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EXHIBIT 10.14
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT is made as of September 8, 1993, by and
between OneSource Holding Corporation, a Delaware Corporation (the "Company") ,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Partners III Limited Partnership ("▇▇▇▇▇▇▇ ▇▇▇▇▇"),
Information Partners Capital Fund, L.P. ("Information Partners"), Silicon Valley
Bank ("Silicon"), and certain other persons listed on Schedule A (▇▇▇▇▇▇▇ ▇▇▇▇▇,
Information Partners, Silicon, and such other persons are collectively referred
to herein as the "Stockholders," and each as a "Stockholder"). Unless otherwise
indicated herein, capitalized terms used herein are defined in paragraph 9
hereof.
WHEREAS, the Company, as of the date hereof, is authorized by its
Certificate of Incorporation to issue capital stock consisting of 100,000 shares
of its Class P Common Stock, par value $. 01 per share (the "Class P Common"),
and 1, 500, 000 shares of its Common Stock, par value $.01 per share ("Common").
The Class P Common and the Common are collectively referred to herein as "Common
Stock".
WHEREAS, at the Closing, pursuant to a Stock Purchase Agreement between
the Company and certain of the Stockholders, dated as of the date hereof (the
"Purchase Agreement"), certain of the Stockholders will purchase from the
Company the number of shares of Common Stock set forth opposite such
Stockholder's name on the Schedule of Purchasers attached to the Purchase
Agreement.
WHEREAS, the parties hereto desire to restrict the sale, assignment,
transfer, encumbrance or other disposition of the Common Stock and to provide
for certain rights and obligations in respect thereto as hereinafter provided.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. VOTING AGREEMENT.
(a) From and after the Closing (as defined in the Purchase
Agreement) and until the provisions of this paragraph 1 cease to be effective,
each holder of Investor Shares shall vote all of his Investor Shares and shall
take all other necessary or desirable actions within his control (whether in his
capacity as a stockholder or officer of the Company or otherwise, and including,
without limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) subject to paragraph l(e) below, the authorized number of
directors on the Company's board of directors (the "Board") shall be established
at two directors;
(ii) the following persons shall be elected to the Board:
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(A) one representative designated by the holders of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares (the "▇▇▇▇▇ Director"); and
(B) one representative designated by the holders of the
Information Partners Shares (the "IP Director");
provided that, in the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Information Partners
cease to own at least 25% of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares or the
Information Partners shares, respectively, which it originally
purchased pursuant to the Purchase Agreement, the right to designate
their one representative will be transferred to the other group;
(iii) the removal from the Board (with or without cause) of any
representative designated hereunder by the holders of a majority of the ▇▇▇▇▇▇▇
▇▇▇▇▇ Shares or the Information Partners Shares shall be at ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ or
Information Partners' written request, respectively, but only upon such written
request and under no other circumstances (in each case, determined on the basis
of a vote of the holders of a majority of the shares of Common Stock held by
such persons);
(iv) in the event that any representative designated hereunder by
the holders of a majority of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares or the Information
Partners Shares for any reason ceases to serve as a member of the Board during
his term of office, the resulting vacancy on the Board shall be filled by a
representative designated by the ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Information Partners,
respectively, as provided hereunder;
(b) From and after the Closing (as defined in the Purchase
Agreement) and until the provisions of this paragraph 1 cease to be effective,
the Company shall vote all shares of common stock of OneSource Information
Services, Inc. ("OneSource") and shall take all other necessary or desirable
actions within its control, so that:
(i) subject to paragraph 1 (e) below, the authorized number of
directors on the board of directors of OneSource (the "OneSource Board") shall
be established at five directors;
(ii) the following persons shall be elected to the OneSource Board:
(A) one representative designated by the holders of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares; and
(B) one representative designated by the holders of the
Information Partners Shares;
(C) the President of OneSource;
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(D) the Chairman of OneSource; and
(E) one representative to be mutually agreed upon by the
holders of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares and the holders
of the Information Partners Shares;
provided that, in the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Information Partners
cease to own at least 25% of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares or the Information
Partners Shares, respectively, which it originally purchased pursuant to
the Purchase Agreement, the right to designate their one representative
will be transferred to the other group and the right to designate pursuant
to subparagraph (E) above will be made solely by the group which has the
right to designate directors pursuant to subparagraphs (A) and (B) above;
(c) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
and any committee thereof.
