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EXHIBIT 10.7
FAIRBANKS SYSTEMS GROUP
d/b/a/
@BACKUP, INC
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
July 30, 1999
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TABLE OF CONTENTS
Page
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1. Registration Rights................................................................. 1
1.1 Definitions.................................................................. 1
1.2 Request for Registration..................................................... 2
1.3 Company Registration......................................................... 4
1.4 Obligations of the Company................................................... 4
1.5 Furnish Information.......................................................... 5
1.6 Expenses of Demand Registration.............................................. 5
1.7 Expenses of Company Registration............................................. 6
1.8 Underwriting Requirements.................................................... 6
1.9 Delay of Registration........................................................ 6
1.10 Indemnification.............................................................. 6
1.11 Reports Under Securities Exchange Act of 1934................................ 9
1.12 Form S-3 Registration........................................................ 9
1.13 Assignment of Registration Rights............................................ 10
1.14 Limitations on Subsequent Registration Rights................................ 11
1.15 "Market Stand-Off" Agreement................................................. 11
1.16 Termination of Registration Rights........................................... 11
2. Covenants of the Company............................................................ 12
2.1 Delivery of Financial Statements............................................. 12
2.2 Inspection................................................................... 12
2.3 Termination of Covenants..................................................... 13
2.4 Right of First Offer......................................................... 13
2.5 Indemnification.............................................................. 14
2.6 Board Expenses............................................................... 14
2.7 Management and Employee Stock................................................ 14
2.8 Payment of Dividends......................................................... 15
3. Miscellaneous....................................................................... 15
3.1 Successors and Assigns....................................................... 15
3.2 Governing Law................................................................ 15
3.3 Counterparts................................................................. 15
3.4 Titles and Subtitles......................................................... 15
3.5 Notices...................................................................... 15
3.6 Expenses..................................................................... 16
3.7 Amendments and Waivers....................................................... 16
3.8 Severability................................................................. 16
3.9 Aggregation of Stock......................................................... 16
3.10 Entire Agreement; Amendment; Waiver.......................................... 16
3.11 Representation............................................................... 16
Schedule A - Schedule of Investors
(i)
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement")
is made this 30th day of June 1999 by and between Fairbanks Systems Group, a
California corporation doing business as @Backup, Inc. (the "Company"), and the
investors listed on Schedule A hereto (each of whom is herein referred to
individually as an "Investor" and all of whom are herein referred to
collectively as the "Investors").
RECITALS
WHEREAS, certain of the Investors hold shares of the Company's Series A,
Series B, Series C and Series D Preferred Stock, and possess information rights,
rights of first offer and other rights pursuant to that certain Amended and
Restated Investors' Rights Agreement, dated March 12, 1998, as amended by
Amendment No. 1 to the Amended and Restated Investors' Rights Agreement, dated
January 28, 1999, between the Company and such Investors (the "Prior
Agreement");
WHEREAS, those undersigned Investors who hold Series A, Series B, Series
C and Series D Preferred Stock desire to terminate the Prior Agreement and to
accept the rights created pursuant hereto in lieu of the rights granted to them
under the Prior Agreement;
WHEREAS, certain Investors and the Company are parties to the Series E
Preferred Stock Purchase Agreement of even date herewith (the "Series E Purchase
Agreement") providing for the sale and issuance of Series E Preferred Stock (the
"Series E Preferred Stock") to such Investors; and
WHEREAS, in order to induce the Company to enter into the Series E
Purchase Agreement and to induce certain of the Investors to purchase the Series
E Preferred Stock pursuant to the Series E Purchase Agreement, the Investors and
the Company hereby agree that this Agreement shall govern the rights of the
Investors as to the matters set forth herein and the Investors who are parties
to the Prior Agreement hereby agree that the Prior Agreement shall be superseded
and replaced in its entirety by this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "1934 Act" means the Securities Exchange
Act of 1934, as amended.
