{"id":43947,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholders-agreement-network-computer-inc-oracle-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholders-agreement-network-computer-inc-oracle-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/stockholders-agreement-network-computer-inc-oracle-corp-and.html","title":{"rendered":"Stockholders Agreement &#8211; Network Computer Inc., Oracle Corp. and Navio Communications Inc."},"content":{"rendered":"<pre>\n                           NETWORK COMPUTER, INC.\n\n                           STOCKHOLDERS AGREEMENT\n\n         This Stockholders Agreement (the 'AGREEMENT') is made as of August \n11, 1997 by and among Network Computer, Inc., a Delaware corporation (the \n'COMPANY'), Oracle Corporation, a Delaware corporation ('ORACLE'), and the \nparties listed on EXHIBIT A hereto (each a 'NAVIO STOCKHOLDER' and \ncollectively, the 'NAVIO STOCKHOLDERS'), each of which is presently a \nstockholder of Navio Communications, Inc., a Delaware corporation ('NAVIO'). \nOracle and the Navio Stockholders are sometimes collectively referred to \nherein as the 'STOCKHOLDERS.'\n\n                                   RECITALS\n\n         A.   The Company and Navio have entered into an Agreement and Plan \nof Merger dated as of May 16, 1997 (the 'MERGER AGREEMENT') pursuant to which \nNavio will be merged (the 'MERGER') with and into the Company upon and \nsubject to the terms and conditions set forth therein.\n\n         B.   Oracle is the sole stockholder of the Company. Upon \nconsummation of the Merger, each of the Navio Stockholders will become \nstockholders of the Company.\n\n         C.   Certain parties hereto are also parties to a Put\/Call and \nVoting Agreement of even date herewith (the 'PUT\/CALL AND VOTING AGREEMENT') \nwith certain other holders of equity interests in Navio, which agreement is \nrelated in certain respects to this Agreement.\n\n         D.   The Company and the Stockholders each desire to provide for \ncertain agreements and understandings with respect to the ownership and \ntransfer of shares of the Company's capital stock as well as for certain \nagreements with respect to certain matters relating to the governance of the \nCompany following consummation of the Merger.\n\n                                   AGREEMENT\n\n         The parties hereby agree as follows:\n\n              1.   REGISTRATION RIGHTS. The Company and the Stockholders \ncovenant and agree as follows:\n\n                   1.1  DEFINITIONS.  For purposes of this Agreement:\n\n                        (a)  All capitalized terms used in this Agreement and \nnot otherwise defined shall have the meanings given to them in the Merger \nAgreement.\n\n                        (b)  The terms 'REGISTER,' 'REGISTERED' and \n'REGISTRATION' refer to a registration effected by preparing and filing a \nregistration statement or similar document in\n\n\n\n\n\ncompliance with the Securities Act of 1933, as amended (the 'ACT'), and the \ndeclaration or ordering of effectiveness of such registration statement or \ndocument;\n\n                        (c)  The term 'REGISTRABLE SECURITIES' means (i) the \nshares of Common Stock issuable or issued upon conversion of the Series A \nPreferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock, Series \nC Preferred Stock or Series C-1 Preferred Stock, as the case may be (such \nshares of Common Stock are collectively referred to hereinafter as the \n'STOCK'), and (ii) any other shares of Common Stock of the Company issued as \n(or issuable upon the conversion or exercise of any warrant, right or other \nsecurity that is issued as) a dividend or other distribution with respect to, \nor in exchange for or in replacement of, the Stock; PROVIDED, HOWEVER, that \nthe foregoing definition shall exclude in all cases any Registrable \nSecurities sold by a person in a transaction in which his or her rights under \nthis Agreement are not assigned. Notwithstanding the foregoing, Common Stock \nor other securities shall only be treated as Registrable Securities if and so \nlong as they have not been (A) sold to or through a broker or dealer or \nunderwriter in a public distribution or a public securities transaction, or \n(B) sold in a transaction exempt from the registration and prospectus \ndelivery requirements of the Act under Section 4(1) thereof in which all \ntransfer restrictions, and restrictive legends with respect thereto, if any, \nare removed upon the consummation of such sale;\n\n                        (d)  The term 'HOLDER' means any person that is a \nStockholder and who owns or has the right to acquire Registrable Securities \nor any permitted assignee thereof;\n\n                        (e)  The term 'TEN PERCENT HOLDER' means any Holder \nthat as of the date of measurement beneficially owns, together with its \naffiliates, ten percent or more of the Fully Diluted Equity of the Company;\n\n                        (f)  The term 'FIVE PERCENT HOLDER' means any Holder \nthat as of the date of measurement beneficially owns, together with its \naffiliates, five percent or more of the Fully Diluted Equity of the Company;\n\n                        (g)  The term 'FULLY DILUTED EQUITY,' as of any date \nof measurement, shall refer to (i) the number of shares of Common Stock \nissued and outstanding as of such date, PLUS (ii) the number of shares of \nCommon Stock issuable upon conversion of any shares of Series A Preferred \nStock, Series A-1 Preferred Stock, Series B Preferred Stock, Series C \nPreferred Stock and\/or Series C-1 Preferred Stock issued and outstanding as \nof such date, plus (iii) any shares of Common Stock issuable upon the \nconversion or exercise of any warrant, option, right or other convertible \nsecurity issued and outstanding as of such date;\n\n                        (h)  The term 'FORM S-3' means such form under the \nAct as in effect on the date hereof or any successor form under the Act; and\n\n                        (i)  The term 'SEC' means the Securities and Exchange \nCommission.\n\n\n                                      -2-\n\n\n\n                   1.2  REQUEST FOR REGISTRATION.\n\n                        (a)  If the Company shall receive at any time after \nJune 30, 1998 and at such time as both of the following circumstances shall \nexist: (i) the Company shall have generated total revenues of at least \n$25,000,000 for the 12 consecutive month period ending on the last day of the \ncalendar month immediately prior to such time and (ii) the Company's income \nfrom operations, calculated in accordance with generally accepted accounting \nprinciples ('GAAP') and on a basis consistent with the Company's past \npractices and procedures, shall have been greater than zero for the two most \nrecent fiscal quarters immediately prior to such time, a written request from \nHolders of more than 20% percent of the Registrable Securities outstanding on \nthat date that the Company file a registration statement under the Act \ncovering the registration of at least thirty percent of the Registrable \nSecurities then outstanding, then the Company shall, within ten days of the \nreceipt thereof, give written notice of such request to all Holders and \nshall, subject to the limitations of subsection 1.2(b), use its reasonable \nefforts to effect as soon as practicable, and in any event within 90 days of \nthe receipt of such request, the registration under the Act of all \nRegistrable Securities which the Holders request to be registered within 20 \ndays of the mailing of such notice by the Company in accordance with Section \n3.6.