METAPATH SOFTWARE INTERNATIONAL, INC.
SHAREHOLDERS AGREEMENT
TABLE OF CONTENTS
PAGE
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1. Preemptive Rights.........................................................1
1.1 Notice..............................................................1
1.2 Exercise of Preemptive Rights.......................................2
1.3 Sale to Third Parties...............................................2
1.4 Exceptions..........................................................2
2. Transfers by Shareholder..................................................3
2.1 Right of First Offer................................................3
2.2 Co-Sale Right.......................................................5
2.3 Transfer Restrictions...............................................6
3. Election of Directors.....................................................6
3.1 Board Representation................................................6
3.2 Mechanics of Designation............................................7
3.3 Appointment of Directors............................................7
3.4 Removal.............................................................7
3.5 No Revocation.......................................................8
3.6 Change in Number of Directors.......................................8
4. Information Rights........................................................8
4.1 Delivery of Financial Statements....................................8
4.2 Inspection..........................................................8
4.3 Nondisclosure Agreement.............................................8
5. Covenant of Shareholders..................................................8
6. Termination...............................................................8
6.1 Termination Events..................................................8
6.2 Termination With Respect to a Particular Shareholder................9
6.3 Removal of Legend...................................................9
7. Miscellaneous.............................................................9
7.1 Successors and Assigns..............................................9
7.2 Amendments and Waivers..............................................9
7.3 Notices.............................................................9
7.4 Severability........................................................9
7.5 Governing Law......................................................10
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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7.6 Counterparts.......................................................10
7.7 Titles and Subtitles...............................................10
7.8 Partners, Members and Affiliates...................................10
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METAPATH SOFTWARE INTERNATIONAL, INC.
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "AGREEMENT") is made and entered into
as of December 4, 1998 by and among Metapath Software International, Inc., a
California corporation (the "COMPANY"), the former holders of capital stock
of Metapath Software Corporation, a Delaware corporation ("METAPATH"), listed
on Exhibit A hereto (the "METAPATH SHAREHOLDERS") and the former holders of
capital stock of Mobile Systems International Holdings Limited, a company
incorporated under the laws of England and Wales ("MSIH"), listed on
Exhibit B hereto (the "MSIH SHAREHOLDERS," and together with the Metapath
Shareholders, the "SHAREHOLDERS").
RECITALS
A. MSIH, Metapath and the Company have entered into an Agreement and
Plan of Reorganization dated September 21, 1998 (the "REORGANIZATION
AGREEMENT"), which provides for transactions resulting in MSIH and Metapath
becoming wholly-owned subsidiaries of the Company (the "TRANSACTIONS") and
the issuance by the Company to the shareholders of MSIH and Metapath of
shares of the Company's Common Stock in exchange for the shares of Metapath
and MSIH capital stock.
B. As a condition to the closing of the Transactions, the Shareholders
and the Company have agreed to certain restrictions on transfer of shares of,
or securities convertible into or exercisable for shares of, any class of the
Company's capital stock ("SECURITIES") held by the Shareholders, certain
rights of first refusal, certain rights of co-sale, certain representation
rights with respect to the Company's board of directors (the "BOARD OF
DIRECTORS") and certain information rights, all according to the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT
The parties agree as follows:
1. PREEMPTIVE RIGHTS. Subject to the terms and conditions specified in
this Section 1, the Company hereby grants to each Shareholder a right of
first offer with respect to sales by the Company of Securities ("New
Securities") after the Effective Time (as defined in the Reorganization
Agreement). Each time the Company proposes to offer any New Securities, the
Company shall first make an offering of such New Securities to each
Shareholder in accordance with the following provisions:
1.1 NOTICE. The Company shall deliver a notice (a "NEW ISSUANCE
NOTICE") to the Shareholders stating (a) its bona fide intention to offer
such New Securities, (b) the number of such
New Securities to be offered and (c) the price and terms upon which it
proposes to offer such New Securities.