(d) The provisions of this paragraph 1 shall terminate
automatically and be of no further force and effect upon the first to occur of
(i) the tenth anniversary of the date hereof unless extended by the parties
hereto in accordance with (or any similar provision then in force) Section 218
of the Delaware General Corporation Law, or (ii) a Qualified Public Offering.
(e) If any party fails to designate a representative to fill a
directorship or committee membership pursuant to the terms of this paragraph 1
within 30 days after such vacancy occurs, the election of a person to such
directorship shall be accomplished in accordance with the Company's or
OneSource's bylaws, as the case may be, and applicable law; provided that in the
event that such party then designates a representative to fill such membership
such designee will replace the person elected.
2. RESTRICTIONS ON TRANSFER OF STOCKHOLDER SHARES.
(a) TRANSFER OF STOCKHOLDER SHARES. No holder of Stockholder
Shares shall sell, transfer, assign, pledge or otherwise dispose of (a
"Transfer") any interest in any Stockholder Shares except pursuant to the
provisions of this paragraph 2 or pursuant to an Exempt Transfer (as defined in
paragraph 2(e)).
(b) NOTICE OF PROPOSED TRANSFER. Prior to making any Transfer of
any Stockholder Shares (other than an Exempt Transfer) , the transferring holder
of Stockholder Shares (the "Transferring Stockholder") shall deliver a written
notice (the "Sale Notice") to the Company and the holders of Investor Shares.
The Sale Notice shall disclose in reasonable detail the proposed number and
class of Stockholder Shares to be transferred (the "Offered Shares") and the
proposed terms and conditions of the Transfer, which shall be in the form of a
sale of such Offered Shares solely for cash (payable at closing or in specified
installments).
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(c) FIRST OFFER RIGHT. The Company may elect to purchase all or
any portion of the Offered Shares at the price and on the terms specified in the
Sale Notice by delivering written notice of such election to the Transferring
Stockholder and the holders of Investor Shares as soon as practicable but in any
event within 15 days after the delivery of the Sale Notice. If the Company has
not elected to purchase all of the Offered Shares within such 15-day period,
each holder of Investor Shares (other than the Transferring Stockholder) may
elect to purchase up to his Pro Rata Share (as defined below) of the Offered
Shares at the price and on the terms specified in the Sale Notice by delivering
written notice of such election to the Transferring Stockholder and all other
holders as soon as practicable but in any event within 45 days after delivery of
the Sale Notice. Any Offered Shares not elected to be purchased by the end of
such 30-day period shall be reoffered for an additional 10-day period by the
Transferring Stockholder on pro rata basis to the holders of Investor Shares who
have elected to purchase their Pro Rata Share. If the Company or any holder of
Investor Shares has elected to purchase Offered Shares from the Transferring
Stockholder, the transfer of such shares shall be consummated as soon as
practicable after the delivery of the election notices, but in any event within
90 days after delivery of the Sale Notice. To the extent that the Company and
the holders of Investor Shares have not elected to purchase all of the Offered
Shares, the Transferring Stockholder may, within 12 0 days after the end of the
40-day notice period, transfer the balance of such Offered Shares to one or more
third parties at a price no less than 95% of the price per share specified in
the Sale Notice and on other terms no more favorable to the transferees than
offered to the Company and the holders of Investor Shares in the Sale Notice.
Each holder's "Pro Rata Share" shall be based upon such holder's percentage
ownership of the Investor Shares on a fully-diluted basis. The Transferring
Stockholder's ability to effect any Transfer pursuant to this Section 2(c),
whether to the Company, the other holders of Investor Shares or any third party,
shall in all cases be subject to the participation rights of other holders of
Investor Shares pursuant to Section 2(d) below.
