALIA PTY LTD
HELMET INVESTMENTS AUSTRALIA PTY LTD
FLOATFLOW PTY LTD
JTC INVESTMENT MANAGEMENT PTY LTD
WESTPAC CUSTODIAN NOMINEES LIMITED (as nominee for NJI No. 1(A) Investment
Fund)
WESTPAC CUSTODIAN NOMINEES LIMITED (as nominee for NJI No. 1 (B) Investment
Fund)
AMPERSAND SPECIALTY MATERIALS AND CHEMICALS II, LIMITED PARTNERSHIP
AMPERSAND SPECIALTY MATERIALS AND CHEMICALS III, LIMITED PARTNERSHIP
AMPERSAND SPECIALTY MATERIALS AND CHEMICALS III COMPANION FUND
XXXXX & XXXXX, INC.
SCHEDULE II
REGISTRATION RIGHTS
1. Certain Definitions
Words defined in the Shareholders Agreement have the same meaning in this
Schedule II, except that as used in this Schedule II, the following terms shall
have the following respective meanings:
Commission means the United States Securities and Exchange Commission, or
any other United States Federal agency at the time administering the
Securities Act.
Common Stock means the common stock, $.01 par value per share, of the
Company.
Company means Moldflow Corporation.
Exchange Act means the United States Securities Exchange Act of 1934, as
amended, or any similar United States statute, and the rules and
regulations of the Commission issued under such act, as they each may,
from time to time, be in effect.
Securities Act means the United States Securities Act of 1933, as amended,
or any similar United States statute, and the rules and regulations of the
Commission issued under such act, as they each may, from time to time, be
in effect.
Registration Statement means a registration statement filed by the Company
with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
Registration Expenses means the expenses described in Section 6 of this
Schedule.
Registrable Shares means (i) the shares of Common Stock issued or issuable
upon, exercise or conversion of the securities held by Ampersand II and
Ampersand III, and (ii) any other shares of Common Stock of the Company
issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recaptializations, or similar events).
Wherever reference is made in this Agreement to a request or consent of
Holders of a certain percentage of Registrable Shares, or to a number of
percentage of Registrable Shares held by a Holder, such reference shall
include shares of Common Stock issuable upon exercise of conversion of the
securities held by Ampersand II and Ampersand III even though such
exercise or conversion has not yet been effected.
Holder means Ampersand Speciality Materials and Chemicals II and Ampersand
Speciality Materials and Chemicals III and the Shareholders and their
direct or indirect successors or assigns.
2. Sale or Transfer of Shares; Legend
(a) The Registrable Shares shall not be sold or transferred in the
United States unless either (i) they first shall have been
registered under the Securities Act, or (ii) the Company first shall
have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, to the effect that such sale or
transfer is exempt from the registration requirements of the
Securities Act.
(b) Each certificate representing the Registrable Shares shall bear a
legend substantially in the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered, sold or otherwise transferred,
pledged or hypothecated in the United States unless and until
such shares are registered under the Act or an opinion of
counsel satisfactory to the Company is furnished to the
Company to the effect that such registration is not required."
The foregoing legend shall be removed from the certificates
representing any Registrable Shares at the request of the Holder
thereof at such time as they become registered under the Securities
Act or eligible or resale pursuant to Rule 144(k) under the
Securities Act.
3. Required Registration
(a) Within 90 days following written notice from a Holder or Holders
holding (or intending to exercise warrants for) (i) in the case of
Forms S-1 and S-2, not less than fifty one percent (51%) of the
Registrable Shares and (ii) in the case of Form S-3, Registrable
Shares having a fair market value of not less than $100,000, the
Company shall use its best efforts to effect the registration of
such Registrable Shares on Form S-1, Form S-2 or Form S-3 (or any
successor forms) or other appropriate Registration Statement
designated by such Holder or Holders. Any demand registration on
Form S-1 or Form S-2 pursuant to this Section 3 must be underwritten
on a firm commitment basis by a merchant or investment banker of
recognized national or regional standing in the United States. The
right of other Holders to participate in such underwritten
registration shall be conditioned on such Holders' participation in
such underwriting upon the same terms and conditions. Upon receipt
of any such request, the Company shall promptly give written notice
of such proposed registration to all Holders. Such Holders shall
have the right, by giving written notice to the Company within 30
days after the Company provides its
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notice, to elect to have included in such registration such of their
Registrable Shares as such Holders may request in such notice of
election subject to the approval of the underwriter managing the
offering. Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration on Form
S-1, Form S-2 or Form S-3 (or any successors form) or such other
appropriate Registration Statement designated by such Holder or
Holders, of all such Registrable Shares.