1.2 EXERCISE OF PREEMPTIVE RIGHTS. Within ten (10) calendar days
after delivery of the New Issuance Notice, a Shareholder may, by written
notice to the Company, elect to purchase, at the price and on the terms
specified in the New Issuance Notice, up to that portion of such New
Securities which equals the proportion that the number of Securities then
held by such Shareholder on an as-converted basis bears to the aggregate
number of Securities held by all Shareholders. The Company shall promptly, in
writing, inform each Shareholder purchasing all the shares available to it
(each, a "FULLY-EXERCISING SHAREHOLDER") of any other Shareholders' failure
to do likewise (an "OVERALLOTMENT NOTICE"). During the five (5)-day period
commencing after the date of delivery the Overallotment Notice (the
"OVERALLOTMENT PERIOD"), each Fully-Exercising Shareholder shall be entitled
to obtain that portion of the New Securities for which Shareholders were
entitled to subscribe but which were not subscribed for by the Shareholders
that is equal to the proportion that the number of Securities held by such
Fully-Exercising Shareholder bears to the aggregate number of Securities held
by all Fully-Exercising Shareholders.
1.3 SALE TO THIRD PARTIES. The Company may, during the ninety
(90)-day period following the expiration of the Overallotment Period (the
"THIRD PARTY PERIOD"), offer New Securities not purchased by Shareholders
pursuant to Section 1.2 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 New
Issuance Notice. If the Company does not enter into an agreement for the sale
of the New Securities within the Third Party Period, or if such agreement is
not consummated within ninety (90) days of the execution thereof, the right
provided by this Section 1 shall be deemed to be revived and such New
Securities shall not be sold to a third party unless first reoffered to the
Shareholders in accordance with this Section 1.
1.4 EXCEPTIONS. The term "New Securities" shall exclude, and the
preemptive rights in this Section 1 shall not be applicable to, (a) up to
[X shares where X = the number of shares required to cover existing MSIH and
Metapath options assumed or substituted in the Transactions + 2,000,000]
shares (as adjusted for stock splits, dividends and combinations), or such
greater number as is approved by the Board of Directors, of the Company's
Common Stock (or options therefor) granted to employees, consultants and
directors, pursuant to plans or agreements approved by the Board of Directors
for the primary purpose of soliciting or retaining such employees',
consultants' and directors' services; (b) shares of the Company's Common
Stock sold to the public pursuant to or in conjunction with a registration
statement filed with and declared effective under the Securities Act of 1933,
as amended; (c) securities issued pursuant to the conversion or exercise of
convertible or exercisable securities that were (1) outstanding as of the
Effective Time or (2) where the issuance of the convertible or exercisable
securities was subject to and made in compliance with this Section 1; (d)
securities issued in connection with a bona fide business acquisition by the
Company provided that (1) the aggregate value of the securities issued (as
determined by the Board of Directors of the Company) is not more than Five
Million Dollars ($5,000,000), or (2) the acquisition
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transaction is approved by at least 75% of the directors then serving on the
Board of Directors; (e) securities issued in connection with the Transactions
or pursuant to obligations of MSIH or Metapath existing prior to the closing
of the Transactions which have been assumed by the Company pursuant to the
Reorganization Agreement; or (f) any other issuance of new securities which,
together with any prior issuances of stock under this clause (f) do not
exceed one percent (1%) of the outstanding capital stock of the Company at
the time such issuance occurs.
2. TRANSFERS BY SHAREHOLDER.
2.1 RIGHT OF FIRST OFFER. Before any Shareholder may sell or
otherwise transfer any Securities, the Company and the other SHAREHOLDERS
shall have a right of first offer to purchase the Securities on the terms and
conditions set forth in this Section 2.1 (the "RIGHT OF FIRST OFFER"). Each
time a Shareholder proposes to sell or otherwise transfer any such
Securities, such Shareholder (the "ROFO SELLING SHAREHOLDER") shall first make
an offering of such Securities (the "OFFERED SECURITIES") to the Company and
the other SHAREHOLDERS in accordance with the following provisions:
(a) NOTICE. The ROFO Selling Shareholder shall deliver a
notice (an "OFFER NOTICE") to the Company stating (i) its bona fide intention
to offer such Securities, (ii) the number of such Securities to be offered,
and (iii) the price and terms upon which it proposes to offer such
Securities. The Company shall promptly forward copies of the Offer Notice to
the other SHAREHOLDERS.
(b) EXERCISE OF RIGHT OF FIRST OFFER. At any time within thirty
(30) days after the Offer Notice (the "COMPANY EXERCISE PERIOD"), the Company
may, by giving written notice to the ROFO Selling Shareholder, elect to
purchase all or part of the Offered Securities at the price and on the terms
specified in the Offer Notice.