\n\n                        (b)  If the Holders initiating the registration \nrequest hereunder ('INITIATING HOLDERS') intend to distribute the Registrable \nSecurities covered by their request by means of an underwriting, they shall \nso advise the Company as a part of their request made pursuant to this \nSection 1.2 and the Company shall include such information in the written \nnotice referred to in subsection 1.2(a). The underwriter will be selected by \na majority in interest of the Initiating Holders (calculated based upon the \nnumber of Registrable Securities beneficially owned by each Initiating Holder \nat the time the request shall be made) and shall be reasonably acceptable to \nthe Company and Oracle. In such event, the right of any Holder to include \nsuch Holder's Registrable Securities in such registration shall be \nconditioned upon such Holder's participation in such underwriting and the \ninclusion of such Holder's Registrable Securities that are to be sold in such \noffering in the underwriting (unless otherwise mutually agreed by a majority \nin interest of the Initiating Holders and such Holder) to the extent provided \nherein. All Holders proposing to distribute their securities through such \nunderwriting shall (together with the Company as provided in subsection \n1.4(e)) enter into an underwriting agreement in customary form with the \nunderwriter or underwriters selected for such underwriting in accordance with \nthe foregoing. Notwithstanding any other provision of this Section 1.2, if \nthe underwriter advises the Company and the Initiating Holders in writing \nthat marketing factors require a limitation of the number of shares to be \nunderwritten, then the Company shall so advise all Holders of Registrable \nSecurities that would otherwise be underwritten pursuant hereto, and the \nnumber of shares of Registrable Securities that may be included in the \nunderwriting shall be allocated among all Holders thereof, in each case in \nproportion (as nearly as practicable) to the amount of Registrable Securities \nof the Company owned by each Holder electing to participate in the \nunderwriting; provided, however, that the Registrable Securities to be \nincluded in such Underwriting shall not be reduced unless all securities \n(other than Registrable Securities) are first entirely excluded from the \nunderwriting.\n\n\n                                      -3-\n\n\n\n                        (c)  Notwithstanding the foregoing, if the Company \nshall furnish to Holders requesting a registration statement pursuant to this \nSection 1.2, a certificate signed by the President of the Company stating \nthat in the good faith judgment of the Board of Directors of the Company it \nwould be seriously detrimental to the Company and its stockholders for such \nregistration statement to be filed and it is therefore essential to defer the \nfiling of such registration statement, the Company shall have the right to \ndefer such filing for a period of not more than 120 days after receipt of the \nrequest of the Initiating Holders; PROVIDED, HOWEVER, that the Company may \nnot utilize this right more than once in any twelve-month period.\n\n                        (d)  In addition, the Company shall not be obligated \nto effect, or to take any action to effect, any registration pursuant to this \nSection 1.2:\n\n                             (i)  After the Company has effected one \nregistration pursuant to this Section 1.2 and such registration shall have \nbeen declared or ordered effective; or\n\n                             (ii)  During the period starting with the date \n60 days prior to the Company's good faith estimate of the date of filing of, \nand ending on a date 180 days after the effective date of, a registration \nsubject to Section 1.3 hereof; PROVIDED that the Company is actively \nemploying in good faith all reasonable efforts to cause such registration \nstatement to become effective.\n\n                   1.3  COMPANY REGISTRATION. If (but without any obligation \nto do so) the Company proposes to register (including for this purpose a \nregistration effected by the Company for stockholders other than the Holders) \nany of its capital stock under the Act in connection with the public offering \nof such securities solely for cash (other than (i) a registration relating \nsolely to the sale of securities to participants in a Company stock plan or a \ntransaction covered by Rule 145 under the Act, (ii) a registration in which \nthe only stock being registered is Common Stock issuable upon conversion of \ndebt securities which are also being registered, or (iii) any registration on \nany form which does not include substantially the same information as would \nbe required to be included in a registration statement covering the sale of \nthe Registrable Securities), the Company shall, at such time, promptly give \neach Holder written notice of such registration. Upon the written request of \neach Holder given within 20 days after mailing of such notice by the Company \nin accordance with Section 3.6, the Company shall, subject to the provisions \nof Section 1.8, cause to be registered under the Act all of the Registrable \nSecurities that each such Holder has requested to be registered.\n\n                   1.4  OBLIGATIONS OF THE COMPANY. Whenever required under \nthis Section 1 to effect the registration of any Registrable Securities, the \nCompany shall, as expeditiously as reasonably possible:\n\n                        (a)  Prepare and file with the SEC a registration \nstatement with respect to such Registrable Securities and use its reasonable \nefforts to cause such registration statement to become effective, and, upon \nthe request of the Holders of a majority of the Registrable Securities \nregistered thereunder, keep such registration statement effective for up to \n120 days.\n\n\n                                      -4-\n\n\n\n                        (b)  Prepare and file with the SEC such amendments \nand supplements to such registration statement and the prospectus used in \nconnection with such registration statement as may be necessary to comply \nwith the provisions of the Act with respect to the disposition of all \nsecurities covered by such registration statement for up to 120 days.\n\n                        (c)  Furnish to the Holders such numbers of copies of \na prospectus, including a preliminary prospectus, in conformity with the \nrequirements of the Act, and such other documents as they may reasonably \nrequest in order to facilitate the disposition of Registrable Securities \nowned by them.\n\n                        (d)  Use its reasonable efforts to register and \nqualify the securities covered by such registration statement under such \nother securities or Blue Sky laws of such jurisdictions as shall be \nreasonably requested by the Holders, PROVIDED that the Company shall not be \nrequired in connection therewith or as a condition thereto to qualify to do \nbusiness or to file a general consent to service of process in any such \nstates or jurisdictions.\n\n                        (e)  In the event of any underwritten public \noffering, enter into and perform its obligations under an underwriting \nagreement, in usual and customary form, with the managing underwriter of such \noffering. Each Holder participating in such underwriting shall also enter \ninto and perform its obligations under such an agreement.\n\n                        (f)  Notify each Holder of Registrable Securities \ncovered by such registration statement at any time when a prospectus relating \nthereto is required to be delivered under the Act of the happening of any \nevent as a result of which the prospectus included in such registration \nstatement, as then in effect, includes an untrue statement of a material fact \nor omits to state a material fact required to be stated therein or necessary \nto make the statements therein not misleading in the light of the \ncircumstances then existing, such obligation to continue for 120 days.\n\n                        (g)  Cause all such Registrable Securities registered \npursuant hereunder to be listed on the securities exchange or market chosen \nby the Company and reasonably acceptable to Oracle.\n\n                        (h)  Provide a transfer agent and registrar for all \nRegistrable Securities registered pursuant hereunder and a CUSIP number for \nall such Registrable Securities, in each case not later than the effective \ndate of such registration.