(d) PARTICIPATION RIGHTS. Each holder of Investor Shares (other
than the Transferring Stockholder) may elect to participate in the contemplated
Transfer by delivering written notice to the Transferring Stockholder within 30
days after delivery of the Sale Notice.
If any holders of Investor Shares have elected to participate
in such Transfer, the Transferring Stockholder and such other holders shall be
entitled to include in the contemplated Transfer, at the same price and on the
same terms, a number of such class or classes of Stockholder Shares (the
"Included Shares") equal to the product of (i) the quotient determined by
dividing the percentage of such class of the Stockholder Shares owned by such
person by the aggregate percentage of such class of the Stockholder Shares owned
by the Transferring Stockholder and all holders electing to participate in such
Transfer and (ii) the number of such class of Offered Shares. For purposes of
this paragraph, each series of a given class will be treated the same for the
determination of the number of Stockholder Shares used in the calculation above.
FOR EXAMPLE, if the contemplated Transfer involves 100 Offered
Shares of a certain class and if the Transferring Stockholder
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at such time owns 30% of all Stockholder Shares of such class and
if one other holder elects to participate and owns 20% of all
Stockholder Shares of such class, the Transferring Stockholder
would be entitled to sell 60 shares ((30% [dividend sign] 50%) x
100 shares) and the other holder would be entitled to sell 40
shares ((20% [dividend sign] 50%) x 100 shares).
Each holder of Stockholder Shares shall use best efforts to obtain the agreement
of the prospective transferee (s) to the participation of the other holders in
any contemplated Transfer, and each holder shall not transfer any of its
Stockholder Shares to the prospective transferee (s) if the prospective
transferee (s) declines to allow the participation of the other holders.
(e) PERMITTED TRANSFERS. The restrictions contained in this
Section 2 shall not apply to (i) any Transfer of Stockholder Shares by any
Stockholder among its Affiliates, (ii) a Public Sale, (iii) a Sale of the
Company, (iv) a Transfer of Stockholder Shares by any Stockholder pursuant to
the laws of descent and distribution or among such Stockholder's Family Group,
or (v) a Transfer pursuant to paragraph 2(c) or paragraph 2(d) above. Any
Transfer permitted by this Section 2(e) is referred to herein as an "Exempt
Transfer."
(f) TERMINATION OF RESTRICTIONS. The restrictions set forth in
this paragraph 2 shall continue with respect to each Stockholder Share until the
earlier of (i) the date on which such Stockholder Share has been transferred in
a Public Sale, (ii) the consummation of a Sale of the Company or (iii) the
consummation of a Qualified Public Offering.
3. SALE OF THE COMPANY.
(a) Notwithstanding any provision to the contrary contained
herein, the holders of a majority of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares and the holders of
a majority of the Information Partners Shares (collectively, the "Sale
Stockholders") may require that the Company enter into a Sale of the Company;
provided, however, that in the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or Information
Partners cease to hold at least 25% of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares or Information
Partners Shares, respectively, which were originally purchased by ▇▇▇▇▇▇▇ ▇▇▇▇▇
or Information Partners pursuant to the Purchase Agreement, the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Shares in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇, and the Information Partners Shares in the
case of Information Partners, will not have the right to require or the right to
prevent the other group from requiring that the Company enter into a Sale of the
Company pursuant to this paragraph 3 (collectively an "Approved Sale").
(b) If the Company enters into a Sale of the Company pursuant to
Section 3(a), each holder of Stockholder Shares shall vote for, consent to and
raise no objection against such Approved Sale. If the Approved Sale is
structured as a (i) merger or consolidation, each holder of Stockholder Shares
shall waive any dissenters rights, appraisal rights or similar rights in
connection with such merger or consolidation, or (ii) sale of stock, each holder
of Stockholder Shares shall agree to sell all of his Stockholder Shares and
rights to acquire Stockholder Shares on the terms and conditions approved by the
Board and pursuant to the Approved Sale. Each
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holder of Stockholder Shares shall take all necessary or desirable actions in
connection with the consummation of the Approved Sale as requested by the
Company.