(c) SHAREHOLDERS' RIGHT OF FIRST OFFER. The Company agrees that
in the event that the Company declines to exercise in full the Right of First
Offer set forth in Section 2.1(b), the Company will provide each Shareholder
with notice of such determination at least fifteen (15) days before the end of
the Company Exercise Period. Each Shareholder shall then have the right to
submit written notice of its irrevocable commitment to exercise its Right of
First Offer within fifteen (15) days after the Company's notice (the
"SHAREHOLDERS' ROFO EXERCISE PERIOD"), on a pro rata basis, based upon the
number of Securities held by such Shareholder relative to the aggregate
number of Securities held by all other Shareholders exercising a right of
purchase pursuant to this Section 2. Upon expiration or exercise of the Right
of First Offer, the Company will provide notice to all Shareholders as to
whether or not the Right of First Offer has been or will be exercised by the
Company and/or the Shareholders. If any Shareholders do not exercise in full
their Right of First Offer, the Securities that would otherwise be allocated
to such non-exercising Shareholders shall be allocated to each exercising
Shareholder on a pro-rata basis (based upon the number of Securities held by
such Shareholder relative to the aggregate number of Securities held by all
such Shareholders exercising a right of purchase pursuant to this Section
2.1), provided that the
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Shareholders must exercise the Right of First Offer, if at all, prior to the
expiration of the Shareholders' ROFO Exercise Period.
(d) PAYMENT. Payments made by the Company and/or the
Shareholders in connection with their exercise of the Right of First Offer
shall be made (by check or wire transfer), by cancellation of all or a portion
of any outstanding indebtedness of the ROFO Selling Shareholder to the Company
(or, in the case of purchase by a Shareholder, by cancellation of all or a
portion of any outstanding indebtedness of the ROFO Selling Shareholder to
the purchasing Shareholder), or by any combination thereof within thirty (30)
days after receipt of an Offer Notice, or in the manner and at the times set
forth in the Offer Notice.
(e) SELLING SHAREHOLDER'S RIGHT TO TRANSFER. If all of the
Offered Securities are not purchased by the Company and/or the Shareholders
as provided in this Section 2.1, then the ROFO Selling Shareholder may sell or
otherwise transfer such Offered Securities at the price specified in the
Offer Notice (or at a higher price) provided that such sale or other transfer
is consummated within sixty (60) days after the end of the Company ROFO
Exercise Period and provided further that (i) any such sale or other transfer
is effected in accordance with any applicable securities laws and (ii) the
proposed transferee(s) agree(s) in writing that the provisions of this
Agreement shall continue to apply to the Securities in the hands of such
proposed transferee(s). If the Offered Securities are not transferred within
such period, or if the ROFO Selling Shareholder proposes to change the price
or other terms to make them more favorable to the proposed transferee(s), a
new Offer Notice shall be given to the Company, and the Company and
Shareholders shall again be offered the Right of First Offer before any
Securities held by the ROFO Selling Shareholder may be sold or otherwise
transferred.
(f) PERMITTED TRANSACTIONS. The provisions of this Section 2.1
shall not pertain or apply to:
(i) Any pledge of Securities made by a Shareholder
pursuant to a bona fide loan transaction which creates a mere security
interest;
(ii) Any repurchase of Securities by the Company;
(iii) Any bona fide gift;
(iv) Any transfer to a Shareholder's ancestors,
descendants or spouse or to a trust for their benefit;
(v) Any transfer to a constituent partner, member or
affiliate of a Shareholder or a person or entity controlling, controlled by
or under common control with such Shareholder.
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PROVIDED, in each case, that (i) the transferring Shareholder(s) shall inform
the Company of such transfer prior to effecting it, and (ii) the transferee
(each a "PERMITTED TRANSFEREE") shall furnish the Company with a written
agreement to be bound by and comply with all provisions of this Agreement
applicable to the Shareholders. Each party hereto hereby consents and agrees
that, upon effectiveness of a transfer to a Permitted Transferee, such
Transferee shall become a party to this Agreement as a "Shareholder."