\n\n                        (i)  Use its reasonable efforts to furnish, at the \nrequest of any Holder requesting registration of Registrable Securities \npursuant to this Section 1, on the date that such Registrable Securities are \ndelivered to the underwriters for sale in connection with a registration \npursuant to this Section 1, if such securities are being sold through \nunderwriters, or, if such securities are not being sold through underwriters, \non the date that the registration statement with respect to such securities \nbecomes effective, (i) an opinion, dated such date, of the counsel \nrepresenting the Company for the purposes of such registration, in form and \nsubstance as is customarily given to underwriters in an underwritten public \noffering, addressed to the underwriters, if any, and to the Holders \nrequesting registration of Registrable Securities and (ii) a\n\n\n                                      -5-\n\n\n\nletter dated such date, from the independent certified public accountants of \nthe Company, in form and substance as is customarily given by independent \ncertified public accountants to underwriters in an underwritten public \noffering, addressed to the underwriters, if any, and to the Holders \nrequesting registration of Registrable Securities.\n\n                   1.5  FURNISH INFORMATION. It shall be a condition \nprecedent to the obligations of the Company to take any action pursuant to \nthis Section 1 with respect to the Registrable Securities of any selling \nHolder that such Holder shall furnish to the Company such information \nregarding itself, the Registrable Securities held by it, and the intended \nmethod of disposition of such securities as shall be required in the judgment \nof counsel to the Company to effect the registration of such Holder's \nRegistrable Securities. The Company shall have no obligation with respect to \nany registration requested pursuant to Section 1.2 of this Agreement if, as a \nresult of the application of the preceding sentence, the number of \nRegistrable Securities to be included in the registration does not equal or \nexceed the number of shares required to originally trigger the Company's \nobligation to initiate such registration as specified in subsection 1.2(a).\n\n                   1.6  EXPENSES OF DEMAND REGISTRATION. All expenses other \nthan underwriting discounts and commissions incurred in connection with \nregistrations, filings or qualifications pursuant to Section 1.2, including \n(without limitation) all registration, filing and qualification fees, \nprinters' and accounting fees, fees and disbursements of counsel for the \nCompany, and the reasonable fees and disbursements of one counsel for the \nselling Holders selected by them with the approval of the Company, which \napproval shall not be unreasonably withheld, shall be borne by the Company; \nPROVIDED, HOWEVER, that the Company shall not be required to pay for any \nexpenses of any registration proceeding begun pursuant to Section 1.2 if the \nregistration request is subsequently withdrawn at the request of the Holders \nof a majority of the Registrable Securities to be registered (in which case \nall participating Holders shall bear such expenses), unless the Holders of at \nleast 25% of the then outstanding Registrable Securities beneficially owned \nby Holders other than Oracle agree to forfeit their right to one demand \nregistration pursuant to Section 1.2.\n\n                   1.7  EXPENSES OF COMPANY REGISTRATION. The Company shall \nbear and pay all expenses incurred in connection with any registration, \nfiling or qualification of Registrable Securities with respect to the \nregistrations pursuant to Section 1.3 for each Holder (which right may be \nassigned as provided in Section 1.13), including (without limitation) all \nregistration, filing, and qualification fees, printers' and accounting fees \nrelating or apportionable thereto and the reasonable fees and disbursements \nof one counsel for the selling Holders selected by them with the approval of \nthe Company, which approval shall not be unreasonably withheld, but excluding \nunderwriting discounts and commissions relating to Registrable Securities.\n\n                   1.8  UNDERWRITING REQUIREMENTS. In connection with any \noffering involving an underwriting of shares of the Company's capital stock, \nthe Company shall not be required under Section 1.3 to include any of the \nHolders' securities in such underwriting unless they accept the terms of the \nunderwriting as agreed upon between the Company and the underwriters selected \nby it (or by other persons entitled to select the underwriters), and then \nonly in such quantity as the underwriters determine in their sole discretion \nwill not jeopardize\n\n\n                                      -6-\n\n\n\nthe success of the offering by the Company. If the total amount of \nsecurities, including Registrable Securities, requested by stockholders to be \nincluded in such offering exceeds the amount of securities sold other than by \nthe Company that the underwriters determine in their sole discretion is \ncompatible with the success of the offering, then the Company shall be \nrequired to include in the offering only that number of such securities, \nincluding Registrable Securities, which the underwriters determine in their \nsole discretion will not jeopardize the success of the offering (the \nsecurities so included to be apportioned pro rata among the selling \nstockholders according to the total amount of securities entitled to be \nincluded therein owned by each selling stockholder or in such other \nproportions as shall mutually be agreed to by such selling stockholders) but \nin no event shall (i) the amount of securities of the selling Holders \nincluded in the offering be reduced below 25% of the total amount of \nsecurities included in such offering, unless such offering is the initial \npublic offering of the Company's securities in which case the selling \nstockholders may be excluded if the underwriters make the determination \ndescribed above and no other stockholder's securities are included or (ii) \nnotwithstanding (i) above, any shares being sold by a stockholder exercising \na demand registration right similar to that granted in Section 1.2 be \nexcluded from such offering. For purposes of the preceding parenthetical \nconcerning apportionment, for any selling stockholder which is a holder of \nRegistrable Securities and which is a partnership or corporation, the \npartners, retired partners and stockholders of such holder, or the estates \nand family members of any such partners and retired partners and any trusts \nfor the benefit of any of the foregoing persons shall be deemed to be a \nsingle 'SELLING STOCKHOLDER,' and any pro-rata reduction with respect to such \n'selling stockholder' shall be based upon the aggregate amount of shares \ncarrying registration rights owned by all entities and individuals included \nin such 'selling stockholder,' as defined in this sentence.\n\n                   1.9  DELAY OF REGISTRATION. No Holder shall have any right \nto obtain or seek an injunction restraining or otherwise delaying any such \nregistration as the result of any controversy that might arise with respect \nto the interpretation or implementation of this Section 1.\n\n                   1.10  INDEMNIFICATION.  