EXHIBIT 10.4
Shareholders' Agreement
Creo Products Inc.
Dated April 29, 1994
As Amended:
November 21, 1994
June 30, 1995
November 2, 1995
March 22, 1996
May 1997
THIS SHAREHOLDERS AGREEMENT made as of 29/th/ day of April, 1994.
AMONG:
CREO PRODUCTS INC., a company duly incorporated under the laws of Canada,
registered extraprovincially in the Province of British Columbia, and
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(herein called the "Company")
OF THE FIRST PART
AND:
FEDERAL BUSINESS DEVELOPMENT BANK, incorporated by special Act of
Parliament of Canada, having its head office in the City of Montreal, in
the Province of Quebec
(herein called "FBDB")
OF THE SECOND PART
AND:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(herein collectively referred to as the "Founding Shareholders" and
individually referred to as "▇▇▇▇▇▇▇" and ▇▇▇▇▇▇▇", respectively)
OF THE THIRD PART
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(herein called "▇▇▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(herein called "▇▇▇▇▇▇▇▇▇"; the Founding Shareholders, ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ are herein collective referred to as the "Management
Shareholders")
OF THE FIFTH PART
AND:
SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERSHIP (herein called
"STAR II"), SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
(herein called "STAR III". SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED
PARTNERSHIP (herein called "STAR IIIA"), INTERSTOCK ANSTALT FUR VERMOGENS
UND TRUST VEWALTUNGEN (herein called "Interstock"), and UNICYCLE TRADING
COMPANY (herein called "Unicycle") (STAR II, STAR III, STAR IIIA,
Interstock, Unicycle and Shoham are herein called "STAR").
OF THE SIXTH PART
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W H ER E A S:
A. FBDB, the Management Shareholders and STAR are Shareholders of the Company.
B. The Company will carry on the business of manufacturing high technology,
advanced imaging products for commercial printers and mass data storage users;
C. The Company, FBDB, and the Management Shareholder, with the exception of
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, entered into a Shareholder's Agreement on the 6th day
of September 1989 to govern the rights and obligations of the principal
Shareholders of the Company (the "FBDB Agreement");
D. On or about the 30th day of January, 1992, the Company entered into an
Agreement with ▇▇▇▇▇▇▇▇▇ to govern the rights and obligations of ▇▇▇▇▇▇▇▇▇ as a
principal Shareholder of the Company the(▇▇▇▇▇▇▇▇▇ Agreement);
E. The parties hereto desire to determine how affairs of the Company will be
conducted and to record their respective rights and obligations.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and of the mutual covenants and agreements hereinafter set forth and
other good and valuable consideration (the receipt and adequacy of which are
hereby acknowledged), the parties hereto agree each with the other as follows:
ARTICLE 1
1.1 Definitions
Wherever used in this Agreement, the following words and terms will have
the meanings respectively ascribed to them as follows:
1.1.1 "Act" means the Canada Business Corporations Act, R.S.C. 1985, c. C-
44;
1.1.2 "Affiliate" means, with respect to any Shareholder which is a natural
person, any corporation (a) which is directly or indirectly Controlled by that
Shareholder, (b) which is wholly owned (beneficially and of record) and financed
(directly or indirectly) solely by such Shareholder and such Shareholder's
Family Members, and (c) as to which such Shareholder is the sole Person with the
right to vote as a shareholder, which right is not subject to any agreements or
promises of any kind by such Shareholder with or to any other Person:
1.1.3 "Agreement" means this Shareholder Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof;
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1.1.4 "Auditors" means the auditors of the Company from time to time, or
where the Company does not have auditors, its independent accountant;
1.1.5 "Average Shareholders Equity" means an amount as determined in
accordance with GAAP, by an unqualified opinion of the auditors of the Company,
for a fiscal year of the Company, which is the sum of:
(i) at the beginning of the applicable fiscal year, the total of:
(A) contributed surplus,
(B) share capital,
(C) retained earnings; and
(ii) the amount of the additional share capital issued prior to the
date of the determination and the end of the applicable fiscal
year, weighted to reflect the number of months the additional
share capital was issued during the fiscal year:
1.1.6 "Bank" means the banker of the Company from time to time;
1.1.7 "Board" means the board of directors of the Company from time to
time:
1.1.8 "Business Day" means a day other than a Saturday, Sunday or any day
on which the principal office of the Bank located in Vancouver, British
Columbia, is not open for business during normal banking hours;
1.1.9 "By-Laws" means the by-laws of the Company, as amended from time to
time;
1.1.10 "Ceo" means the chief executive officer of the Company;
1.1.11 "Control" or "Controls" means any of:
(i) the right to exercise a majority of the votes which may be
exercised at a general meeting of a corporation, including
votes which are exercisable only upon the occurrence of a
contingency where such contingency has occurred and is
continuing;
(ii) the right to elect or appoint directly or indirectly a
majority of the directors of the corporation or other persons
who have the right to manage or supervise the management of
the affairs and business of the corporation; or
(iii) the right, directly or indirectly, by contract or otherwise,
to manage or supervise all of the affairs and the business of
a Person.
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1.1.12 "Current Market Value" means the highest price available in an open
and unrestricted market between informed and prudent parties acting at arm's
length and under no compulsion to transact, expressed in terms of money or
money's worth;
1.1.13 "Employee Bonus" means a payment made to an employee of the
Company, other than Gelbart, Spencer, or ▇▇▇▇▇▇▇▇▇, pursuant to Section 4.1.
1.1.14 "Employee Reserved Shares" means the 1,267,963 common shares in the
capital of the Company reserved or allotted for distribution to employees of the
Company and its subsidiaries as an incentive to productivity and performance;
1.1.15 "Excusable Delay" means any delay in the performance or observance
by any party of any obligation of such party hereunder which occurs as a
consequence of or is attributable to any circumstance which is beyond the
reasonable control of such party and which is not caused by any default or act
of commission or omission of such party and is not avoidable by the exercise of
reasonable effort or foresight by such party (excluding financial inability, but
including without limiting the generality of the foregoing, strikes or labor or
industrial disturbances, civil disturbances, acts, orders, legislation,
regulations or directives of any governmental or other public authorities, acts
of public enemies, war, riots, sabotage, blockades, embargoes, shortages of
materials and suppliers, shortages of labor, lightening, earthquakes, fire,
storms, hurricanes, floods, wash-outs, explosions, acts of God and delays caused
by any other party);
1.1.16 "Family Member" means a child, sibling or former spouse of the
applicable Shareholder or any person of the opposite sex to whom that person is
married or with whom that person is living in a conjugal relationship outside of
marriage;
1.1.17 "Fully Diluted Shares" means the issued and outstanding common
shares of the Company, including the Employee Reserved Shares, whether issued or
not';
1.1.18 "FBDB Agreement" means the agreement described in paragraph C to
the recital of this Agreement;
1.1.19 "GAAP" means those accounting principles which are recognized as
being generally acceptable in Canada from time to time as set forth in the
Handbook published by The Canadian Institute of Chartered Accountants;
1.1.20 "Investment" means all the right, title and interest of a
Shareholder in and to all of the Shares owned by such Shareholder.
1.1.21 "Investment Purchase Price" means the sum of the Share Purchase
Price for each kind and class of shares of the Company owned by a Shareholder;
1.1.22 "▇▇▇▇▇▇▇▇▇ Agreement" means the agreement described in paragraph D
to the recital to this Agreement;
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1.1.23 "Net Profit" means the net profit of the Company for a fiscal year,
as determined in accordance with GAAP, by an unqualified opinion of the auditors
of the Company, provided that the following are fully expended during that
fiscal year:
(i) research and development costs,
(ii) interest costs, and
(iii) the aggregate of all Employee Bonuses declared that fiscal
year;
1.1.24 "Operating Profit" means Net Profit, plus:
(i) taxes (but excluding tax credits),
(ii) Employee Bonuses, and
(iii) extraordinary items;
1.1.25 "Person" means any individual, corporation, partnership, trustee or
trust or unincorporated association;
1.1.26 "Policies" means the life insurance policies owned from time to
time by the Company on the lives of the Management Shareholders;
1.1.27 "Related Companies" means subsidiaries of the Company and companies
directly or indirectly Controlled by or under common Control with the Company;
1.1.28 "Secretary" means at the relevant time the secretary of the
Company;
1.1.29 "Share Purchase Price" means, in relation to the shares of a
particular kind and class of shares of the Company owned by a Shareholder, the
amount which is the product of the number of shares of the particular kind and
class registered in the name of the Shareholder multiplied by the Current Market
Value per issued and outstanding share of the particular kind and class as of
the Valuation Date and which shall be based on the latest financial statements
of the Company, and determined by the Auditors in accordance with the following
principles:
(i) subject to the following subparagraphs of this definition,
GAAP will be consistently applied;
(ii) value attributed to goodwill will be zero;
(iii) no reduction or premium will be included as a result of a
minority or majority position;
(iv) declared but unpaid dividends will be included;
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(v) upon the death of a Management Shareholder, the life
insurance proceeds (if any) so received by the Company will
not be taken into account in the valuation of the
Shareholder's Common Share Purchase Price; and
(vi) the determination of the Auditors will be final and
conclusive;
1.1.30 "Shareholder" means FBDB, each of the Management Shareholders, and
each of the Persons comprising STAR, and the respective successors or permitted
assigns of each of the foregoing, and "Shareholders" means all of such entities
collectively; provided, however, that all of the Persons comprising STAR and any
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and all STAR Transferees (together with any Person or Persons (the "Other
Investors") purchasing shares of the Company or any Related Company pursuant to
Section 4.3 of the Share Purchase Agreement) shall be deemed to be a single
Person and their ownership of Shares (including any shares of the Company which
the Other Investors have acquired, or have a right to acquire, pursuant to
Section 4.3 of the Share Purchase Agreement) shall be aggregated for purposes of
this Section 1.1.30;
1.1.31 "Share Purchase Agreement" means that certain Share Subscription
and Purchase Agreement dated as of April __, 1994, by and among the Company and
STAR;
1.1.32 "Shares" means at the relevant time the common shares and the
preference shares in the capital of the Company issued and outstanding;
1.1.33 "STAR Transferee" means any Person which controls, is controlled
by, or is under common control with STAR II, STAR III, or STAR IIIA, or which is
managed by the Manager. The "Manager" means the Person which makes investment
decisions for STAR II, STAR III, or STAR IIIA, or any Person which controls, is
controlled by, or is under common control with, such Person. In addition to the
foregoing, for a period of six (6) months from the date of this Agreement, "STAR
Transferee" shall include (solely as to 20% of the Shares owned by STAR) any
Person or Persons engaged in the business of venture capital financing, which
Person or Persons shall be subject to the prior approval of the Company, such
approval not to be unreasonably withheld.
1.1.34 "Valuation Date" means with respect to the determination of a
Shareholder's Investment Purchase Price the last day of the month immediately
preceding the date of a Default as defined in Section 10.1.
1.2 Internal Reference
The terms "hereof", "hereto" and "hereunder" are similar expressions, mean
and refer to this Agreement and not to any particular Article or Section of this
Agreement.
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1.3 Including
The word "including", when following any general statement, term or matter,
shall not be construed to limit such general statement, term or matter to the
specified item or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as "without
limitation" or "but not limited to" or word of similar import) is used with
reference thereto but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of such
general statement, term or matter.
1.4 Computation of Time Periods
In this Agreement and any notice or other document delivered hereunder,
except where expressly otherwise provided, in the computation of a period of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding".
1.5 Currency
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in Canadian funds.
1.6 Headings
The index to this Agreement and the headings of the Articles hereof are
included for convenience only and do not form a part of this Agreement, nor are
they intended to be full or accurate descriptions of, or to interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof and
they will not affect its construction.
1.7 Accounting Terms
All accounting terms not defined in this Agreement will have those meanings
generally ascribed to them in accordance with GAAP, applied consistently.
1.8 Applicable Laws and Attornment
This Agreement will in all respects be governed by and be construed in
accordance with the laws of the Province of British Columbia and the laws of
Canada applicable in the Province of British Columbia. Each of the parties
hereto hereby irrevocably attorns to the jurisdiction of the courts of the
Province of British Columbia.
1.9 Number and Gender
Wherever the singular or the masculine is used herein the same will be
deemed to include the plural or the feminine or the body politic or corporate.
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ARTICLE 2
THE FBDB AGREEMENT AND THE ▇▇▇▇▇▇▇▇▇ AGREEMENT
2.1 FBDB Agreement
The Company, FBDB and the Management Shareholders agree that this Agreement
shall be deemed to amend and replace the FBDB Agreement in its entirety, and
that the FBDB Agreement is terminated and of no further force or effect, from
and after the date of this Agreement.
2.2 ▇▇▇▇▇▇▇▇▇ Agreement
The Company, FBDB and the Management Shareholders agree that this Agreement
shall be deemed to amend and replace paragraphs 6, 7, 8, 9, 11, 14, 23, and 25
of the ▇▇▇▇▇▇▇▇▇ Agreement in their entirety, and that such paragraphs of the
▇▇▇▇▇▇▇▇▇ Agreement are terminated and of no further force or effect, from and
after the date of this Agreement.
ARTICLE 3
CONDUCT OF THE AFFAIRS OF THE COMPANY
3.1 Implementation
Each Shareholder will vote an act at all times in its capacity as such, and
will use its best endeavours and take all such steps as may be reasonably within
its powers, so as to cause the Company to act in the manner contemplated by the
provisions of this Agreement and so as to implement fully the provisions of this
Agreement and to the extent, if any, which may be permitted by law, will cause
their nominees as directors of the Company so to act.
3.2 Composition of the Board
Notwithstanding any provisions of the Company's Certificate or Articles of
Incorporation or By Laws, each Shareholder will vote its Shares at all meetings
of shareholders at which it is represented so that the Board will be comprised
of six directors and so that one nominee of each of ▇▇▇▇▇▇▇, Gelbart, Michelson,
FBDB, STAR, and the employees that hold shares granted from the Employee
Reserved Shares, is a director of the Company; provided, however, that the
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Shareholders may by unanimous agreement increase the number of directors to
seven or to eight and by unanimous agreement nominate directors to occupy the
vacancies so created. If a position on the Board is open for any reason
whatsoever, only the party (or parties) whose nominee formerly occupied that
position will be entitled to nominate a new director to fill that vacancy.
Notwithstanding the foregoing. If any party to this Agreement owns less that 3%
of the issued common shares, it will not have a right to nominate a director (or
to participate in the nomination of a director nominated by all of the
Shareholders), and in such case the number of directors on the Board will be
correspondingly reduced; provided, however, that for purposes of this Article 3,
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the
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shareholdings of STAR II, STAR III, STAR IIIA, Interstock, Unicycle, Shoham, and
any STAR Transferee (together with the shares which any Other Investor (as
defined in Section 1.1.30 hereof) has acquired, or has a right to acquire,
pursuant to Section 4.3 of the Share Purchase Agreement) shall be aggregated and
STAR II, STAR III, STAR IIIA, Interstock, Unicycle, Shoham, and any STAR
Transferee (along with such Other Investor) shall together be deemed to be a
single Shareholder. Whether or not FBDB nominates a Director to the Board of
Directors of the Company, during any time when FBDB is entitled to so nominate a
Director, FBDB shall have the right to send an additional Representative to
meetings of the Board of Directors, which Representative(s) shall be invited to
attend all Board meetings and shall receive all information and material
presented to the Board, as would a director. Notwithstanding anything in this
Section 3.2, in the event that a Management Shareholder is terminated as an
employee of the Company for Cause (as defined below), or voluntarily terminates
his employment with the Company, then he shall only be entitled to act as a
Director of the Company with the consent of a majority of the other Directors of
the Company, but in the absence of such consent he shall retain the right to
nominate a person other than himself to serve as a Director of the Company;
provided, however, that the nominee of such Management Shareholder to serve as a
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Director of the Company shall be subject to the approval of a majority of the
other Directors of the Company, such approval not to be unreasonably withheld.
For purposes of this Section 3.2, "Cause" shall mean (1) a breach of trust,
including for example, but without limitation, acts of moral turpitude, theft,
embezzlement, self-dealing; (2) a material breach by a Management Shareholder of
the terms of his employment agreement; or (3) any act of, or omission by, a
Management Shareholder which, in the reasonable judgment of the directors of the
Company, amounts to a serious failure by such Management Shareholder to perform
his responsibilities or functions or in the exercise of his authority, which
failure, in the reasonable judgment of the directors of the Company, rises to a
level of gross nonfeasance, misfeasance or malfeasance.
3.3 Removal of Director
If a director fails to vote and act as a director to carry out the
provisions of this Agreement, then the Shareholders will exercise their right as
shareholders of the Company and in accordance with the Articles remove that
nominee from the Board. The party (or parties) whose nominee formerly occupied
that position will be entitled to nominate a new director to fill that vacancy.
3.4 BY-laws
Unless otherwise provided herein, the conduct of the business of the
Company will be governed in accordance with the By-laws.
3.5 Quorum and Directors' Meetings
A quorum required for the transaction of business at a meeting of the Board
will be four directors (of which one must be a nominee either of FBDB or of
STAR), and there shall be a minimum of four Board meetings held at approximately
three month intervals during each fiscal year that this Agreement remains in
force.
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3.6 FBDB and STAR Directors Consent
The following matters will only be undertaken by the Company with the
consent of a majority of the directors of the Company which majority includes
the directors of the Company nominated by FBDB and STAR:
3.6.1 any increase or reduction in the capital of the Company or any
alteration of the Company's capital structure;
3.6.2 the declaration of dividends on the shares of the Company;
3.6.3 the redemption or purchase for cancellation or other retirement of
any of its securities;
3.6.4 any alteration of the Articles of Incorporation or By-laws of the
Company.
3.7 FBDB or STAR Directors Consent
The following matters will only be undertaken by the Company with the
consent of a majority of the directors of the Company which majority includes
either the director of the Company nominated by FBDB or the director of the
Company nominated by STAR:
3.7.1 the hiring or termination of the CEO, the President or any vice-
president of the Company;
3.7.2 any increase in the remuneration of any officers or directors of the
Company.
3.7.3 the issue of shares by the Company, with the exception of issuances
of Employee Reserved Shares to employees other than the Management Shareholders;
3.7.4 the consolidation, merger or amalgamation of the Company with any
other company, association, partnership or legal entity;
3.7.5 any transaction out of the ordinary course of the business of the
Company;
3.7.6 the incorporation of a Related Company;
3.7.7 any increase in the number of directors of the Company, except an
increase made to appoint a nominee of a Person who makes an investment in the
Company of not less than $500,000;
3.7.8 the expenditure by the Company of any amount in excess of $100,000
aggregate in any calendar year for the repurchase of shares of the Company.
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3.8 Allotments
Subject to the provisions of the applicable provincial or federal statutes
for such offering, the Company shall offer to each Shareholder a pro rata right
to purchase future shares allotted, provided the foregoing does not apply to any
allotment pursuant to:
3.8.1 rights of exchange or conversion attached to shares or other
securities of the Company;
3.8.2 an amalgamation;
3.8.3 a compromise or arrangement;
3.8.4 a dividend payable in shares;
3.8.5 the allotment of shares made pursuant to the terms of any agreement
between the Company and any employee or Director thereof (in the case of a
Director, only so long as such allotment is part of such Director's
compensation) effective during the period of employment or appointment and or at
the termination of the employment or the appointment of any such employee or
Director;
3.8.6 an allotment of any of the Employee Reserved Shares; or
3.8.7 an allotment of any shares issued pursuant to Section 6.4 of that
certain Share Subscription and Purchase Agreement of even date herewith by and
among the Company and STAR (the "Purchase Agreement") or pursuant to Section 4.3
of the Purchase Agreement.
3.9 Confidentiality of Private Affairs
No Shareholder will (while a Shareholder of or employed by the Company or
at any time thereafter) disclose to any Person not a Shareholder at the time of
disclosure, the private affairs of the Company or any of its Related Companies,
contracts or agreements of the Company or its Related Companies, the financial
position of the Company or its Related Companies (except that FBDB and STAR may,
in good faith, disclose the financial position of the Company to a creditor of
the Company, if acting in good faith FBDB or STAR forms the view that such
disclosure is in the best interests of the Company, or to a prospective
purchaser of its interest in the Company), any prospects of business of the
Company or its Related Companies which is not public knowledge and will not
(either while such Shareholder is a Shareholder of or employed by the Company or
at any time thereafter) use for its own purposes (except that FBDB and STAR
shall have the right to refer to their investment in the Company in their
publications and promotional material) or for any purposes other than those of
the Company and information he may acquire in relation to the business of the
Company or its Related Companies.
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3.10 Intellectual Property
The Company will cause each of the persons, whether employees of the
Company or consultants, as may from time to time be engaged by the Company to
assign to the Company any and all rights, patents and inventions arising out of
the work of such employees or consultants or arising out of the use of funds,
materials or facilities of the Company together with any product, process or
technique, the development of which arises directly or indirectly from the
development of the above-mentioned products.
3.11 Trade Secrets and Secret Information
All trade secrets and secret information (including trade secrets and
secret information discovered or developed by the Company or its Related
Companies) which the Shareholders or any of them may acquire respecting any
process, formula, plan, skill, research, equipment or method of doing business,
developed or being developed or used by or known to the Company or its Related
Companies while they are Shareholders of the Company or during their term of
employment with the Company shall at all times (both while they are Shareholders
of or employed by the Company and at all times thereafter) and for all purposes
be held for the Company in a fiduciary capacity and solely for the benefit of
the Company and the Shareholders and each of them covenants and agrees with each
of the parties hereto not to use (either while they are Shareholders of or
employed by the Company or at any time thereafter) for their own purposes any
trade secret or secret information aforesaid or disclose, divulge or communicate
orally, in writing or otherwise to any person or persons any trade secret or
secret information aforesaid. The CEO, in his discretion, shall determine which
of the employees of the Company shall be required to enter into an appropriate
formal secrecy agreement with respect to the trade secrets and secret
information of the Company.
3.12 Non-Competition
No Shareholder will, while a Shareholder of the Company, or at any time
during the period of two years from the date that such Shareholder ceases to be
a Shareholder of the Company, directly or indirectly, as principal, agent,
trustee, or through the agency of any incorporation, partnership, association or
agent or agency, within North America, Europe, or Japan:
3.12.1 solicit, encourage or suggest to any Shareholder or Shareholders or
employee or employees or agent or agents of the Company or its Related Companies
that such Shareholder or Shareholders or employee or employees or agent or
agents or any of them leave the employ of the Company or its Related Companies
or cease to act as its agent;
3.12.2 other than FBDB or STAR, engage in a line of business that is
competitive with the business now, or at any time while such Shareholder is
employed by or acts as a director of the Company, carried on by the Company; or
3.12.3 canvass or solicit any business, if doing so would in any way,
directly or indirectly, be detrimental to the business or best interest of the
Company, from any person
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who shall at any time while such Shareholder was a Shareholder, have been a
client or customer of the Company or any of its Related Companies.
3.13 Books and Records
The Company shall at all times maintain at its head office proper books of
account, which shall contain accurate and complete records of all transactions,
receipts, expenses, assets and liabilities of the Company.
3.14 Reporting to the Board
The Company shall, and the Board of Directors shall cause the officers of
the Company to, prepare and provide to the Board, FBDB, and STAR:
3.14.1 within 30 days before the end of each fiscal year and at other
times as it may be prepared, a budget for the forthcoming 12-month period
comprising projected statement of income and expenses, cash flow projections and
pro forma balance sheet for the coming year;
3.14.2 within 30 days of the end of each month, unaudited financial
statements including a balance sheet as at the end of such month and statements
of income or loss, with comparatives to the preceding fiscal year and the budget
for the corresponding period;
3.14.3 within 90 days of the end of each fiscal year, audited financial
statements including without limitation a balance sheet prepared as at the end
of such year, and statements of income or loss, changes in financial position
and changes in retained earnings for such fiscal year, with comparatives to
the previous fiscal year;
3.14.4 within 30 days of each fiscal quarter, unaudited financial
statements including without limitation a balance sheet prepared as at the end
of such quarter, and statements of income or loss, changes in financial position
and changes in retained earnings for such fiscal quarter, with comparatives to
the previous fiscal quarter;
3.14.5 from time to time, as required by the Board a strategic plan for
the forthcoming 12-month period, within 60 days of receipt of a request for such
plan from the Board;
3.14.6 such other information, accounts, data and projections as any
director may reasonably request from time to time.