2.2 CO-SALE RIGHT. In addition to the rights and obligations
created by Section 2.1 hereof, if a proposed sale by a Shareholder (or group
of affiliated Shareholders) when considered with all other sales by such
Shareholder (or its affiliates) involves the disposition of more than
2,000,000 shares of Company Common Stock (and the Offered Shares are not
being acquired by the Company or the other Shareholders pursuant to Section
2.1 hereof), then each Shareholder who has not elected to exercise its rights
to purchase securities pursuant to Section 2.1 (each such non-purchasing
Shareholder, a "NON-PURCHASING SHAREHOLDER" and collectively, the
"NON-PURCHASING SHAREHOLDERS") shall have a Co-Sale Right, exercisable upon
written notice to the Company within fifteen (15) business days after the
expiration of the Right of First Offer, to participate in the ROFO Selling
Shareholder's sale of Securities, on such terms and conditions as the ROFO
Selling Shareholder may agree with the purchaser. The Co-Sale Right shall
apply to all Offered Securities (other than those sold to the Company or the
other Shareholders pursuant to Section 2.1), i.e., if the proposed transfer
involves a number of shares which crosses the 2,000,000 shares threshold, the
Co-Sale Right shall apply to all Offered Securities and not just those in
excess of 2,000,000 shares. To the extent any Non-Purchasing
Shareholders exercise such Co-Sale Right in accordance with the terms and
conditions set forth below, the number of Securities which the ROFO Selling
Shareholder may sell shall be correspondingly reduced. The Co-Sale Right of
each Non-Purchasing Shareholder shall be subject to the following terms and
conditions:
(a) CALCULATION OF SECURITIES. The ROFO Selling Shareholder
and each Non-Purchasing Shareholder may sell all or any part of that number
of shares of Securities equal to the product obtained by multiplying (A) the
aggregate number of Securities covered by the Offer Notice by (B) a fraction,
the numerator of which is the number of Securities at the time owned by such
ROFO Selling Shareholder or Non-Purchasing Shareholder and the denominator of
which is the total number of Securities at the time owned by the ROFO Selling
Shareholder and all Non-Purchasing Shareholders electing to participate in
such sale.
(b) DELIVERY OF CERTIFICATES. Each Non-Purchasing Shareholder
may effect its participation in the sale by delivering to the ROFO Selling
Shareholder for transfer to the prospective purchaser one or more
certificates, properly endorsed for transfer, which represent the Securities
which such Shareholder elects to sell.
(c) TRANSFER. The stock certificate or certificates which the
Non-Purchasing Shareholders deliver to the ROFO Selling Shareholder pursuant
to Section 2.2(b) shall be delivered by the ROFO Selling Shareholder to the
prospective purchaser in consummation of the
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sale, and the ROFO Selling Shareholder shall promptly thereafter remit to
each participating Non-Purchasing Shareholder that portion of the sale
proceeds to which such Non-Purchasing Shareholder is entitled by reason of
its participation in such sale. To the extent that any prospective purchaser
or purchasers prohibits such assignment or otherwise refuses to purchase
Securities from a Shareholder exercising its Co-Sale Right hereunder, the
ROFO Selling Shareholder shall not sell to such prospective purchaser or
purchasers any Securities unless and until, simultaneously with such sale,
the ROFR Selling Shareholder shall purchase such Securities from such
Shareholder for the same consideration and on the same terms and conditions
as the proposed transfer to the third party purchaser.
(d) NO ADVERSE EFFECT. The exercise or non-exercise of the
rights of the Shareholders under this Section 2.2 to participate in one or
more sales of Securities made by any ROFO Selling Shareholder shall not
adversely affect Shareholder's rights to participate in subsequent sales of
Securities by any ROFR Selling Shareholder.
2.3 TRANSFER RESTRICTIONS.
(a) PROHIBITED TRANSFERS. Any attempt by a Shareholder to
transfer Securities in violation of this Section 2 shall be void and the
Company agrees it will not effect such a transfer nor will it treat any
alleged transferee as the holder of such Securities without the written
consent of the holders of sixty percent (60%) of the Securities then
outstanding.
(b) LEGENDED CERTIFICATES. Each certificate representing the
Securities now or hereafter owned by the SHAREHOLDERS or issued to any
Permitted Transferee pursuant to this Section 2 shall bear the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS
AND CONDITIONS OF A CERTAIN SHAREHOLDERS AGREEMENT BY AND BETWEEN
THE SHAREHOLDER, THE CORPORATION AND CERTAIN HOLDERS OF COMMON STOCK
OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
3. ELECTION OF DIRECTORS.
3.1 BOARD REPRESENTATION. At each annual meeting of the
Shareholders of the Company, or at any meeting of the Shareholders of the
Company at which members of the Board of Directors are to be elected, or
whenever members of the Board of Directors are to be elected by written
consent, the Shareholders agree to vote or act with respect to their shares so
as to elect:
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(a) one (1) member of the Company's Board of Directors
designated by Coutts & Co. (Jersey) Limited, as trustee of the Ibrahim (1995)
Family Settlement, the Ibrahim (1996) Family Settlement and the Ibrahim
(1997) Family Settlement (the "TRUST DESIGNEE"):
(b) one (1) member of the Company's Board of Directors
designated by General Atlantic Partners who shall remain undesignated so long
as the Trust Designee remains undesignated.
