EXHIBIT 10.18
AMENDMENT NO. 2 TO
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO INVESTOR RIGHTS AGREEMENT (this "Amendment No.
2") is made as of April __, 2000 by and among Lineo, Inc., a Delaware
corporation (the "Company"), the investors listed on Schedule 1 hereto
(individually and collectively, the "Series A Investors"), the investors listed
on Schedule 2 hereto (individually and collectively, the "Series B Investors")
and the investors listed on Schedule 3 hereto (individually and collectively,
the "Series C Investors") with respect to that certain Investor Rights Agreement
dated February 17, 2000 by and among the Company and the Series A Investors (the
"Investor Rights Agreement").
WHEREAS, in connection with their purchase of shares of the Company's
Series A Convertible Preferred Stock, the Series A Investors were extended
certain registration, information and inspection rights as set forth in the
Investor Rights Agreement,
WHEREAS, in connection with their purchase of shares of the Company's
Series B Convertible Preferred Stock, the Series B Investors were extended
certain registration, information and inspection rights as set forth in
Amendment No. 1 to the Investor Rights Agreement dated March 15, 2000
("Amendment No. 1"), and
WHEREAS, the Company, the Series A Investors and the Series B Investors
wish to amend the registration, information and inspection rights set forth in
the Investor Rights Agreement and Amendment No. 1, and the Company is willing to
grant such registration, information and inspection rights to the Series C
Investors as set forth on EXHIBIT A and EXHIBIT B hereto;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein and in
the Series C Preferred Stock Purchase Agreement of even date herewith, the
parties hereto mutually agree to amend the Investor Rights Agreement to provide
as follows:
1. DEFINITIONS.
A. The definition of "Registrable Securities" set forth in the Investor
Rights Agreement is hereby deleted in its entirety and replaced with the
following definition:
"Registrable Securities" shall mean any shares of Common Stock held by
the Investors and permitted assignees (or subject to acquisition by the
Investors and permitted assignees upon conversion of Series A Preferred
Stock, Series B Convertible Preferred Stock, $.001 par value per share,
of the Company ("Series B Preferred Stock") or Series C Convertible
Preferred Stock, $.001 par value per share, of the Company ("Series C
Preferred Stock")), including any shares issued by way of a stock
dividend or stock split
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or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization; provided, however, that
if a Holder owns Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock, the Holder may exercise its registration
rights hereunder by converting the shares to be sold publicly into
Common Stock as of the closing of the relevant offering and shall not
be required to cause such Series A Preferred Stock, Series B Preferred
Stock or Series C Preferred Stock to be converted to Common Stock
until and unless such closing occurs; and provided, further, that any
Common Stock that is sold in a registered sale pursuant to an
effective registration statement under the Securities Act or pursuant
to Rule 144 thereunder, or that may be sold without restriction as to
volume or otherwise pursuant to Rule 144 under the Securities Act (as
confirmed by an unqualified opinion of counsel to the Company), shall
not be deemed Registrable Securities.
B. For purposes of the definition of "Holder" in Section 1 and for
purposes of Sections 3, 4 (regarding "Confidentiality Agreement," as set forth
in EXHIBIT C hereto), 5 and 6.5 of the Investor Rights Agreement only, the
definition of "Investor" and "Investors" as set forth in the preamble to the
Investor Rights Agreement is hereby amended by adding the Series B Investors and
Series C Investors such that, for purposes of the definition of "Holder" in
Section 1 and for purposes of Sections 3, 4, 5 and 6.5 only, each of the Series
A Investors, Series B Investors and Series C Investors shall individually be
considered an "Investor," and collectively they shall be considered "Investors."
2. REGISTRATION RIGHTS. Section 5 of the Investor Rights Agreement is
hereby amended and restated in its entirety as set forth on EXHIBIT A hereto.
3. INFORMATION AND INSPECTION RIGHTS. Sections 3.1 and 3.2 of the
Investor Rights Agreement are hereby amended and restated in their entirety as
set forth on EXHIBIT B hereto.
4. CONFIDENTIALITY. Section 4 of the Investor Rights Agreement is
hereby amended and restated in its entirety as set forth on EXHIBIT C hereto.
5. MISCELLANEOUS.
5.1 RATIFICATION. Except as expressly set forth in this Amendment No.
2, the terms of the Investor Rights Agreement, as amended by Amendment No. 1,
shall remain in full force and effect. In the event of a conflict between the
terms of this Amendment No. 2 and the terms of the Investor Rights Agreement, as
amended by Amendment No. 1, the terms of this Amendment No. 2 shall control.