Each of FBDB and STAR reserves the right to receive additional information from
the Company and its auditors, which is reasonably required to understand better
the affairs of the Company. Any director in a representative capacity may pass
that and all other information received by him to the Shareholder he represents.
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3.15 Notice of Shareholders Meetings
The Company will provide to all Shareholders not less than 21 days notice
in writing of any meeting of the Shareholders will be entitled to copies of
minutes of proceedings at Shareholders meetings.
3.16 Membership on Committees
3.16.1 The nominee director of STAR shall be appointed to the Compensation
Committee of the Company (the "Compensation Committee") and, if such Committee
is established, to any Finance Committee of the Company.
3.16.2 The nominee director of FBDB shall be appointed to the Compensation
Committee, the audit committee of the Company and, if such committee is
established, to any finance committee of the Company.
3.17 Boards Of Subsidiaries
The Board of Directors of any subsidiary of the Company which conducts, or
which is proposed to conduct, a material portion of the Company's business shall
be identical to the Board of Directors of the Company as from time to tome
constituted. The decision whether a subsidiary is conducting, or is proposed to
conduct, a material portion of the Company's business shall be made form time to
time by a majority of the Board of Directors of the Company which majority shall
include either the director nominated by FBDB or the director nominated by STAR.
The Board of Directors of any other subsidiary of the Company shall be comprised
as determined by the Board of Directors of the Company from time to time and
shall report quarterly to the Board of Directors of the Company.
ARTICLE 4
COMPENSATION COMMITTEE
4.1 Distribution of Bonuses and Employee Reserved Shares
The Company may pay an Employee Bonus to employees of the Company and its
subsidiaries, in such aggregate amount as the Company deems appropriate, and may
issue all or any portion of the Employee Reserved Shares, provided:
4.1.1 the Employee Bonus shall only be paid from funds which constitute
the Operating Profit for the applicable fiscal year;
4.1.2 the aggregate of all Employee Bonuses declared for the applicable
fiscal year shall not exceed 12% of the Base Amount (as defined below) and shall
be determined as follows:
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(a) Employee Bonuses shall be paid to all employees of the Company,
other than Spencer, Gelbart, and ▇▇▇▇▇▇▇▇▇, in an aggregate amount which is 9%
of the Base Amount;
(b) Employee Bonuses may, at the sole discretion of the Company's
management, be paid to any employees of the Company, other than Spencer,
Gelbart, and ▇▇▇▇▇▇▇▇▇, in an aggregate amount which is no greater than 3% of
the Base Amount;
(c) for purposes of this Section 4.1.2, the Base Amount in any fiscal
year shall be an amount equal to:
(i) Operating Profit, less
(ii) 12% of Average Shareholders Equity.
4.1.3 the Employee Reserved Shares may only be allotted and issued with
the consent of a majority of the Company's Board of Directors.
4.2 Limitation
No Employee Bonus may be declared to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇, and no
Employee Reserved Shares may be issued to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ by the
Company without the prior, written approval of the Compensation Committee which
approval must include the affirmative vote of the STAR nominee or the FBDB
nominee.
ARTICLE 5
RESTRICTIONS ON TRANSFER/RIGHT OF FIRST REFUSAL
5.1 Right of First Refusal
Except as otherwise expressly permitted in this Agreement, a Shareholder
wishing to sell, transfer or otherwise dispose of any of his Investment (the
"Offeror") will first offer to each of the other Shareholders (the "Others") by
notice in writing (the "Offer") delivered to the Others, the prior right to
purchase, receive or otherwise acquire such portion of the Investment of the
Offeror.
5.2 Contents of Offer
The Offer will state that the Offeror has determined to avail himself of
the provisions of this Article 5 and will set forth:
(a) the portion of the Investment offered for sale (the "Offered
Portion");
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(b) the price at which the Offeror offers to sell the Offered Portion;
(c) the terms and conditions of the sale;
(d) that the offer must either be accepted in its entirety or not at all
and that it is open for acceptance by the others for a period of 30
days after receipt of the Offer (the "Preliminary Period");
(e) in the event of a third party offer, a copy of such offer.
5.3 Pro Rata Acceptance of Offer
The Offer must initially be open for acceptance by the Others for a
Preliminary Period of 30 days after receipt of the Offer (the "Preliminary
Period"), within which they may elect to accept the Offer pro rata in accordance
with their respective shareholdings in the Company of the kind and class of
Shares included in the Offer.
5.4 Notice of Acceptance During Preliminary Period
Acceptance of the Offer by any of the Others during the Preliminary Period
will be by notice to the Offeror and by such acceptance an Other may specify any
additional portion of the Offered Portion offered for sale that such Other is
prepared to purchase in the event that any of the other; Others fails to accept
their pro rata proportion of the Offer (his "Specified Additional Portion").
5.5 Notice of Expiry of Preliminary Period
The Offeror will forthwith advise each of the Others by notice of the
extent to which the Offer has not been accepted upon the expiration of the
Preliminary Period.
5.6 Additional Acceptance Following Preliminary Period
To the extent the Offer has not been accepted in its entirety by the
Others within the Preliminary Period, such of the Others as have in their notice
of acceptance of the Offer specified a Specified Additional Portion (the
"Eligible Others") will be entitled prior to the expiration of an additional 30
days (the "Offering Period"), to accept such portion of the Investment as is
then available by notice to the Secretary. The portion of the Offered Portion
not accepted during the Preliminary Period will be divided between the Eligible
Others as may be agreed between them, and failing agreement, will be divided pro
rata as provided in Section 5.3 except that no Eligible Other may accept more
than his Specified Additional Portion of the Offered Portion except with the
unanimous consent of the Eligible Others. In the event that the pro rata share
of an Eligible Other is limited by his Specified Additional Portion as
aforesaid, that portion of his pro rata share in excess of his Specified
Additional Portion will be divided among the remaining Eligible Others where pro
rata shares do not exceed their Specified Additional Portions pro rata as
provided in Section 5.3.
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5.7 Notice to Offeror
Upon the expiration of the Offering Period, the Offeror will advise the
Offerees whether the Offer has been accepted in its entirety and if so, by whom.
5.8 Closing
5.8.1 In the event that the Offer has been accepted in its entirety, the
closing of the purchase and sale of the Offered Portion to the other
Shareholders shall take place promptly following the expiration of the Offering
Period.
5.8.2 Subject to Section 5.11, if the Offer is not wholly accepted within
the Offering Period, the Offeror may, within 90 days after the expiry of the
Offering Period, sell, transfer, or otherwise dispose of the Offered Portion to
any other Person (a "Third Party") for not less than the price and on no better
terms and conditions than as set out in the Offer. If a sale to a Third Party is
not completed within 90 days after expiry of the Offering Period, the provisions
of Sections 5.1 to 5.7 will again become applicable to any sale, transfer or
other disposition of the Offeror's Investment.
5.9 Agreement Binding on Third Party
No sale, transfer or disposition of an Investment permitted by Sections
5.8, 5.10, 5.11, or 5.12 will be made unless the Third Party (or other
transferee as described in such sections) has entered into an agreement with the
Others and the Company under which the Third Party agrees to be bound by and
will be entitled to the benefit of the provisions of this Agreement.
5.10 Transfer to Affiliate
Notwithstanding Section 5.1, any Shareholder may transfer or otherwise
dispose of the whole of its investment to any of its Affiliates, provided that
the Shareholder and the Affiliate enter into an agreement with the other
Shareholders and the Company to the effect that:
(a) the Affiliate will remain such so long as the Affiliate holds the
Investment or any part thereof;
(b) the Affiliate will otherwise be bound by and have the benefit of the
provisions of this Agreement as a Shareholder;
(c) prior to the Affiliate ceasing to be such, the Affiliate will transfer
its Investment back to the Shareholder or to another Affiliate of the
Shareholder (provided that the transferee Affiliate enters into an agreement
with the other Shareholders and the Company to the same effect as that entered
into by the transferor Affiliate).
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5.11 Transfers by Management Shareholders
(a) Except as provided in this Section 5.11, the Management Shareholders
may not sell, transfer or otherwise dispose of their Investment to any third
party except a Shareholder.
(b) In the event that STAR sells more than 50% of its Investment to third
parties other than STAR Transferees, the Management Shareholders may transfer
their Investments without regard to this Section 5.11, subject to the rights of
first refusal described above and to Article 6 hereof.
(c) In the event that the Company terminates without Cause (as defined in
Section 3.2 above) the employment of any management Shareholder, he may transfer
all of his Investment, subject to the rights of first refusal described above,
upon approval by the Company of the intended transferee, such approval not to be
unreasonably withheld. This Section 5.11 (c) shall not apply in the event that
the Company terminates with Cause the employment of any Management Shareholder
or in the event that any Management Shareholder voluntarily leaves the
employment of the Company.
(d) Notwithstanding the provisions of Section 5.11 (a), each Management
Shareholder may for a period of five (5) years from the date hereof transfer
Shares representing up to 20% of the number of Shares held by him on the date
hereof, and may during the period beginning two (2) years from the date hereof
and ending five (5) years from the date hereof transfer Shares representing up
to an additional 10% of the number of Shares held by him on the date hereof, and
may during the period beginning four (4) years from the date hereof and ending
five (5) years from the date hereof transfer Shares representing up to an
additional 10% of the number of Shares held by him on the date hereof, subject
in any such case to the rights of first refusal described above and to Article 6
hereof; provided, however, that the transfer under this Section 5.11 (d) of the
--------
first 6.7% of the number of Shares held by each Management Shareholder shall not
be subject to Article 6 hereof.
(e) Notwithstanding anything else set forth in this Agreement, each of the
Management Shareholders may freely sell, transfer or otherwise dispose of any of
the Investment to a Family Member, provided, however, that any such transfer
shall be subject to the voting rights of and for his shares remaining with and
being exercised solely by such Management Shareholder, and each of the
Management Shareholders covenant and agree to do such things and execute such
further assurances as may be necessary to assure compliance by such Family
Member of the provisions of this Section 5.11 (e); and provided further, that
-----------------
such Family Member shall be bound by all of the terms and conditions of this
Agreement as if he or she were a party hereto. Each of the Management
Shareholders agree that upon any such transfer, the Company shall have the
unfettered liberty to recognize only such Management Shareholder as having the
right to exercise the vote or votes attached to the transferred shares.
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(f) In the event that a Management Shareholder's Investment is transferred
upon his death to his heirs, such heirs shall be entitle to sell, transfer or
otherwise dispose of any portion of such Investment without regard to this
Section 5.11, but subject to the rights of first refusal described above.
(g) Each Management Shareholder agrees that this Section 5.11 applies to
Family Members and Affiliates to which any portion of a Management Shareholder's
Investment was transferred, sold, or otherwise disposed prior to the date of
this Agreement as if such transfer, sale, or other disposition took place after
the date of this Agreement.
(h) This Section 5.11 shall terminate upon the Company's initial public
offering of shares.
5.12 Transfers by Star
Notwithstanding anything else set forth in this Agreement, STAR may freely
sell, transfer or otherwise dispose of any of STAR's Investment to a STAR
Transferee.
5.13 Prohibition on Encumbrances
Except as specifically provided herein, no Shareholder will mortgage,
pledge, charge, hypothecate or otherwise encumber his Investment or any part
thereof without the prior written consent thereto of the Board.
5.14 Prohibition on Transfer by Defaulting Shareholder
Notwithstanding any other provision of this Agreement, no Shareholder will
be entitled to sell, transfer or otherwise dispose of any of his Investment in
accordance with Sections 5.1 to 5.13 of he is at such time a Defaulting
Shareholder as defined in Article 7, unless prior to or concurrent with such
sale, transfer or other disposition he ceases to be a Defaulting Shareholder.
5.15 FBDB
If FBDB is required by law to sell, transfer or otherwise dispose of all
or substantially all of its assets, FBDB may transfer or otherwise dispose of
all shares of the Company held by FBDB to any person provided that:
(a) such person has become party to this Agreement; and
(b) neither such person nor any of its associates or affiliates is engaged
in a business which competes with the business of the Company as then
constituted.
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5.16 Share Endorsement
Each of the Shareholders shall authorize and instruct the Company to
endorse on the face of each certificate the following:
"The shares represented by this certificate are transferable only in compliance
with and pursuant to the terms of an agreement among the Shareholders of CREO
Products Inc., made as of the 29/th/ day of April 1994."
5.17 Voting Rights
The endorsement of share certificates under Section 5.16 will not affect
the right of any Shareholder to vote the Shares held by him, to receive any
dividends paid thereon or to receive any amounts paid by the Company as a return
of capital or otherwise.
ARTICLE 6
PIGGYBACK
6.1 Subject to the procedures relating to the rights of first refusal
described in Article 5 above, if any Shareholder other than STAR (the "Seller")
shall wish to sell, exchange or transfer any of its shares (the "Subject
Shares") to any person other than a Shareholder (the "Buyer"), the Seller shall
give to the other Shareholders (including STAR) an equal right respectively, to
sell to the Buyer all or an equivalent portion, as the case may be, of their
shares at the same price and terms as are applicable to the Subject Shares.
6.2 The Seller shall give the other Shareholders 30 days written notice (the
"Piggyback Notice") of any intended sale, stating the Buyer, the number of
shares and the price and terms. Any other Shareholder may by written notice
(the "Acceptance") to the Seller not later than 20 days after receipt of the
Piggyback Notice elect to participate in such sale and include therein his
respective portion of the Subject Shares at the same price and on the same terms
specified in the Piggyback Notice. The Seller shall be free to sell the Subject
Shares to the Buyer at no lesser price and on no less favorable terms than
stated in the notice, provided that the Buyer must concurrently purchase any
Shares as to which the Seller has received an Acceptance, at the same price and
on the same terms applicable to the Subject Shares.
ARTICLE 7
REGISTRATION RIGHTS
7.1 Incidental Registration. If the Company shall elect to offer any of its
securities to the public, it shall give notice to the Shareholders of such
intention, and shall include in such offering a portion of the Shareholders'
Shares in each case equal to the total amount of shares registered, multiplied
by an amount derived by dividing the number of Shares held by such Shareholder,
by the total number of shares outstanding at that time. In the event the public
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offering involves an underwriting, the rights of the Shareholders hereunder
shall be conditional upon the underwriter's determination as to marketing
factors requiring the limitation of such right, and the underwriter may preclude
from the offering any or all securities which could have otherwise been included
in the offering.
7.2 Demand Registration. At any time commencing one year following the closing
of the Company's initial public offering, and for a period of five (5) years
thereafter, a Shareholder or Shareholders holding, in either case in the
aggregate at least 3% may request in writing that all or part of the requesting
parties' Shares shall be registered for trading on any securities exchange;
provided, however, that such request must cover Shares representing a market
--------
value at the time of such request equal to a minimum of C$5,000,000. Within 20
days after receipt of any such request, the Company shall give written notice of
such request to the other Shareholders and shall include in such registration
all Shares held by them with respect to which the Company receives written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. Thereupon, the Company shall use its best efforts to affect the
registration of all Shares (as to which it has received requests for
registration) for trading on the securities exchange specified in the request
for registration. In the event the registration involves an underwriting, the
rights of the Shareholders hereunder shall be conditional upon the underwriter's
determination as to marketing factors requiring the limitation of such right,
and the underwriter may preclude from the offering any or all securities which
could have otherwise been included in the offering.
7.3 Selection of Managing Underwriters. The managing underwriter or
underwriters for any offering of Shares pursuant to Section 7.1 shall be
selected by the Company, and the managing underwriters for any offering of
Shares pursuant to Section 7.2 shall be selected by the Shareholder delivering
the request for registration.
7.4 Expenses. All expenses incurred in connection with a registration under
Section 7.2 shall be borne by the selling Shareholders participating in such
registration on a pro rata basis; provided, however, that the Company shall pay
--------
any expenses associated with such registration which the Company would have
incurred in the ordinary course of business. All expenses incurred in
connection with a registration under Section 7.1 shall be borne by the Company;
provided, however, that each of the Shareholders participating in such
--------
registration shall pay its pro rata portion of the fees, discounts or
commissions payable to any underwriter.
7.5 No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Shareholders in this Article 7.
7.6 Indemnification. In the event any of the Shareholders' Shares are included
in a registration statement under this Article 7:
7.6.1 The Company will indemnify each Shareholder, each of its officers and
directors and partners and such Shareholder's separate legal counsel and
independent accountants, and each person Controlling such Shareholder, and each
underwriter, if any, and
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each person who Controls any underwriter, against all expenses (including legal
and accounting expenses), claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by the
Company of any rule or regulation applicable to the Company in connection with
any such registration.
7.6.2 Each Shareholder will, if Shares held by such Shareholder are
included in the securities as to which such registration is being effected,
indemnify the Company, each of its directors and officers and its legal counsel
and independent accountants, each underwriter, if any, of the Company's shares
covered by such a registration statement, each person who Controls the Company
or such underwriter, and each other such Shareholder, each of its officers and
directors and each person Controlling such Shareholder, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the obligations of each
Shareholder hereunder shall be limited to an amount equal to the proceeds to
each such Shareholder of shares sold as contemplated in this Article 7.
ARTICLE 8
INSURANCE POLICIES
8.1 Insurance on Shareholders
The Company will to the extent he is insurable, own and maintain the
Policies, which shall be payable to the Company, on the life of each of the
Management Shareholders (except ▇▇▇▇▇▇▇▇▇), each totalling not less than
$2,000,000 in amount, and may own and maintain Policies on the life of other
Shareholders who are natural persons for an initial term of two years. Within a
reasonable time prior to the expiration of the two year term, the Board will
determine whether or not to renew the Policies on such terms and for such
periods as the Board may deem advisable.
8.2 Maintain Policies
The Company will pay the premiums on the Policies as they become due and
maintain the Policies in good standing and in full force and effect so long as
the Shareholder remains such. If any premium is not paid by the Company within
thirty days after its due date, the Shareholder whose life (or whose
Representative's life) is insured under the Policy on which
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that premium is due will have the right to pay such premium and be reimbursed
therefor by the Company on demand.
8.3 Policy Information
The Company will authorize and direct the insurer under any of the Policies
to give the insured Shareholder or Representative, upon his written request, any
information he may request with respect to any Policy on his life.
8.4 No Dealing with Policies
The Company may apply dividends (if any) on the Policies toward the payment
of premiums thereon. Subject thereto, the Company will not, without the prior
written consent of the Shareholders, modify or impair any rights or values of
the Policies, or exercise any right of ownership in such Policies, except to
collect the death benefits thereof.
8.5 Sale of Policies
If, for any reason, this Agreement is terminated while the Shareholders or
any of them are still living, then each Shareholder will have the right to
purchase from the Company any of the Policies on his life maintained by the
Company for a purchase price equal to the cash surrender value of such Policies
and if there is no cash surrender value, the Policies may be purchased for a
purchase price of $1.00.
ARTICLE 9
DEATH OF A MANAGEMENT SHAREHOLDER
9.1 Nomination of Director
Each of the Shareholders agrees that, subject to Section 9.2, upon the
death of a Management Shareholder, the right of such Management Shareholder to
nominate a director shall devolve to the heir or heirs of such Management
Shareholder who become the owner or owners of such Management Shareholder's
shares of the Company; provided, however, that the nominee of such heir or heirs
--------
to serve as a Director of the Company shall be subject to the approval of a
majority of the other Directors of the Company, such approval not to be
unreasonably withheld.
9.2 Heirs Bound by this Agreement
Each of the Management Shareholders agree that the rights described in
Section 9.1 may not be exercised until such heir or heirs agree in writing to be
bound by all of the terms and conditions of this Agreement.
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ARTICLE 10
10.1 Events of Default
It is an event of a default (a "Default") if any Shareholder (the
"Defaulting Shareholder"):
10.1.1 fails to observe, perform or carry out any of his obligations
hereunder and such failure continues for 30 days after any of the Shareholders
not in default (the "Non-Defaulting Shareholder" individually and the "Non-
Defaulting Shareholders" collectively) has, by notice in writing delivered to
the Secretary and the Defaulting Shareholder (the "Default Notice"), demanded
that such failure be cured;
10.1.2 fails to take reasonable actions to prevent or defend assiduously,
any action or proceeding brought against him to effect the seizure, execution or
attachment of his Investment (or part thereof) or which claims any right to
possess, sell, foreclose, appoint a receiver or receiver-manager, or forfeit or
terminate any part of his Investment, and such failure continues for 30 days
after a Non-Defaulting Shareholder has in writing demanded that such reasonable
actions be taken or Defaulting Shareholder fails to defend successfully any such
action or proceeding; or
10.1.3 becomes a bankrupt, commits an act of bankruptcy, makes an
assignment for the benefit of creditors or otherwise has appointed a receiver or
receiver-manager of its assets.
10.2 Remedies for Default
In the event of a Default under Section 10.1, the Non-Defaulting
Shareholder(s) may by two-thirds majority agreement of the Non-Defaulting
Shareholders do any one or more of the following:
10.2.1 pursue any remedy available to them in law or equity, it being
acknowledged by each of the Shareholders that specific performance, injunctive
relief (mandatory or otherwise) or other equitable relief may be the only
adequate remedy for a Default;
10.2.2 take all actions in their own names or in the name of the Defaulting
Shareholder, the Shareholders or the Company as may reasonably be required to
cure the Default, in which event all payments, costs and expenses incurred
therefor will be payable by the Defaulting Shareholder to the Non-Defaulting
Shareholder(s) on demand with interest at the rate of interest quoted by the
Royal Bank of Canada as its prime rate (at the beginning of each quarter) plus
1%.
10.2.3 implement the buy-sell procedure set out in Section 10.3;
10.2.4 waive the Default provided, however, that any waiver of a particular
Default will not operate as a waiver of any subsequent or continuing Default.
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10.3 Buy-sell Procedure
If the event of Default under Section 10.1 is unremedied 30 days after
receipt of the Default Notice, then on such date the Defaulting Shareholder is
deemed to offer to sell to the Non-Defaulting Shareholders (the "Default Offer")
all (or such portion as to which Non-Defaulting Shareholders accept such offer)
of his Investment on the following terms and conditions:
10.3.1 The price payable for the Investment of the Defaulting Shareholder
will be the Investment Purchase Price, to be paid at closing, by certified
cheque or wire transfer to the Defaulting Shareholder.
10.3.2 Each Shareholder shall initially be entitled to purchase its pro
rata share of the Defaulting Shareholder's Shares.
10.3.3 Prior to a date which is 60 days after the date of the Default
Notice (the "Preliminary Period"), any Shareholder may notify the Defaulting
Shareholder and the Secretary in writing whether it intends to purchase its pro
rata share of the Defaulting Investor's Shares and may specify any additional
portion thereof that such Shareholder is prepared to purchase in the event that
any of the other Shareholders fails to accept their pro rata proportion of the
Offer (his "Specified Additional Portion").
10.3.4 Notice of Expiry of Preliminary Period
The Secretary will forthwith advise each of the Shareholders by notice of
the extent to which the Default Offer has not been accepted upon the expiration
of the Preliminary Period.