(c) five (5) members of the Company's Board of Directors
designated by the MSIH Shareholders who shall initially be Dr. Mohamed
Ibrahim, Steve Denning, Dr. Alan Rudge, Sir Gerald Whent and Thomas Butler
(the "MSIH Representatives");
(d) four (4) members of the Company's Board of Directors
designated by the Metapath Shareholders who shall initially be John Hansen,
Robert Goodman, George Still and Felda Hardymon (the "Metapath
Representatives");
(e) one (1) independent member of the Company's Board of
Directors, who resides in the United States and who possesses software
industry experience, designated by a committee (composed of directors Rudge,
Goodman, Denning and Ibrahim) of the Company's Board of Directors. The
independent director shall initially be John C. Carrington.
3.2 MECHANICS OF DESIGNATION. Unless otherwise agreed by the
respective group of Shareholders designated in Sections 3.1 (a), (b), (c) or
(d), the designees of each such group shall be selected by holders of a
majority of the Securities held by all members of such respective group.
3.3 APPOINTMENT OF DIRECTORS. In the event of the resignation,
death, removal or disqualification of a director selected by any of the above
groups, the group entitled to designate such directors shall promptly
nominate a new director, and, after written notice of the nomination has been
given to the other parties, each Shareholder shall vote its shares of capital
stock of the Company to elect such nominee to the Board of Directors. With
respect to Sections 3.1(c) and (d), in the event of the resignation, death,
removal or disqualification of an MSIH Representative or Metapath
Representative, respectively, the remaining MSIH Representatives or Metapath
Representatives, as applicable, shall designate the replacement
representative of their respective group, and each Shareholder shall vote all
shares of the Company's capital stock held by them for the election of such
replacement director(s).
3.4 REMOVAL. Any of the above groups may remove its designated
director(s) at any time and from time to time, with or without cause (subject
to the Bylaws of the Company as in effect from time to time and any
requirements of law), in their sole discretion, and after written notice to
each of the parties hereto of the new nominee to replace such director. Each
Shareholder shall promptly vote its shares of capital stock of the Company
(i) to remove a director sought to be
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removed by the group of Shareholders responsible for the original
designation of such director and (ii) to elect the replacement nominee
designated by such group to the Board of Directors.
3.5 NO REVOCATION. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
3.6 CHANGE IN NUMBER OF DIRECTORS. The Shareholders will not vote
for any amendment or change to the Articles of Incorporation or Bylaws
providing for the election of more or less than twelve (12) directors, or any
other amendment or change to the Articles of Incorporation or Bylaws
inconsistent with the terms of this Agreement.
4. INFORMATION RIGHTS.
4.1 DELIVERY OF FINANCIAL STATEMENTS. Upon request, the Company
shall deliver to each Shareholder (other than a Shareholder reasonably deemed
by the Company to be a competitor of the Company) all written information
provided to members of the Company's Board of Directors in connection with
meetings of Company's Board of Directors.
4.2 INSPECTION. The Company shall permit each Shareholder, at
such Shareholder's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable
times as may be requested by the Shareholder.
4.3 NONDISCLOSURE AGREEMENT. Notwithstanding the foregoing, the
Company shall not be obligated pursuant to this Section 4 to provide a
Shareholder with any information or allow any Shareholder to visit and inspect
the Company's properties, to examine its books of account and records or to
discuss the Company's affairs, finances and accounts with its officers until
and unless such Shareholder has executed a standard nondisclosure agreement
protecting the confidentiality of the Company's proprietary and confidential
information.
5. COVENANT OF SHAREHOLDERS. Each Shareholder covenants and agrees
that it shall not take any action that could reasonably be construed as
having a detrimental effect on the Company's ability to utilize "pooling of
interests" accounting without the prior written consent of the Company.