5.2 SPECIFIC ENFORCEMENT. The Company, the Series A Investors, the
Series B Investors and the Series C Investors expressly agree that they will be
irreparably damaged if this Amendment No. 2 is not specifically enforced. Upon a
breach or threatened breach of the terms, covenants and/or conditions of this
Amendment No. 2 by any party, the Company and the Series A, B and C Investors
shall, in addition to all other remedies, each be entitled to a temporary or
permanent injunction, without showing any actual damage, and/or a decree for
specific performance, in accordance with the provisions of this Amendment No. 2.
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5.3 NOTICES. Unless otherwise provided, any notice under this Amendment
No. 2 shall be in writing and shall be deemed given (i) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (ii) one (1) day (or five (5) days in the case of
international deliveries) after the deposit with a nationally recognized
overnight courier, having specified next day delivery, with written verification
of receipt. All notices shall be addressed to each holder of record at the
address of such holder appearing on the books of the Corporation.
5.4 GOVERNING LAW. This Amendment No. 2 shall be governed by and
construed under the laws of the State of Delaware without regard to principles
of conflict of laws.
5.5 SUCCESSORS AND ASSIGNS. The terms and conditions of this Amendment
No. 2 shall inure to the benefit of and be binding on the respective successors
and assigns of the parties.
5.6 SEVERABILITY. If one or more provisions of this Amendment No. 2 are
held to be unenforceable under applicable law, such provision shall be excluded
from this Amendment No. 2, and the balance of this Amendment No. 2 shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
5.7 COUNTERPARTS. This Amendment No. 2 may be executed in two or more
counterparts, which together shall constitute one instrument.
5.8 AUTHORIZATION. Each party represents that this Amendment No. 2 has
been duly authorized, executed and delivered by such party and constitutes a
valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
5.9 LEGEND. Each certificate evidencing any of the shares of capital
stock of the Company owned by the Series C Investors shall bear a legend
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT DATED AS OF FEBRUARY
17, 2000, AS AT ANY TIME AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR
ENCUMBERED EXCEPT IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF SAID
AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE
OF THE COMPANY AND WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE
UPON REQUEST AND WITHOUT CHARGE.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as
of the date first above written.
COMPANY:
Lineo, Inc.,
a Delaware corporation
By: ___________________________________________
Xxxxx Xxxxxx, President and Chairman
SERIES A INVESTORS
Xxxx-Managed Capital, L.P.
By EMC Partners, L.P.,
its General Partner
By___________________________
Xxxxxxx X. Xxxxxxxx
General Partner
Motorola, Inc.
By: ______________________
Its: _____________________
The Canopy Group, Inc.
By: ______________________
Its: ____________________
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SERIES B INVESTORS
Acer Investment Worldwide Rainier Investors, LLC
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
AII Holding Samsung Electro-Mechanics Co., Ltd.
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
Arima Computer Corporation Xxxxxxxx New Technologies Fund, Inc.
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
Brilliant World Limited Xxxxxxxx Investment Opportunities
(Master) Fund - NTV Portfolio
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
Budworth Investments Limited Silver Star Developments Limited
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
Compal Electronics, Inc. Summit Law Group, PLLC
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
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Xxxx-Managed Capital, L.P. Wisecom Investments, LLC
By:_______________________________ By:_____________________________________
Its:______________________________ Its:____________________________________
Exchange Place Investments, LLC
By:_______________________________
Its:______________________________
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SERIES C INVESTORS
_____________________________________
Name of Investor
By __________________________________
Its _________________________________
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SCHEDULE 1
SERIES A INVESTORS
Xxxx-Managed Capital, L.P.
Motorola, Inc
The Canopy Group, Inc.
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SCHEDULE 2
SERIES B INVESTORS
Acer Investment Worldwide
AII Holding
Arima Computer Corporation
Brilliant World Limited
Budworth Investments Limited
Compal Electronics, Inc.
Xxxx-Managed Capital, L.P.
Exchange Place Investments, LLC
Rainier Investors, LLC
Samsung Electro-Mechanics Co., Ltd.
Xxxxxxxx New Technologies Fund, Inc.