10.3.5 Additional Acceptance Following Preliminary Period
To the extent the Default Offer has not been accepted in its entirety by
the Shareholders within the Preliminary Period, such of the Shareholders as have
in their notice of acceptance of the Default Offer specified a Specified
Additional Portion (the "Eligible Others") will be entitled prior to the
expiration of an additional 30 days (the "Offering Period"), to accept such
portion of the Defaulting Shareholder's Shares as is then available by notice to
the Secretary. The portion of the Investment not accepted during the Preliminary
Period will be divided between the Eligible Others as may be agreed between
them, and failing agreement, will be divided pro rata, except that no Eligible
Other may accept more than his Specified Additional Portion of the Investment
except with the unanimous consent of the Eligible Others. In the event the pro
rata share of an Eligible Other is limited by his Specified Additional Portion
as aforesaid, that portion of his pro rata share in excess of his Specified
Additional Portion will be divided among the remaining Eligible Others where pro
rata shares do not exceed their Specified Additional Portions pro rata as
provided in Section 5.3.
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10.4 Acceptance Procedure
The closing of the purchase of the Investment, or any portion thereof, of
the Defaulting Shareholder will occur on the 30th day following the date of the
last acceptance in respect to the Offer, or, if that day is not a Business Day,
then on the next ensuing Business Day (or such other date as the parties thereto
may agree), at which time the Defaulting Shareholder will deliver his
resignation to the Board and as an officer, if applicable, the appropriate
parties will execute and deliver such certified cheques, promissory notes, share
certificates, instruments, conveyances, assignments, escrow agreements and
releases as may be reasonably required to effect and complete the sale.
ARTICLE 11
GENERAL PROVISIONS
11.1 Termination
This Agreement will terminate, except as provided in Section 11.2;
11.1.1 if the Company is dissolved or has a receiving order made against
it, goes into bankruptcy either voluntarily or involuntarily or makes a proposal
to its creditors;
11.1.2 if all the parties mutually consent in writing to its termination;
or
11.1.3 upon the listing of the Company's shares on a recognized public
stock exchange.
11.2 Continuing Obligations
The termination of this Agreement will not affect the obligations of any
Shareholder or the Company arising pursuant hereto prior to the date of
termination to make payment of any balance owing on the purchase price in
respect of any Investment as may have been agreed upon pursuant to this
Agreement.
11.3 Former Shareholders
Any Shareholder who has disposed of all of his Interest in compliance with
the provisions of this Agreement will be entitled to the benefit of and be bound
by only the rights and obligations which arose pursuant to this Agreement prior
to such disposition.
11.4 Further Assurances
The Shareholders will execute such further assurances and other documents
and instruments and do such further and other things as may be necessary to
implement and carry out the intent of this Agreement.
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11.5 Entire Agreement, Modification and Waiver
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with the exception of paragraphs 1, 2, 3, 4, 5, 10, 12, 13, 15, 16, 17,
18, 19, 20, 21, 22, and 24 of the ▇▇▇▇▇▇▇▇▇ Agreement. Except for such
paragraphs of the ▇▇▇▇▇▇▇▇▇ Agreement, there are no warranties, representations
or other agreements between the parties in connection with the subject matter
hereof except as specifically set forth herein. No supplement, modification or
waiver or termination of this Agreement shall be deemed or shall constitute a
waiver of any other provisions (whether or not similar) nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided. Any
indulgence by or delay or omission by a party to exercise any right arising from
any default or omission will not affect or impair the rights of that party as to
any future default or omission.
11.6 No Partnership
Nothing in this Agreement shall be deemed in any way or for any purpose to
constitute any party a partner of any other party to this Agreement in the
conduct of any business or otherwise as a member of a joint venture or joint
enterprise with any other party to this Agreement.
11.7 Notices
Any notice required to be given hereunder shall be in writing and shall be
effectively given if (i) delivered personally, (ii) sent by prepaid courier
service, or (iii) sent by facsimile transmission, addressed as follows:
11.7.1 if to STAR
SMV STAR Ventures Management
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇▇
Attention: Managing Director
-----------------------------
with a copy to:
Goldfarb, Levy, Eran & Co.
Beit Eliahu
2 Ibn ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Adv.
---------------------------
-28-
11.7.2 if to the Company:
CREO Products Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: the Chief Executive Officer
---------------------------------------
11.7.3 if to FBDB:
Federal Business Development Bank
▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Senior Manager
---------- --------------
Venture Capital Division
------------------------
with a copy to:
Federal Business Development Bank
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Legal Counsel
---------- -------------
Venture Capital Division
------------------------
11.7.4 if to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
11.7.5 if to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
-29-
11.7.6 if to ▇▇▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
11.7.7 if to ▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o CREO Products Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any notice so given shall be deemed conclusively to have been given and received
when so personally delivered, on the second day following the sending thereof by
courier, or upon electronic confirmation of receipt of a facsimile transmission.
Any party hereto may change any particulars of its address for notice by notice
to the others in the manner aforesaid.
11.8 Time
Time will be of the essence hereof.
11.9 Enurement
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
11.10 Severability
If any one or more of the provisions contained in this Agreement is
invalid, illegal or unenforceable in any respect in any jurisdiction, the
validity, legality and enforceability of such provision or provisions will not
in any way be affected or impaired thereby in any other jurisdiction and the
validity, legality and enforceability of the remaining provisions contained
herein will not in any way be affected or impaired thereby.
11.11 Excusable Delay
Where a party is delayed in performing or observing a covenant or
obligation hereunder which is to be performed or observed by a specified date or
within a particular time by reason of Excusable Delay, the date or period of
time by or within which such party is to perform or observe such covenant or
obligation will be extended by a period of time equal to the duration of the
Excusable Delay.
-30-
11.12 Assignment
Except as expressly provided in this Agreement, no party may assign its
rights or obligations under this Agreement without the consent in writing of
each other party.
11.13 Counterparts
This Agreement may be executed by the parties in separate counterparts
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
11.14 Further Assurances
The parties hereto shall with reasonable diligence do all such things and
provide all such reasonable assurances as are required to consummate any
transaction contemplated hereby, and each party shall provide such further
documents or instruments reasonably required by any other party as may be
reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions.
[Remainder of page intentionally left blank.]
-31-
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first hereinabove set forth.
CREO PRODUCTS INC.
/s/ SIGNATURE
-------------------------
Authorized Signatory
_________________________
Authorized Signatory
SVE STAR VENTURES
ENTERPRISES NO. II
LIMITED PARTNERSHIP
/s/ SIGNATURE
-------------------------
Authorized Signatory
_________________________
Authorized Signatory
SVE STAR VENTURES
ENTERPRISES NO. III
LIMITED PARTNERSHIP
/s/ SIGNATURE
-------------------------
Authorized Signatory
_________________________
Authorized Signatory
SVE STAR VENTURES
ENTERPRISES NO. IIIA
LIMITED PARTNERSHIP
/s/ SIGNATURE
-------------------------
Authorized Signatory
_________________________
Authorized Signatory
-32-
INTERSTOCK ANSTALT
FUR VERMOGENS UND
TRUST VEWALTUNGEN
/s/ SIGNATURE
-------------------------
Authorized Signatory
UNICYCLE TRADING
COMPANY
/s/ SIGNATURE
-------------------------
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
FEDERAL BUSINESS
DEVELOPMENT BANK
/s/ SIGNATURE
-------------------------
Authorized Signatory
_________________________
Authorized Signatory
THIS AMENDMENT TO SHAREHOLDERS AGREEMENT made as of the 21st day of
November, 1994.
AMONG: CREO PRODUCTS INC., a company duly incorporated under the laws of
Canada, registered extraprovincially in the Province of British
Columbia, and having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (herein called the "Company")
OF THE FIRST PART
AND: FEDERAL BUSINESS DEVELOPMENT BANK, incorporated by special Act of
Parliament of Canada, having its head office in the City of Montreal,
in the Province of Quebec (herein called "FBDB")
OF THE SECOND PART
AND: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(herein collectively referred to as the "Founding Shareholders" and
individually referred to as "▇▇▇▇▇▇▇" and "▇▇▇▇▇▇▇", respectively)
OF THE THIRD PART
AND: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(herein called "▇▇▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(herein called "▇▇▇▇▇▇▇▇▇"; the Founding Shareholders, ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ are herein collectively referred to as the "Management
Shareholders")
OF THE FIFTH PART
AND: SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERSHIP (herein
called "STAR II"), SVE STAR VENTURES ENTERPRISES NO. III LIMITED
PARTNERSHIP (herein called "STAR III"), SVE STAR VENTURES ENTERPRISES
NO IIIA LIMITED PARTNERSHIP (herein called "STAR IIIA"), INTERSTOCK
ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN (herein called
"Interstock"), and UNICYCLE TRADING COMPANY (herein called
"Unicycle"),(STAR II, STAR III, STAR IIIA, Interstock, Unicycle and
Shoham are herein called "STAR"),
OF THE SIXTH PART
AND: EVERGREEN INTERNATIONAL INVESTMENTS N.V. (herein called "Evergreen"),
YAROK AZ Ltd. (herein called Yarok Az"), EVERGREEN CAPITAL MARKETS
LTD. (herein called "Capital Markets"), EVERGREEN CANADA-ISRAEL
MANAGEMENT LTD. (herein called "ECIM")(Evergreen, Yarok Az, Capital
Markets and ECIM are herein called the "Evergreen Group")
OF THE SEVENTH PART
-2-
AND: GILDE INVESTMENT FUND B.V. (herein called "Gilde Investments") and
GILDE IV (herein called "Gilde IV") ( Gilde Investments and Gilde IV
are herein called "Gilde")
OF THE EIGHTH PART
AND MARIN INVESTMENTS LIMITED (herein called "Marin"), ▇▇▇▇▇▇▇ ▇▇▇▇
(herein called "Amit") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(herein jointly called "MacCrimmon")(▇▇▇▇▇, ▇▇▇▇ and MacCrimmon are
herein called the "Marin Group")
OF THE NINTH PART
W H E R E A S:
A. FBDB, the Management Shareholders, STAR,the Evergreen Group, Gilde and the
Marin Group are Shareholders of the Company.
B. The Company, FBDB, the Management Shareholders, and STAR entered into a
Shareholder Agreement on the 29th day of April 1994 to govern the rights and
obligations of the principal Shareholders of the Company (the "Shareholders
Agreement");
C. The parties hereto desire to make certain amendments to the Shareholders
Agreement to reflect the fact that the Evergreen Group, Gilde and the Marin
Group have become Shareholders of the Company.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and of the mutual covenants and agreements hereinafter set forth and
other good and valuable consideration (the receipt and adequacy of which are
hereby acknowledged), the parties hereto agree each with the other as follows;
1. Each of Evergreen, Yarok Az, Capital Markets, ECIM, Gilde Investments,
Gilde IV, ▇▇▇▇▇, ▇▇▇▇ and MacCrimmon is hereby made a party to the Shareholders
Agreement as of the date of the Amendment to Shareholders Agreement, and each
of such parties agrees to be bound by all of the provisions of the Shareholders
Agreement to the extent such provisions are not amended hereby. The Company,
FBDB, the Management Shareholders, and STAR, agree that this Amendment of
Shareholders Agreement shall be deemed to amend the Shareholders Agreement as
more fully set forth herein. All of the parties to this Amendment to
Shareholders Agreement agree that, except to the extent it is amended hereby,
the Shareholders Agreement shall remain in full force and effect. All references
in the Shareholders Agreement to "the Agreement" or to "this Agreement" shall be
deemed to refer to the Shareholders Agreement as amended by this Amendment to
Shareholders Agreement.
2. Section 1.1.30 of the Shareholders Agreement is deleted, and in its
place is inserted the following language, subject to Section 14 of this
Amendment to Shareholders Agreement:
-3-
1.1.30 "Shareholder" means FBDB, each of the Management
Shareholder, each of the Persons comprising STAR, each of the Persons
comprising the Evergreen Group, each of the Persons comprising
Gilde,each of the Persons comprising the Marin Group, and the
respective successors or permitted assigns of each of the foregoing,
and "Shareholders" means all of such entities collectively; provided,
--------
however, that all of the Persons comprising STAR and any and all STAR
Transferees (together with any Person or Persons (the "Other
Investors") purchasing shares of the Company or any Related Company
pursuant to Section 4.3 of the Share Purchase Agreement) shall be
deemed to be a single Person and their ownership of Shares (including
any shares of the Company which the Other Investors have acquired, or
have a right to acquire, pursuant to Section 4.3 of the Share Purchase
Agreement) shall be aggregated for purposes of this Section 1.1.3; and
provided further, however, all of the Persons comprising the Evergreen
--------
Group and all Permitted Transferees (as defined in Section 1.35) of
such Persons shall be deemed to be a single Person and their ownership
of Shares shall be aggregated for purposes of this Section 1.1.30; and
provided further, however, all of the Persons comprising Gilde and all
--------
Permitted Transferees of such Persons shall be deemed to be a single
Person and their ownership of Shares shall be aggregated for purposes
of this Section 1.1.30.
3. The following new section is added after Section 1.1.34 of the
Shareholders Agreement;
1.1.35 "Permitted Transferee" means any Person which controls, is
controlled by, or is under common control with any of the Persons
comprising the Evergreen Group or Gilde, or which is managed by the
Evergreen Manager or the Gilde Manager, provided, however, that
--------
"Permitted Transferees" shall include (a) as to not more than 18,080
Shares ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ventures Corp., and (b) as to not more than
18.080 Shares, any Person for which investment decisions are made by
▇▇▇▇ ▇▇▇▇▇. The "Evergreen Manager" means the Person which makes
investments decisions for Evergreen, Yarok Az, Capital Markets or
ECIM, or any Person which controls, is controlled by, or is under
common control with, such Person. The "Gilde Manager" means the Person
which makes investment decisions for Gilde, or any Person which
controls, is controlled by, or is under common control with, such
Person.
4. The following additional sentences are added at the end of
Section 3.2 of the Shareholder Agreement:
-4-
Each of the Evergreen Group,Gilde, and the Marin Group shall have the
right to send a Representative of alternate to meetings of the Board
of Directors, which Representatives shall be invited to attend all
Board meetings and shall receive all information and material
presented to the Board as would a director. A Representative appointed
by FBDB, the Evergreen Group, Gilde or the Marin Group pursuant to
this Section 3.2 shall be known herein as a "Representative". A
Representative shall be bound by the same rules, obligations and
consequences as a Director respecting confidentiality, conflict of
interest and insider information. A Representative shall be entitled
to attend and observe all meetings of the Board of Directors. A
Representative shall have no votes at such meetings. A Representative
shall not be entitled to make representations on behalf of the Company
solely by virtue of his appointment as a Representative.
5. In Section 3.9 of the Shareholders Agreement, the words "the
Evergreen Group, Gilde, the Marin Group" are inserted following the word "FBDB"
in the fifth, sixth and eleventh lines of such Section.
6. In Section 3.12.2 of the Shareholders Agreement, the words "the
Evergreen Group, Gilde, the Marin Group," are inserted after the words "other
than FBDB".
7. In the preamble to Section 3.14 of the Shareholders Agreement, the
words "the Evergreen Group, Gilde, the Marin Group" are inserted after the words
"to the Board, FBDN".
8. The last two sentences of Section 3.14 of the Shareholders
Agreement (reading "Each of FBDB and Star reserves the right to receive
additional information from the Company and its auditors, which is reasonably
required to understand better the affairs of the Company. Any director in a
representative capacity may pass that and all other information received by him
to the Shareholder e represents,") are deleted and in their place is inserted
the following language:
Each of FBDB, the Evergreen Group, Gilde, the Marin Group, and STAR
reserves the right to receive additional information from the Company
and its auditors, which is reasonably required to understand better
the affairs of the Company. Any director and any Representative is a
representative capacity may pass that and all other information
received by him to the Shareholders he represents.
9. At the end of the first sentence of Section 3.17 of the
Shareholders Agreement, the following language is inserted:
(including the rights of the Representatives to attend meetings of
such Board of Directors and receive all information and material
presented to the Board)
-5-
10. Section 5.11(b) of the Shareholders Agreement is deleted, and in its
place is inserted the following language:
(b) In the event that all of (a) STAR sells more than 50% of its
Investment to third parties other than STAR Transferees and (b) the
Evergreen Group sells more than 50% of its Investment to third parties
other than Permitted Transferees and (c) Gilde sells more than 50% of its
Investment to third parties other than Permitted Transferees and (d) the
Marin Group sells more than 50% of its Investment to third parties, the
Management Shareholders may transfer their Investments without regard to
this Section 5.11, subject to the rights of first refusal described above
and to Article 6 hereof.
11. In Section 5.16, the words "the 29th of April" are deleted and in
their place are inserted the words "the 21st of November".
12. The following new Sections are inserted following Section 5.17 of the
Shareholders Agreement:
5.18 Transfers by the Evergreen Group and Gilde
Notwithstanding anything else set forth in this Agreement, any Person
that is a member of the Evergreen Group or Gilde may freely sell, transfer
or otherwise dispose of any of its Investment to an Permitted Transferee.
5.19 Transfers by the Marin Group
Notwithstanding anything else set forth in this Agreement, any Person
that is a member of the Marin Group may freely sell, transfer or otherwise
dispose of any of its Investment to another member of the Marin Group.
13. In the second line of Section 6.1 of the Shareholders Agreement,
following the words "other than STAR" the following language is inserted: "the
Evergreen Group, Gilde, or the Marin Group", and in the fourth line of Section
6.1 of the Shareholders Agreement, following the words "including STAR", the
following language is inserted inside the parentheses:- "the Evergreen Group,
Gilde, and the Marin Group".
14. This Amendment to Shareholders Agreement shall be deemed to be in full
force and effect as of the date first hereinabove set forth as to all of the
parties hereto with the exception of Marin, and shall become effective as to
Marin upon Marin's execution and delivery of a counterpart hereof.
15. Following Section 11.7.7 of the Shareholders Agreement, three new
Sections are inserted as follows:
-6-
11.7.8 If Evergreen, Yarok Az, Capital Markets, or ECIM:
Evergreen International Investments Ltd, N.V.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Isreal
Fax ▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: Directors
with a copy to:
Goldfarb, Levy, ▇▇▇▇ & ▇▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Isreal
Fax ▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Adv.
11.7.9 If to Glide
Glide Investments Funds
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax ▇▇-▇▇-▇▇-▇▇-▇▇
Attention: Investment Director
11.7.10 If to ▇▇▇▇▇, ▇▇▇▇, or MacCrimmon
Marin Investments Limited
Suite 1950
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: The President
with a copy to
Messrs, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
-7-
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the first hereinabove set forth.
CREO PRODUCTS INC.
/s/ SIGNATURE
---------------------
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
MARIN INVESTMENTS
LIMITED
/s/ SIGNATURE
---------------------
Authorized Signatory
/s/ ▇▇▇▇▇▇ AMIT
---------------------
▇▇▇▇▇▇ AMIT
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
FEDERAL BUSINESS
DEVELOPMENT BANK
---------------------
Authorized Signory
THIS AMENDMENT TO SHAREHOLDERS AGREEMENT made as of the 30th day of
June, 1995,
AMONG:
CREO PRODUCTS INC., a company duly incorporated under the laws of
-------------------
Canada, registered extraprovincially in the Province of British
Columbia, and having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
(the "Company")
OF THE FIRST PART
AND:
FEDERAL BUSINESS DEVELOPMENT BANK, incorporated by special Act of
----------------------------------
Parliament of Canada, having its head office in the City of Montreal,
in the Province of Quebec
("FBDB")
OF THE SECOND PART
AND:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇")
OF THE THIRD PART
AND:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇▇▇")
OF THE FIFTH PART
-1-
AND:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------
("▇▇▇▇▇▇▇▇▇" and together with ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, the "Management
Shareholders")
OF THE SIXTH PART
AND:
SVE STAR VENTURES ENTERPRISES NO. II LIMITED
--------------------------------------------
PARTNERSHIP
-----------
("STAR II")
and
SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
---------------------------------------------------------
("STAR III")
and
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
----------------------------------------------------------
("STAR IIIA")
and
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST
------------------------------------------
VEWALTUNGEN
-----------
("Interstock")
and
UNICYCLE TRADING COMPANY
------------------------
("Unicycle")
and
D.G. ▇▇▇-GAL LTD.
-----------------
("▇▇▇-gal")
-2-
and
YOZMA VENTURE CAPITAL LTD.
--------------------------
("Yozma")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------
("▇▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇")
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇▇")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------
("Mackenrodt")
and
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
("▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇")
and
SOTIRIS TSOTOURAS
-----------------
("Tsotouras")
(STAR II, STAR III, STAR IIIA, Interstock, Unicycle, ▇▇▇-Gal, Yozma,
Seeman, Regehr, Goldberg, Mackenrodt, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and Tsotouras
are herein called "STAR")
OF THE SEVENTH PART
-3-
AND:
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
----------------------------------------
("Evergreen")
and
YAROK AZ LTD.
-------------
("Yarok Az")
and
EVERGREEN CAPITAL MARKETS LTD.
------------------------------
("Capital Markets")
and
FLB INVESTMENTS LTD.
--------------------
("FLB")
(Evergreen, Yarok Az, Capital Markets and FLB are herein
called the "Evergreen Group")
OF THE EIGHTH PART
AND:
GILDE INVESTMENT FUND B.V.
--------------------------
("Gilde Investments")
and
GILDE IV
--------
("Gilde IV")
(Gilde Investments and Gilde IV are herein called "Gilde")
OF THE NINTH PART
-4-
AND:
MARIN INVESTMENTS LIMITED
-------------------------
("Marin")
and
▇▇▇▇▇▇▇ ▇▇▇▇
------------
("Amit")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------ ------------------
(jointly called "MacCrimmon")
(▇▇▇▇▇, ▇▇▇▇ and MacCrimmon are herein called the "Marin
Group")
OF THE TENTH PART
AND:
QUALITY INVESTMENTS L.L.C.
--------------------------
("Quality")
OF THE ELEVENTH PART
WHEREAS:
A. The Company, FBDB, ▇▇▇▇▇▇▇, the Management Shareholders and STAR
entered into a shareholders agreement on the 29th day of April, 1994 to govern
the rights and obligations of the principal shareholders of the Company, which
agreement was amended and additional parties added as of November 21, 1994 (such
agreement, as amended, is hereinafter referred to as the "Shareholders
Agreement");
B. The parties hereto desire to make certain amendments to the
Shareholders Agreement to reflect the resignation of ▇▇▇▇▇▇▇ from employment
with and management of the Company and to make certain other amendments;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and of the mutual covenants and agreements hereinafter set forth and
other good and valuable consideration (the receipt and adequacy of which are
hereby acknowledged), the parties hereto agree each with the other as follows:
-5-
1. Parties
-------
The listing and description of the parties to the Shareholders
Agreement is amended to be identical to the listing and description of the
parties to this Agreement, and the changes are more specifically described as
follows:
(a) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are referred to individually as the parties of the
Third Part and the Fourth Part, respectively, and the definition of
"Founding Shareholders" is deleted;
(b) The definition of "Management Shareholders" is amended to be limited
to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇;
(c) ▇▇▇-Gal, Yozma, Seeman, Regehr, Goldberg, Mackenrodt, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
and Tsotouras are added as a part of the party of the Seventh Part;
(d) FLB is substituted as a party in the place of Evergreen Canada-Israel
Management Ltd.; and
(e) Quality is added as the party of the Eleventh Part.
2. New Parties
-----------
Each of ▇▇▇-Gal, Yozma, Seeman, Regehr, Goldberg, Mackenrodt, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, Tsotouras, FLB and Quality is hereby made a party to the
Shareholders Agreement as of the date of this Amendment to Shareholders
Agreement, and each of such parties agrees to be bound by all of the provisions
of the Shareholders Agreement to the extent such provisions are not amended
hereby. All of the original parties to the Shareholders Agreement agree that
this Amendment to Shareholders Agreement shall be deemed to amend the
Shareholders Agreement as more fully set forth herein. All of the parties to
this Amendment to Shareholders Agreement agree that, except to the extent it is
amended hereby, the Shareholders Agreement shall remain in full force and
effect. All references in the Shareholders Agreement to "the Agreement" or to
"this Agreement" shall be deemed to refer to the Shareholders Agreement as
amended by this Amendment to Shareholders Agreement.