In the event any Registrable \nSecurities are included in a registration statement under this Section 1:\n\n                        (a)  To the extent permitted by law, the Company will \nindemnify and hold harmless each Holder, any underwriter (as defined in the \nAct) for such Holder and each person, if any, who controls such Holder or \nunderwriter within the meaning of the Act or the Securities Exchange Act of \n1934, as amended (the 'EXCHANGE ACT'), against any losses, claims, damages, \nor liabilities (joint or several) to which they may become subject under the \nAct, the Exchange Act or other federal or state law, insofar as such losses, \nclaims, damages, or liabilities (or actions in respect thereof) arise out of \nor are based upon any of the following statements, omissions or violations \n(collectively a 'VIOLATION'): (i) any untrue statement or alleged untrue \nstatement of a material fact contained in such registration statement, \nincluding any preliminary prospectus or final prospectus contained therein or \nany amendments or supplements thereto, (ii) the omission or alleged omission \nto state therein a material fact required to be stated therein, or necessary \nto make the statements therein not misleading, or (iii) any violation or \nalleged violation by the Company of the Act, the Exchange Act, any state \nsecurities law or any\n\n\n                                      -7-\n\n\n\nrule or regulation promulgated under the Act, the Exchange Act or any state \nsecurities law; and the Company will pay to each such Holder, underwriter or \ncontrolling person, as incurred, any legal or other expenses reasonably \nincurred by them in connection with investigating or defending any such loss, \nclaim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity \nagreement contained in this subsection 1.10(a) shall not apply to amounts \npaid in settlement of any such loss, claim, damage, liability, or action if \nsuch settlement is effected without the consent of the Company (which consent \nshall not be unreasonably withheld), nor shall the Company be liable in any \nsuch case for any such loss, claim, damage, liability, or action to the \nextent that it arises out of or is based upon a Violation which occurs in \nreliance upon and in conformity with written information furnished expressly \nfor use in connection with such registration by any such Holder, underwriter \nor controlling person.\n\n                        (b)  To the extent permitted by law, each selling \nHolder will indemnify and hold harmless the Company, each of its directors, \neach of its officers who has signed the registration statement, each person, \nif any, who controls the Company within the meaning of the Act, any \nunderwriter, any other Holder selling securities in such registration \nstatement and any controlling person of any such underwriter or other Holder, \nagainst any losses, claims, damages, or liabilities (joint or several) to \nwhich any of the foregoing persons may become subject, under the Act, the \nExchange Act or other federal or state law, insofar as such losses, claims, \ndamages, or liabilities (or actions in respect thereto) arise out of or are \nbased upon any Violation, in each case to the extent (and only to the extent) \nthat such Violation occurs in reliance upon and in conformity with written \ninformation furnished by such Holder expressly for use in connection with \nsuch registration; and each such Holder will pay, as incurred, any legal or \nother expenses reasonably incurred by any person intended to be indemnified \npursuant to this subsection 1.10(b), in connection with investigating or \ndefending any such loss, claim, damage, liability, or action; PROVIDED, \nHOWEVER, that the indemnity agreement contained in this subsection 1.10(b) \nshall not apply to amounts paid in settlement of any such loss, claim, \ndamage, liability or action if such settlement is effected without the \nconsent of the Holder, which consent shall not be unreasonably withheld; \nPROVIDED FURTHER that, in no event shall any indemnity under this subsection \n1.10(b) exceed the net proceeds from the offering received by such Holder, \nexcept in the case of willful fraud by such Holder.\n\n                        (c)  Promptly after receipt by an indemnified party \nunder this Section 1.10 of notice of the commencement of any action \n(including any governmental action), such indemnified party will, if a claim \nin respect thereof is to be made against any indemnifying party under this \nSection 1.10, deliver to the indemnifying party a written notice of the \ncommencement thereof and the indemnifying party shall have the right to \nparticipate in, and, to the extent the indemnifying party so desires, jointly \nwith any other indemnifying party similarly noticed, to assume the defense \nthereof with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, \nthat an indemnified party (together with all other indemnified parties which \nmay be represented without conflict by one counsel) shall have the right to \nretain one separate counsel, with the reasonable fees and expenses to be paid \nby the indemnifying party, if representation of such indemnified party by the \ncounsel retained by the indemnifying party would be inappropriate due to \nactual or potential differing interests between such indemnified party and \nany other party represented by such counsel in such proceeding. The failure \nto deliver written notice to the\n\n\n                                      -8-\n\n\n\nindemnifying party within a reasonable time of the commencement of any such \naction, if prejudicial to its ability to defend such action, shall relieve \nsuch indemnifying party of any liability to the indemnified party under this \nSection 1.10 to the extent its defense has been prejudiced, but the omission \nso to deliver written notice to the indemnifying party will not relieve it of \nany liability that it may have to any indemnified party otherwise than under \nthis Section 1.10.\n\n                        (d)  If the indemnification provided for in this \nSection 1.10 is held by a court of competent jurisdiction to be unavailable \nto an indemnified party with respect to any loss, liability, claim, damage, \nor expense referred to therein, then the indemnifying party, in lieu of \nindemnifying such indemnified party hereunder, shall contribute to the amount \npaid or payable by such indemnified party as a result of such loss, \nliability, claim, damage, or expense in such proportion as is appropriate to \nreflect the relative fault of the indemnifying party on the one hand and of \nthe indemnified party on the other in connection with the statements or \nomissions that resulted in such loss, liability, claim, damage, or expense as \nwell as any other relevant equitable considerations; PROVIDED, that in no \nevent shall any contribution by a Holder under this Subsection 1.10(d) exceed \nthe net proceeds from the offering received by such Holder, except in the \ncase of willful fraud by such Holder. The relative fault of the indemnifying \nparty and of the indemnified party shall be determined by reference to, among \nother things, whether the untrue or alleged untrue statement of a material \nfact or the omission to state a material fact relates to information supplied \nby the indemnifying party or by the indemnified party and the parties' \nrelative intent, knowledge, access to information, and opportunity to correct \nor prevent such statement or omission.\n\n                        (e)  Notwithstanding the foregoing, to the extent \nthat the provisions on indemnification and contribution contained in the \nunderwriting agreement entered into in connection with the underwritten \npublic offering are in conflict with the foregoing provisions, the provisions \nin the underwriting agreement shall control.\n\n                        (f)  The obligations of the Company and Holders under \nthis Section 1.10 shall survive the completion of any offering of Registrable \nSecurities in a registration statement under this Section 1, and otherwise.