(c) The obligations of the holders of the Stockholder Shares with
respect to the Approved Sale of the Company are also subject to the satisfaction
of the following conditions: (i) the consideration received in an Approved Sale
shall be distributed among the holders of Stockholder Shares in the manner which
such proceeds would be distributed in a complete liquidation of the Company
pursuant to the rights and preferences set forth in the Certificate of
Incorporation as in effect immediately prior to such Approved Sale; and (ii) all
holders of then currently exercisable rights to acquire, directly or indirectly,
shares of any class of Common Stock will be given an opportunity either to (A)
exercise such rights prior to the consummation of the Approved Sale and
participate in such sale as holders of such class of Common Stock or (B) upon
the consummation of the Approved Sale, receive in exchange for such rights
consideration equal to the amount determined by multiplying (1) the same amount
of consideration per share of such class of Common Stock receivable by the
holders of such class of Common Stock in connection with the Approved Sale less
the exercise price or conversion price per share of such class of Common Stock
of such right to acquire, directly or indirectly, such class of Common Stock by
(2) the number of shares of such class of Common Stock represented by such
rights.
(d) If the Company or the Sale Stockholders enter into any
negotiation or transaction for which Rule 506 promulgated under the Securities
Act (or any similar rule then in effect) may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization) , the holders of Stockholder Shares will, at the request of the
Board, appoint a purchaser representative (as such term is defined in Rule 501
promulgated under the Securities Act) reasonably acceptable to the Board. If any
holder of Stockholder Shares appoints the purchaser representative designated by
the Board, the Company will pay the fees of such purchaser representative, but
if any holder of Stockholder Shares declines to appoint the purchaser
representative designated by the Board, such holder will appoint another
purchaser representative (reasonably acceptable to the Board), and such holder
will be responsible for the fees of the purchaser representative so appointed.
(e) Each holder of Stockholder Shares (other than Silicon) will
bear its pro rata share (based upon the aggregate proceeds received by such
Stockholder) of the costs of any sale of Stockholder Shares pursuant to an
Approved Sale to the extent such costs are incurred for the benefit of all
holders of Stockholder Shares and are not otherwise paid by the Company or the
acquiring party. Costs incurred by any holder of Stockholder Shares on its own
behalf will not be considered costs of the transaction hereunder.
(f) The provisions of this Section 3 will terminate upon the
completion of a Qualified Public Offering.
4. LIMITED PREEMPTIVE RIGHTS.
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(a) Except for the issuance of Common Stock (i) to the Company's
or its Subsidiaries' employees (or pursuant to options or rights granted to
persons who were employees at the Company or its Subsidiaries as of the date of
grant) or (ii) pursuant to a public offering registered under the Securities
Act, if the Company or any of its Subsidiaries authorizes the issuance or sale
of any of its securities (other than as a dividend on the outstanding common
Stock) to a Person (or group of affiliated Persons) who holds, or would hold
after giving effect to such issuance or sale, at least 5% of the outstanding
Common Stock or securities convertible or exercisable into at least 5% of the
outstanding Common Stock, the Company shall first offer to sell to each holder
of Investor Shares a portion of such stock or securities equal to the quotient
determined by dividing (A) the number of shares of Common Stock held by such
holder by (B) the total number of shares of outstanding Common Stock. Each
Purchaser shall be entitled to purchase such stock or securities at the most
favorable price and on the most favorable terms as such stock or securities are
to be offered to such other Persons. The purchase price for all stock and
securities offered to the Purchasers shall be payable in cash.
(b) In order to exercise its purchase rights hereunder, a holder
of Investor Shares must within 30 days after receipt of written notice from the
Company describing in reasonable detail the stock or securities being offered,
the purchase price thereof, the payment terms and such holder's percentage
allotment deliver a written notice to the Company describing its election
hereunder. If all of the stock and securities offered to the holders of Investor
Shares is not fully subscribed by such holders, the remaining stock and
securities shall be reoffered by the Company to the holders purchasing their
full allotment upon the terms set forth in this paragraph, except that such
holders must exercise their purchase rights within five days after receipt of
such reoffer.