3. Section 1.1.30
--------------
Section 1.1.30 of the Shareholders Agreement is amended:
(a) By adding the word "▇▇▇▇▇▇▇," after "FBDB," in the first line; and
(b) By adding the word "Quality," after "Marin Group," in line 5;
so that Section 1.1.30 now reads as follows:
-6-
"1.1.30 "Shareholder" means FBDB, ▇▇▇▇▇▇▇, each of the
Management Shareholders, each of the Persons comprising
STAR, each of the Persons comprising the Evergreen
Group, each of the Persons comprising Gilde, each of
the Persons comprising the Marin Group, Quality, and
the respective successors or permitted assigns of each
of the foregoing, and "Shareholders" means all of such
entities collectively; provided, however, that all of
--------
the Persons comprising STAR and any and all STAR
Transferees (together with any Person or Persons (the
"Other Investors") purchasing shares of the Company or
any Related Company pursuant to Section 4.3 of the
Share Purchase Agreement) shall be deemed to be a
single Person and their ownership of Shares (including
any shares of the Company which the Other Investors
have acquired, or have a right to acquire, pursuant to
Section 4.3 of the Share Purchase Agreement) shall be
aggregated for purposes of this Section 1.1.30; and
provided further, however, all of the Persons
--------
comprising the Evergreen Group and all Permitted
Transferees (as defined in Section 1.35) of such
Persons shall be deemed to be a single Person and their
ownership of Shares shall be aggregated for purposes of
this Section 1.1.30; and provided further, however, all
--------
of the Persons comprising Gilde and all Permitted
Transferees of such Persons shall be deemed to be a
single Person and their ownership of Shares shall be
aggregated for purposes of this Section 1.1.30."
4. Section 1.1.33
--------------
Section 1.1.33 of the Shareholders Agreement is deleted and in its
place is inserted the following language:
"1.1.33 "STAR Transferee" means:
(a) Any Person which Controls, is controlled
by, or is under common control with STAR
I1, STAR III, STAR IIIA or ▇▇▇-Gal;
(b) Any Person which is managed by a Manager;
and
(c) As to not more than 84,810 Shares, Seeman,
Regehr, Goldberg, Mackenrodt, Unicycle, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, Tsotouras and/or Interstock.
A "Manager" means a Person which makes investment
decisions for any of STAR II, STAR III, STAR IIIA, ▇▇▇-
Gal or any Person which controls, is controlled by, or
is under common control with, such Person. As to
transfers by Yozma, a STAR
-7-
Transferee shall also include STAR Management of
Investments (1993) Limited Partnership ("STAR Israel")
and the holders of partnership interests in STAR
Israel."
5. Section 1.1.35
--------------
Section 1.1.35 of the Shareholders Agreement is deleted and in its
place is inserted the following language:
"1.1.35 "Permitted Transferee" means any Person
which controls, is controlled by, or is under common
control with any of the Persons comprising the
Evergreen Group or Gilde, or which is managed by the
Evergreen Manager or the Gilde Manager; provided,
--------
however, that "Permitted Transferee" shall include (a)
as to note more than 18,080 Shares, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ventures Corp., (b) as to not more than 18,080 Shares,
any Person for which investment decisions are made by
▇▇▇▇ ▇▇▇▇▇, and (c) Tzina Investments Ltd. The
"Evergreen Manager" means the Person which makes
investment decisions for Evergreen, Yarok Az, Capital
Markets or FLB, or any person which controls, is
controlled by, or is under common control with, such
Person. The "Gilde Manager" means the Person which
makes investment decisions for Gilde, or any Person
which controls, is controlled by, or is under common
control with such Person."
6. Section 3.2
-----------
Section 3.2 of the Shareholders Agreement is amended by deleting the
word "Shoham" and adding the words "▇▇▇-Gal and Yozma" after the word "Unicycle"
in lines 15/16 and line 19 so that Section 3.2 now reads as follows:
"3.2 Composition Of The Board
Notwithstanding any provisions of the Company's
Certificate or Articles of Incorporation or By Laws,
each Shareholder will vote its Shares at all meetings
of shareholders at which it is represented so that the
Board will be comprised of six directors and so that
one nominee of each of ▇▇▇▇▇▇▇, Gelbart, Michelson,
FBDB, STAR, and the employees that hold shares granted
from the Employee Reserved Shares, is a director of the
Company; provided, however, that the Shareholders may
--------
by unanimous agreement increase the number of directors
to seven or to eight and by unanimous agreement
nominate directors to occupy the vacancies so created.
If a position on the Board is open for any reason
whatsoever, only the party (or parties)whose nominee
formerly
-8-
occupied that position will be entitled to nominate a new
director to fill that vacancy. Notwithstanding the
foregoing, if any party to this Agreement owns less than 3%
of the issued common shares, it will not have a right to
nominate a director (or to participate in the nomination of
a director nominated by all of the Shareholders), and in
such case the number of directors on the Board will be
correspondingly reduced; provided, however, that for
--------
purposes of this Article 3, the shareholdings of STAR II,
STAR III, STAR IIIA, Interstock, Unicycle, ▇▇▇-Gal, Yozma,
Seeman, Regehr, Goldberg, Mackenrodt, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
Tsotouras and any STAR Transferee (together with the shares
which any Other Investor (as defined in Section 1.1.30
hereof) has acquired, or has a right to acquire, pursuant to
Section 4.3 of the Share Purchase Agreement) shall be
aggregated and STAR II, STAR III, STAR IIIA, Interstock
Unicycle, ▇▇▇-Gal, Yozma, Seeman, Regehr, Goldberg,
Mackenrodt, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Tsotouras and any STAR
Transferee (along with such Other Investor) shall together
be deemed to be a single Shareholder. Whether or not FBDB
nominates a Director to the Board of Directors of the
Company, during any time when FBDB is entitled to so
nominate a Director, FBDB shall have the right to send an
additional Representative to meetings of the Board of
Directors, which Representative(s) shall be invested to
attend all Board meetings and shall receive all information
and material presented to the Board, as would a director.
Notwithstanding anything in this Section 3,2, in the event
that a Management Shareholder is terminated as an employee
of the Company for Cause (as defined below), or voluntarily
terminates his employment with the Company, then he shall
only be entitled to act as a Director of the Company with
the consent of a majority of the other Directors of the
Company, but in the absence of such consent he shall retain
the right to nominate a person .other than himself to serve
as a Director of the Company; provided, however, that the
--------
nominee of such Management Shareholder to serve as a
Director of the Company shall be subject to the approval of
a majority of the other Directors of the Company, such
approval not to be unreasonably withheld. For purposes of
this Section 3.2, "Cause" shall mean (1) a breach of trust,
including for example, but without limitation, acts of moral
turpitude, theft, embezzlement, self-dealing; (2) a material
breach by a Management Shareholder of the terms of his
employment agreement; or (3) any act of, or omission by, a
Management Shareholder which, in the reasonable judgment of
the directors of the Company, amounts to a serious failure
by such Management Shareholder to perform his
responsibilities or
-9-
functions or in the exercise of his authority, which
failure, in the reasonable judgment of the directors of the
Company, rises to a level of gross nonfeasance, misfeasance
or malfeasance. Each of the Evergreen Group, Gilde, and the
Mar/n Group shall have the right to send a Representative or
alternate to meetings of the Board of Directors, which
Representatives shall be invited to attend all Board
meetings and shall receive all information and material
presented to the Board as would a director. A Representative
appointed by FBDB, the Evergreen Group, Gilde or the Marin
Group pursuant to this Section 3.2 shall be known herein as
a "Representative". A Representative shall be bound by the
same rules, obligations and consequences as a Director
respecting confidentiality, conflict of interest and insider
information. A Representative shall be entitled to attend
and observe all meetings of the Board of Directors, and
shall be permitted to participate in a meeting of the Board
of Directors. A Representative shall have no vote at such
meetings. A Representative shall not be entitled to make
representations on behalf of the Company solely by virtue of
his appointment as a Representative."
7. SECTION 3.14
------------
The last sentence of Section 3.14 of the Shareholders Agreement shall
become a separate paragraph so that the last part of Section 3.14 (after Section
3.14.6) reads as follows:
"Each of FBDB, the Evergreen Group, Gilde, the Marin Group,
and STAR reserves the right to receive additional
information from the Company and its auditors, which is
reasonably required to understand better the affairs of the
Company.
Any director and any Representative in a representative
capacity may pass that and .all other information received
by him to the Shareholders he represents."
8. SECTION 5.16
------------
In Section 5.16, the words "the 21st of November, 1994" are deleted
and in their place are inserted the words "April 29, 1994 as amended by
agreements dated November 21, 1994 and June 30, 1995".
9. SECTION 5.18
------------
In Section 5.18, the word "an" is deleted and the word "a" is inserted
in its place.
-10-
10. SECTION 5.19
------------
In Section 5.19, the word "▇▇▇▇▇▇" is deleted and the word "Marin"
inserted in its place.
11. SECTION 5.20
------------
A new Section 5.20 is added to the Shareholders Agreement as follows:
"5.20 WAIVER
Notwithstanding any other provision of this Article 5,
each of the Others may waive by notice in writing delivered
to the Secretary of the Company the prior right to purchase;
receive or otherwise acquire such portion of the Investment
of the Offeror set out in Section 5.1."
12. SECTION 6.1
-----------
Section 6.1 of the Shareholders Agreement is deleted and in its place
is inserted the following language:
"6.1 Subject to the procedures relating to the rights of
first refusal described in Article 5 above, if any
Shareholder other than FBDB, STAR, the Evergreen Group,
Gilde, the Marin Group or ▇▇▇▇▇▇▇ (the "Seller") shall wish
to sell, exchange or transfer any of its shares (the
"Subject Shares") to any person other than a Shareholder
(the "Buyer"), the Seller shall give to the other
Shareholders (including FBDB, STAR, the Evergreen Group,
Gilde, the Marin Group and ▇▇▇▇▇▇▇) an equal right
respectively, to sell to the Buyer all or an equivalent
portion, as the case may be, of their shares at the same
price and terms as are applicable to the Subject Shares.".
13. ARTICLE 9
---------
Sections 9.1 and 9.2 are deleted in their entirety and in their place
is inserted the following language:
"9.1 NOMINATION OF DIRECTOR
Each of the Shareholders agrees that, subject to
Section 9.2, upon the death of a Management Shareholder or
▇▇▇▇▇▇▇, the right of such Management Shareholder or ▇▇▇▇▇▇▇
(as the case may be) to nominate a director shall devolve to
the heir or heirs of such Management Shareholder or ▇▇▇▇▇▇▇
(as the case may be)who become the owner or owners of such
-11-
deceased Shareholders' shares of the Company; provided,
--------
however, that the nominee of such heir or heirs to serve as
a Director of the Company shall be subject to the approval
of a majority of the other Directors of the Company, such
approval not to be unreasonably, withheld.
9.2 Heirs Bound by this Agreement
Each of the Management Shareholders and ▇▇▇▇▇▇▇ agrees
that the rights described in Section 9.1 may not be
exercised until such heir or heirs agree in writing to be
bound by all of the terms and conditions of this Agreement."
14. SECTION 11.7.1
--------------
Section 11.7.1 is amended by adding the following language:
"SVM STAR Venture Capital Management Ltd.
▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Israel
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
after the words "with a copy to:".
15. SECTION 11.7.8
--------------
Section 11.7.8 is amended by deleting "ECIM" in the first line and
inserting "FIB" in its place.
16. SECTION 11.7.10
---------------
Section 11.7.10 is amended by deleting "V7X 1T1", being the postal
code for ▇▇▇▇▇▇ Downs, and inserting "V7X 1T2" in its place.
17. SECTION 11.7.11
---------------
A new Section 11.7.11 is added to the Shareholders Agreement as
follows:
-12-
"11.7.11 if to Quality:
Quality Investments L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇.▇.
▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ Faith"
-----------------------------
18. SIGNATORIES
-----------
The signatories to the Shareholders Agreement are amended to be
identical to the signatories to this Agreement, which includes adding ▇▇▇-Gal,
Yozma, FLB and Quality as signatories and deleting Evergreen Canada-Israel
Management Ltd., as a signatory.
19. EFFECTIVE DATE
--------------
This Amendment to Shareholders Agreement shall be deemed to be in full
force and effect as of June 30, 1995 as to all of the parties hereto.
20. FACSIMILE COUNTERPARTS
----------------------
This Amendment to Shareholders Agreement may be executed in facsimile
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which facsimile counterparts together shall constitute the
same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
/s/ SIGNATURE
----------------------------------
Authorized Signatory
FEDERAL BUSINESS DEVELOPMENT BANK
__________________________________
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-13-
"11.7.11 if to Quality:
Quality Investments L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇.▇.▇.
▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ Faith"
-----------------------------
18. SIGNATORIES
-----------
The signatories to the Shareholders Agreement are amended to be
identical to the signatories to this Agreement, which includes adding ▇▇▇-Gal,
Yozma, FLB and Quality as signatories and deleting Evergreen Canada-Israel
Management Ltd., as a signatory.
19. EFFECTIVE DATE
--------------
This Amendment to Shareholders Agreement shall be deemed to be in full
force and effect as of June 30, 1995 as to all of the parties hereto.
20. FACSIMILE COUNTERPARTS
----------------------
This Amendment to Shareholders Agreement may be executed in facsimile
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which facsimile counterparts together shall constitute the
same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
_________________________________
Authorized Signatory
FEDERAL BUSINESS DEVELOPMENT BANK
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Authorized Signatory
_________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-13-
THIS AMENDMENT TO SHAREHOLDERS AGREEMENT made as of the 2nd day of
November, 1995,
AMONG:
CREO PRODUCTS INC., a company duly incorporated under
-------------------
the laws of Canada registered extraprovincially in the
Province of British Columbia, and having an office at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(The "Company")
OF THE FIRST PART
AND:
BUSINESS DEVELOPMENT BANK OF CANADA, FORMERLY KNOWN AS
------------------------------------------------------
FEDERAL BUSINESS DEVELOPMENT BANK. incorporated by
---------------------------------
special Act of Parliament of Canada having its head
office in the City of Montreal, in the Province of
Quebec
("FBDB")
OF THE SECOND PART
AND:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
("Gelbert")
OF THE THIRD PART
AND:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇▇▇")
OF THE FIFTH PART
AND:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------
("▇▇▇▇▇▇▇▇▇" and together with ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇,
the "Management Shareholders")
OF THE SIXTH PART
AND:
SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERSHIP
--------------------------------------------------------
("STAR II")
and
SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
---------------------------------------------------------
("STAR III"
1
and
SVE STAR. VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
------------------------------------------------------------
("STAR IIIA")
and
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
------------------------------------------------------
("Interstock")
and
UNICYCLE TRADING COMPANY
------------------------
("Unicycle")
and
D.G. ▇▇▇-GAL LTD.
-----------------
("▇▇▇-Gal")
and
YOZMA VENTURE CAPITAL LTD.
-------------------------
("Yozma")
And
SVM STAR VENTURES MANAGEMENT GMBH NO. 3,
---------------------------------------
("Star Management")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------
("▇▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇")
and
2
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇▇")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------
("Mackenrodt")
and
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
("▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇")
and
SOTIRIS TSOTOURAS
-----------------
("Tsotouras")
(STAR II, STAR III, STAR IIIA, Interstock,' Unicycle,
▇▇▇-Gal, Yozma, Star Management, Seeman, Regehr,
Goldberg, Mackenrodt, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and Tsotouras
are herein called "STAR")
OF THE SEVENTH PART
AND:
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
----------------------------------------
("Evergreen")
and
YAROK AZ LTD,
-------------
("Yarok Az")
and
EVERGREEN CAPITAL MARKETS LTD.
------------------------------
("Capital Markets")
and
3
FLB INVESTMENTS LTD.
--------------------
("FLB")
(Evergreen, Yarok Az, Capital Markets and FLB are
herein called the "Evergreen Group")
OF THE EIGHTH PART
AND
GILDE INVESTMENT FUND B.V.
--------------------------
("Gilde Investments")
and
GILDE IV. B.V.
--------------
("Gilde Iv")
(Gilde Investments and Gilde IV are herein called
"Gilde")
OF THE NINTH PART
AND:
MARIN INVESTMENTS LIMITED
-------------------------
("Marin")
and
RAPHAEL AM1T
------------
("Amit")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------- ------------------
(jointly called "Maccrimmon")
(▇▇▇▇▇, ▇▇▇▇ and MacCrimmon are herein called the
"Marin Group")
OF THE TENTH PART
AND:
QUALITY INVESTMENTS L.L.C.
--------------------------
("Quality")
OF THE ELEVENTH PART
4
AND
G S CAPITAL PARTNERS II L.P.
----------------------------
("G S Capital")
and
G S CAPITAL PARTNERS II OFFSHORE, L.P.
--------------------------------------
("G S Offshore")
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
-------------------------------------
("Goldman Gmbh")
and
STONE ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
----------------------------
("Stone Street")
and
BRIDGE STREET FUND 1995, L.P.
-----------------------------
("Bridge Street")
(G S Capital, G S Offshore, Goldman Gmbh, ▇▇▇▇▇ Street and Bridge
Street are herein called the "▇▇▇▇▇▇▇ Sachs Group")
OF THE TWELFTH PART
WHEREAS:
A. The Company, FBDB, ▇▇▇▇▇▇▇, the Management Shareholders and
STAR entered into a shareholders agreement on the 29th day of April,
1994 to govern the rights and obligations of the principal
shareholders of the Company, which agreement was amended and
additional parties added as of November 21, 1994 and which was
subsequently amended and additional parties added as of June 30, 1995
(such agreement, as amended, is hereinafter referred to as the
"Shareholders Agreement");
B. The parties hereto desire to make certain amendments to the
Shareholders Agreement to reflect the fact that Star Management and
the ▇▇▇▇▇▇▇ Sachs Group have become Shareholders of the Company.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the premises and of the mutual covenants and agreements hereinafter
set forth and other good and valuable consideration (the receipt and
adequacy of which are hereby acknowledged), the parties hereto agree
each with the other as follows:
5
1. Parties
-------
The listing and description of the parties to the Shareholders
Agreement is amended to be identical to the listing and description of the
parties to this Agreement, and the changes are more specifically described as
follows:
(a) The name "Federal Business Development Bank" is changed to "Business
Development Bank of Canada;
(b) Star Management is added as a part of the party of the Seventh Part;
and
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group is added as the party of the Twelfth Part.
2. New Parties
-----------
Each of Star Management, G S Capital, G S Offshore, Goldman Gmbh,
Stone Street and Bridge Street is hereby made a party to the Shareholders
Agreement as of the date of this Amendment to Shareholders Agreement, and each
of such parties agrees to be bound by all of the provisions of the Shareholders
Agreement to the extent such provisions are not amended hereby. All of the
original parties to the Shareholders Agreement agree that this Amendment to
Shareholders Agreement shall be deemed to amend the Shareholders Agreement as
more fully set forth herein. All of the parties to this Amendment to
Shareholders Agreement agree that, except to the extent it is amended hereby,
the Shareholders Agreement shall remain in full force and effect. All references
in the Shareholders Agreement to "the Agreement" or to "this Agreement" shall be
deemed to refer to the Shareholders Agreement as amended by this Amendment to
Shareholders Agreement.
3. Section 1.1.2
-------------
Section 1.1.2 of the Shareholders Agreement is deleted and the
following substituted:
"Affiliate" means
(i) with respect to any Shareholder which is a
natural person, any corporation (a) which is
directly or indirectly Controlled by that
Shareholder, (b) which is wholly owned
(beneficially and of record) and financed
(directly or indirectly) solely by such
Shareholder and such Shareholder's Family Members,
and (c) as to which such Shareholder is the sole
Person with the right to vote as a shareholder,
which right is not subject to any agreements or
promises of any kind by such Shareholder with or
to any other Person; and
(ii) with respect to any Shareholder which is a
body corporate, as defined in the Act, trust, or
partnership, a Person that directly, or indirectly
through one or more intermediaries, controls or is
controlled by, or is under common control with,
the Shareholder.
6
4. Section 1.1.14
--------------
The Shareholders Agreement is amended by deleting section 1.1.14 and
substituting the following:
"Employee Reserved Shares" means the 2,136,090 common
shares in the capital of the Company distributed to the
employees of the Company and its subsidiaries as an
incentive to productivity and performance, and the
60,000 common shares which the Board of Directors has,
at the date of this Agreement, agreed to issue to
employees of the Company and its subsidiaries as an
incentive to productivity and performance."
5. Section 1.1.17
--------------
The Shareholders Agreement is amended by deleting section 1.1.17.
6. Section 1.1.30
--------------
The Shareholders Agreement is amended by deleting section 1.1.30 and
substituting the following:
"1.1.30 "Shareholder" means FBDB, ▇▇▇▇▇▇▇, each of
the Management Shareholders, each of the Persons
comprising STAR, each of the Persons Comprising the
Evergreen Group, each of the Persons comprising Gilde,
each of the Persons comprising the Marin Group,
Quality, each of the Persons comprising the ▇▇▇▇▇▇▇
Sachs Group, and the respective successors or permitted
assigns of each of the foregoing; provided, however,
that all of the Persons comprising STAR and any and all
STAR Transferees (together with any Person or Persons
(the "Other Investors") purchasing shares of the
Company or any Related Company pursuant to section 4.3
of the Share Purchase Agreement) shall be deemed a
single Person and their ownership of Shares (including
any shares of the Company which the Other Investors
have acquired, or have a right to acquire, pursuant to
Section 4.3 of the Share Purchase Agreement) shall be
aggregated for the purposes of this Section 1.130; and
provided further, however, all of the Persons
comprising the Evergreen Group and all Permitted
Transferees (as defined in Section 1.35) of such
Persons shall be deemed to be a single Person and their
ownership of Shares shall be aggregated for the
purposes of this Section 1.1.30; and provided further,
however, all of the Persons comprising Gilde and all
Permitted Transferees of such Persons shall be deemed
to be a single Person and their ownership of Shares
shall be aggregated for purposes of this Section
1.1.30."
7. Section 1.1.33
--------------
Section 1.1.33 of the Shareholders Agreement is amended by inserting
the words "Star Management" after the words "STAR III A" in paragraph (a), and
the words "STAR Management," after the words "STAR III A" in the definition of
"Manager".
7
8. Section 3.2
-----------
Section 3.2 of the Shareholders Agreement is deleted and the following
substituted:
"3.2.1 Notwithstanding any provisions of the Company's
Certificate or Articles of Incorporation or By Laws, each
Shareholder will vote its Shares at the meeting of
shareholders of the Company next following the date of
execution of this Agreement in favour of all resolutions
required to amend the Articles of the Company to
3.2.1.1 increase the maximum number of
directors to nine; and
3.2.1.2 authorize the directors to appoint up
to two directors who shall hold office for a
term expiring not later than the close of the
next annual meeting of the shareholders of the
Company.
3.2.2 From the date of execution of this Agreement until
the maximum number of directors has been increased to nine
the board of directors:
3.2.2.1 shall be comprised of seven directors,
who shall include a nominee of each of ▇▇▇▇▇▇▇,
Gelbart, Michelson, FBDB, STAR, and the
employees that hold shares granted from the
Employee Reserved Shares.