6. TERMINATION.
6.1 TERMINATION EVENTS. This Agreement shall terminate upon the
earliest to occur of any one of the following events (and shall not apply to
any transfer by a Shareholder in connection with any such event):
(a) The liquidation, dissolution or indefinite cessation of
the business operations of the Company;
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(b) The execution by the Company of a general
assignment for the benefit of creditors or the appointment of a receiver or
trustee to take possession of the property and assets of the Company; or
(c) the consummation of an IPO.
6.2 TERMINATION WITH RESPECT TO A PARTICULAR SHAREHOLDER. All
rights to which each Shareholder is entitled pursuant to this Agreement (but
not obligations by which such Shareholder is bound) shall terminate with
respect to such Shareholder at such time as such Shareholder together, with
such Shareholder's affiliates, no longer owns at least (i) 400,000 shares of
the Company's Common Stock (as adjusted for any stock split or the like) or
(ii) one half of the shares of the Company Common Stock held by a Shareholder
as of the date hereof.
6.3 REMOVAL OF LEGEND. At any time after the termination of this
Agreement in accordance with Section 6.1, any holder of a stock certificate
legended pursuant to Section 2.3 may surrender such certificate to the
Company for removal of such legend, and the Company will duly reissue a new
certificate without the legend.
7. MISCELLANEOUS.
7.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding upon, the parties'
respective successors, assigns and legal representatives.
7.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the Company and
Shareholders (or their respective successors and assigns) holding at least
sixty percent (60%) of the Securities. Any amendment or waiver effected in
accordance with this Section 7.2 shall be binding upon the Company and the
Shareholders, and each of their respective successors and assigns.
7.3 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date of delivery,
when delivered personally or by overnight courier or sent by telegram or fax,
or forty-eight (48) hours after being deposited in the U.S mail or UK mail,
with postage prepaid, and addressed to the party to be notified at such
party's address or fax number as set forth below on the signature page
hereto, or as subsequently modified by written notice.
7.4 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (a) such provision shall be excluded from this Agreement,
(b) the balance of the
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Agreement shall be interpreted as if such provision were so excluded and (c)
the balance of the Agreement shall be enforceable in accordance with its
terms.
7.5 GOVERNING LAW. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
7.7 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement
7.8 PARTNERS, MEMBERS AND AFFILIATES. For purposes of Sections 1
and 2 of this Agreement, a Shareholder includes any general partners and
affiliates of a Shareholder. A Shareholder who chooses to exercise a Right of
First Offer, Right of First Refusal or Co-Sale Right may designate under such
right itself or its partners or affiliates in such proportions as it deems
appropriate.
[Signature pages follow]
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The parties have executed this Agreement as of the date written above.
COMPANY:
METAPATH SOFTWARE
INTERNATIONAL, INC.
By:
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Name:
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Title:
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Address:
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Fax Number:
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SHAREHOLDER:
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Print Shareholder Name
By:
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Name:
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Title:
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Address:
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Fax Number:
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[SIGNATURE PAGE FOR SHAREHOLDERS AGREEMENT]
EXHBIT A
Metapath Shareholders signing Shareholders Agreement
Networks Northwest, Inc.
Norwest Venture Capital
Lehman Brothers Venture Capital Partners I, L.P.
RRE Investors, L.P.
RRE Investor Funds, L.P.
Nisho Iwai American Corporation
Nisho Awai Corporation
Crossover Fund II, L.P.
Crossover Fund IIA, L.P.
Omega Ventures II, L.P.
TCV II, L.P.
TCV II, V.O.F.
TCV II (Q), L.P.
TCV II Strategic Partners, L.P.
TCV II C.V.
U.S. Venture Partners IV, L.P.
Second Ventures II, L.P.
USVP Entrepreneur Partners II, L.P.
2180 Associates Fund
Belisarius Corp. (Robert D. Lindsay)
Bessemer Venture Partners III, L.P.
BVP III Special Situations L.P.
G. Felda Hardymon
Michael Tennican
EXHIBIT B
MSIH Shareholders signing Shareholders Agreement
Bessec Ventures IV L.P.
Bessemer Venture Investors L.P.
Bessemer Venture Partners IV L.P.
Peter Carpenter
GAP Coinvestment Partners, L.P.
General Atlantic Partners 30, L.P.
General Atlantic Partners 46, L.P.