(c) Upon the expiration of the offering periods described above,
the Company shall be entitled to sell such stock or securities which the holders
of Investor Shares have not elected to purchase during the 90 days following
such expiration on terms and conditions no more favorable to the purchasers
thereof than those offered to such holders. Any stock or securities offered or
sold by the Company to a Person (or group of affiliated Persons) who held 5% of
the outstanding Common Stock after such 90-day period must be reoffered to the
holders of Investor Shares pursuant to the terms of this paragraph.
(d) The rights under this paragraph shall terminate upon
completion of a Qualified Public Offering.
5. INITIAL PUBLIC OFFERING. In the event that the Company, the
holders of a majority of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares and the holders of a majority
of the Information Partners Shares approve an initial public offering and sale
of the Company's equity securities (a "Public Offering") pursuant to an
effective registration statement under the Securities Act, the Stockholders will
take all necessary and desirable actions reasonably required in connection with
the consummation of the Public Offering, provided that minority stockholders of
the Company shall not be required to take any actions other than those typically
applicable to minority
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stockholders. In the event that such Public offering is an underwritten offering
and the managing underwriters advise the Company in writing that in their
opinion the Common Stock structure will adversely affect the marketability of
the offering, the Stockholders will vote for a recapitalization and/or exchange
of the Stockholder Shares into securities the managing underwriters and the
Board find acceptable; provided that the resulting securities provide each
Stockholder with the same relative economic interest as such Stockholder had
prior to such recapitalization and/or exchange and is consistent with the rights
and preferences set forth in the Certificate of Incorporation as in effect
immediately prior to such Public Offering. The Company will not file any
registration statement under the Securities Act that refers to Silicon by name
or otherwise as the holder of any securities of the Company, except to the
extent required by applicable laws and regulations.
6. COVENANTS.
(a) FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company shall
deliver to each Qualified Holder:
(i) as soon as available but in any event within 60 days
after the end of each quarterly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such quarterly period and for the period from
the beginning of the fiscal year to the end of such quarter, and consolidating
and consolidated balance sheets of the Company and its Subsidiaries as of the
end of such quarterly period, setting forth in each case comparisons to the
annual budget and to the corresponding period in the preceding fiscal year, and
all such statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied, subject to the absence of footnote
disclosures and to normal year-end adjustments;
(ii) within 120 days after the end of each fiscal year,
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such fiscal year, setting forth in each case comparisons to the annual budget
and to the preceding fiscal year, all prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by (A)
with respect to the consolidated portions of such statements, an opinion of an
independent accounting firm of national recognized standing and (B) a copy of
such firm's annual management letter to the board of directors;
(iii) promptly upon receipt thereof, any additional
reports, management letters or other information concerning significant aspects
of the Company's operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other materials provided
hereunder); and
(iv) at least 30 days prior to the beginning of each
fiscal year, an annual budget prepared on a monthly basis for the Company and
its Subsidiaries for such fiscal year (displaying
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anticipated statements of income and cash flows and balance sheets), and
promptly upon preparation thereof any other budgets prepared by the Company and
any revisions of such annual or other budgets.
Except as otherwise required by law or judicial order or decree or by
any governmental agency or authority, each Stockholder entitled to receive
information regarding the Company and its Subsidiaries under this paragraph 6(a)
shall use its best efforts to maintain the confidentiality of all nonpublic
information obtained by it hereunder which the Company has reasonably designated
as proprietary or confidential in nature; provided that each such Stockholder
may disclose such information in connection with the sale or transfer of any
Stockholder Shares if such Stockholder's transferee agrees in writing to be
bound by the provisions hereof.
(b) INSPECTION OF PROPERTY. The Company shall permit any
representatives designated by any Qualified Holder upon reasonable notice and
during normal business hours and such other times as any such holder may
reasonably request, to (i) visit and inspect any of the properties of the
Company and its Subsidiaries, (ii) examine the corporate and financial records
of the Company and its Subsidiaries and make copies, thereof or extracts
therefrom and (iii) discuss the affairs, finances and accounts of any such
entities with the directors, officers, key employees and independent accountants
of the Company and its Subsidiaries. The presentation of an executed copy of
this Agreement by any Qualified Holder to the Company's independent accountants
shall constitute the Company's permission to its independent accountants to
participate in such discussions.