\n\n                   1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a \nview to making available to the Holders the benefits of Rule 144 promulgated \nunder the Act and any other rule or regulation of the SEC that may at any \ntime permit a Holder to sell securities of the Company to the public without \nregistration or pursuant to a registration on Form S-3, the Company agrees to:\n\n                        (a)  make and keep public information available, as \nthose terms are understood and defined in SEC Rule 144, at all times after 90 \ndays after the effective date of the first registration statement filed by \nthe Company for the offering of its securities to the general public so long \nas the Company remains subject to the periodic reporting requirements under \nSections 13 or 15(d) of the Exchange Act;\n\n\n                                      -9-\n\n\n\n                        (b)  take such action, including the voluntary \nregistration of its Common Stock under Section 12 of the Exchange Act, as is \nnecessary to enable the Holders to utilize Form S-3 for the sale of their \nRegistrable Securities, such action to be taken as soon as practicable after \nthe end of the fiscal year in which the first registration statement filed by \nthe Company for the offering of its securities to the general public is \ndeclared effective;\n\n                        (c)  file with the SEC in a timely manner all reports \nand other documents required of the Company under the Act and the Exchange \nAct; and\n\n                        (d)  furnish to any Holder, so long as the Holder \nowns any Registrable Securities, forthwith upon request (i) a written \nstatement by the Company that it has complied with the reporting requirements \nof SEC Rule 144 (at any time after 90 days after the effective date of the \nfirst registration statement filed by the Company), the Act and the Exchange \nAct (at any time after it has become subject to such reporting requirements), \nor that it qualifies as a registrant whose securities may be resold pursuant \nto Form S-3 (at any time after which it so qualifies), (ii) a copy of the \nmost recent annual or quarterly report of the Company and such other reports \nand documents so filed by the Company, and (iii) such other information as \nmay be reasonably requested in availing any Holder of any rule or regulation \nof the SEC which permits the selling of any such securities without \nregistration or pursuant to such form.\n\n                   1.12 FORM S-3 REGISTRATION. In case the Company shall \nreceive from any Holder or Holders a written request or requests that the \nCompany effect a registration on Form S-3 and any related qualification or \ncompliance with respect to all or a part of the Registrable Securities owned \nby such Holder or Holders, the Company will:\n\n                        (a)  promptly give written notice of the proposed \nregistration, and any related qualification or compliance, to all other \nHolders; and\n\n                        (b)  as soon as practicable, effect such registration \nand all such qualifications and compliances as may be so requested and as \nwould permit or facilitate the sale and distribution of all or such portion \nof such Holder's or Holders' Registrable Securities as are specified in such \nrequest, together with all or such portion of the Registrable Securities of \nany other Holder or Holders joining in such request as are specified in a \nwritten request given within 15 days after receipt of such written notice \nfrom the Company; provided, however, that the Company shall not be obligated \nto effect any such registration, qualification or compliance, pursuant to \nthis Section 1.12: (1) if Form S-3 is not available for such offering by the \nHolders; (2) if the Holders, together with the holders of any other \nsecurities of the Company entitled to inclusion in such registration, propose \nto sell Registrable Securities and such other securities (if any) at an \naggregate price to the public (net of any underwriters' discounts or \ncommissions) of less than $1,000,000; (3) if the Company shall furnish to the \nHolders a certificate signed by the President of the Company stating that in \nthe good faith judgment of the Board of Directors of the Company it would be \nseriously detrimental to the Company and its stockholders for such Form S-3 \nRegistration to be effected at such time, in which event the Company shall \nhave the right to defer the filing of the Form S-3 registration statement for \na period of not more than 60 days after receipt of the request of the Holder \nor Holders under this Section 1.12; provided, how-\n\n\n                                      -10-\n\n\n\never, that the Company shall not utilize this right more than once in any \ntwelve month period; (4) if the Company has, within the 12 month period \npreceding the date of such request, already effected two registrations on \nForm S-3 for the Holders pursuant to this Section 1.12; or (5) in any \nparticular jurisdiction in which the Company would be required to qualify to \ndo business or to execute a general consent to service of process in \neffecting such registration, qualification or compliance.\n\n                        (c)  Subject to the foregoing, the Company shall file \na registration statement covering the Registrable Securities and other \nsecurities so requested to be registered as soon as practicable after receipt \nof the request or requests of the Holders. All expenses incurred in \nconnection with a registration requested pursuant to Section 1.12, including \n(without limitation) all registration, filing, qualification, printers' and \naccounting fees and the reasonable fees and disbursements of counsel for the \nselling Holder or Holders and counsel for the Company, but excluding any \nunderwriters' discounts or commissions associated with Registrable \nSecurities, shall be borne by the Company. Registrations effected pursuant to \nthis Section 1.12 shall not be counted as demands for registration or \nregistrations effected pursuant to Sections 1.2 or 1.3, respectively.\n\n                   1.13 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to \ncause the Company to register Registrable Securities pursuant to this Section \n1 may be assigned (but only with all related obligations) by a Holder to a \ntransferee or assignee of Registrable Securities who, immediately following \nsuch transfer or assignment, is the beneficial owner of at least five percent \n(5%) of the Fully Diluted Equity of the Company, or by a Holder of the \nCompany's Series B Preferred Stock in connection with the transfer to a \nsingle third party of all shares of Series B Preferred Stock held by such \nHolder as of the date of such transfer, provided the Company is, within a \nreasonable time after such transfer, furnished with written notice of the \nname and address of such transferee or assignee and the securities with \nrespect to which such registration rights are being assigned; and provided \nfurther, that such assignment shall be effective only if immediately \nfollowing such transfer the further disposition of such securities by the \ntransferee or assignee is restricted under the Act. For the purposes of \ndetermining the number of shares of Registrable Securities held by a \ntransferee or assignee, the holdings of transferees and assignees of a \npartnership who are partners or retired partners of such partnership \n(including spouses and ancestors, lineal descendants and siblings of such \npartners or spouses who acquire Registrable Securities by gift, will or \nintestate succession) shall be aggregated together and with the partnership; \nprovided that all assignees and transferees who would not qualify \nindividually for assignment of registration rights shall have a single \nattorney-in-fact for the purpose of exercising any rights, receiving notices \nor taking any action under Section 1.\n\n                   1.14 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From \nand after the date of this Agreement, the Company shall not, without the \nprior written consent of Oracle and the Holders of at least 25% of the then \noutstanding Registrable Securities beneficially owned by Holders other than \nOracle, enter into any agreement with any holder or prospective holder of any \nsecurities of the Company which would allow such holder or prospective holder \n(i) to include such securities in any registration filed under Section 1.2 \nhereof, unless under the terms of such agreement, such holder or prospective \nholder may include such securities in any such\n\n\n                                      -11-\n\n\n\nregistration only to the extent that the inclusion of such holder's \nsecurities will not reduce the amount of the Registrable Securities of the \nHolders which is included or (ii) to make a demand registration which could \nresult in such registration statement being declared effective prior to the \nearlier of the trigger dates contemplated by subsection 1.2(a) or within 180 \ndays of the effective date of any registration effected pursuant to Section \n1.2.