3.2.2.2 shall not, nor shall any Committee of
the Board, consider, authorise, approve or
decide upon any matter affecting the business,
assets, finances or undertaking of the Company,
the terms of employment or compensation of any
senior officer, or any other matter falling
within the jurisdiction of the board of
directors or any Committee thereof (other than
the approval of the financial statements of the
Company for the year ended September 30, 1995
and, provided that unless a nominee of the
▇▇▇▇▇▇▇ Sachs Group is at the time a director,
a representative of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group has
participated in the discussion preceding any
such approval, and has agreed thereto, any
consideration at a board meeting and, if
appropriate, approval by the directors, of
transfers of not more than 725,000 common
shares as part of a possible secondary offering
by existing shareholders) or in respect of
which specific provision is made in this
Agreement, unless the board of directors has
first been reconstituted so as to include one
nominee of the ▇▇▇▇▇▇▇ Sachs Group; provided,
however, that nothing in this section 3.2.2.2
shall limit the authority of the management of
the Company to manage the business and affairs
of the Company in the ordinary course, or to
implement decisions made by the board of
directors prior to the date of execution of
this Agreement, and included in the Minutes of
the Board of Directors.
3.2.3 Notwithstanding any provisions of the Company's
Certificate or Articles of Incorporation or By Laws, each
Shareholder will vote its Shares at the annual meeting of
the Company next following the date of
8
execution of this Agreement, to be held on or
before January 31, 1996 (the "Next Annual
Meeting") and at all meetings of shareholders
thereafter, so that the board of directors elected
at such meeting(s) shall, subject to sections
3.2.4, 3.2.6 and 3.2.9, be comprised of seven
directors, and so that one nominee of each of
▇▇▇▇▇▇▇, Gelbart, Michelson, FBDB, STAR, the
▇▇▇▇▇▇▇ Sachs Group, and the employees that hold
shares granted from the Employee Reserved Shares
is a director of the Company.
3.2.4 If at any time following the Next Annual
Meeting the board of directors resolves pursuant
to the authority conferred upon it by reason of
the amendment of the Articles provided for in
section 3.2.1.2 to appoint an eighth director, the
parties agree to cause their nominees to the board
of directors to appoint a person who shall have
been agreed upon by the Company and the ▇▇▇▇▇▇▇
Sachs Group; and if at any time the board of
directors resolves to appoint a ninth director,
the parties-agree to cause their nominees to the
board of directors to appoint a person who shall
have been agreed upon by a majority of the
directors.
3.2.5 If a position on the Board is open for any
reason whatsoever, the director to be appointed to
replace the person who has ceased to be a director
shall be appointed in the same manner as the
director who has ceased to be a director.
3.2.6 The provisions of Section 3.2.3 shall not
apply to any of the parties describe in this
Agreement as the parties of the second to the
twelfth parts inclusive at any time if, at that
time, the aggregate number of Shares owned by the
Persons comprising such parties and by any
Affiliate of any such Person to whom any of such
Persons has, in accordance with the provisions of
this Agreement, transferred Shares, is less than 3
% of the issued common shares, and in such case
the number of directors will be correspondingly
reduced.
3.2.7 Whether or not FBDB nominates a Director to
the Board of Directors of the Company, during any
time when FBDB is entitled to so nominate a
Director, FBDB shall have the right to send an
additional Representative to meetings of the Board
of Directors, which Representative(s) shall be
invited to attend all Board meetings and shall
receive all information and material presented to
the Board, as would a director.
3.2.8 Whether or not the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
nominates a Director to the Board of Directors of
the Company it shall have the right to send an
additional Representative to meetings of the Board
of Directors, which Representative(s) shall be
invited to attend all Board meetings and shall
receive all information and material presented to
the Board, as would a director.
3.2.9 Notwithstanding anything in this Section
3.2, in the event that a Management Shareholder is
terminated as an employee of the Company for Cause
(as defined below), or voluntarily terminates his
employment with the Company, then he shall only be
entitled to act as a Director of the Company with
the consent of a majority of the other Directors
of the Company, but in the absence of such consent
he shall retain the right to
9
nominate a person other than himself to serve as a
Director of the Company; provided, however, that
--------
the nominee of such Management Shareholder to
serve as a Director of the Company shall be
subject to the approval of a majority of the other
Directors of the Company, such approval not to be
unreasonably withheld. For purposes of this
Section 3.2.8, "Cause" shall mean (1) a breach of
trust, including for example, but without
limitation, acts of moral turpitude, theft,
embezzlement, self-dealing; (2) a material breach
by a Management Shareholder of the terms of his
employment agreement; or (3) any act of, or
omission by, a Management Shareholder which, in
the reasonable judgment of the directors of the
Company, amounts to a serious failure by such
Management Shareholder to perform his
responsibilities or functions or in the exercise
of his authority, which failure, in the reasonable
judgment of the directors of the Company, rises to
a level of gross nonfeasance, misfeasance or
malfeasance.
3.2.10 Each of the Evergreen Group, Gilde, and
the Marin Group shall have the right to send a
Representative or alternate to meetings of the
Board of Directors, which Representatives shall be
invited to attend all Board meetings and shall
receive all information and material presented to
the Board as would a director.
3.2.11 A Representative appointed by FBDB, the
Evergreen Group, Gilde, the ▇▇▇▇▇▇▇, ▇▇▇▇▇ Group
or the Marin Group pursuant to this Section 3.2
shall be known herein as a "Representative". A
Representative shall be bound by the same roles,
obligations and consequences as a Director
respecting confidentiality, conflict of interest
and insider information. A Representative shall be
entitled to attend and observe all meetings of the
Board of Directors, and shall be permitted to
participate in a meeting of the Board of
Directors. A Representative shall have no vote at
such meetings. A Representative shall not be
entitled to make representations on behalf of the
Company solely by virtue of his appointment as a
Representative.
3.2.12 The Company and the Shareholders agree
that none of them will:
3.2.12.1 at any time while the board is
constituted as provided in section 3.2.2.1 or
section 3.2.3, call (in the case of the Company)
or requisition (in the case of any Shareholder)
a special meeting of shareholders for the
purpose of removing any of the directors who is
a nominee of any Person identified therein; or
3.2.12.2 at any time while the board is
constituted as provided in section 3.2.4, call
(in the case of the Company) or requisition (in
the case of any Shareholder) a special meeting
of shareholders for the purpose of removing any
of the directors appointed pursuant to section
3.2.2.1 or section 3.2.3 who is a nominee of
any Person identified therein.
10
3.2.13 The Shareholders agree that if:
3.2.13.1 at any time while the board is
constituted as provided in section 3.2.2.2 or
section 3.2.3, or
3.2.13.2 at any time while the board is
constituted as provided in section 3.2.4
a resolution is proposed at a meeting of
shareholders to remove a director appointed
pursuant to section 3.2.2.1. or 3.2.3 who is a
nominee of any Person identified therein, they
will vote or cause their Shares to be vote against
such resolution."
9. Section 3.5
-----------
Section 3.5 of the Shareholders Agreement is deleted and the following
substituted:
"3.5.1 For so long as the Board is comprised of
seven directors, a quorum for the transaction of
business at a meeting of the Board will be five
directors; provided that four directors may
constitute a quorum if two of them are nominees of
FBDB, or of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, or of STAR).
3.5.2 If the Board is comprised of eight or nine
directors, a quorum for the transaction of
business at a meeting of the Board will be seven
directors, provided that six directors may
constitute a quorum if two of them are nominees of
FBDB, or the ▇▇▇▇▇▇▇ Sachs Group, or of STAR.
3.5.3 There shall be a minimum of four Board
meetings held at approximately three month
intervals during each fiscal year that this
Agreement remains in force."
10. Section 3.6
-----------
Section 3.6 of the Shareholders Agreement is amended by the addition
of the words ", the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group," after the word "FBDB".
11. Section 3.7
-----------
Section 3.7 of the Shareholders Agreement is amended by:
(a) renumbering it section 3.7.1, and renumbering paragraphs 3.7.1 to 3.7.8
inclusive, paragraphs 3.7.1.1 to 3.7.1.8 inclusive;
(b) adding the words "or the director of the Company nominated by the ▇▇▇▇▇▇▇
Sachs Group" after the word "STAR" in the third line; and
11
(c) adding a new section 3.7.2 as follows:
"3.7.2 Notwithstanding any provision of the Act,
the Articles of Incorporation of the Company, or
the Bylaws, no director shall be counted in the
quorum, or vote, on any matter relating primarily
to his employment, remuneration or other
compensation as an officer, employee or agent of
the Company or any Affiliate of the Company."
12. Section 3.8
-----------
The Shareholders Agreement is amended by deleting section 3.8.7 and
substituting the following:
"3.8.7 an allotment of any shares issued pursuant
to those certain Subscription Agreements of even
date herewith between the Company and each of the
Persons comprising the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, or
pursuant to any right granted to any such Person
by or in connection with the entering into of such
Subscription Agreement."
13. Section 3.9
-----------
Section 3.9 of the Shareholders Agreement is deleted, and the
following substituted:
"3.9 Confidentiality of Private Affairs
No Shareholder will (while a Shareholder of or
employed by the Company or at any time thereafter)
disclose to any person not a Shareholder at the
time of disclosure, the private affairs of the
company or any of its Related Companies, contracts
or agreements of the Company or its Related
Companies, the financial position of the Company
or its Related Companies (except that the ▇▇▇▇▇▇▇
Sachs Group may disclose such matters to and
consult thereon with its advisor, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., and FBDB, the Evergreen Group, Gilde, the
Marin Group, STAR and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group may,
in good faith, disclose the financial position of
the Company to a creditor of the Company, if
acting in good faith FBDB, the Evergreen Group,
Gilde, the Marin Group, STAR or the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group forms the view that such disclosure is in
the best interests of the Company, or to a
prospective purchaser of its interest in the
Company), any prospects of business of the Company
or its Related Companies which is not public
knowledge and will not (either while such
Shareholder is a Shareholder of or employed by the
Company or at any time thereafter) use for its own
purposes (except that FBDB, the Evergreen Group,
Gilde, the Marin Group, STAR, the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group and ▇▇▇▇▇▇▇, Sachs & Co. shall have the
right to refer to their investment in the Company
in their publications and promotional material) or
for any purposes other than those of the Company
any information he may acquire in relation to the
business of the Company or its Related Companies.
Notwithstanding the above, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group and
its advisor, ▇▇▇▇▇▇▇, Sachs & Co., may disclose
information if pursuant to a subpoena, Civil
Investigative Demand (or similar process), order,
statute, rule or other legal requirement
promulgated or imposed by a court or by a
judicial, regulatory, self-regulatory or
legislative body,
12
organization, agency or committee or otherwise in
connection with any judicial or administrative
proceeding (including, in response to oral
questions, interrogatories or requests for
information or documents) in which ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. or its Affiliates is involved."
14. Section 3.11
------------
Section 3.11 of the Shareholders Agreement
is amended by:
(a) renumbering it section 3.11.1, and
(b) adding a new section 3.11.2, as follows-
"3.11.2 Section 3.11.1 does not apply and shall
not be construed or interpreted to restrict the
right of the ▇▇▇▇▇▇▇ Sachs Group or its advisor,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any of its Affiliates, to
use, information acquired by any of them in the
ordinary course of their investment banking
business, and otherwise than by reason of being a
Shareholder or a party to this Agreement;
provided, however, that nothing in this section
3.11.2 shall operate to relieve the ▇▇▇▇▇▇▇ Sachs
Group or its advisor, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., or any
of its Affiliates, or any director nominated by
the ▇▇▇▇▇▇▇ Sachs Group, from any duty or
obligation which it may owe to the Company in law
or in equity."
15. Section 3.12
------------
Section 3.12 of the Shareholders Agreement is amended
(a) by the addition of the words ", the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group" after the words
"the Marin Group" in section 3.12.2; and
(b) by the addition, after the words "Related Companies" in section 3.12.3, of
the words:
"; provided that nothing in this Section 3.12.3
shall be construed or interpreted to restrict the
right of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any Affiliate of
▇▇▇▇▇▇▇, Sachs & Co., to carry on the business of
investment banking with or for such person."
16. Section 3.14
------------
Section 3.14 of the Shareholders Agreement is amended by inserting the
words ", the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group" after the words "the Marin Group" in the
preamble.
The second to the last paragraph of Section 3.14 of the Shareholders Agreement
shall have inserted after "the Marin Group," the words "the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group," to read as follows:
"Each of FBDB, the Evergreen Group, Gilde, the
Marin Group, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, ▇▇▇▇▇▇▇ and
STAR reserves the right to receive additional
information from the Company and its auditors,
which is reasonably required to understand better
the affairs of the Company.
13
Any director and any Representative in a
representative capacity may pass that and all
other information received by him to the
Shareholders he represents."
17. Section 3.16
Section 3.16 of the Shareholders Agreement is amended by the addition
of section 3.16.3, as follows:
"3.16.3 Upon the nominee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group being elected or appointed a director, such
nominee shall be appointed to the Compensation
Committee, the audit committee, and the finance
committee if such committee is established, and
shall have the right to be appointed to any other
committee established by the Board of Directors."
18. Section 3.17
------------
Section 3.17 of the Shareholders Agreement is amended by the addition
of the words "or the director nominated by the ▇▇▇▇▇▇▇ Sachs Group" in the
eighth line.
19. SECTION 3.18
------------
The Shareholders Agreement is amended by the addition of a new section
after section 3.17, as follows:
"3.18 Special Event
3.18.1 If at any time after two years from the
date of execution of this Agreement, and provided
that the Company has not completed an initial
public offering of Shares, a majority of the
directors nominated by FBDB, STAR, ▇▇▇▇▇▇▇, the
▇▇▇▇▇▇▇ Sachs Group, and the employees that hold
shares granted from the Employee Reserved Shares
(together, the "Special Directors") consider that
the Company is significantly underperforming, they
may so declare by notice in writing (a "Special
Event Notice") to the Company.
3.18.2 If, within 90 days of a Special Event
Notice, the Company does not complete a sale of
Shares to a Person who deals with the Company at
arm's length at a price of not less than US$14.00
per share (net of the value of any other
securities issued or other consideration granted
or which may be acquired by such Person pursuant
to a right granted at the time of such sale), for
aggregate gross proceeds of not less than
US$5,000,000, a majority of the Special Directors
may, in their discretion, elect and have the right
to
(a) terminate the appointment of the CEO then
holding office and appoint a new CEO; or
(b) seek a buyer for the assets and undertaking of
the Company and any subsidiary of the Company; or
(c) seek a buyer for the common shares of the
Company then issued and outstanding.
14
3.18.3 If A Majority Of The Special Directors Make An
Election Pursuant To Section 3.18.2 (B) Or (C) They Shall
Have The Authority To Negotiate The Terms Of Any Such Sale
And If Agreement Is Reached,
(a) with respect to a sale pursuant to section 3.18.2
(b), each Shareholder shall be bound to vote its Shares in
favour of any resolution of holders of Shares that may be
required in order to implement the agreement and carry it
into effect;
(b) with respect to a sale pursuant to section 3.18.2 (c),
each Shareholder shall be bound to sell its Shares at the
price and on the terms set out in the agreement, and the
provisions of Articles 5 and 6 of this Agreement shall not
apply to any such sale; provided, however, that no
Shareholder shall be bound to sell such Shareholder's Shares
at a price or on terms which are different from those
applicable to a sale by any other Shareholder."
20. Section 4.1
-----------
Section 4.1 of the Shareholders Agreement is amended:
(a) by deleting the word "shall" in the first line of section 4.1.2 (a) and
substituting the word "may";
(b) by deleting the word "in an aggregate amount which is 9% of the Base Amount
in section 4.1.2 (a)," and substituting the words "in such amount, not exceeding
in the aggregate 9% of the Base Amount, as the Board of Directors may
determine"; and
(c) by adding a new subsection 4.1.4, as follows:
"4.1.4 any decisions made pursuant to the Employee Bonus and
the Employee Reserved Shares plans for a particular fiscal
year shall not be subsequently changed within the applicable
fiscal year."
21. Section 4.2
-----------
Section 4.2 of the Shareholders Agreement is amended by the addition
of the words "or the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group nominee" after the words "FBDB nominee"
22. Section 5.16
------------
Section 5.16 of the Shareholders Agreement is amended by the addition,
after the words "June 30, 1995", of the words "and November 2, 1995".
15
23. Section 5.21
------------
A new Section 5.21 is added to the Shareholders Agreement as
follows :
"5.21 Waiver
5.21.1 Notwithstanding any other provision of this
Agreement, any Person that is a member of the ▇▇▇▇▇▇▇ Sachs
Group may freely sell, transfer or otherwise dispose of any
of its Investment to another member of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group or to an Affiliate of any such Person or, in the case
of a Person that is a partnership, to the partners thereof
and in the case of a Person that is a corporation, to the
shareholders thereof provided that any such transferee shall
have agreed to be bound by the provisions of this
Agreement."
24. Section 5.22
------------
A new section 5.22 is added to the Shareholders Agreement as
follows :
"5.22 No sale, transfer or other disposition of any
Investment may be made pursuant to any of Section 5.10,
5.11, 5.12, 5.15, 5.18, 5.19 or 5.21 that will have the
effect of violating the limitation on the number of
shareholders of the Company that is set out in the Articles
of the Company."
25. Section 6.1
-----------
In Section 6.1 of the Shareholders Agreement, the words," the ▇▇▇▇▇▇▇
Sachs Group" are inserted after the words "the Marin Group" in two locations.
26. Article 7
---------
Article 7 of the Shareholders Agreement is deleted in its entirety and
the following substituted :
ARTICLE 7
REGISTRATION RIGHTS
In this Article 7
"Offering Expenses" means all expenses incidental to the
Company's performance of, or compliance with, section 7
including, without limitation, all registration and filing
fees, all fees and expenses of complying with the Securities
Laws, all printing and translation expenses, all reasonable
fees and disbursements of counsel to the Selling
Shareholders, all reasonable fees and disbursements of
counsel for the Company and its auditors, including the
expenses of any special audits required by or incidental to
such performance and compliance, but excluding any
underwriting fees and commissions and applicable transfer
taxes, if any, which shall be borne by the Selling
Shareholders, pro rata in proportion to the number of Shares
being sold by each Selling Shareholder.
16
"Securities Laws" means the securities laws of the United
States or any state, territory, or political subdivision
thereof and of any of the provinces of Canada.
For the purposes of this Section 7, the Persons comprising
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, together with any Affiliates of
such Persons, shall be deemed to be a single Shareholder.
7.1 Incidental Registration If the Company at any time
proposes to qualify and/or register any of its securities
(the "Offered Securities") under the Securities Laws,
whether or not for sale for its own account, in a form and
manner which would permit distribution to the public under
any of the Securities Laws of any of the Company's
securities, it will give prompt written notice (the
"Offering Notice") to the Shareholders of its intention to
do so. Upon the written request of any Shareholders (each
such Shareholder being a "Selling Shareholder"; if more than
one, collectively the "Selling Shareholders") delivered to
the Company within 15 days after the giving of any such
notice (which request shall specify the Shares intended to
be disposed of by that Shareholder and the intended method
or methods of disposition thereof), the Company will use
reasonable commercial efforts to effect the qualification
and registration under the applicable Securities Laws of,
subject to section 7.7, that number of Shares of each
Selling Shareholder (the "Selling Shareholder's Shares") as
is equal to the product of (a) the number of Offered
Securities and (b) the quotient obtained by dividing the
number of Shares held by that Selling Shareholder by the
aggregate number of outstanding Shares as at the date of
such request, provided that:
7.1.1 if, at any time after giving the Offering Notice
and prior to the effective date of the prospectus or
registration statement filed in connection with such
qualification or registration, the Company determines after
consultation with the underwriters not to register such
securities, the Company may, at its election, give written
notice of such determination to the Selling Shareholders and
thereupon shall be relieved of its obligation to register
any Shares in connection with such qualification or
registration (but not from its obligation to pay the
Offering Expenses in connection therewith as provided
below), without prejudice, however, to the rights of the
Selling Shareholders under Section 7.4;
7.1.2 if:
(i) the qualification or registration of the Offered
Securities relates to an underwritten offering of the
securities (on a firm commitment basis) by or through one or
more underwriters, whether or not for the account of the
Company;
(ii) all or part of the Selling Shareholder's Shares are
not also to be included in such underwritten offering
(either because the Company has not received a request
pursuant to section 7.7 or, having received such a request,
it has been unable so to include such Shares after using
reasonable efforts to do so as provided in section 7.7) and
17
(iii) the managing underwriter or underwriters of such
underwritten offering advises the Company in writing of its
opinion (together with the reasons therefor), that the
distribution of all or a specified portion of such Selling
Shareholder's Shares concurrently with the Offered
Securities by such underwriters will materially and
adversely affect the distribution of such Offered Securities
by such underwriters,
the Company will promptly furnish the Selling Shareholders
with a copy of such opinion and may, by written notice to
the Selling Shareholders accompanying such opinion, require
that the distribution of all or a specified portion of such
Selling Shareholder's Shares be deferred until the
completion of the distribution of such securities by such
underwriters, but in no event for a period extending beyond
the earlier of the 180th day following the effective date of
such registration or qualification and the date expiration
of the last to expire lock-up agreement, if any, entered
into by any Shareholder of the Company at the request of
such underwriters.
7.2 Limitation On Rights. The Company shall not be
obligated to effect any registration of any Selling
Shareholder's Shares under section 7.1 incidental to the
qualification and registration of any of its securities in
connection with any acquisitions, securities exchange
offers, dividend reinvestment plans or stock option or other
employee benefit plans.
7.3 Offering Expenses. No registration or qualification of
Shares effected under section 7.1 shall relieve the Company
of its obligations pursuant to section 7.4. The Company will
pay all Offering Expenses in connection with each
registration of Securities requested pursuant to this
section 7.1, provided that the Company shall not be
responsible for the reasonable fees and expenses of more
than one separate legal firm for all Selling Shareholders.
7.4 Registration On Request Upon receipt of a written
request (a "Shareholder Request") from a Shareholder or
Shareholders holding in aggregate at the date thereof not
less than 3 % of the then outstanding common shares of the
Company and having a Current Market Value of not less than
Cdn.$5,000,000, to effect the qualification and registration
under the Securities Laws of all or part of the Shares
beneficially owned by such Shareholder and specifying the
intended method or methods of disposition of such Shares,
the Company will:
7.4.1 within 20 days thereafter provide a copy of such
Shareholder Request to all other Shareholders (the "Other
Shareholders"); and
7.4.2 use reasonable commercial efforts to effect (at
the earliest practicable date) the qualification and
registration under the Securities Laws of, subject to
section 7.7, the Shares to which the Shareholder Request
relates, provided such Shares have a Current Market Value
(calculated as of the date of the Shareholder Request) of
not less than Cdn.$5,000,000, and such Shares, if any, held
by the
18
Other Shareholders in respect of which such Other
Shareholders request registration and qualification,
provided such request is in writing and received by the
Company within 15 days of the date on which the Shareholder
Request is sent to the Other Shareholders.
The rights of Shareholders under this section 7.4 shall
become effective and commence on the earlier of (a) the
180th day following the date of completion of the Company's
initial public offering (the "IPO") and (b) the third
anniversary of the date hereof if the Company's IPO has not
completed by such third anniversary; and shall continue
indefinitely in the event the Company does not complete an
IPO and, if the Company completes an IPO, shall continue
until the sixth anniversary of such IPO, whereupon such
rights shall terminate. No Shareholder Request may be made
within 180 days of the most recent prior Shareholder
Request.
7.5 Offering Expenses. All Offering Expenses in connection
with the qualification and/or registration of Shares
effected pursuant to section 7.4 shall be borne by the
Shareholders holding Shares being so qualified and/or
registered, pro rata based upon the number of Shares of such
Shareholder that are qualified and/or registered, except
that such Shareholders shall not be responsible for any
expenses and costs incurred by the Company in the ordinary
course of its business or in the ordinary course of
complying with applicable securities laws.