Xxxxxxxx Investment Opportunities (Master) Fund - NTV Portfolio
Silver Star Developments Limited
Summit Law Group, PLLC
Wisecom Investments, LLC
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SCHEDULE 3
SERIES C INVESTORS
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EXHIBIT A
REGISTRATION RIGHTS
5. REGISTRATION RIGHTS.
5.1. REQUEST FOR REGISTRATION
(a) If the Company shall receive at any time after the earlier of (i)
February 17, 2003 or (ii) six (6) months after the effective date of a Public
Offering, a written request from the holders (the "Initiating Holders") of a
majority of the Registrable Securities then outstanding that the Company file a
registration statement under the Securities Act covering the registration of all
or part of the Registrable Securities having an aggregate offering price, net of
underwriting discounts and commissions, equal to or exceeding $5,000,000, then
the Company shall, subject to Section 5.1(b) below:
(i) Within ten (10) days of the receipt of such request, give
written notice of the proposed registration to all Holders; and
(ii) As soon as practicable, either (A) elect to make a
primary offering, in which case the rights of such Holders shall be as set forth
in Section 5.2 hereof or (B) use its best efforts to effect such registration
(including, without limitation, filing post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the Securities Act) and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Company within twenty (20)
days after such written notice from the Company is mailed or delivered.
(b) The Company shall not be obligated to effect, or to take any action
to effect, any such registration pursuant to this Section 5.1 after the Company
has initiated two (2) such registrations pursuant to this Section 5.1 (counting
for these purposes only registrations which have been declared or ordered
effective and pursuant to which securities have been sold and registrations
which have been withdrawn by the Holders as to which the Holders have not
elected to bear the expenses of registration pursuant to Section 5.4 hereof and
would, absent such election, have been required to bear such expenses).
(c) Subject to Section 5.1(b) above, the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable and in any event within sixty (60) days of
receipt of the request or requests of the Initiating Holders; provided, however,
that if (i) in the good faith judgment of the Board of Directors of the Company,
such registration would be detrimental to the Company, and the Board of
Directors of the Company concludes, as a result, that it is essential to defer
the filing of such registration statement at such time, and (ii) the Company
shall furnish to such Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company for such registration statement
to be filed in the near future and that it is, therefore, essential to defer the
filing of such registration statement, then the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the Initiating Holders, and, provided further, that the
Company shall not defer its obligation in this manner more than once in any
twelve-month period.
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(d) The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 5.13 hereof,
include other securities of the Company with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company.
(e) The right of any Holder to registration pursuant to this Section
5.1 shall be conditioned upon such Holder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder with respect to such participation and inclusion) to the
extent provided herein. A Holder may elect to include in such underwriting all
or a part of the Registrable Securities it holds.
(f) If the Company shall request inclusion in any registration pursuant
to this Section 5.1 of securities being sold for its own account, or if other
persons shall request inclusion in any registration pursuant to this Section
5.1, the Initiating Holders shall, on behalf of all Holders, offer to include
such securities in the underwriting and may condition such offer on their
acceptance of the further applicable provisions of this Agreement. The Company
shall (together with all Holders and other persons proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, which underwriters are reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 5.1, if the representative
of the underwriters in good faith advises the Initiating Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 5.13 hereof. If a person
who has requested inclusion in such registration as provided above does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company, the underwriter or the Initiating
Holders. The securities so excluded shall also be withdrawn from registration.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall also be withdrawn from such registration. If shares are so
withdrawn from the registration and if the number of shares to be included in
such registration was previously reduced as a result of marketing factors
pursuant to this Section 5.1(f), then the Company shall offer to all Holders who
have retained rights to include securities in the registration the right to
include additional securities in the registration in an aggregate amount equal
to the number of shares so withdrawn, with such shares to be allocated among
such Holders requesting additional inclusion in accordance with Section 5.13.
5.2 COMPANY REGISTRATION
(a) Subject to Section 5.2(e) below, if at any time or times after the
date hereof the Company shall determine to register any of its equity securities
either for its own account or the account of a security holder or holders
exercising their respective demand registration rights, the Company will:
(i) Promptly give to each Holder written notice thereof; and
(ii) Use its best efforts to include in such registration (and
any related qualification under blue sky laws or other compliance), except as
set forth in Section 5.2(c) below, and in any underwriting involved therein, all
the Registrable Securities specified in a written request or requests, made by
any Holder and received by the Company within twenty (20) days after the written
notice from the Company described in (i) above is mailed or delivered by the
Company. Such written request may specify all or a part of a Holder's
Registrable Securities.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given
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pursuant to Section 5.2(a)(i) above. In such event, the right of any Holder to
registration pursuant to this Section 5.2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders of securities of the Company
with registration rights to participate therein distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.