(b) The Company shall not be required to effect more than two
registrations (other than on Form S-3 or any successor form relating
to secondary offerings, if available) pursuant to Section 3(a). The
Holder or Holders holding the requisite amount of Registrable Shares
shall have the right to require the Company to effect an unlimited
number of registrations on Form S-3 or any successor form relating
to secondary offerings; however, in any one year the Company shall
not be required to effect more than two such registrations. If, upon
receipt of any request for registration from the Holders pursuant to
this Section 3, the Company elects to sell shares directly as part
of such registration, then such registration shall be considered a
registration under Section 4 rather than under Section 3 hereof.
4. Incidental Registration
(a) Whenever the Company proposes to file a Registration Statement,
prior to such filing it shall give written notice to all Holders of
its intention to do so, and upon the written request of a Holder or
Holders given within 30 days after the Company provides such notice
(which request shall state the intended method of disposition of
such Registrable Shares), the Company shall use its best efforts to
cause all Registrable Shares which the Company has been requested to
register to be registered under the Securities Act to the extent
necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request
of such Holder(s); provided that, the Company shall have the right
to postpone or withdraw any registration effected pursuant to this
Section 4 without obligation to any Holder.
(b) In connection with any offering under this Section 4 involving an
underwriting, and subject to the next sentence hereof, the Company
shall not be required to include any Registrable Shares in such
underwriting in such quantity as will, in the opinion of the
underwriters, jeopardize the success of the offering by the Company
or materially adversely affect the price receivable by the Company
in such offering. If in the opinion of the managing underwriter the
registration of all, or part of, the Registrable Shares which the
Holders have requested to be included would materially and adversely
affect the success or the price receivable in such public offering,
then the Company shall be required to include in the underwriting
only that number of Registrable Shares, if any, which the managing
underwriter believes may be sold without causing such adverse
effect, provided, however, that in no event
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shall more than 50% of the Registrable Shares which the Holders have
requested to be included in any underwriting be excluded from such
underwriting (other than an underwriting relating to the initial
public offering of the Company's Common Stock, in which case 100% of
such Registrable Shares may be excluded). In the event of such a
reduction in the number of shares to be included in the
underwriting, all Holders of Registrable Shares who have requested
registration shall participate in the underwriting pro rata based
upon their total ownership of Registrable Shares (or in any other
proportion as agreed upon by such Holders) and if any such Holder
would thus be entitled to include more shares than such Holder
requested to be registered, the excess shall be allocated among such
other requesting Holders pro rata based on their ownership of
Registrable Shares. No other securities requested to be included in
a registration for the account of anyone other than the Company or
the Holders shall be included in a registration unless either (i)
all Registrable Shares requested to be included in such registration
are so included or (ii) the Holders of a majority of the Registrable
Shares requested to be included in such registration otherwise
consent in writing.
5. Registration Procedures
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective:
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective for a period
of not less than 90 days from the effective date;
(c) as expeditiously as possible furnish to each selling Holder such
reasonable numbers of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the selling Holder may
reasonably request in order to facilitate the public sale or other
disposition of the registered Registrable Shares owned by the
selling Holder; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling
Holder shall reasonably request, and do any and all other acts and
things that may be necessary or desirable to enable the selling
Holder to consummate the public sale or other disposition in such
jurisdictions; provided, however, that the Company shall not be
required
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in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in
any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Holder and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall
promptly notify the selling Holder and, if requested, the selling Holder
shall immediately cease making offers of Registrable Shares and shall
return all prospectuses to the Company. The Company shall promptly provide
the selling Holder with revised prospectuses and, following receipt of the
revised prospectuses, the selling Holder shall be free to resume making
offers of the Registrable Shares.
6. Allocation of Expenses
The Company shall pay the Registration Expenses for all registrations
requested by the Holders pursuant to this Agreement. If a registration on
a Registration Statement other than Form S-3 (or any successor form)
requested by the Holders pursuant to Section 3(a) is withdrawn prior to
effectiveness at the request of the Holders requesting it and if the
requesting Holders holding a majority of the Registrable Shares requested
to be included in such registration elect not to have such registration
counted as a registration requested under Section 3(a), the requesting
Holders shall pay the Registration Expenses of such registration pro rata
in accordance with the number of their Registrable Shares included in such
registration. For purposes of this Section, the term Registration Expenses
shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing
fees, exchange listing fees, printing expenses, fees and disbursements of
counsel for the Company and one counsel for the selling Holders,
out-of-pocket expenses of the Company and the underwriters, state Blue Sky
fees and expenses, and the expense of any special audits incident to or
required by any such registration, but excluding underwriting discount and
selling commissions and fees of more than one counsel for the selling
Holders. Such underwriting discounts and selling commissions shall be
borne pro rata by the selling Holders in accordance with the number of
their Registrable Shares included in such registration.