7.6 Registration Procedures If and whenever the Company is
required to use reasonable commercial efforts to effect the
qualification and registration of any Shares under any of
the Securities Laws as provided in sections 7.1 and 7.4, the
Company will as expeditiously as possible:
7.6.1 prepare and file (in any event within 60 days
after requests for qualification and registration have been
delivered to the Company) the preliminary prospectus,
registration statement or, similar document required under
each of the applicable Securities Laws together with such
other related documents as may be necessary or appropriate
for the purposes of the proposed distribution and shall, as
soon as possible, prepare and file under the applicable
Securities Laws a (final) prospectus, registration statement
or similar document and cause such (final) prospectus,
registration statement or similar document to become
effective as soon as possible and shall take all other steps
and proceedings that may be necessary in order to qualify
the Shares for distribution in accordance with such
Securities Laws;
7.6.2 prepare and file with the applicable securities
regulatory authorities such amendments and supplements to
such preliminary prospectus, (final) prospectus,
registration statement and similar documents as may be
necessary to comply with the provisions of the applicable
Securities Laws with respect to the distribution of all
Shares and other securities covered thereby until the
earlier of such time , as all of such Shares and other
securities have been disposed of and the expiration of 4
months after the filing of such (final) prospectus;
19
7.6.3 furnish to the Selling Shareholders such number
of commercial copies of any documents prepared or filed
pursuant to sections 7.6.1 or 7.6.2 (including all exhibits
thereto and all documents incorporated therein by reference)
as the Selling Shareholders may reasonably request;
7.6.4 furnish to the Selling Shareholders:
(A) an opinion of counsel for the Company addressed
to the Selling Shareholders and dated the effective date of
such (final) prospectus or registration statement; and
(B) if applicable, a "comfort" letter addressed to
such underwriter or underwriters as may be participating in
the qualification and registration of Shares, dated the
effective date of such (final) prospectus or registration
statement and the closing date, signed by the auditors of
the Company;
and, in each case, covering substantially the same matters
as are customarily covered in such documents and such other
matters as the Selling Shareholders may request, acting
reasonably; and
7.6.5 immediately notify the Selling Shareholders of
the happening of any event as a result of which the
preliminary prospectus, the (final) prospectus or any
registration statement, as then in effect, would include a
misrepresentation (within the meaning of applicable
securities laws), and at the request of the Selling
Shareholders prepare and furnish to the Selling Shareholders
a reasonable number of commercial copies of a supplement to
or an amendment of the preliminary prospectus, the (final)
prospectus and any registration statement as may be
necessary so that, as thereafter delivered to the purchasers
of such Shares or other securities, such document shall not
include a misrepresentation (within the meaning of
applicable securities laws).
7.7 Underwriting Agreement. If requested by any underwriter
for any underwritten offering of Shares on behalf of Selling
Shareholders pursuant to a Shareholder Request, the Company
will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such
other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary
distributions, including, without limitation, rights of
indemnity and contribution substantially to the effect and
to the extent provided in section 7.10. If such underwriter
is unwilling to underwrite all of the Shares entitled to
registration and qualification under subsection 7.4.2, such
registration entitlement shall be modified such that each
Shareholder of such Shares shall be entitled to registration
and qualification of a number of Shares equal to the product
obtained by multiplying the number of Shares the underwriter
is prepared to underwrite by the quotient obtained by
dividing number of Shares in respect of which such
Shareholder is seeking registration by the aggregate number
of Shares sought to be registered under subsection
20
7.4.2. If the Company at any time proposes to register
or qualify any of its securities under any of the Securities
Laws (other than pursuant to a request made under section
7.4), whether or not for sale for its own account, and such
securities are to be distributed by or through one or more
underwriters, the Company will make reasonable efforts, if
requested by the Selling Shareholders in connection
therewith pursuant to section 7.1, to arrange for such
underwriters to include such Shares among those securities
to be distributed by or through such underwriters; provided
that, for the purposes hereof, reasonable efforts shall not
require the Company or any other seller of the securities
proposed to be distributed by or through such underwriters
to reduce the amount or sale price of such securities
proposed to be so distributed from the levels they would be
if there were no distribution of Shares held by Selling
Shareholders. If such underwriter is unwilling to underwrite
all of the Shares entitled to registration and qualification
under section 7.1, such registration entitlement shall be
modified such that each Selling Shareholder shall be
entitled to registration and qualification of a number of
Shares equal to the product obtained by multiplying the
number of Selling Shareholder Shares the underwriter is
prepared to underwrite by the quotient obtained by dividing
number of Selling Shareholder Shares held by such Selling
Shareholder by the aggregate number of Selling Shareholder
Shares.
7.8 Selection of Managing Underwriter. Whenever a
registration requested pursuant to section 7.4 is for an
underwritten offering, the Selling Shareholders shall have
the right to select the managing underwriter or agent to
administer the offering subject to the approval of the
Company, such approval not to be unreasonably withheld. The
Company hereby grants its continuing approval of ▇▇▇▇▇▇▇,
Sachs & Co. (or any of its affiliates) to serve as managing
underwriter for any underwritten or agency offerings
pursuant to section 7.4.
7.9 Preparation; Reasonable Investigation In connection
with the preparation and filing of any preliminary
prospectus, (final) prospectus, registration statement or
similar document as herein contemplated, the Company will
give the Selling Shareholders and their underwriters, if
any, and their respective counsel, auditors and other
representatives, the opportunity to participate in the
preparation of such documents and each amendment thereof or
supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss
the business of the Company with its officers and auditors
as shall be necessary in the opinion of the Selling
Shareholders, such underwriters and their respective
counsel, all acting reasonably, and to conduct all due
diligence which the Selling Shareholders, such underwriters
and their respective counsel may reasonably require in order
to conduct a reasonable investigation for purposes of
establishing a due diligence defence as contemplated by the
Securities Laws and in order to enable such underwriters to
execute the certificate required to be executed by them at
the end of each such document.
7.10 Indemnification Of Selling Shareholders. In the event
of any qualification or registration of any Shares
hereunder, the Company will
21
indemnify and hold harmless the Selling Shareholders, each
person, if any, who participates as an underwriter in the
offering or sale of such Shares, for and on behalf of
themselves and for and on behalf of and in trust for each
of their respective officers and directors, and each other
person, if any, who controls a Selling Shareholder or any
such underwriter or agent within the meaning of the United
States Securities Act of 1933, from and against any and all
losses, claims, damages, liabilities (whether arising under
applicable Securities Laws or otherwise), costs or expenses
(but not including loss of profit) caused or incurred:
7.10.1 by reason of or arising out of any information or
statement contained in the preliminary prospectus, (final)
prospectus, registration statement, similar document or any
amendment or supplement thereto (the "Disclosure
Documents"), which is or is alleged to be a
misrepresentation (within the meaning of applicable
securities laws) in the Disclosure Documents; and/or
7.10.2 by reason of or arising out of the omission or
alleged omission to state in the Disclosure Documents, any
material fact; and/or
7.10.3 by reason of or arising out of any misrepresentation
or alleged misrepresentation contained in the Disclosure
Documents.
Notwithstanding section 7.10, the indemnification contained
in section 7.10 shall not apply in respect of any losses,
claims, damages, liabilities, costs or expenses caused or
incurred by reason of or arising out of any statement,
omission, misrepresentation or other matter or thing
referred to in section 7.10 which is based upon or results
from any information relating solely to a Selling
Shareholder in the Disclosure Documents.
7.11 Notification Of Claim. In the event that any claim,
action, suit or proceeding, including, without limiting the
generality, of the foregoing, any inquiry or investigation
(whether formal or informal) is brought or instituted
against any of the persons or corporations in respect of
which indemnification is or might reasonably be considered
to be provided for in section 7.10, such person or
corporation (the "Indemnified Party") shall promptly notify
the Company and the Company shall promptly retain counsel
who shall be reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party in such claim,
action, suit or proceeding and the Company shall pay all of
the reasonable fees and disbursements of such counsel
relating to such claim, action, suit or proceeding .
7.12 Retention Of Counsel. In any such claim, action,
suit or proceeding, the Indemnified Party shall have the
right to retain other counsel to act on his or its behalf,
provided that the fees and disbursements of such other
counsel shall be paid by the Indemnified Party unless,
subject to section 7.13
7.12.1 the Company and the Indemnified Party shall
have mutually agreed to the retention of such other counsel;
or
22
7.12.2 the named parties to any such claim, action,
suit or proceeding (including any added, third or impleaded
parties) include both the Company and the Indemnified Party
and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing
interests between them.
7.13 Single Counsel. If other counsel is retained as
provided for in section 7.12 and the Company is responsible
for the fees and disbursements of such counsel, the Company
shall not, in connection with any such claim, action, suit
or proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate legal
firm for all persons or corporations in respect of which
indemnification is or might reasonably be considered to be
provided for in section 7.10.
7.14 Settlements. Notwithstanding anything contained in
this Agreement, neither the Company nor the Selling
Shareholders shall agree to any settlement of any such
claim, action, suit or proceeding unless the other has
consented in writing thereto, and the Company shall not be
liable for any settlement of any such claim, action, suit or
proceeding unless it has consented in writing thereto.
7.15 Contribution. The Company agrees to provide
provision for contribution relating to such indemnity as
shall be reasonably requested by the Selling Shareholders or
the underwriters.
7.16 Indemnification Of The Company. The Company may
require, in connection with any distribution of Shares as
herein contemplated, that the Company shall have received an
undertaking satisfactory to it from the Selling Shareholders
to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subsection 7.10) the Company
for and on behalf of itself and for and on behalf of and in
trust for each director and officer of the Company and each
other person, if any, who controls the Company within the
meaning of the United States Securities Act of 1933 with
respect to any statement, omission, misrepresentation or
other matter or thing referred to in section 7.10 which is
based upon or results from any information relating solely
to a Selling Shareholder in the Disclosure Documents.
27. Section 11.2
------------
Section 11.2 is deleted and the following is substituted:
11.2 Continuing Obligations
The termination of this Agreement will not affect:
(a) the obligations of any Shareholder or the Company
arising pursuant hereto prior to the date of termination to
make payment of any balance owing on the purchase price of
any Investment as may have been agreed upon pursuant to this
Agreement;
23
(b) the provisions of sections 3.9 and 3.11, which shall
continue in force notwithstanding such termination; or
(c) the rights granted to any Shareholder by Article 7 of
this Agreement.
28. Section 11.7.3
--------------
Section 11.7.3 of the Shareholders Agreement is amended by deleting
the words "Federal Business Development Bank" wherever they appear, and
substituting the words "Business Development Bank of Canada".
29. Section 11,7.12
---------------
A new Section 11.7.12 is added to the Shareholders Agreement
as follows:
"11.7.12if to Star Management:
SVM Star Ventures Management GMBH ▇▇.▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇▇
Attention: Managing Director
----------------------------
with a copy to:
SVM Star Ventures Management GMBH ▇▇.▇
▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
and with a copy to:
Goldfarb, Levy, Eran & Co.
Beit Eliahu
2 Ibn ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Adv."
--------------------------
24
30. Section 11.7.13
---------------
A new Section 11.7.13 is added to the Shareholders Agreement
as follows:
"11.7.13 if to G S Capital:
G S Capital Partners II, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (for administrative matters)
▇▇▇▇ Bu (for all other matters)"
31. Section 11.7.14
---------------
A new Section 11.7.14 is added to the Shareholders Agreement
as follows:
"11.7.14 if to G S Offshore'
G S Capital Partners II Offshore, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (for administrative matters)
▇▇▇▇ Bu (for all other matters)"
32. Section 11.7.15
---------------
A new Section 11.7.15 is added to Shareholders Agreement
as follows:
11.7.15 if to Goldman Gmbh:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. Verwaltungs Gmbh
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (for administrative matters)
▇▇▇▇ Bu (for all other matters)"
25
33. Section 11.7.16
---------------
A new Section 11.7.16 is added to the Shareholders Agreement
as follows:
"11.7.16 if to Stone Street:
Stone Street Fund 1995, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (for administrative matters)
▇▇▇▇ Bu (for all other matters)"
34. Section 11.7.17
---------------
A new Section 11.7.17 is added to the Shareholders Agreement
as follows:
"11.7.17 if to ▇▇▇▇▇▇ ▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund 1995, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (for administrative matters)
▇▇▇▇ Bu (for all other matters)"
35. Signatories
-----------
The signatories to the Shareholders Agreement are amended to be
identical to the signatories to this Agreement.
36. Effective Date
--------------
This Amendment to Shareholders Agreement shall be deemed to be in full
force and effect as of November 2, 1995 as to all of the parties hereto.
37. Facsimile Counterparts
----------------------
This Amendment to Shareholders Agreement may be executed in facsimile
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which facsimile counterparts together shall constitute the
same agreement.
26
THIS PAGE INTENTIONALLY LEFT BLANK
27
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
___________________________________
Authorized Signatory
BUSINESS DEVELOPMENT BANK OF CANADA
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Authorized Signatory
By: SVM Star Ventures Managementgesellschaft mbH No. 3 (Mamaging Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
SVE STAR VENTURES ENTERPRISES NO.II LIMITED PARTNERSHIP
___________________________________
Authorized Signatory
By: SVM Star Ventures Managementgesellschaft mbH No. 3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
28
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Authorized Signatory
BUSINESS DEVELOPMENT BANK OF CANADA
___________________________________
Authorized Signatory
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SVE STAR VENTURES ENTERPRISES NO.II LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Authorized Signatory
By: SVM Star Ventures Managementgesellschaft mbH No. 3 (Mamaging Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
SVE STAR VENTURES ENTERPRISES NO.II LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
___________________________________
Authorized Signatory
By: SVM Star Ventures Managementgesellschaft mbH No. 3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
32
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Authorized Signatory
By: SVM Star Ventures Managementgesellschaft mbH No. 3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
/s/ Signature
-----------------------------------
Authorized Signatory
UNICYCLE TRADING COMPANY
/s/ SIGNATURE
___________________________________
Authorized Signatory
D.G. ▇▇▇-GAL LTD.
/s/ SIGNATURE
___________________________________
Authorized Signatory
YOZMA VENTURE CAPITAL LTD.
/s/ SIGNATURE
___________________________________
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
___________________________________
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
33
/s/ SOTIRIS TSOTOURAS
-------------------------
SOTIRIS TSOTOURAS
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
/s/ SIGNATURE
_________________________
Authorized Signatory
YAROK AZ LTD.
/s/ SIGNATURE
_________________________
Authorized Signatory
EVERGREEN CAPITAL MARKETS LTD.
/s/ SIGNATURE
_________________________
Authorized Signatory
FLB INVESTMENTS LTD.
/s/ SIGNATURE
_________________________
Authorized Signatory
GILDE INVESTMENT FUND B.V.
/s/ SIGNATURE
_________________________
Authorized Signatory
GILDE IV
/s/ SIGNATURE
_________________________
Authorized Signatory
MARIN INVESTMENTS LIMITED
/s/ SIGNATURE
_________________________
Authorized Signatory
30
/s/ R. AMIT
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
QUALITY INVESTMENTS L.L.C
/s/ SIGNATURE
_________________________
Authorized Signatory
SVM STAR VENTURES MANAGEMENT GMBH NO.3
/s/ ▇▇▇▇ ▇▇▇▇▇
_________________________
Authorized Signatory
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
31
_____________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_____________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
QUALITY INVESTMENTS L.L.C
_____________________
Authorized Signatory
SVM STAR VENTURES MANAGEMENT GMBH NO.3
_____________________
Authorized Signatory
GS CAPITAL PARTNERS II, L.P.
BY: GS Advisors, L.P.
Its General Partner
BY: GS Advisors, Inc.
Its General Partner
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
GS CAPITAL PARTNERS II, OFFSHORE, L.P.
BY: GS Advisors, L.P.
Its General Partner
BY: GS Advisors, Inc.
Its General Partner
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
31
THIS AMENDMENT TO SHAREHOLDERS AGREEMENT made as of the 22nd day of March,
1996,
AMONG:
CREO PRODUCTS INC., a company duly incorporated under the laws of
------------------
Canada, registered extraprovincially in the Province of British
Columbia, and having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
(the "COMPANY")
OF THE FIRST PART
AND:
BUSINESS DEVELOPMENT BANK OF CANADA. formerly KNOWN AS FEDERAL
--------------------------------------------- ----------------
BUSINESS DEVELOPMENT BANK, incorporated by special Act of
-------------------------
Parliament: of Canada, having its head office in the City of Montreal,
in the Province of Quebec
("FBDB")
OF THE SECOND PART
AND:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇")
OF THE THIRD PART
AND:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇▇▇")
OF THE FIFTH PART
AND:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------
("▇▇▇▇▇▇▇▇▇" and together with ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, the "Management
Shareholders")
OF THE SIXTH PART
AND:
SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERS
-----------------------------------------------------
("STAR II")
and
SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
---------------------------------------------------------
("STAR III")
and
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
----------------------------------------------------------
("STAR IIIA")
and
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
------------------------------------------------------
("Interstock")
and
UNICYCLE TRADING COMPANY
------------------------
("Unicycle")
and
D.G. ▇▇▇-GAL LTD,
-----------------
("▇▇▇-Gal")
and
YOZMA VENTURE CAPITAL LTD.
--------------------------
("Yozma")
and
SVM STAR VENTURES MANAGEMENT GMBH NO. 3
---------------------------------------
("Star Management")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------
("▇▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇")
and
2
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇▇")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------
("Mackenrodt")
and
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
("▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇")
and
SOTIRIS TSOTOURAS
-----------------
("Tsotouras")
(STAR II, STAR III, STAR IIIA, Interstock, Unicycle, ▇▇▇-Gal, Yozma,
Star Management, Seeman, Regehr, Goldberg, Mackenrodt, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and Tsotouras are herein called "STAR")
OF THE SEVENTH PART
AND:
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
----------------------------------------
("Evergreen")
and
YAROK AZ LTD.
-------------
("Yarok Az")
and
EVERGREEN CAPITAL MARKETS LTD.
------------------------------
("Capital Markets")
and
3
FLB INVESTMENTS LTD.
--------------------
("FLB")
(Evergreen, Yarok Az, Capital Markets and FLB are herein called the
"Evergreen Group")
OF THE EIGHTH PART
AND:
GILDE INVESTMENT FUND B.V.
--------------------------
("Gilde Investments")
and
GILDE IV, B.V.
--------------
("Gilde IV")
(Gilde Investments and Gilde IV are herein called "GILDE")
OF THE NINTH PART
AND:
MARIN INVESTMENTS, LIMITED
--------------------------
("Marin")
and
▇▇▇▇▇▇▇ ▇▇▇▇
------------
("Amit")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
(jointly called "MACCRIMMON")
(▇▇▇▇▇, ▇▇▇▇ and MacCrimmon are herein called the "MARIN GROUP")
OF THE TENTH PART
AND:
QUALITY INVESTMENTS L.L.C,
--------------------------
("Quality")
OF THE ELEVENTH PART
4
AND:
G S CAPITAL PARTNERS II, L.P.
-----------------------------
("G S Capital")
and
G S CAPITAL PARTNERS II OFFSHORE, L.P.
--------------------------------------
("G S Offshore")
and
▇▇▇▇▇▇▇. ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
-------------------------------------
("Goldman Gmbh")
and
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇,▇.
----------------------------
("Stone Street")
and
BRIDGE STREET FUND 1995. L.P.
-----------------------------
("Bridge Street")
(G S Capital, G S Offshore, Goldman Gmbh, ▇▇▇▇▇ Street and Bridge
Street are herein called the "▇▇▇▇▇▇▇ SACHS GROUP")
OF THE TWELFTH PART
AND:
▇▇▇▇▇▇▇ INTERNATIONAL PRIVATE EQUITY PARTNERS II - DIRECT FUND LP
-----------------------------------------------------------------
("HIPEP")
OF THE THIRTEENTH PART
AND:
TECHNOLOGY CROSSOVER VENTURES, L.P.
-----------------------------------
("TCVLP")
and
5
TECHNOLOGY CROSSOVER VENTURES, C.V.
-----------------------------------
("TCVCV")
and
▇▇▇ ▇▇▇▇▇
---------
("▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------
("SOLOMON")
(TCVLP, TCVCV, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ are herein called the "TCV GROUP")
OF THE FOURTEENTH PART
WHEREAS:
A. The Company, FBDB, ▇▇▇▇▇▇▇, the Management Shareholders and STAR
entered into a shareholders agreement on the 29th day of April, 1994 to govern
the rights and obligations of the principal shareholders of the Company, which
agreement was mended and additional parties added as of November 21, 1994, as of
June 30, 1995, and as of November 2, 1995 (such agreement, as amended, is
hereinafter referred to as the "SHAREHOLDERS AGREEMENT");
B. The parties hereto desire to make certain amendments to the
Shareholders Agreement to reflect the fact that HIPEP and the TCV Group have
become Shareholders of the Company.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and of the mutual covenants and agreements hereinafter set forth and
other good and valuable consideration (the receipt and adequacy of which are
hereby acknowledged), the parties hereto agree each with the other as follows:
1. Parties
-------
The listing and description of the parties to the Shareholders
Agreement is amended to be identical to the listing and description of the
parties to this Agreement, and the changes are more specifically described as
follows:
(a) HIPEP is added as the parry of the Thirteenth Part; and;
(b) TCV Group is added as the party of the Fourteenth Part..
6
2. New Parties
-----------
Each of HIPEP, TCVLP, TCVCV, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ is hereby made a party
to the Shareholders Agreement as of the date of this Amendment to Shareholders
Agreement, and each of such parties agrees to be bound by all of the provisions
of the Shareholders Agreement to the extent such provisions are not mended
hereby. All of the original parties to the Shareholders Agreement agree that
this Amendment to Shareholders Agreement shall be deemed to amend the
Shareholders Agreement as more fully set forth herein. All of the parties to
this Amendment to Shareholders Agreement agree that, except to the extent it is
amended hereby, the Shareholders Agreement shall remain in full force and
effect. All references in the Shareholders Agreement to "the Agreement" or to
"this Agreement" shall be deemed to refer to the Shareholders Agreement as
amended by this Amendment to Shareholders Agreement.
3. Section 1.1.30
--------------
The Shareholders Agreement is amended by deleting section 1.1.30 and
substituting the following-
"1.1.30 "Shareholder" means FBDB, ▇▇▇▇▇▇▇, each of the
Management Shareholders, each of the Persons comprising
STAR, each of the Persons Comprising the Evergreen Group,
each of the Persons comprising Gilde, each of the Persons
comprising the Marin Group, Quality, each of the Persons
comprising the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, HIPEP, and each of the
Persons comprising the TCV Group, and the , respective
successors or permitted assigns of each of the foregoing;
provided, however, that all of the Persons comprising STAR
and any and all STAR Transferees (together with any Person
or Persons (the "Other Investors") purchasing shares of the
Company or any Related Company pursuant to section 4.3 of
the Share Purchase Agreement) shall be deemed a single
Person and their ownership of Shares (including any shares
of the Company which the Other Investors have acquired, or
have a right to acquire, pursuant to Section 4.3 of the
Share Purchase Agreement) shall be aggregated for the
purposes of this Section 1.130; and provided further,
however, all of the Persons comprising the Evergreen Group
and all Permitted Transferees (as defined in Section 1.35)
of such Persons shall be deemed to be a single Person and
their ownership of Shares shall be aggregated for the
purposes of this Section 1.1.30; and provided further
however, all of the Persons comprising Gilde and all
Permitted Transferees of such Persons shall be deemed to be
a single Person and their ownership of Shares shall be
aggregated for purposes this Section 1.1.30, and provided
further that each of the Persons comprising the TCV Group
and all Permitted Transferees of such Persons shall be
deemed to be a single Person and their ownership of shall be
aggregated for purpose of this Section 1.1.30."