(c) Notwithstanding any other provision of this Section 5.2, if the
representative of the underwriters in good faith advises the Company in writing
that marketing factors require a limitation on the number of shares to be
underwritten, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 5.13. If any person does
not agree to the terms of any such underwriting, he, she or it shall be excluded
therefrom by written notice from the Company or the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
(d) If shares are so withdrawn from the registration or if the number
of shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares so withdrawn, with such shares
to be allocated among the persons requesting additional inclusion in accordance
with Section 5.12 hereof.
(e) This Section 5.2 shall not apply to a registration on any
registration form that does not permit secondary sales or to registrations
relating solely to (i) employee benefit plans, (ii) transactions pursuant to
Rule 145 or any other similar rule promulgated under the Securities Act or (iii)
securities issued in connection with mergers with or acquisitions of other
corporations by the Company.
5.3 REGISTRATIONS ON FORM S-3
(a) After its initial public offering, the Company shall use its best
efforts to qualify and remain qualified for registration on Form S-3 or any
comparable or successor form or forms. After the Company has qualified for the
use of Form S-3, in addition to the rights contained in the foregoing provisions
of this Agreement, the Holders of Registrable Securities shall have the right to
request registrations on Form S-3 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended methods of disposition of such shares by such Holders or Holders);
provided, however, that the Company shall not be obligated to effect any such
registration if (i) the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) on Form S-3 at an
aggregate price to the public of less than or equal to $500,000 (net of any
underwriters' discounts or commissions); (ii) the Company shall furnish the
certification described in Section 5.1(c) (but subject to the limitations set
forth therein); or (iii) in a given twelve-month period, the Company has already
effected two (2) such registrations pursuant to this Section 5.3.
(b) If a request complying with the requirements of Section 5.3(a)
hereof is delivered to the Company, the provisions of Sections 5.1(c) and (d)
hereof shall apply to such registration. If the registration is for an
underwritten offering, the provisions of Sections 5.1(e) and (f) hereof shall
apply to such registration. Registrations effected pursuant to this Section 5.3
shall not be counted as demands for registration or registrations effected
pursuant to Sections 5.1 and 5.2.
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5.4 EXPENSES
In the case of any registration under Sections 5.1, 5.2 and 5.3 hereof,
the Company shall bear all costs and expenses of each such registration,
including, but not limited to, printing, legal and accounting expenses,
Securities and Exchange Commission ("SEC") filing fees and "blue sky" fees and
expenses (the "Registration Expenses"); provided, however, that the Company
shall have no obligation to pay or otherwise bear (i) any portion of the fees or
disbursements of more than one (1) counsel for the selling Holders of
Registrable Securities in connection with the registration of their Registrable
Securities, and in any event shall not responsible for fees for such counsel in
excess of $20,000, or (ii) any portion of the underwriter's commissions or
discounts attributable to the Registrable Securities being offered and sold by
the Holders of Registrable Securities; and, provided further, that if the
Holders bear the Registration Expenses for any registration proceeding commenced
pursuant to this Agreement and if the registration request is subsequently
withdrawn by the Holders registering shares therein, such registration
proceeding shall not be counted as a requested registration pursuant to Section
5.1 hereof. Furthermore, in the event that a withdrawal by the Holders is based
upon material adverse information relating to the Company that is different from
the information known or available (upon request from the Company or otherwise)
to the Holders requesting registration at the time of their request for
registration under Section 5.1, such registration shall not be treated as a
counted registration for purposes of Section 5.1 hereof and the Holders shall
not be required to pay any of the Registration Expenses for such registration.
5.5 OBLIGATIONS OF THE COMPANY
In the case of each registration effected by the Company pursuant to
this Agreement, the Company will keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof.