7. LEGEND. Each certificate evidencing Stockholder Shares and
each certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"The securities represented by this certificate are subject to
certain transfer and voting restrictions pursuant to a
Stockholders Agreement dated as of September, 1993, among the
issuer of such securities (the "Company") and certain of the
Company's stockholders. A copy of such Stockholders Agreement
will be furnished without charge by the Company to the holder
hereof upon written request."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with paragraph 9 hereof.
8. TRANSFER. Prior to Transferring any Stockholder Shares
immediately (other than in a Public Sale or in a Sale of the Company) to any
person or entity, the transferring Stockholder
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shall cause the prospective transferee to execute and deliver to the Company and
the other Stockholders a counterpart of this Agreement.
9. DEFINITIONS.
"AFFILIATE" of a Stockholder means any other person, entity or
investment fund controlling, controlled by or under common control with the
Stockholder and, in the case of an Investor which is a partnership, any partner
of the Investor.
"CERTIFICATE OF INCORPORATION" means the Company's certificate of
incorporation in effect at the time as of which any determination is being made.
"FAMILY GROUP" means a stockholder's spouse and descendants (whether or
not adopted) and any trust solely for the benefit of the Stockholder and/or the
Stockholder's spouse and/or descendants.
"INDEPENDENT THIRD PARTY" means any person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully-diluted basis (a "5% Owner)", who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other person.
"INFORMATION PARTNERS SHARES" means (i) any shares of Common Stock
purchased by Information Partners and the persons set forth on Schedule A
pursuant to the Purchase Agreement (the "Information Partners Group"), (ii) any
equity securities issued or issuable directly or indirectly with respect to the
Common Stock referred to in clause (i) by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization and (iii) any other shares of Common Stock
originally issued to the Information Partners Group. As to any particular shares
constituting Information Partners Shares, such shares will cease to be
Information Partners Shares when they have been (x) effectively registered under
the Securities Act and disposed of in accordance with the registration statement
covering them, or (y) sold to the public through a broker, dealer or market
maker pursuant to Rule 144 (or by similar provision then in force) under the
Securities Act.
"INVESTOR SHARES" means the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares and the Information
Partners Shares.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision hereof.
"PUBLIC SALE" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
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"QUALIFIED HOLDERS" means any holder (or group of affiliated holders)
of Investor Shares representing 5% or more of the outstanding Investor Shares.
"QUALIFIED PUBLIC OFFERING" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Company's Common
Stock having an aggregate value of at least $10 million.
"SALE OF THE COMPANY" means the sale of the Company to an Independent
Third Party or group of Independent Third Parties pursuant to which such party
or parties acquire (i) capital stock of the Company possessing the voting power
under normal circumstances to elect a majority of the Company's board of
directors (whether by merger, consolidation, sale, transfer or exchange of the
Company's capital stock) or (ii) all or substantially all of the Company's
assets determined on a consolidated basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SILICON SHARES" means (i) any shares of Common Stock issued or
issuable pursuant to that certain Stock Purchase Warrant ("Warrant") issued by
the Company to Silicon, dated the date hereof and (ii) any equity securities
issued or issuable directly or indirectly with respect to the Common Stock
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular shares constituting Silicon
Shares, such shares will cease to be Silicon Shares when they have been (x)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them, or (y) sold to the public through
a broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
"STOCKHOLDER SHARES" means the Information Partners Shares, the ▇▇▇▇▇▇▇
▇▇▇▇▇ Shares and the Silicon Shares.
"SUBSIDIARY" means any corporation of which the securities having a
majority of the ordinary voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by the Company
either directly or through one or more Subsidiaries.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ SHARES" means (i) any Common Stock purchased by ▇▇▇▇▇▇▇
▇▇▇▇▇ pursuant to the Purchase Agreement, (ii) any equity securities issued or
issuable directly or indirectly with respect to the Common Stock referred to in
clause (i) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common Stock originally issued to
▇▇▇▇▇▇▇ ▇▇▇▇▇. As to any particular shares constituting ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares,
such shares will cease to be ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares when they have been (x)
effectively registered under the Securities Act and
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disposed of in accordance with the registration statement covering them, or (y)
sold to the public through a broker, dealer or market maker pursuant to Rule 144
(or by similar provision then in force) under the Securities Act.
10. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such shares for any purpose.
11. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company and the holders of at
least a majority of the then outstanding ▇▇▇▇▇▇▇ ▇▇▇▇▇ Shares and the holders of
at least a majority of the then outstanding Information Partners Shares,
respectively; provided, however, that in the event that such amendment or waiver
would adversely affect a holder or group of holders of Stockholder Shares in a
manner different from any other holder of Stockholder Shares, then such
amendment or waiver will require the consent of such holder or holders of a
majority of the Stockholder Shares of the group adversely affected. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
12. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
13. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document, the Purchase Agreement, the Warrant, and the Registration
Agreement between the Company and the Stockholders embody the complete agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
14. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
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15. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
16. REMEDIES. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Stockholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or otherwise.
17. ARBITRATION.
(a) ARBITRATION. In the event of disputes between the parties with
respect to the terms and conditions of this Agreement, such disputes shall be
resolved by and through an arbitration proceeding to be conducted under the
auspices of the American Arbitration Association (or any like organization
successor thereto) at Boston, Massachusetts. Such arbitration proceeding shall
be conducted in as expedited a manner as is then permitted by the commercial
arbitration rules (formal or informal) of the American Arbitration Association,
and the arbitrator or arbitrators in any such arbitration shall be persons who
are expert in the subject matter of the dispute. Both the foregoing agreement of
the parties to arbitrate any and all such claims, and the results,
determination, finding, judgment and/or award rendered through such arbitration,
shall be final and binding on the parties hereto and may be specifically
enforced by legal proceedings. The parties agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may, in his or its sole discretion, ask for
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(b) PROCEDURE. Such arbitration may be initiated by written notice
from either party to the other which shall be a compulsory and binding
proceeding on each party. The arbitration shall be conducted before a panel of
arbitrators selected in accordance with the rules of the American Arbitration
Association. The costs of said arbitrators and the arbitration shall be borne
equally by the parties thereto. Each party shall bear separately the cost of
their respective attorneys, witnesses and experts in connection with such
arbitration. Time is of the essence of this arbitration procedure, and the
arbitrators shall be instructed and required to render their decision within ten
(10) days following completion of the arbitration.
(c) VENUE AND JURISDICTION. Any and all legal proceedings to
enforce this Agreement (including any action to compel arbitration hereunder or
to enforce any award or judgment rendered thereby), shall be governed in
accordance with this paragraph 17.
18. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or received by certified mail,
return receipt requested, or sent by
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reputable overnight courier service (charges prepaid) to the Company at the
address set forth below and to any other recipient at the address indicated on
the schedules hereto and to any subsequent holder of Stockholder Shares subject
to this Agreement at such address as indicated by the Company's records, or at
such address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, three days after deposit
in the U.S. mail and one day after deposit with a reputable overnight courier
service. The Company's address is:
OneSource Holding Corporation
c/o Information Partners Capital Fund, L.P.
Two ▇▇▇▇▇▇ Place
Boston, MA 02116
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With copies to:
Information Partners Capital Fund, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
19. GOVERNING LAW. All issues concerning this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of Delaware.
20. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
ONESOURCE HOLDING CORPORATION
By: ________________________________________
Its: _______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ VENTURE PARTNERS III
LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Management Company
Its: General Partner
By: ________________________________________
Its: General Partner
INFORMATION PARTNERS CAPITAL FUND, L. P.
By: Information Partners
Its: General Partner
By: ________________________________________
Its: General Partner
BCIP ASSOCIATES
By: ________________________________________
Its: _______________________________________
BCIP TRUST ASSOCIATES, L.P.
By: ________________________________________
Its: _______________________________________
SILICON VALLEY BANK
By: ________________________________________
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Its: _______________________________________
SCHEDULE A
OTHER SHAREHOLDERS
BCIP Associates
BCIP Trust Associates, L.P.