\n\n                   1.15 'MARKET STAND-OFF' AGREEMENT. Each Holder hereby \nagrees that, during the period of duration (up to, but not exceeding, 180 \ndays) specified by the Company and an underwriter of Common Stock or other \nsecurities of the Company, following the date of the final prospectus \ndistributed in connection with a registration statement of the Company filed \nunder the Act, it shall not, to the extent requested by the Company and such \nunderwriter, directly or indirectly sell, offer to sell, contract to sell \n(including, without limitation, any short sale), grant any option to purchase \nor otherwise transfer or dispose of (other than to donees who agree to be \nsimilarly bound) any securities of the Company held by it at any time during \nsuch period except Common Stock included in such registration; PROVIDED, \nHOWEVER, that:\n\n                        (a)  such agreement shall be applicable only to \nofferings commenced during the one year period following the date of the \nfinal prospectus distributed pursuant to the first such registration \nstatement of the Company that covers Common Stock (or other securities) to be \nsold on its behalf to the public in an underwritten offering; and\n\n                        (b)  all officers and directors of the Company, all \nholders of at least two percent the Fully Diluted Equity of the Company at \nsuch time, and all other persons with registration rights (whether or not \npursuant to this Agreement) enter into similar agreements.\n\n                   In order to enforce the foregoing covenant, the Company \nmay impose stop-transfer instructions with respect to the Registrable \nSecurities of each Holder (and the shares or securities of every other person \nsubject to the foregoing restriction) until the end of such period, and each \nHolder agrees that, if so requested, such Holder will execute an agreement in \nthe form provided by the underwriter containing terms which are essentially \nconsistent with the provisions of this Section 1.15.\n\n                   Notwithstanding the foregoing, the obligations described \nin this Section 1.15 shall not apply to a registration relating solely to \nemployee benefit plans on Form S-1 or Form S-8 or similar forms which may be \npromulgated in the future, or a registration relating solely to an SEC Rule \n145 transaction on Form S-4 or similar forms which may be promulgated in the \nfuture.\n\n                   1.16 TERMINATION OF REGISTRATION RIGHTS. No Holder shall \nbe entitled to exercise any right provided for in this Section 1 after the \nearlier of (i) five years following the consummation of the sale of \nsecurities pursuant to a registration statement filed by the Company under \nthe Act in connection with the initial firm commitment underwritten offering \nof its securities to the general public, or (ii) such time (and for so long) \nas Rule 144 or another similar exemption under the Act is available for the \nsale of all of such Holder's shares during a three (3)-month period without \nregistration.\n\n\n                                      -12-\n\n\n\n                   1.17 TERMINATION OF PRIOR AGREEMENTS. The parties hereto \nagree that any agreement providing for registration rights for shares of \ncapital stock of the Company or Navio similar to those contemplated by this \nAgreement entered into prior to the date hereof between Oracle and the \nCompany and between Navio and one or more of the Navio Stockholders, as the \ncase may be, will upon consummation of the Merger be terminated in its \nentirety and that at such time the terms of such agreement will be entirely \nsuperseded by the terms of this Agreement.\n\n                   1.18 APPROVAL OF SUBSEQUENT OFFERINGS. Oracle agrees that \nbetween the date hereof and December 31, 1999 it will support as a \nstockholder of the Company a registered public offering by the Company of the \nCompany's securities at any time during which the Company has satisfied the \nperformance conditions provided for in clauses (i) and (ii) of Section \n1.2(a); provided, that such support is at no material cost to Oracle and \nprovided, further, that nothing in this Section 1.18 shall obligate any \nDirector of the Company designated by Oracle to vote for or otherwise support \nsuch offering.\n\n\n              2.   COVENANTS OF THE COMPANY.\n\n                   2.1  DELIVERY OF FINANCIAL STATEMENTS. The Company shall \ndeliver to each Five Percent Holder and each Holder of at least 250,000 \nshares of the Company's Series B Preferred Stock:\n\n                        (a)  as soon as practicable, but in any event within \n90 days after the end of each fiscal year of the Company, an income statement \nfor such fiscal year, a balance sheet of the Company and statement of \nstockholder's equity as of the end of such year, and a statement of cash \nflows for such year, such year-end financial reports to be in reasonable \ndetail, prepared in accordance with GAAP and audited and certified by an \nindependent public accounting firm of nationally recognized standing selected \nby the Company; and\n\n                        (b)  as soon as practicable, but in any event within \n45 days after the end of each of the first three quarters of each fiscal year \nof the Company, an unaudited income statement, a statement of cash flows for \nsuch fiscal quarter and an unaudited balance sheet as of the end of such \nfiscal quarter.\n\n                   2.2  RIGHT TO MAINTAIN INTEREST. Subject to the terms and \nconditions specified in this Section 2.2, the Company hereby grants to each \nTen Percent Holder and each Holder of at least 250,000 shares of the \nCompany's Series B Preferred Stock (a 'Series B Holder') a right to maintain \ninterest with respect to future sales by the Company of its Shares (as \nhereinafter defined). A Ten Percent Holder who chooses to exercise its right \nto maintain interest may designate as purchasers under such right itself or \nits partners or affiliates in such proportions as it deems appropriate.\n\n                   Each time the Company proposes to offer any shares of, or \nsecurities convertible into or exercisable for any shares of, any class of \nits capital stock ('SHARES'), the Company shall first make an offering of \nsuch Shares to each Ten Percent Holder and each Series B Holder in accordance \nwith the following provisions:\n\n\n                                      -13-\n\n\n\n                        (a)  The Company shall deliver a notice in accordance \nwith Section 3.6 hereof ('NOTICE') to the Ten Percent Holders and Series B \nHolders stating (i) its bona fide intention to offer such Shares, (ii) the \nnumber of such Shares to be offered, and (iii) the price and terms, if any, \nupon which it proposes to offer such Shares.\n\n                        (b)  Within 15 calendar days after delivery of the \nNotice, the Ten Percent Holder or Series B Holder may elect to purchase or \nobtain, at the price and on the terms specified in the Notice, up to that \nportion of such Shares which equals the proportion that the number of shares \nof Common Stock issued and held, or issuable upon conversion and exercise of \nall convertible or vested and exercisable securities then held, by such Ten \nPercent Holder or Series B Holder bears to the total number of shares of \nCommon Stock then outstanding (assuming full conversion and exercise of all \nconvertible or vested and exercisable securities).\n\n                        (c)  The Company may, during the 45-day period \nfollowing the expiration of the period provided in subsection 2.2(b) hereof, \noffer the remaining unsubscribed portion of the Shares to any person or \npersons at a price not less than, and upon terms no more favorable to the \nofferee than, those specified in the Notice. If the Company does not enter \ninto an agreement for the sale of the Shares within such period, or if such \nagreement is not consummated within 60 days of the execution thereof, the \nright to maintain interest provided hereunder shall be deemed to be revived \nand such Shares shall not be offered unless first reoffered to the Ten \nPercent Holders and Series B Holders in accordance herewith.