At its expense, the Company will use its best efforts to:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective;
(b) Keep such registration effective for a period of one hundred twenty
(120) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(c) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(d) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
(e) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include
any untrue
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statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
incomplete in the light to the circumstances then existing;
(f) Enter into any reasonable underwriting agreement required by the
proposed underwriter, if any, in such form and containing such terms as are
customary; provided, however, that no Holder shall be required to make any
representations or warranties other than with respect to its title to the
Registrable Securities and any written information provided by the Holder to the
Company, and if the underwriter requires that representations or warranties be
made and that indemnification be provided, the Company shall make all such
representations and warranties and provide all such indemnities, including,
without limitation, in respect of the Company's business, operations and
financial information and the disclosures relating thereto in the prospectus;
(g) Use its best efforts to register or qualify the securities covered
by said registration statement under the securities or "blue sky" laws of such
jurisdictions as any selling Holder may reasonably request, provided that the
Company shall not be required to register or qualify the securities in any
jurisdictions which require it to qualify to do business therein;
(h) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(i) Otherwise use its best efforts to comply with the securities laws
of the United States and other applicable jurisdictions and all applicable rules
and regulations of the SEC and comparable governmental agencies in other
applicable jurisdictions and make generally available to its stockholders, in
each case as soon as practicable, but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company which will
satisfy the provisions of Section 11(a) of the Securities Act;
(j) Obtain and furnish to each selling Holder, immediately prior to the
effectiveness of the registration statement (and, in the case of an underwritten
offering, at the time of delivery of any Registrable Securities sold pursuant
thereto), (i) a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the Holders of a majority of the Registrable
Securities being sold may reasonably request and (ii) an opinion of counsel
representing the Company in form and substance as is customary given to the
underwriters in an underwritten public offering;
(k) Otherwise cooperate with the underwriter or underwriters, the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration of any Registrable Securities under this Agreement; and
(l) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
5.6 SUSPENSION
In the case of a registration for the sale of Registrable Securities,
upon receipt of any notice (a "Suspension Notice") from the Company of the
happening of any event which makes any statement made in the registration
statement or related prospectus untrue or which requires the making of any
changes in such registration statement or prospectus so that they will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made not misleading, each
Holder of
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Registrable Securities registered under such registration statement shall
forthwith discontinue disposition of such Registrable Securities pursuant to
such registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the prospectus; provided, however, that the Company shall not
give a Suspension Notice until after the registration statement has been
declared effective and shall not give more than one Suspension Notice to the
Holders in respect to all Registrable Securities and pursuant to this Section
5.6 during any period of 12 consecutive months and in no event shall the period
from the date on which any Holder receives a Suspension Notice to the date on
which any Holder receives either the Advice or copies of the supplemented or
amended prospectus (the "Suspension Period") exceed 60 days. In the event that
the Company shall give any Suspension Notice, the Company shall use its best
efforts and take such actions as are reasonably necessary to render the Advice
and end the Suspension Period as promptly as practicable.
5.7 INDEMNIFICATION
(a) Incident to any registration statement referred to herein, the
Company will indemnify and hold harmless each Holder who offers or sells any
such Registrable Securities in connection with such registration statement
(including its partners (including partners of partners and stockholders of any
such partners), and directors, officers, employees and agents of any of them (a
"Selling Holder"), and each person who controls any of them within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (a
"Controlling Person"), from and against any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, as the same
are incurred), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement
(including any related preliminary or definitive prospectus, or any amendment or
supplement to such registration statement or prospectus), (ii) any omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, any state
securities or "blue sky" laws or any rule or regulation thereunder in connection
with such registration; provided, however, that the Company will not be liable
to the extent that such loss, claim, damage, expense or liability arises from
and is based on an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information furnished in
writing to the Company by such underwriter, Selling Holder or Controlling Person
expressly for use in such registration statement. With respect to such untrue
statement or omission or alleged untrue statement or omission in the information
furnished in writing to the Company by such Selling Holder expressly for use in
such registration statement, such Selling Holder will indemnify and hold
harmless each underwriter, the Company (including its directors, officers,
employees and agents), each other Holder (including its partners (including
partners of partners and stockholders of such partners) and directors, officers,
employees and agents of any of them, and each person who controls any of them
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act)), from and against any and all losses, claims, damages, expenses
and liabilities, joint or several, to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise to the same extent
provided in the immediately preceding sentence.