4. Section 3.9
-----------
Section 3.9 of the Shareholders Agreements is deleted, and the
following substituted:
7
"3.9 Confidentiality of Private Affairs
No Shareholder will (while a Shareholder of or employed by
the Company or at any time thereafter) disclose to any
person not a Shareholder at the time of disclosure, the
private affairs of the company or any of its Related
Companies, contracts or agreements of the Company or its
Related Companies, the financial position of the Company or
its Related Companies (except that the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
may disclose such matters to and consult thereon with its
advisor, ▇▇▇▇▇▇▇, Sachs & Co., and FBDB, the Evergreen
Group, Gilde, the Marin Group, STAR, and the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Group may, in good faith, disclose the financial position of
the Company to a creditor of the Company, if acting in good
faith FBDB, the Evergreen Group, Gilde, the Marin Group,
STAR or the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group forms the view that such
disclosure is in the best interests of the Company, or to a
prospective purchaser of its interest in the Company), any
prospects of business of the Company or its Related
Companies which is not public knowledge and will not (either
while such Shareholder is a Shareholder of or employed by
the Company or at any time thereafter) use for its own
purposes (except that FBDB, the Evergreen Group, Gilde, the
Marin Group, STAR, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group and ▇▇▇▇▇▇▇,
Sachs & Co., HIPEP, and the TCV Group (other than ▇▇▇▇▇ and
Solomon) shall have the right to refer to their investment
in the Company in their publications and promotional
material) or for any purposes other than those of the
Company any information he may acquire in relation to the
business of the Company or its Related Companies.
Notwithstanding the above, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group and its
advisor, ▇▇▇▇▇▇▇, Sachs & Co., HIPEP and the TCV Group
(other than ▇▇▇▇▇ or ▇▇▇▇▇▇▇) may disclose information if
pursuant to a subpoena, Civil Investigative Demand (or
similar process), order, statute, rule or other legal
requirement promulgated or imposed by a court or by a
judicial, regulatory, self-regulatory or legislative body,
organization, agency or committee or otherwise in connection
with any judicial or administrative proceeding (including,
in response to oral questions, interrogatories or requests
for information or documents) in which ▇▇▇▇▇▇▇, Sachs & Co.
or its Affiliates, HIPEP, or the TCV Group (other than ▇▇▇▇▇
and Solomon) is involved."
5. Section 3.11.2
--------------
Section 3.11.2 of the Shareholders Agreement is deleted
and the following substituted:
"3.11.2 Section 3.11.1 does not apply and shall not be
construed or interpreted to restrict the right of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Group or its advisor, ▇▇▇▇▇▇▇, Sachs & Co. or
any of its Affiliates, or HIPEP or the TCV Group (other than
▇▇▇▇▇ or ▇▇▇▇▇▇▇) to use, information acquired by any of
them in the ordinary course of their investment banking
business, and otherwise than by reason of being a
Shareholder or a party to this Agreement; provided, however,
that nothing in this section 3.11.2 shall operate to relieve
the ▇▇▇▇▇▇▇ Sachs Group or its advisor, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., or any of its Affiliates, or any director nominated by
the ▇▇▇▇▇▇▇ Sachs Group, or HIPEP or the
8
TCV Group or any of their respective Affiliates, from any
duty or obligation which it may owe to the Company in law or
in equity."
6. Section 3.12
------------
Section 3.12 of the Shareholders Agreement is
amended by the addition of the words " - HIPEP, or the TCV
Group" after the words "the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group in section
3.12.2.
7. Section 3.14
------------
Section 3.14 of the Shareholders Agreement is amended by inserting the
words ", HIPEP or the TCV Group (other than ▇▇▇▇▇ or Solomon) after the words
"the Marin Group" in the preamble.
The second to the last paragraph of Section 3.14 of the Shareholders Agreement
shall have inserted after "the Marin Group," the words ", HIPEP, the TCV Group
(other than ▇▇▇▇▇ and ▇▇▇▇▇▇▇)" after the words "the ▇▇▇▇▇▇▇ Sachs Group," to
read as follows:
"Each of FBDB, the Evergreen Group, Gilde, the Marin Group,
HIPEP, the TCV Group (other than ▇▇▇▇▇ and ▇▇▇▇▇▇▇), the
▇▇▇▇▇▇▇ Sachs Group, ▇▇▇▇▇▇▇ and STAR reserves the right to
receive additional information from the Company and its
auditors, which is reasonably required to understand better
the affairs of the Company.
Any director and any Representative in a representative
capacity may pass that and all other information received by
him to the Shareholders he represents."
8. Section 5.21
------------
Section 5.21 of the Shareholders Agreement is amended to
read as follows:
"5.21 Waiver
5.21.1 Notwithstanding any other provision of this
Agreement, any Person that is a member of the ▇▇▇▇▇▇▇ Sachs
Group, HIPEP, and any member of the TCV Group (other than
▇▇▇▇▇ and ▇▇▇▇▇▇▇) may freely sell, transfer or otherwise
dispose of any of its Investment to another member of its
respective Group (other than, in the case of the TCV Group,
▇▇▇▇▇ or Solomon) or to an Affiliate of any such Person
(other than, in the case of ▇▇▇▇▇ or ▇▇▇▇▇▇▇, an Affiliate
of either) or, in the case of a Person that is a
partnership, to the partners thereof and in the case of a
Person that is a corporation, to the shareholder's thereof
provided that any such transferee shall have agreed to be
bound by the provisions of this Agreement."
9. Section 6.1
-----------
Section 6.1 of the Shareholders Agreement is amended by the
addition of the words "HIPEP, the TCV Group," after the
words "▇▇▇▇▇▇▇ Sachs Group" wherever they appear.
9
10. Section 11.7.18
---------------
A new Section 11.7.18 is added to the Shareholders Agreement
as follows:
"11.7.18 if to HIPEP:
▇▇▇▇▇▇▇ International Private Equity Partners II - Direct
Fund,L.P.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
11. Section 11.7.19
---------------
A new Section 11.7.19 is added to the Shareholders Agreement
as follows:
"11.7.19 if to TCVLP:
Technology Crossover Ventures, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Technology Crossover Ventures,L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12. Section 11.7.20
---------------
A new Section 11.7.20 is added to the Shareholders Agreement
as follows:
"11.7.20 if to TCVCV:
Technology Crossover Ventures, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10
13. Section 11.7.21
---------------
A new Section 11.7.21 is added to the Shareholders Agreement
as follows :
"11.7.21 if to ▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14. Section 11.7.22
---------------
A new Section 11.7.22 is added to the Shareholders Agreement as
follows:
"11.7.22 if to SOLOMON:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
15. Signatories
-----------
The signatories to the Shareholders Agreement are amended to be
identical to the signatories to this Agreement.
16. Effective Date
--------------
This Amendment to Shareholders Agreement shall be deemed to be in full
force and effect as of February , 1996 as to all of the parties hereto.
11
17. Facsimile Counterparts
----------------------
This Amendment to Shareholders Agreement may be executed in facsimile
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which facsimile counterparts together shall constitute the
same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Authorized Signatory
BUSINESS DEVELOPMENT BANK OF CANADA
/s/ SIGNATURE
___________________________
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
___________________________
Authorized Signatory
By: SVM Star Ventures Managementgeselschaft mbH Nr.3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Authorized Signatory
By: SVM Star Ventures Managementgeselschaft mbH Nr.3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Authorized Signatory
By: SVM Star Ventures Managementgeselschaft mbH Nr.3 (Managing Partner)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ VON LIECHTENSTEIN
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Von Liechtenstein
Authorized Signatory Director
UNICYCLE TRADING COMPANY
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
D.G. ▇▇▇-GAL LTD.
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
YOZMA VENTURE CAPITAL LTD.
/s/ SIGNATURE
________________________________________
Authorized Signatory
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
SOTIRIS TSOTOURAS
By: SVM Star Ventures Managementgesellschaft mbH Nr. 3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
YAROK AZ LTD.
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
EVERGREEN CAPITAL MARKETS LTD.
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
FLB INVESTMENTS LTD.
/s/ SIGNATURE
-----------------------------------------
Authorized Signatory
GILDE INVESTMENT FUND B.V.
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
GILDE IV
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
MARIN INVESTMENTS LIMITED
/s/ SIGNATURE
----------------------------------------
Authorized Signatory
/s/ R. AMIT
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
QUALITY INVESTMENTS L.L.C.
/s/ SIGNATURE
---------------------------
Authorized Signatory
SVM STAR VENTURES MANAGEMENT GMBH NO. 3
/s/ ▇▇▇▇ ▇▇▇▇▇
___________________________
Authorized Signatory
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
G S CAPITAL PARTNERS II, L.P.
___________________________
Authorized Signatory
G S CAPITAL PARTNERS II OFFSHORE, L.P.
___________________________
Authorized Signatory
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
___________________________
Authorized Signatory
STONE STREET FUND 1995, L.P.
___________________________
Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
___________________________
Authorized Signatory
15
QUALITY INVESTMENTS L.L.C.
___________________________
Authorized Signatory
SVM STAR VENTURES MANAGEMENT GMBH NO. 3
___________________________
Authorized Signatory
G S CAPITAL PARTNERS II, L.P.
by: GS ADVISORS, INC.
GENERAL PARTNERS
GS ADVISORS, LP.
GENERAL PARTNER
/s/ SIGNATURE
----------------------
Authorized Signatory
by: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇▇▇, V.P.
G S CAPITAL PARTNERS II OFFSHORE, L.P.
by: GS ADVISORS, INC.
GENERAL PARTNER,
GS ADVISORS, (Cayman) L.P.
GENERAL PARTNER
/s/ SIGNATURE
----------------------
Authorized Signatory
by: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------
Authorized Signatory ▇.▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇ Registered Agent
Managing Director
STONE STREET FUND 1995, L.P.
by: STONE STREET Value CORP.
GENERAL PARTNER
/s/ SIGNATURE
----------------------
Authorized Signatory
by: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇, V.P.
BRIDGE STREET FUND 1995, L.P.
by: STONE STREET Value CORP.
Managing GENERAL PARTNER
/s/ SIGNATURE
------------------------
Authorized Signatory
by: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ INTERNATIONAL PRIVATE EQUITY PARTNERS II - DIRECT FUND LP
By: Back Bay Partners XVI L.P.
By: ▇▇▇▇▇▇▇ Venture Partners, Inc.
/s/ SIGNATURE
By: _______________________________
Authorized Signatory
TECHNOLOGY CROSSOVER VENTURES, L.P.
By: Technology Crossover Management, L.L.C.,
General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES, C.V.
By: Technology Crossover Management, L.L.C.,
Investment General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
/s/ ▇▇▇ ▇. ▇▇▇▇▇
_________________________
▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
16
THIS AMENDMENT TO SHAREHOLDERS AGREEMENT made as of the ___ day of May,
1997,
AMONG:
CREO PRODUCTS INC., a company duly incorporated under
------------------
the laws of Canada, registered extraprovincially in
the Province of British Columbia, and having an office
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(the "Company")
OF THE FIRST PART
AND
BUSINESS DEVELOPMENT BANK OF CANADA, formerly
--------------------------------------------
known AS FEDERAL BUSINESS DEVELOPMENT BANK.
-------------------------------------------
incorporated by special Act of Parliament of Canada, having its
head office in the City of Montreal, in the Province of Quebec
("FBDB")
OF THE SECOND PART
AND:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇")
OF THE THIRD PART
AND:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------
("▇▇▇▇▇▇▇")
OF THE FOURTH PART
AND:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇▇▇▇")
(▇▇▇▇▇▇▇ and. ▇▇▇▇▇▇▇▇▇, together, being the "Management
Shareholders")
OF THE FIFTH PART
AND:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------
("▇▇▇▇▇▇▇▇▇")
OF THE SIXTH PART
AND:
SVE STAR VENTURES ENTERPRISES NO. II LIMITED
------------------------------------------------
PARTNERSHIP
-----------
("STAR II")
and
SVE STAR VENTURES NO. III LIMITED PARTNERSHIP
---------------------------------------------
("STAR III")
and
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
-----------------------------------------------------------------
("STAR IIIA")
and
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
------------------------------------------------------
("Interstock")
and
UNICYCLE TRADING COMPANY
------------------------
("Unicycle")
and
D.G. ▇▇▇-GAL LTD.
----------------
("▇▇▇-Gal")
and
YOZMA VENTURE CAPITAL LTD.
-------------------------
("Yozma")
and
SVM STAR VENTURES MANAGEMENT GMBH NO. 3
--------------------------------------
("Star Management")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------
("▇▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
("▇▇▇▇▇▇")
and
2
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------
("▇▇▇▇▇▇▇▇")
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------
("Mackenrodt")
and
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------
("▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇")
and
SOTIRIS TSOTOURAS
-----------------
("Tsotouras")
and
▇▇▇▇▇▇ ▇▇▇▇
-----------
("Bull")
(STAR II, STAR III, STAR IIIA, Interstock, Unicycle,
▇▇▇-Gal, Yozma, Star Management, ▇▇▇▇▇▇, Regebr,
Goldberg, Mackenrodt, von Lichrenstein, Tsotouras and
---
Bull are herein called "STAR")
----
OF THE SEVENTH PART
AND:
EVERGREEN INTERNATIONAL INVESTMENTS N.Y
---------------------------------------
("Evergreen")
and
YAROK AZ LTD).
------------
("Yarok Az")
and
EVERGREEN CAPITAL MARKETS LTD.
------------------------------
("Capital Markets")
3
and
FLB INVESTMENTS LTD.
-------------------
("FLB")
and
EVERGREEN CANADA-ISRAEL MANAGEMENT LTD.
--------------------------------------
("Canada-Israel")
and
PERISCOPE FUND LLT
------------------
("Periscope")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------
("▇▇▇▇▇")
(Evergreen, Yarok Az, Capital Markets, FLB,
Canada-Israel, Periscope and ▇▇▇▇▇ are herein called
----------------------------------
the "Evergreen Group")
OF THE EIGHTH PART
AND:
GILDE INVESTMENT FUND B.V.
-------------------------
("Gilde Investments")
and
GILDE IV,B.V.
-------------
("Gilde IV")
(Gilde Investments and Gilde IV are herein called "Gilde")
OF THE NINTH PART
AND:
MARIN INVESTMENTS LIMITED
-------------------------
("Marin")
and
4
▇▇▇▇▇▇▇ ▇▇▇▇
------------
("Amit")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------ ------------------
jointly called "MacCrimmon")
(▇▇▇▇▇, ▇▇▇▇ and MacCrimmon are herein called the "Marin
Group")
OF THE TENTH PART
AND:
QUALITY INVESTMENTS L.L.C.
-------------------------
("Quality")
OF THE ELEVENTH PART
AND:
G S CAPITAL PARTNERS II. L.P.
----------------------------
("G S Capital")
and
G S CAPITAL PARTNERS II OFFSHORE L.P.
-------------------------------------
("G S Offshore")
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
-------------------------------------
("Goldman Gmbh")
and
STONE STREET FUND 1995. L.P.
----------------------------
("Stone Street")
and
▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.▇.▇.
----------------------------
("Bridge Street")
(G S Capital, G S Offshore, Goldman Gmbh. ▇▇▇▇▇ Street
and Bridge Street are herein called the "▇▇▇▇▇▇▇ Sachs
Group")
OF THE TWELFTH PART
AND:
▇▇▇▇▇▇▇ INTERNATIONAL PRIVATE EQUITY PARTNERS
---------------------------------------------
II-DIRECT FUND LP.
-----------------
("HIPEP")
OF THE THIRTEENTH PART
AND:
TECHNOLOGY CROSSOVER VENTURES. L.P.
-----------------------------------
("TCVLP")
and
TECHNOLOGY CROSSOVER VENTURES. C.V.
----------------------------------
("TCVCV")
and
▇▇▇ ▇▇▇▇▇
---------
("▇▇▇▇▇")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------
("SOLOMON")
(TCVLP, TCVCV, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ are herein called the "TCV
Group")
OF THE FOURTEENTH PART
AND
VIRGINIA RETIREMENT SYSTEM
--------------------------
("VRS")
and
6
▇▇▇▇▇▇▇ VENTURE CAPITAL FUND III, LP
------------------------------------
("BVCF")
and
▇▇▇▇▇▇▇ MAP VENTURE CAPITAL FUND III TRUST
------------------------------------------
(BVCFT")
(VRS, BVC and BVCFT are herein called the "▇▇▇▇▇▇▇ Group")
OF THE FIFTEENTH PART
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. JR.
---------------------
("▇▇▇▇▇▇▇▇")
OF THE SIXTEENTH PART
WHEREAS:
A. The Company, FBDB, ▇▇▇▇▇▇▇, the Management Shareholders
and STAR entered into a shareholders agreement on the 29th day of April, 1994 to
govern the rights and obligations of the principal shareholders of the Company,
which agreement was amended and additional parties added as of November 21,
1994, as of June 30, 1995, as of November 2, 1995, and as of March 22, 1996,
-------------------------
(such agreement, as amended, is hereinafter referred to as the "Shareholders
Agreement"):
B. The parties hereto desire to make certain amendments to the
Shareholders Agreement for the purpose, among other things, of reflecting the
-------------------------------------------------
fact that certain additional Persons have become Shareholders of the Company.
--------------------------
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the premises and of the mutual covenants and agreements hereinafter set
forth and other good and valuable consideration (the receipt and adequacy of
which are hereby acknowledged), the parties hereto agree each with the other as
follows:
1. Parties
-------
The listing and description of the parties to the
Shareholders Agreement is amended to be identical to the listing and description
of the parties to this Agreement, and the changes are more specifically
described as follows:
(a) the description of the Management Shareholders is amended
to be identical with this Agreement:
(a) ▇▇▇▇▇▇▇ Group is added as the party of the Fifteenth Part
and
(C) ▇▇▇▇▇▇▇▇ is added as the party of the Sixteenth Part.
7
2. New Parties
-----------
Each of Bull, Canada-Israel. Periscope. ▇▇▇▇▇, VRS, BVC. BVCFT, and
-------------------------------------------------------------------
▇▇▇▇▇▇▇▇ is hereby made a party to the Shareholders Agreement as of the date
--------
of this Amendment to Shareholders Agreement, and each of such parties agrees to
be bound by all of the provisions of the Shareholders Agreement to the extent
such provisions are not amended hereby. All of the original parties to the
Shareholders Agreement agree that this Amendment to Shareholders Agreement shall
be deemed to amend the Shareholders Agreement as more fully set forth herein.
All of the parties to this Amendment to Shareholders Agreement agree that,
except to the extent it is amended hereby, the Shareholders Agreement shall
remain in full force and affect. All references in the Shareholders Agreement
to "the Agreement" or to "this Agreement" shall be deemed to refer to the
Shareholders Agreement as amended by this Amendment to Shareholders Agreement.
3. Section 1.1.16
--------------
The Shareholders Agreement is amended by deleting section 1.1.16 and
substituting the following:
"Family Member" means:
(i) A child (whether natural or adopted) sibling or former
--------------------------
spouse of the applicable Shareholder or any person
of the opposite sex to whom that person is married
or with whom that person is living in a conjugal
relationship outside of marriage; and
---
(ii) a trust all of the beneficiaries of which are
---------------------------------------------
either Shareholders or Family Members within the
------------------------------------------------
meaning of paragraph (1) hereof.
-------------------------------
4. Section 1.1.30
--------------
The Shareholders Agreement is amended by deleting
section 1.1.30 and substituting the following:
1.1.30 "Shareholder" means FBDB, ▇▇▇▇▇▇▇, each of the
Management Shareholders, each of the Persons
comprising STAR, each of the Persons Comprising
the Evergreen Group, each of the Persons
comprising Gilde, each of the Persons comprising
the Marin Group. Quality, each of the Persons
comprising the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, HIPEP, each of
the Persons comprising the TCV Group, each of the
-----------
Persons comprising the ▇▇▇▇▇▇▇ Group, ▇▇▇▇▇▇▇▇ and
----------------------------------------------
the respective successors or permitted assigns of
each of the foregoing; provided, however, that:
(a) all of the Persons comprising STAR and any and all
STAR Transferees (together with any Person or
Persons (the "Other Investors") purchasing shares
of the Company or any Related Company pursuant to
section 4.3 of the Share Purchase Agreement) shall
be deemed a single Person and their ownership of
Shares (including any shares of the Company which
the Other Investors have acquired, or have a right
to acquire, pursuant to Section 4.3 of the Share
Purchase
8
Agreement) shall be aggregated for the
purposes of this Section 1.30;
(b) all of the Persons comprising the Evergreen
Group and all Permitted Transferees (as
defined in Section 1.35) of such Persons shall
be deemed to be a single Person and their
ownership of Shares shall be aggregated for
the purposes of this Section 1.1.30:
(c) all of the Persons comprising Gilde and all
Permitted Transferees of such Persons shall be
deemed to be a single Person and their
ownership of Shares shall be aggregated for
purposes of this Section 1.1.30, and
(d) each of the Persons comprising the TCV Group
and all Permitted Transferees of such Persons
shall be deemed to be a single Person and their
ownership of Shares shall be aggregated for purposes
of this Section 1.1.30.
5. Section 3.2.4
-------------
The Shareholders Agreement is amended by deleting section
3.2.4 and substituting the following:
3.2.4 If at any time following the Next Annual Meeting the
board of directors resolves pursuant to the authority
conferred upon it by reason of the amendment of the
Articles provided for in section 3.2.1.2 to appoint an
eighth director, the parties agree to cause their
nominees to the board of directors to appoint a person
who shall have agreed upon by the Company and the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Group; and if at any time the board of
directors appoints a ninth director, the parties agree
to cause their nominees to the board of directors to
appoint a person who shall be a nominee of the ▇▇▇▇▇▇▇
---------------------------------
Group.
-----
6. Section 3.2.6
-------------
The Shareholders Agreement is amended by deleting
section 3.2.6 and substituting the following:
3.2.6 The provisions of Sections 3.2.1 and 3.2.4
shall not at any time apply to any of the
parties described in this Agreement as the
parties of the second to the twelfth parts
inclusive or to the ▇▇▇▇▇▇▇ Group if, at that
------------------------
time, the aggregate number of Shares owned by
the Persons comprising such parties and by any
Affiliate of any such Person to whom any
of such Person has, in accordance with the
provisions of this Agreement, transferred
Shares, is less than 3% of the issued common
shares, and in such case the number of
directors will be correspondingly reduced.
9
7. Section 3.6
-----------
Section 3.6 of the Shareholders Agreement is deleted,
and the following substituted:
The following matters will only be undertaken by the
Company with the consent of a majority of the directors of
the Company which majority includes the directors of the
Company nominated by FBDB, the ▇▇▇▇▇▇▇ Sachs Group, the
---
▇▇▇▇▇▇▇ Group and STAR:
-------------
3.6.1 any increase or reduction in the capital of the
Company or any alteration of the Company's capital
structure.
3.6.2 the declaration of dividends on the shares of the
Company.
3.6.3 the redemption or purchase for c??tion or other
retirement of any of its securities.
3.6.4 any alteration of the Articles of Incorporation or
By-laws of the Company.
8. Section 3.7
Section 3.7 of the Shareholders Agreement is deleted,
and the following substituted:
3.7.1 The following matters will only be undertaken by
the Company with the consent of a majority of the
directors of the Company which includes either the
director of the Company nominated by FBDB or the
director of the Company nominated by STAR or the
director of the Company nominated by the ▇▇▇▇▇▇▇
Sachs Group or the director of the Company
------------------------------
nominated by the ▇▇▇▇▇▇▇ Group:
------------------------------
3.7.1.1 the hiring or termination of the CEO, the
President or any vice-president of the Company.
3.7.1.2 any increase in the remuneration of any officers
or directors of the Company.
3.7.1.3 the issue of shares by the Company, with the
exception of issuances of Employee Reserved Shares
to employees other than the Management
Shareholders.
3.7.1.4 the consolidation, merger or amalganation of the
Company with any other company, association,
partnership or legal entity.
3.7.1.5 any transaction out of the ordinary course of the
business of the Company.
3.7.1.6 the incorporation of a Related Company.
10
3.7.1.7 any increase in the number of directors of the
Company, except an increase made to appoint a
nominee of a Person who makes an investment in
the Company of not less than $500,000.