\n\n                        (d)  The right to maintain interest in this Section \n2.3 shall not be applicable to (i) the issuance or sale of Common Stock (or \noptions therefor) to employees, consultants and directors, pursuant to plans \nor agreements approved by the Board of Directors for the primary purpose of \nsoliciting or retaining their services, (ii) consummation of a bona fide, \nfirmly underwritten public offering of shares of Common Stock, registered \nunder the Act pursuant to a registration statement on Form S-1 with proceeds \nof greater than $20,000,000; (iii) the issuance of securities pursuant to the \nconversion or exercise of convertible or exercisable securities; (iv) the \nissuance of securities in connection with a bona fide business acquisition of \nor by the Company, whether by merger, consolidation, sale of assets, sale or \nexchange of stock or otherwise; (v) to the issuance of securities to \nfinancial institutions or lessors in connection with commercial credit \narrangements, equipment financings, or similar transactions; (vi) to the \nissuance or sale of securities in connection with the consummation of the \nMerger; (vii) to the issuance of securities that with unanimous approval of \nthe Board of Directors of the Company are not offered to any existing \nstockholder of the Company; (viii) the issuance after the date hereof of up \nto 42,909,091 shares of Series A-1 Preferred Stock (less any shares of Series \nA-1 Preferred Stock issued to Oracle prior to the date hereof), at a purchase \nprice of $1.10 per share; or (ix) the issuance of shares of Series A-1 \nPreferred Stock pursuant to Oracle's right to purchase Series A-1 Preferred \nupon the exercise by any Navio stockholder of dissenters' rights.\n\n                   2.3  CO-SALE RIGHTS.\n\n                        (a)  Subject to the terms of subsection 2.3(c) below, \nin the event that any Stockholder (the 'SELLING STOCKHOLDER') may desire to \nsell any shares of Company\n\n\n                                      -14-\n\n\n\ncapital stock held by it, the Selling Stockholder shall first notify all \nother Stockholders in writing of the proposed sale, at least 30 days prior to \nthe proposed date thereof, which notice shall contain all material terms of \nthe proposed sale, including, without limitation, the name and address of the \nprospective purchaser, the purchase price and terms of payment, the date of \nthe proposed sale, and the number of shares to be sold. Within 30 days after \nmailing the notice to the Stockholders, each Stockholder may notify the \nSelling Stockholder of its desire to sell to the prospective purchaser (or at \nsuch Stockholder's option and demand, to the Selling Stockholder, who hereby \nagrees to purchase in the event that a direct sale from the Selling \nStockholder to the prospective purchaser is consummated) all or any part of \nthe shares of Company capital stock which such Stockholder then holds, \nsubject to the next sentence, on the same terms as those on which the Selling \nStockholder proposed to sell its Company capital stock to the prospective \npurchaser. The maximum number of shares which any Stockholder electing to \nparticipate in the sale shall be entitled to sell hereunder shall be equal to \nthat number obtained by multiplying the total number of shares of Company \ncapital stock (on an as-converted basis) being sold by the Selling \nStockholder by a fraction, the numerator of which is the total number of \nshares of Company capital stock (on an as-converted basis) held by such \nStockholder at such time, and the denominator of which is the total number of \nsuch shares held by all Stockholders (on an as-converted basis) at such time. \nIf a Stockholder elects to sell to the prospective purchaser, then the \nSelling Stockholder shall assign as much of its interest in the agreement of \nsale with the prospective purchaser as any Stockholder electing to \nparticipate in the sale shall be entitled to and shall accept hereunder. If \nwithin 30 days after receipt by the Stockholders of notice from the Selling \nStockholder of such stockholder's intention to sell to a prospective \npurchaser the Stockholders do not send notice as set forth above, then the \nSelling Stockholder shall be free to sell the stock to such prospective \npurchaser, but only at the time and on the same terms and conditions as \noutlined in the notice sent to the Stockholders; PROVIDED that in the event \nsuch shares are not sold within 120 days of the date of the notice, they \nshall once again be subject to the right of co-sale provided herein.\n\n                        (b)  The provisions of subsection (a) above shall not \npertain to or apply to (i) any bona fide pledge of shares of stock made by a \nStockholder which creates a mere security interest, or (ii) any transfer made \nby a Stockholder which is a partnership to its constituent partners, or by a \nStockholder which is a corporation to its shareholders, to its parent \ncorporation or to a wholly-owned subsidiary corporation, (iii) any bona fide \ntransfer to an inter vivos trust for the benefit of the transferring \nStockholder, or (iv) any bona fide gift to a spouse or direct lineal \ndescendant of a Stockholder or a trust for their benefit.\n\n                        (c)  The parties hereto acknowledge that the terms of \nthis Section 2.3 are subordinate to the rights contemplated by Section 1 of \nthe Put\/Call and Voting Agreement and subordinate to the rights contemplated \nby Section 4 of the Put\/Call and Voting Agreement. To the extent a \nStockholder does not elect to have a portion of his or her equity interest in \nthe Company purchased under Section 1 of the Put\/Call and Voting Agreement \nand to the extent the Ten Percent Holders do not elect to acquire all of the \nshares of Company capital stock being offered by the Stockholder under \nSection 4 of the Put\/Call and Voting Agreement, then and only then shall the \nco-sale right contemplated by this Section 2.3 be effective. The\n\n\n                                      -15-\n\n\n\nnotice provisions contemplated in this Section 2.3 may be satisfied \nconcurrently with and in tandem with the notice provisions contemplated in \nthe Put\/Call and Voting Agreement.\n\n                   2.4  LIMITED APPROVAL RIGHTS. So long as Oracle shall \nbeneficially own at least a majority in interest of the Fully Diluted Equity \nof the Company, the approval of Oracle shall be required for the Company or \nany of its subsidiaries to do or effect any of the following:\n\n                        (a)  any incurrence, assumption or issuance by the \nCompany or any of its subsidiaries of any indebtedness for borrowed money \nthat when aggregated with the principal amount of all other indebtedness of \nborrowed money of the Company and its subsidiaries at such time exceeds \n$1,000,000; or\n\n                        (b)  the incurrence or entering into by the Company \nor any of its subsidiaries of any operating or capital property or equipment \nlease with a minimum term in excess of two years or which requires the \nCompany or its subsidiaries, as the case may be, to make minimum aggregate \npayments thereunder in excess of $ 1,000,000.\n\n                   2.5  RESTRICTIVE LEGENDS. The Stockholders and the Company \nagree that all certificates of stock evidencing the capital stock of the \nCompany issued to the Stockholders shall prior to their issuance be endorsed \nas follows for so long as this Agreement shall remain in effect:\n\n                   THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE\n                   SUBJECT TO AND MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE\n                   TERMS OF A STOCKHOLDERS AGREEMENT DATED AS OF [CLOSING DATE]\n                   BETWEEN THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY,\n                   COPIES OF WHICH ARE ON FILE AT THE OFFICES OF THE COMPANY.