Ibrahim (1995) Family Settlement
Ibrahim (1996) Family Settlement
Ibrahim (1997) Settlement
Hadeel Ibrahim
Hosham Ibrahim
Mohamed Ibrahim
Mario Palencia
Mario Palencia 1997 Settlement
M. Palencia 1st Family Settlement
M. Palencia 2nd Family Settlement
Moez Daya
The Nuru Settlement
The Rajab Settlement
Andrew Warden
Paul Young
METAPATH SOFTWARE INTERNATIONAL,INC.
AMENDMENT NO. 1 TO
SHAREHOLDERS AGREEMENT
METAPATH SOFTWARE INTERNATIONAL, INC.
AMENDMENT NO. 1 TO
SHAREHOLDERS AGREEMENT
This Amendment No.1 to Shareholders Agreement (the "AMENDMENT") is made
and entered into as of December 4, 1998 by and among Metapath Software
International, Inc., a California corporation (the "COMPANY"), and the
shareholders of the Company listed on Exhibit A hereto(the "SHAREHOLDERS").
RECITALS
A. The Company and the Shareholders are parties to that certain
Shareholders Agreement dated November 30, 1998 (the"SHAREHOLDERS
AGREEMENT"); and
B. The Company and the Shareholders desire to amend the Shareholders
Agreement as provided herein.
AGREEMENT
The parties agree as follows:
1. AMENDMENT. Section 2.1(f) of the Shareholders Agreement is hereby
amended and restated to read in its entirety as follows:
(f) PERMITTED TRANSACTIONS. The provisions of this Section 2.1
shall not pertain or apply to:
(i) Any pledge of Securities made by a Shareholder pursuant
to a bona fide loan transaction which creates a mere security interest:
(ii) Any repurchase of Securities by the Company;
(iii) Any bona fide gift;
(iv) Any transfer to a Shareholder's ancestors, descendants
or spouse or to a trust for their benefit;
(v) Any transfer to a constituent partner, shareholder,
member or affiliate of a Shareholder or a person or entity
controlling, controlled by or under common control with such
Shareholder.
(vi) Any transfer of Securities pursuant to that certain
Option Agreement by and among (1) Dr. Mohamed Ibrahim and others, and (2)
General Atlantic Partners 30, L.P. and CAP Coinvestment Partners, L.P.
PROVIDED, in each case, that (i) the transferring Shareholder(s) shall inform
the Company of such transfer prior to effecting it and (ii) the transferee
(each a "PERMITTED TRANSFEREE") shall furnish the Company with a written
agreement to be bound by and comply with all provisions of this Agreement
applicable to the Shareholders. Each party hereto hereby consents and aggrees
that, upon effectiveness of a transfer to a Permitted Transferee, such
Transferee shall become a party to this Agreement as a "Shareholder".
2. MISCELLANEOUS.
2.1 NO OTHER AMENDMENTS. Except as expressly provided in this
Amendment, all of the terms of the Shareholders Agreement remain in full force
and effect.
2.2 EFFECTIVENESS OF AMENDMENT. This Amendment shall be effective
upon exection hereof by the Company and Shareholders holding at least sixty
percent (60%) of the Securities.
2.3 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall consitute one and the same instrument.
2.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[Signature pages follow]
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The parties have executed this Amendment as of the date first written above.
COMPANY:
METAPATH SOFTWARE
INTERNATIONAL,INC.
By:
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Name:
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Title:
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Address:
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Fax Number:
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SHAREHOLDER:
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Print Shareholder Name
By:
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Name:
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Title:
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Address:
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Fax Number:
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(SIGNATURE PAGE FOR AMENDMENT NO.1 TO SHAREHOLDERS AGREEMENT)
Exhibit A
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Schedule of Shareholders
Networks Northwest Inc. M.Palencia 1st Family Settlement
Norwest Venture Capital M.Palencia 2nd Family Settlement
Lehman Brothers Venture Moez Daya
Capital Partners I,L.P. The Nuru Settlement
RRE Investors L.P. The Rajab Settlement
RRE Investor Funds, L.P. Andrew Warden
Nisho Iwai Amercian Corporation Paul Young
Nisho Awai Corporation
Crossover Fund II,L.P.
Crossover Fund IIA,L.P.
Omega Ventures II,L.P.
Omega Ventures II Cayman ,L.P.
TCV II,L.P.
TCV II,V.O.F
TCV II(Q),L.P.