3.7.1.8 the expenditure by the Company of any amount
in excess of $100,000 aggregate in any
calendar year for the repurchase of shares
of the Company.
3.7.2 Notwithstanding any provision of the Act, the
Articles of Incorporation of the Company, or
The Bylaws, no director shall be counted in
the quorum, or vote, on any matter relating
primarily to his employment, remuneration or
other compensation as an officer, employee or
agent of the Company or any Affiliate of the
Company.
9. Section 3.8.
------------
Section 3.8 of the Shareholders Agreement is deleted,
and the following substituted:
Subject to the provisions of the applicable provincial or
federal states for such offering, the Company shall
offer to each Shareholder a pro rata right to purchase
future shares allotted, provided the foregoing does not
apply to any allotment pursuant to:
3.8.1 rights of exchange or conversion attached to
shares or other securities of the Company;
3.8.2 an amalgamation;
3.8.3 a compromise or arrangement;
3.8.4 a dividend payable in shares;
3.8.5 the allotment of shares made pursuant to the
terms of any agreement between the Company and
any employee or Director thereof (in the case
of a Director, only so long as such allotment
is part of such Director's compensation)
effective during the period of employment or
appointment and or at the termination of the
employment or the appointment of any such
employee or Director;
3.8.6 an allotment of any of the Employee Reserved
Shares; or
3.8.7 an allotment of any shares issued pursuant to
rights granted to each of the Persons
comprising the ▇▇▇▇▇▇▇ Sachs Group;
or
3.8.8 an allotment of any shares issued pursuant to
those certain Subscription Agreements of even date
herewith between the Company and various persons
providing for the allotment of an aggregate
of 1,666,667 shares; or
11
3.8.9 an allotment of any shares issued to a
right hereto granted to ▇▇▇▇▇▇▇▇▇▇ Securities
pursuant to an agreement of even date herewith
between the Company and ▇▇▇▇▇▇▇▇▇▇ Securities.
10. SECTION 3.9
-----------
Section 3.9 of the Shareholders Agreement is deleted, and the
following substituted:
No Shareholder will (while a Shareholder of or employed by
the Company or at any time thereafter) disclose to any
person not a Shareholder at the time of disclosure, the
private affairs of the company or any of its Related
Companies, contracts or agreements of the Company or its
Related Companies, the financial position of the Company or
its Related Companies (except that the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
and the ▇▇▇▇▇▇▇ Group may disclose such matters to and
---------------------
consult thereon with their respective advisors, ▇▇▇▇▇▇▇,
----------------
Sachs & Co. and ▇▇▇▇▇▇▇ Partners, Inc., and FBDB, the
-------------------------
Evergreen Group, Glide, the Marin Group, STAR, the ▇▇▇▇▇▇▇
Sachs Group and the ▇▇▇▇▇▇▇ Group may, in good faith,
---------------------
disclose the financial position of the Company to a creditor
of the Company, if acting in good faith FRDB, the Evergreen
Group, Gilde, the Marin Group, STAR, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
or the ▇▇▇▇▇▇▇ Group forms the view that such disclosure is
--------------------
in the best interests of the Company, or to a prospective
purchaser of its interest in the Company), any prospects of
business of the Company or its Related Companies which is
not public knowledge and will not (either while such
Shareholder is a Shareholder of or employed by the Company
or at any time thereafter) use for its own purposes (except
that FBDB, the Evergreen Group, Gilde, the Marin Group,
STAR, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group and ▇▇▇▇▇▇▇, Sachs & Co. and
---
the ▇▇▇▇▇▇▇ Group and ▇▇▇▇▇▇▇ Partners, Inc. shall have the
-------------------------------------------
right to refer to their investment in the Company in their
publications and promotional material) or for any purposes
other than those of the Company any information any of them
-----------
may acquire in relation to the business of the Company or
its Related Companies.
Notwithstanding the above, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group and its
advisor, ▇▇▇▇▇▇▇, Sachs & Co., and the ▇▇▇▇▇▇▇ Group and its
-----------------------------
advisor, ▇▇▇▇▇▇▇ Partners, Inc. respectively may disclose
------------------------------
information if pursuant to a subpoena, Civil Investigative
Demand (or similar process), order, statute, rule or other
legal requirement promulgated or imposed by a court or by a
judicial, regulatory, self-regulatory or legislative body,
organisation, agency or committee or otherwise in connection
with any judicial or administrative proceeding (including,
in response to oral questions, interrogatories or requests
for information or documents) in which ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
or its Affiliates is involved or in which ▇▇▇▇▇▇▇ Partners,
----------------------------
Inc. or its Affiliates is involved, respectively.
------------------------------------------------
12
11. Section 3.11
------------
Section 3.11.2 of the Shareholders Agreement is deleted, and
the following substituted:
Section 3.11.1 does not apply and shall not be construed or
interpreted to restrict the right of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
or its advisor, ▇▇▇▇▇▇▇, Sachs & Co. or any of its
Affiliates, or the ▇▇▇▇▇▇▇ Group or its advisor, ▇▇▇▇▇▇▇
--------------------------------------------
Partners Inc., or HIPEP or the TCV Group (other than ▇▇▇▇▇
------------
and Solomon) to use information acquired by any of them in
the ordinary course of their investment banking business,
and otherwise than by reason of being a Shareholder or a
party to this Agreement; provided, however, that nothing in
this Section 3.11.2 shall operate to relieve the ▇▇▇▇▇▇▇
Sachs Group or its advisor, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., or any of
its Affiliates, or any director nominated by the ▇▇▇▇▇▇▇
Sachs Group, or the ▇▇▇▇▇▇▇ Group or its advisor, ▇▇▇▇▇▇▇
--------------------------------------------
Partners, Inc., or any of its Affiliates, or any director
---------------------------------------------------------
nominated by the ▇▇▇▇▇▇▇ Group, or HIPEP or the TCV Group
------------------------------
from any duty or obligation which it may owe to the Company
in law or in equity."
12. Section 3.12
------------
Section 3.12 of the Shareholders Agreement is deleted, and
the following substituted:
No Shareholder will, while a Shareholder of the Company, or
at any time during the period of two years from the date
that such Shareholder ceases to be a shareholder of the
Company, directly or indirectly, as principal, agent,
trustee, or through the agency of any incorporation,
partnership, association or agent or agency, within North
America, Europe or Japan:
3.12.1 solicit, encourage or suggest to any Shareholder
or Shareholders or employee or employees or agent
or agents of the Company or its Related Companies
that such Shareholder or Shareholders or employee
or employees or agent or agents or any of them
leave the employ of the Company or its Related
Companies or cease to act as its agent;
3.12.2 other than FBDB, the Evergreen Group, GLide, the
Marin Group, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, the ▇▇▇▇▇▇▇
-----------
Group or STAR, engage in a line of business that
-----
is competitive with the business now, or at any
time while such Shareholder is employed by or acts
as a director of the Company, carried on by the
Company
3.12.3 canvass or solicit any business, if doing so would
in any way, directly or indirectly, be detrimental
to the business or best interest of the Company,
from any person, who shall at any time while such
Shareholder was a Shareholder, have been a client
or customer of the Company or any of its Related
Companies provided that nothing in this Section
3.12.3 shall be construed or interpreted to
restrict the right of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or
--
▇▇▇▇▇▇▇ Partners, Inc. or any Affiliate of either
---------------------- ------
of
--
13
them to carry on the business of investment
----
banking or money management with or for such
----------------
person.
13. Section 3.14
------------
Section 3.14 of the Shareholders Agreement is deleted, and the
following substituted:
3.14.1 The Company shall, and the Board of Directors
shall cause the officers of the Company to,
prepare and provide to the Board, FBDB, the
Evergreen Group, Gilde, the Marin Group, HIPEP,
the TCV Group (other than ▇▇▇▇▇ and ▇▇▇▇▇▇▇), the
▇▇▇▇▇▇▇ Sachs Group, the ▇▇▇▇▇▇▇ Group, ▇▇▇▇▇▇▇
-----------------
and STAR:
3.14.1.1 within 30 days before the end of each fiscal year
and at other times as it may be prepared, a budget
for the forthcoming 12-month period comprising
projected statement of income and expenses cash
flow projections and pro forma balance sheet for
the coming year;
3.14.1.2 within 30 days of the end of each month, unaudited
financial statements including a balance sheet as
at the end of such month and statements of income
or loss, with comparatives to the proceeding
fiscal year and the budget for the corresponding
period;
3.14.1.3 within 90 days of the end of each fiscal year,
audited financial statements including without
limitation a balance sheet prepared as at the end
of such year, and statements of income or loss,
change in financial position and changes in
retained earnings for such fiscal year, with
comparatives to the previous fiscal year;
3.14.1.4 within 30 days of the end of each fiscal quarter,
unaudited financial statements including without
limitation a balance sheet prepared as at the end
of such quarter, and statements of income or loss,
changes in financial position and changes in
retained earnings for such fiscal quarter, with
comparatives to the previous fiscal quarter;
3.14.1.5 from time to time, as required by the Board a
strategic plan for the forthcoming 12-month
period, within 60 days of receipt of a request for
such plan from the Board;
3.14.1.6 such other information, accounts, data and
projections as any director may reasonably request
from time to time.
3.14.2 Each of FBDB, the Evergreen Group, Gilde, the
Marin Group, HIPEP, the TCV Group (other than
▇▇▇▇▇ and ▇▇▇▇▇▇▇), the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group,
▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Group and STAR reserves the
-----------------
right to receive additional information from the
Company and its auditors, which is reasonably
required to understand better the affairs of the
Company. Any director
14
and any Representative in a representative
capacity may pass that and all other information
received by such director or Representative to the
----------------------------------
Shareholders represented by such director or
-------------------
Representative
--------------
14. Section 3.16
------------
Section 3.16.3 of The Shareholders Agreement is deleted, and
the following substituted:
3. 16.3 Upon the nominee of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group
being elected or appointed a director, such nominee shall be
appointed to the Compensation Committee, the audit
committee, and the finance committee if such committee is
established, and shall have the right to be appointed to any
other committee established by the Board of Directors, and
---
upon the nominee of the ▇▇▇▇▇▇▇ Group being elected or
------------------------------------------------------
appointed a director, such nominee shall be appointed to the
------------------------------------------------------------
Compensation Committee.
----------------------
15. Section 3.17
------------
Section 3.17 of the Shareholders Agreement is deleted, and the
following substituted:
The Board of Directors of any subsidiary of the Company
which conducts, or which is proposed to conduct, a material
portion of the Company's business shall be identical to the
Board of Directors of the Company as from time to time
constituted (including the rights of the Representatives to
attend meetings of such Board of Directors and receive all
information and materials presented to the Board). The
decision whether a subsidiary is conducting, or is proposed
to conduct, a material portion of the Company's business
shall be made from time to time by, a majority of the Board
of Directors of the Company which majority shall include
either the director nominated by FBDB or the director
nominated by STAR or the director nominated by the ▇▇▇▇▇▇▇
Sachs Group or the director nominated by the ▇▇▇▇▇▇▇ Group.
----------------------------------------------
The Board of Directors of any other subsidiary of the
Company shall be comprised as determined by the Board of
Directors of the Company from time to time and shall report
quarterly to the Board of Directors of the Company.
16. Section 3.18
------------
Section 3.18 of the Shareholders Agreement is deleted, and
the following substituted:
3.18.1 If at any time after November 2, 1997, and
----------------
provided that the Company has not completed an
initial public offering of Shares, a majority of
the directors nominated by FBDB, STAR, ▇▇▇▇▇▇▇,
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, the ▇▇▇▇▇▇▇ Group and the
-----------------
employees that hold shares granted from the
Employee Reserved Shares (together, the "Special
Directors") consider that the Company is
significantly
15
underpeforming, they may so declare by notice in
writing (a "Special Event Notice") to the Company.
3.18.2 If, within 90 days of a Special Event Notice, the
Company does not complete a sale of Shares to a
Person who deals with the Company at arm's length
as a price of not less than US$14.00 per share
(net of the value of any other securities issued
or other consideration granted or which may be
acquired by such person pursuant to a right
granted at the time of such sale), for aggregate
gross proceeds of not less than US$5,000,000, a
majority of the Special Directors may, in their
discretion, elect and have the right to
(a) terminate the appointment of the CEO then
holding office and appoint a new CEO; or
(b) seek a buyer for the assets and undertaking
of the Company and any subsidiary of the
Company; or
(c) seek a buyer for the common shares of the
Company then issued and outstanding.
3.18.3 If a majority of the Special Directors make an
election pursuant to section 3.18.2 (b) or (c)
they shall have the authority to negotiate the
terms of any such sale and if agreement is
reached,
(a) with respect to a sale pursuant to section
3.18.2 (b), each Shareholder shall be bound
to vote its Shares in favour of any
resolution of holders of Shares that may be
required in crater to implement the agreement
and carry it into effect;
(b) with respect to a sale pursuant to section
3.18.2 (c), each Shareholder shall be bound
to sell its Shares at the price and on the
terms set out in the agreement, and the
provisions of Article 5 and 6 of this
Agreement shall not apply to any such sale;
provided, however, that no Shareholder shall
be bound to sell such Shareholder's Shares at
a price or on terms which are different from
those applicable to a sale by any other
Shareholder.
17. Section 4.2
-----------
Section 4.2 of the Shareholders Agreement is deleted, and
the following substituted:
No Employee Bonus may be declared to ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇, and no Employee Restated
Shares may be issued to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇▇ by the Company without the prior written
approval of the Compensation Committee which
approval must include the affirmative vote of the
STAR
16
nominee or the FBDB nominee or the ▇▇▇▇▇▇▇ ▇▇▇▇▇
nominee or the nominee of the ▇▇▇▇▇▇▇ Group.
-----------------------------------
18. Sections 5.20, 5.21 and 5.22
-----------------------------
Sections 5.20, 5.21 and 5.22 of the Shareholders Agreement
are deleted, and the following substituted:
5.20 Transfers pursuant to certain agreements made as of
July 18, 1995 among ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Summit Labuan
Trust and transfers to Family Members
The provisions of this Article 5 shall not apply to any
-------------------------------------------------------
sale, transfer or other disposition of any Investment:
-----------------------------------------------------
(a) pursuant to those certain agreements made as of
July 18, 1995 among ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Summit
Labuan Trust, or,
(b) by a Shareholder to a Family Member.
5.21 Transfers by Persons in ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, HIPEP,
---------------------------------------------------
TCV Group and ▇▇▇▇▇▇▇ Group
---------------------------
Notwithstanding any other provision of this Agreement, any
Person that is a member of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, HIPEP, A
-
the TCV Group (other than ▇▇▇▇▇ and Solomon), or the ▇▇▇▇▇▇▇
--- --------------
Group may freely sell, transfer or otherwise dispose of any
-----
of its Investment to another number of its respective Group
(other than, in the case of the TCV Group, ▇▇▇▇▇ or Solomon)
or to an Affiliate of any such Person (other than, in the
case of ▇▇▇▇▇ or ▇▇▇▇▇▇▇, an Affiliate of either) or, in the
case of a Person that is a partnership, to the partners
thereof, and in the case of a Person that is a corporation,
to the shareholders thereof, and in the case of a Person
---------------------------
that is a Trust, to the beneficiaries thereof, provided that
---------------------------------------------
any such transferee shall have agreed to be bound by the
provisions of this Agreement."
5.22 Waiver
------
Notwithstanding any other provision of this Article 5, each
of the Others may waive by notice in writing delivered to
the Secretary of the Company the prior right to purchase,
receive or otherwise acquire such portion of the Investment
of the Offeror set out in Section 5.1.
Section 5.23
-------------
No sale, transfer or other disposition of any Investment may
be made pursuant to any of Section 5.10, 5.11, 5.12, 5.15.
5.18, 5.19 or 5.21 that will have the effect of violating
the limitation on the number of shareholders of the Company
that is set out in the Articles of the Company.
17
19. Section 6.1.
------------
Section 6.1 of the Shareholders Agreement is deleted and the
following is substituted:
6.1 Subject to the procedures relating to the rights of
first refusal described in Article 5 above, if any,
Shareholder other than FBDB, STAR, the Evergreen Group,
Gilde, the Marin Group, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, HIPEP,
the TCV Group, the ▇▇▇▇▇▇▇ Group or ▇▇▇▇▇▇▇ (the
-----------------
"Seller") shall wish to sell, exchange or transfer any
of its shares (the "Subject Shares) to any person other
than a Shareholder (the "Buyer"), the Seller shall give
to the other Shareholders (including FBDB, STAR, the
Evergreen Group, Glide, the Marin Group, the ▇▇▇▇▇▇▇
Sachs Group, HIPEP, the TCV Group, the ▇▇▇▇▇▇▇ Group
-----------------
and ▇▇▇▇▇▇▇) an equal right respectively, to sell to the
Buyer all or an equivalent portion, as the case may be,
of their shares at the same price and terms as are
applicable to the Subject Shares.
20. Section 7.16
------------
Section 6.1 of the Shareholders Agreement is deleted and
the following is substituted:
7.16 Indemnification of the Company. The Company may
require, in connection with any distribution of Shares as
herein contemplated, that the Company shall have received an
undertaking satisfactory to it from the Selling Shareholders
to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subsection 7.10) the Company
for and on behalf of itself and for and on behalf of and in
trust for each director and officer of the Company and each
other person, if any, who controls the Company within the
meaning of the United States Securities Act of 1933 with
respect to any statement, omission, misrepresentation or
other matter or thing referred to in section 7.10 which is
based upon or results from any information relating solely
to a Selling Shareholder in the Disclosure Documents.
Provided, however, that the Company may upon the advice of
----------------------------------------------------------
counsel, and upon such conditions as the Company may
----------------------------------------------------
determine, waive the foregoing requirements in respect of
---------------------------------------------------------
any Selling Shareholder.
-----------------------
21. Section 11
----------
Section 11 of the Shareholders Agreement is amended by the
addition of the following provisions
11.7.23 if to BULL:
18
11.7.24 if to Canada-Israel:
11.7.25 if to Periscope:
11.7.26 if to ▇▇▇▇▇:
11.7.27 if to any of VRS, BVCF, and BVCFT:
in care of ▇▇▇▇▇▇▇ Partners Inc.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11.7.28 if to ▇▇▇▇▇▇▇▇:
22, Signatories
-----------
The signatories to the Shareholders Agreement are amended to be
identical to the signatories to this Agreement.
23. Effective Date
--------------
This Amendment to Shareholders Agreement shall be deemed to be in
full force and effect as of May _, 1997 as to all of the parties hereto.
19
24. Facsimile Counterparts
----------------------
This Amendment to Shareholders Agreement may be executed in facsimile
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which facsimile counterparts together shall constitute the
same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
CREO PRODUCTS INC.
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________
Authorized Signatory
BUSINESS DEVELOPMENT BANK OF CANADA
/s/ ▇▇▇▇ ▇▇▇▇▇▇
_______________________
Authorized Signatory
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇,
Attorney in Fact
_______________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SVE STAR VENTURES ENTERPRISES NO. II LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
Authorized Signatory
SVE STAR VENTURES ENTERPRISES NO. III LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
Authorized Signatory
SVE STAR VENTURES ENTERPRISES NO. IIIA LIMITED PARTNERSHIP
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
Authorized Signatory
20
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST VEWALTUNGEN
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ VON LIECHTENSTEIN,
DIRECTOR
___________________________________
Authorized Signatory
UNICYCLE TRADING COMPANY
_______________________
Authorized Signatory
D.G. ▇▇▇-GAL LTD.
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
Authorized Signatory
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇
YOZMA VENTURE CAPITAL LTD.
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
Authorized Signatory
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
__________________________________
PRINZ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
/s/ ▇▇▇▇ ▇▇▇▇▇
_______________________
SOTIRIS TSOTOURAS
By: SVM Star Ventures Managementgesellschaft mbH Nr.3 (Trustee)
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇ (Managing Partner)
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
/s/ SIGNATURE
_______________________
Authorized Signatory
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YAROK AZ LTD.
/s/ SIGNATURE
______________________________
Authorized Signatory
EVERGREEN CAPITAL MARKETS LTD.
/s/ SIGNATURE
______________________________
Authorized Signatory
FLB INVESTMENTS LTD.
/s/ SIGNATURE
______________________________
Authorized Signatory
GILDE INVESTMENT FUND B.V.
/s/ LJ VAN DRIEL
______________________________
Authorized Signatory
GILDE IV
/s/ LJ VAN DRIEL
______________________________
Authorized Signatory
MARIN INVESTMENTS LIMITED
/s/ SIGNATURE
______________________________
Authorized Signatory
/s/ R. AMIT
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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QUALITY INVESTMENTS L.L.C.
/s/ SIGNATURE
______________________________
Authorized Signatory
SVM STAR VENTURES MANAGEMENT GMBH NO. 3
/s/ ▇▇▇▇ ▇▇▇▇▇
______________________________
Authorized Signatory
As Trustee for: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Sotiris Tsotouras
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Managing Partner
G S CAPITAL PARTNERS II L.P.
/s/ SIGNATURE
______________________________
Authorized Signatory
G S CAPITAL PARTNERS II OFFSHORE, L.P.
/s/ SIGNATURE
______________________________
Authorized Signatory
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. VERWALTUNGS GMBH
/s/ SIGNATURE
______________________________
Authorized Signatory
STONE STREET FUND 1995, L.P.
/s/ SIGNATURE
______________________________
Authorized Signatory
BRIDGE STREET FUND 1995, L.P.
/s/ SIGNATURE
______________________________
Authorized Signatory
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▇▇▇▇▇▇▇ INTERNATIONAL PRIVATE EQUITY PARTNERS II - DIRECT FUND LP
By: Back Bay Partners XVI L.P.
By: Hancock Venture Partners, Inc.
By: /s/ SIGNATURE
________________________________
Authorized Signatory
TECHNOLOGY CROSSOVER VENTURES, L.P.,
By: Technology Crossover Management, L.L.C.,
General Partner
By: /s/ SIGNATURE
________________________________
Name: Robert Bensky
Title: Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES, C.V.
By: Technology Crossover Management, L.L.C.,
Investment General Partner
By: /s/ SIGNATURE
________________________________
Name: Robert Bensky
Title: Chief Financial Officer
/s/ SIGNATURE
_______________________________
VAL VADEN
/s/ MICHAEL SOLOMON
_______________________________
MICHAEL SOLOMON
/s/ SIGNATURE
_______________________________
ALBERT BULL
EVERGREEN CANADA-ISRAEL MANAGEMENT LTD.
By: /s/ SIGNATURE
Authorized Signatory
EVERGREEN INTERNATIONAL INVESTMENTS N.V.
By: /s/ SIGNATURE
Authorized Signatory
PERISCOPE FUND LLT
By: Weiss Peck & Greer, LLC, its agent
By: /s/ SIGNATURE
/s/ SIGNATURE
_______________________________
SEYMOUR BRAUN
YARDSWORTH CORPORATION, N.V.
By: _______________________________
Its:
THE PERISCOPE I. FUNDS, L.P.
By: Robertson Stephens & Co. Group LLC, its agent
By: /s/ SIGNATURE
_______________________________
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VIRGINIA RETIREMENT SYSTEM
By: Brinson Partners, Inc. under Power of Attorney
By: /s/ SIGNATURE
___________________________________
Its: PARTNER
BRINSON VENTURE CAPITAL FUND III, LP
By: BRINSON PARTNERS, INC.,, a Delaware corporation
By: /s/ SIGNATURE
___________________________________
Its: PARTNER
BRINSON TRUST COMPANY AS TRUSTEE FOR THE BRINSON MAP VENTURE CAPITAL
FUND III TRUST, a group collective investment trust
By: /s/ SIGNATURE
___________________________________
Its: PARTNER
/s/ SIGNATURE
____________________________________
JOHN S. STAFFORD, JR.
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