\n\n                   2.6  TERMINATION OF CERTAIN COVENANTS. The covenants set \nforth in Section 2 shall terminate as to Stockholders and be of no further \nforce or effect when the sale of securities pursuant to a registration \nstatement filed by the Company under the Act in connection with the firm \ncommitment underwritten offering of its securities to the general public is \nconsummated or when the Company first becomes subject to the periodic \nreporting requirements of Sections 13 or 15(d) of the Exchange Act, whichever \nevent shall first occur.\n\n                   2.7  AGREEMENT TO BE BOUND. As a condition to the \nconsummation of any purported transfer of any of the Company's capital stock, \nwhich transfer complies in all respects with the terms of this Section 2 and \nthe Put\/Call and Voting Agreement, the transferee of such shares of capital \nstock shall have agreed in writing to be bound by the terms of this Section 2 \nand by the terms of the Put\/Call and Voting Agreement. The transferor and \ntransferee of such shares shall give prompt notice of the transfer and \ndeliver a copy of the agreement to be bound to the Company in advance of the \nactual date of transfer.\n\n\n                                      -16-\n\n\n\n              3.   MISCELLANEOUS.\n\n                   3.1  EFFECTIVENESS OF AGREEMENT.  This Agreement shall \nonly become effective at the Effective Time (as defined in the Merger \nAgreement).\n\n                   3.2  SUCCESSORS AND ASSIGNS. Except as otherwise provided \nherein, the terms and conditions of this Agreement shall inure to the benefit \nof and be binding upon the respective successors and permitted assigns of the \nparties. Nothing in this Agreement, express or implied, is intended to confer \nupon any party other than the parties hereto or their respective successors \nand assigns any rights, remedies, obligations, or liabilities under or by \nreason of this Agreement, except as expressly provided in this Agreement.\n\n                   3.3  GOVERNING LAW. This Agreement and all acts and \ntransactions pursuant hereto shall be governed, construed and interpreted in \naccordance with the laws of the State of Delaware, without giving effect to \nprinciples of conflicts of laws. All actions and proceedings arising out of \nor relating to this Agreement shall be heard and determined exclusively in \nany California state or federal court sitting in either of San Mateo or San \nFrancisco counties.\n\n                   3.4  COUNTERPARTS.  This Agreement may be executed in two \nor more counterparts, each of which shall be deemed an original, but all of \nwhich together shall constitute one and the same instrument.\n\n                   3.5  TITLES AND SUBTITLES. The titles and subtitles used \nin this Agreement are used for convenience only and are not to be considered \nin construing or interpreting this Agreement.\n\n                   3.6  NOTICES. Unless otherwise provided, any notice \nrequired or permitted by this Agreement shall be in writing and shall be \ndeemed sufficient upon delivery, when delivered personally or by overnight \ncourier or sent by telegram or fax, or forty-eight (48) hours after being \ndeposited in the U.S. mail, as certified or registered mail, with postage \nprepaid, and addressed to the party to be notified at such party's address as \nset forth below or on EXHIBIT A hereto or as subsequently modified by written \nnotice.\n\n                   3.7  EXPENSES. If any action at law or in equity is \nnecessary to enforce or interpret the terms of this Agreement, the prevailing \nparty shall be entitled to reasonable attorneys' fees, costs and necessary \ndisbursements in addition to any other relief to which such party may be \nentitled.\n\n                   3.8  AMENDMENTS AND WAIVERS. Any term of this Agreement \nmay be amended and the observance of any term of this Agreement may be waived \n(either generally or in a particular instance and either retroactively or \nprospectively), only with the written consent of the Company, Oracle and \nHolders of at least 25% of the then outstanding Registrable Securities \nbeneficially owned by Holders other than Oracle. Any amendment or waiver \neffected in accordance with this paragraph shall be binding upon each holder \nof any Registrable Securities then outstanding, each future holder of all \nsuch Registrable Securities, and the Company.\n\n\n                                      -17-\n\n\n\n                   3.9  SEVERABILITY. If one or more provisions of this \nAgreement are held to be unenforceable under applicable law, the parties \nagree to renegotiate such provision in good faith. In the event that the \nparties cannot reach a mutually agreeable and enforceable replacement for \nsuch provision, then (x) such provision shall be excluded from this \nAgreement, (y) the balance of the Agreement shall be interpreted as if such \nprovision were so excluded and (z) the balance of the Agreement shall be \nenforceable in accordance with its terms.\n\n                   3.10  AGGREGATION OF STOCK. All shares of Company capital \nstock held or acquired by affiliated entities or persons shall be aggregated \ntogether for the purpose of determining the availability of any rights under \nthis Agreement.\n\n                   3.11  OWNERSHIP OF SHARES. Each Navio Stockholder \nrepresents and warrants that such stockholder is the record and beneficial \nowner of each of the shares of Navio capital set forth opposite the name of \nthe stockholder on EXHIBIT A hereto and that such stockholder is not the \nowner of record or beneficially of any shares of Navio other than those \nprovided for on such exhibit.\n\n\n                            [Signature Page Follows]\n\n\n                                      -18-\n\n\n\nThe parties have executed this Stockholders Agreement as of the date first \nabove written.\n\n                                         STOCKHOLDERS:\n\nNETWORK COMPUTER, INC.                   -----------------------------------\n                                         (Stockholder)\n\n\nBy:                                      By:\n   -----------------------------------      --------------------------------\n\nName:                                    Name:\n     ---------------------------------        ------------------------------\n                    (print)\nTitle:                                   Title:\n      --------------------------------         -----------------------------\n\n\nORACLE CORPORATION\n\nBy:                                    \n   ----------------------------------- \n\nName:\n     --------------------------------- \n\nTitle:\n      -------------------------------- \n\n\n\n\n                                       +\n                                   EXHIBIT A\n\n                                 STOCKHOLDERS\n\n\n\n                    NAME\/ADDRESS                      NO. OF SHARES\n                    ------------                      -------------\n                                                   \n          Netscape Communications Corporation           12,777,778\n\n          Wei Yen                                        8,333,334\n\n          Sony Corporation                               2,222,222\n\n          Acer America Corporation                         740,741\n\n          All Holdings Corporation                         370,370\n\n          Sega Enterprises, Ltd.                         1,111,111\n\n          Nintendo Co., Ltd.                             1,111,111\n\n          NEC Corporation                                1,111,111\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051,8419],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9629,9633],"class_list":["post-43947","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-oracle-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43947","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43947"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43947"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43947"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43947"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}