(b) The foregoing indemnity provisions are subject to the condition
that, insofar as they relate to any violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective
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or in the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"Final Prospectus"), such indemnity provisions shall not inure to the benefit of
any person if a copy of the Final Prospectus was furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(c) If the indemnification provided for in Section 5.7(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
5.7, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the other
Selling Holders and the underwriters from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the other Selling Holders and the underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Holders and the underwriters shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Holders and the underwriting
discount received by the underwriters, in each case as set forth in the table on
the cover page of the applicable prospectus, bear to the aggregate public
offering price of the Registrable Securities. The relative fault of the Company,
the Selling Holders and the underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Holders or the underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5.7(c) were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall a Selling
Holder be required to contribute any amount under this Section 5.7(c) in excess
of the lesser of (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion of the total
Registrable Securities sold under such registration statement which are being
sold by such Selling Holder or (ii) the net proceeds received by such Selling
Holder from its sale of Registrable Securities under such registration
statement. No person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
(d) Promptly after receipt by the indemnified party under this Section
5.7 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5.7, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that the indemnified
party (together with all other indemnified parties that may be represented
without conflict by one counsel) shall have the right to retain its own counsel,
with the fees and expenses to be paid by the indemnifying party, if, in the
opinion of counsel for the indemnifying party, representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the
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commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 5.7, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 5.7. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or entry into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party a
release from all liability in respect to such claim or litigation.
(e) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5.7 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5.7 will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any officer, director, employee, agent or controlling person of the
indemnified parties, and the obligations of the Company and Holders under this
Section 5.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 5, and otherwise.
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
5.8 INFORMATION BY HOLDER
Each Holder of Registrable Securities shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
5.9 REPORTS UNDER RULE 144, SECURITIES EXCHANGE ACT 1934
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(i) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the reporting requirements under Sections 13 or 15(d)
of the Exchange Act;
(ii) use its best efforts to take such action, including the voluntary
registration of its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
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(iii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(iv) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company as to
the steps it has taken to comply with the current public information
requirements of SEC Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company), the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), or to qualify as a registrant whose securities may
be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
5.10 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS
The registration rights of the Holders of Registrable Securities under
this Agreement may be transferred or assigned by any Holder to (i) any general
or limited partner or other comparable affiliate of such Holder, (ii) any fund
managed by or associated with such Holder or (iii) any transferee or assignee of
such Holder's Registrable Securities who after such transfer or assignment will
hold at least fifty percent (50%) of the Registrable Securities owned by such
Holder on the date hereof; provided that the Company is given prior written
notice of such transfer or assignment setting forth the name and address of the
transferee or assignee and identifying the number of Registrable Securities so
transferred or assigned, and, provided further, that the transferee or assignee
of such rights assumes in writing the obligations of such Holder under this
Agreement.
5.11 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder (a) to include such securities in any registration
filed under Section 5.1 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his Securities will not
reduce the amount of the Registrable Securities of the Holders which is included
or (b) to make a demand registration which could result in such registration
statement being declared effective prior to the earlier of either of the dates
set forth in subsection 5.1(a) or within one hundred eighty (180) days of the
effective date of any registration effected pursuant to Section 5.1.
5.12 MARKET STAND-OFF AGREEMENT
In connection with a public offering by the Company, the Holders, if
requested in good faith by the Company and the managing underwriter of the
public offering, shall agree not to sell or otherwise transfer or dispose of any
securities of the Company held by them (except for any securities sold pursuant
to such registration statement) for a period following the effective date of the
first such registration statement of the Company that covers Common Stock (or
other securities) that in no event shall exceed one hundred eighty (180) days.
Notwithstanding the foregoing, such an agreement shall not be required unless
all of the officers and directors and one percent (1%) or greater stockholders
of the Company and all other persons with registration rights enter into similar
agreements. In order to enforce the foregoing, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares of securities of every other person subject to the
foregoing restriction) until the end
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of such period. This Section 5.12 shall not be amended without the consent of
each Investor that is an investment company as that term is defined in the
Investment Company Act of 1940.
5.13 ALLOCATION OF REGISTRATION OPPORTUNITIES
In any circumstance in which all of the Registrable Securities and
other shares of Common Stock of the Company (including shares of Common Stock
issued or issuable upon conversion of shares of any currently unissued series of
Preferred Stock of the Company) with registration rights (the "Other Shares")
requested to be included in a registration on behalf of the Holders or other
selling stockholders cannot be so included as a result of limitations of the
aggregate number of shares of Registrable Securities and Other Shares that may
be so included, the number of shares of Registrable Securities and Other Shares
that may be so included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares as follows:
(i) If a requested registration pursuant to Section 5.1 involves an
underwritten offering, and the managing underwriter shall advise the Company in
writing (with a copy to each Holder requesting registration) that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, then the Registrable
Securities requested to be registered pursuant to Section 5.1 shall be reduced
to the number of Registrable Securities which the Company is so advised can be
sold in (or during the time of) such offering by (i) first decreasing the Other
Shares requested to be registered (pro rata among the persons requesting such
registration on the basis of the percentage of Other Shares held by such person
immediately prior to the filing of the registration statement with respect to
such registration) and (ii) then, to the extent necessary, by decreasing the
Registrable Securities (other than the Other Shares) requested to be registered
(pro rata on the basis of the percentage of Registrable Securities (other than
Other Shares) held by such Holder immediately prior to the filing of the
registration statement with respect to such registration).