7. Indemnification
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, then to the
extent permitted by law the Company shall indemnify and hold
harmless the seller of such Registrable Shares, each underwriter of
such Registrable Shares and each other persons, if any, who controls
such seller or underwriter within the meaning of the Securities Act
or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or
controlling person may become subject under the Securities Act, the
Exchange Act, state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
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any Registration Statement under which such Registrable Shares were
registered under the Securities Act, or any preliminary prospectus
or final prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arise out
of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company shall reimburse
such seller, underwriter and each such controlling person for any
legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating
or defending any such loss, claim, damage, lability or action;
provided, however, that the Company shall not be liable in any such
cases to the extent that such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon
and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling
person specifically for use in the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, then to the
extent permitted by law, each seller of Registrable Shares severally
and not jointly, shall indemnify and hold harmless the Company, each
of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter
within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities joint or several,
to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act,
Exchange Act, state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
hereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement under which Registrable Shares were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out
of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was
made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of such seller
specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement;
provided, however, that the obligations of such Holder hereunder
shall be limited to an amount equal to the proceeds to each Holder
of Registrable Shares sold as contemplated herein.
(c) Indemnifications of an underwriter pursuant to this Section 7 shall
not be interpreted as providing relief of such underwriter from any
or all of its due diligence obligations. Further, a underwriter
shall not be entitled to indemnification pursuant to this section in
the event that it fails to deliver to
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any selling Holder any preliminary or final or revised prospectus,
as required by the Rules and Regulations of the Commission. Finally,
no indemnification shall be provided pursuant to this Section in the
event that any error in a preliminary prospectus of the Company is
subsequently corrected in the final prospectus of the Company for a
particular offering, and such final prospectus is delivered to the
person seeking indemnity, in the case of a claim made under Section
7(a), or to all purchasers in the offering by the Company in the
case of a claim under Section 8(b) prior to the date of purchase of
the securities.
Each party entitled to indemnification under this Section 7 (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 be unreasonably withheld or delayed); and, provided,
further, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified Party may participate in
such defense at such Indemnified Party's expense, provided, however, that
the Indemnifying Party shall pay such expense if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would
be inappropriate due to actual or potential differing interest between the
Indemnified Party and any other party represented by such counsel in such
proceeding. 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 judgement or enter into any settlement that does
not include as an unconditional term thereof the giving of the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party.
8. Indemnification with Respect to Underwritten Offering.
In the event that Registrable Shares are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Section 3(a), the
Company agrees to enter into an underwriting agreement containing
customary representations and warranties with respect to the business and
operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including without
limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
9. Stand-Off Agreement
Each Holder of Registrable Shares, if requested by the Company and an
underwriter of Common Stock or other securities of the Company, shall
agree not to sell or
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otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Holder for a specified period of
time (not to exceed 90 days) following the effective date of a
Registration Statement; provided that:
(a) such agreement shall only apply to the first such Registration
Statement covering Common Stock of the Company to be sold on its
behalf to the public in an underwritten offering; and
(b) all officers and directors of the Company and all Holders of five
percent (5%) or more of the Company's Common Stock enter into
similar agreements.
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter.
10. Information by Holder
Each Holder of Registrable Shares included in any registration shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may request in writing
and as shall be required or advisable in connection with any registration,
qualification or compliance referred to in this Agreement.
11. Rule 144 Requirements
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of
the Commission that may at any time permit a Holder to sell securities of
the Company to the public without registration, 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 any
time after it has become subject to the reporting requirements of
the Exchange Act).
(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 (at any time after it has become subject to such
reporting requirements); and
(c) furnish to any Holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the
closing of the first sale of securities by the Company pursuant to a
Registration Statement), 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 of the Company
as such Holder may reasonably request to avail itself of any similar
rule or regulation of the Commission allowing it to sell any such
securities without registration.
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12. Selection of Underwriter
In the case of any registration effected pursuant to Section 3, the
Requesting Holders shall have the right to designate the managing
underwriter, subject to the approval of the Company, which approval may
not be unreasonably withheld or delayed.
13. Restrictions on Other Agreements
The Company will not enter into any other agreement with any party which
by its terms grants any right relating to the registration of its Common
Stock superior to or on a parity with the rights granted to the Holders
pursuant to this Agreement.
14. Transfer of Rights
(a) The rights granted hereunder may be transferred or succeeded to only
by any (i) other Holder or any general or limited partner, officer
or other affiliate (within the meaning of Rule 144 under the
Securities Act) of any Holder, or (ii) any other person or entity
that holds (including any shares hereafter acquired) at least 5% of
the Registrable Shares and who is not a competitor of the Company or
a partner, officer, director, employee or owner of more than 1 % of
the outstanding securities of any direct or indirect competitor of
the Company; provided, however, that the Company is given written
notice by the transferee and identifying the securities with respect
to which such rights are being assigned.
(b) A transferee to whom rights are transferred pursuant to this Section
14 may not again transfer such rights to any other person or entity,
other than as provided in paragraph (a) above.
15. Successors and Assigns
The provisions of this Schedule shall bind and inure to the benefit of
respective successors, assigns, heirs, executors, and administrators of
the parties hereto.
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