TCV II Strategic Partners,L.P.
TCV II C.V.
U.S.Venture Partners IV,L.P.
Second Ventures II,L.P.
USVP Entrepreneur Partners II,L.P.
2180 Associates Fund
Belisarius Corp.(Robert D.Lindsay)
Bessemer Venture Partners III,L.P.
BVP III Special Situtations L.P.
G. Felda Hardymon
Michael Tennican
Bessec Ventures IV L.P.
Bessemer Venture Investors L.P.
Bessemer Venture Partners IV L.P.
Peter Carpenter
GAP Coinvestment Partners,L.P.
General Atlantic Partners 30,L.P.
General Atlantic Partners 46,L.P.
Ibrahim (1995) Family Settlement
Ibrahim (1996) Family Settlement
Ibrahim (1997) Settlement
Hadeel Ibrahim
Hosham Ibrahim
Mohamed Ibrahim
Mario Palencia
Mario Palencia 1997 Settlement
METAPATH SOFTWARE INTERNATIONAL,INC.
AMENDMENT NO. 2 TO
SHAREHOLDERS AGREEMENT
METAPATH SOFTWARE INTERNATIONAL, INC.
AMENDMENT NO. 2 TO
SHAREHOLDERS AGREEMENT
This Amendment No 2. to Shareholders Agreement (the "AMENDMENT") is made
and entered into as of July ___, 1999 by and among Metapath Software
International, Inc., a California corporation (the "COMPANY"), and the
shareholders of the Company listed on Exhibit A hereto (the "SHAREHOLDERS").
RECITALS
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A. The Company and the Shareholders are parties to that certain
Shareholders Agreement dated November 30, 1998 and as amended by Amendment No.1
thereto dated December 4, 1998 (the agreement, as amended, is referred to as the
"SHAREHOLDERS AGREEMENT"); and
B. Networks Northwest, Inc. ("NNI"), one of the Shareholders, desires to
transfer the shares held of record by it (the "NNI Shares") to its constituent
owners (the "NNI Shareholders"); and
C. In connection with the transfer from NNI to the NNI Shareholders, the
parties hereto desire to release NNI and NNI Shareholders of the obligations set
forth in the Shareholders Agreement, and such shareholders are willing to
relinquish their rights therein;
AGREEMENT
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The parties agree as follows:
1. RELEASE OF NNI. Effective upon completion of the transfer from NNI to
the NNI Shareholders, NNI shall be removed as a party to the Shareholders
Agreement. The NNI Shareholders shall not become parties to the Shareholders
Agreement. Notwithstanding the foregoing, to the extent that any NNI
Shareholder was a party to the Shareholders Agreement independent of their
receipt of shares from NNI, then each such party shall remain a party to the
Shareholders Agreement, and the NNI Shares recieved by any such shareholder
shall be deemed to be "Securities" held by a Shareholder under the Shareholders
Agreement.
2. CONSENT TO TRANSFER AND RELEASE. Each Shareholder hereby consents to
the transfer by NNI to the NNI Shareholders, and hereby waives such
Shareholder's right of first offer with respect to such transfer. Each
Shareholder further agrees to release each NNI Shareholder and the NNI Shares
from any further obligations under the Shareholders Agreement.
3. NNI ACKNOWLEDGEMENT. NNI hereby acknowledges and agrees that upon
transfer of the NNI Shares to the NNI Shareholders, the rights and obligations
of NNI under the Shareholders
Agreement will be terminated, and further acknowledges that the NNI Shareholders
will have none of the rights (nor any of the obligations) of a Shareholder under
the Shareholders Agreement.
4. MISCELLANEOUS
4.1 WAIVER OF NOTICE. Each Shareholder hereby waives any notice that
may be required under the Shareholders Agreement with respect to the
solicitation of consent to this Amendment and the transactions contemplated
hereby, including without limitation notice of NNI's intention to transfer
the NNI Shares.
4.2 NO OTHER AMENDMENTS. Except as expressly provided in Amendment
No. 1 and in this Amendment, all of the terms of the Shareholders Agreement
remain in full force and effect.
4.3 EFFECTIVENESS OF AMENDMENT. This Amendment shall be effective upon
execution hereof by the Company, NNI and Shareholders holding at least sixty
percent (60%) of the Securities.
4.4 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
4.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
[SIGNATURE PAGES FOLLOW]
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