(ii) If (a) a registration pursuant to Section 5.2 involves an
underwritten offering of the securities so being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing, whether or
not the Registrable Securities so requested to be registered for sale for the
account of Holders of Registrable Securities are also to be included in such
underwritten offering, and (b) the managing underwriter of such underwritten
offering shall inform the Company and the Holders of the Registrable Securities
requesting such registration by letter of its belief that the number of
securities requested to be included in such registration exceeds the number
which can be sold in (or during the time of) such offering, then the Company may
include in such offering all securities proposed by the Company to be sold for
its own account and may decrease the number of Registrable Securities and Other
Shares that have been requested to be included in such registration by
decreasing the securities requested to be included in such registration (whether
Registrable Securities or Other Shares) pro rata among the Holders and other
persons requesting such registration on the basis of the percentage held by such
Holder or other person immediately prior to the filing of the registration
statement with respect to such registration of the securities so requested to be
included in such registration, or in any other manner determined by the managing
underwriter of such registration; provided, however, that if such offering is
not an initial public offering and is a registration statement filed on behalf
of the Company, no such reduction may reduce the number of Registrable
Securities to less than 30% of the shares being sold in the offering. No
Registrable Securities shall be included in such registration if not also
included in such underwritten offering unless the managing underwriter thereof
so determines.
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5.14 TERMINATION OF REGISTRATION RIGHTS
The rights of any Holder to request registration or inclusion in any
registration pursuant to this Agreement shall terminate upon the earlier of (i)
five (5) years after the closing of the Company's first Public Offering or (ii)
as to any Investor on such date after the closing of the Company's first Public
Offering as such Investor owns less then thirty percent (30%) of the number of
Registrable Securities originally purchased by such Investor.
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EXHIBIT B
INFORMATION AND INSPECTION RIGHTS
3.1 INFORMATION RIGHTS
The Company shall deliver to the Investors the following:
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company
and statement of shareholder's equity as of the end of such year,
and a schedule as to the sources and applications of funds for
such year, such year-end financial reports to be in reasonable
detail, prepared in accordance with U.S. generally accepted
accounting principles ("GAAP"), and audited and certified by
independent public accountants of nationally recognized standing
selected by the Company; and
(b) as soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (3) quarters of
each fiscal year of the Company, an unaudited profit or loss
statement, a schedule showing the sources and application of
funds for such fiscal quarter and an unaudited balance sheet as
of the end of such fiscal quarter prepared in accordance with
GAAP.
3.2 INSPECTION RIGHTS Each Investor or its authorized representative or agent
shall have the right to inspect the books and records of the Company during
normal business hours upon written request made at least one (1) business day in
advance; provided, that the Investors shall avail themselves of such right no
more often than once every month.
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EXHIBIT C
CONFIDENTIALITY AGREEMENT
4. CONFIDENTIALITY AGREEMENT.
Each Investor, and any successor or assign of such Investor, who
receives from the Company or its agents, directly or indirectly, any information
that the Company has not made generally available to the public, pursuant to the
preparation and execution of this Agreement or disclosure in connection
therewith or pursuant to the provisions of Section 3: (a) acknowledges and
agrees that such information is confidential and for its use only in connection
with evaluating and servicing its investment in the Company and (b) agrees that
it will not disseminate such information to any person other than (i) its
accountant, attorney, investment advisor, limited partners, board of directors,
consultants and other similar professionals and that such dissemination shall be
only for purposes of evaluating its investment or its strategic alliance with
the Company, (ii) to any Affiliates, provided that such Affiliates agree to hold
such information confidential as provided in this Section 4, and (iii) as
required by applicable law or regulation, regulatory body, stock exchange, court
or administrative order, or any listing or trading agreement concerning the
Investor or the Company.
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