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(c) The term "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(d) The term "Registrable Securities" means (i) the
Common Stock issuable or issued upon conversion of the Series A, Series B,
Series C, Series D and Series E Preferred Stock and (ii) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Series A, Series
B, Series C, Series D or Series E Preferred Stock (or Common Stock issued upon
conversion thereof) excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his, her or its rights under this
Section 1 are not assigned.
(e) The number of shares of "Registrable Securities then
outstanding" means the number of shares of Common Stock outstanding which are,
and the number of shares of Common Stock issuable pursuant to then exercisable
or convertible securities which are, Registrable Securities.
(f) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.13 hereof.
(g) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission ("SEC") which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
1.2 Request for Registration.
(a) If the Company shall receive at any time after the
earlier of (i) June 30, 2004 or (ii) six (6) months after the effective date of
the first registration statement for a public offering of securities of the
Company (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or an SEC Rule 145 transaction), a written request from
the Holders of a majority of the Registrable Securities then outstanding that
the Company file a registration statement under the Act covering the
registration of at least twenty percent (20%) of the Registrable Securities then
outstanding (or a lesser percent if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed $5,000,000), then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and shall, subject to the limitations of
subsection 1.2(b), effect as soon as practicable, and in any event shall use its
best efforts to effect within sixty (60) days of the receipt of such request,
the registration under the Act of all Registrable Securities which the Holders
request to be registered within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 3.5.
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(b) If the Holders initiating the registration request
hereunder ("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as part of their request made pursuant to this Section 1.2 and the
Company shall include such information in the written notice referred to in
Section 1.2(a). The underwriter will be selected by the Company and shall be
reasonably acceptable to a majority in interest of the Initiating Holders. In
such event, the right of any Holder to include his Registrable Securities in
such registration 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) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
approved for such underwriting by a majority in interest of the Initiating
Holders. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
of Registrable Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2 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
seriously detrimental to the Company and its shareholders for the registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; provided, however, the Company shall
not obtain such deferral more than once in any 12-month period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected two
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective date
of, a registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
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(iii) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 1.12 below.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating to
employee benefit plans on Form S-8 or similar forms which may be promulgated in
the future or a registration on Form S-4 or similar forms which may be
promulgated in the future relating solely to a Securities and Exchange
Commission Rule 145 transaction or similar transaction, or a registration form
that does not permit secondary sales), the Company shall, at such time, promptly
give each Holder written notice of such registration. Upon the written request
of each Holder given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 3.5, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(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, and, upon the request
of the holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days.
(b) 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 Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
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(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 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 in the light of the circumstances then existing.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself and the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
be required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 or Section 1.12 if, due to
the operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in Section 1.2(a) or Section
1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all Participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a material adverse change in the condition, business or prospects of
the Company from that known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following disclosure by the
Company of such material adverse change, then the Holders shall not be required
to pay any of such expenses and shall retain their rights pursuant to Section
1.2.
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1.7 Expenses of Company Registration. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder, including (without limitation) all
registration, filing and qualification fees, printers', legal and accounting
fees relating or apportionable thereto and the reasonable fees and disbursements
of one counsel for the selling Holders but excluding underwriting discounts and
commissions relating to the Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by Holders to be
included in such offering exceeds the amount of securities that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned among the selling
Holders in proportion (as nearly as practicable) to the amount of Registrable
Securities of the Company owned by each Holder), but in no event shall (i) the
amount of securities of the selling Holders included in the offering be reduced
below twenty-five percent (25%) of the total amount of securities included in
such offering, unless such offering is the initial public offering of the
Company's securities or (ii) notwithstanding (i) above, any shares being sold by
a shareholder exercising a demand registration right similar to that granted in
Section 1.2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling shareholder which is a
Holder and which is a partnership or corporation, the partners, retired partners
and shareholders of such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling shareholder," and any
pro-rata reduction with respect to such "selling shareholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling shareholder," as defined in
this sentence.
1.9 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, each of its officers, directors and
partners, and any underwriter (as defined in the Act) for such Holder and each
person, if any, who controls such Holder or underwriter
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within the meaning of the Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which they may become subject under
the Act, or the 1934 Act, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act the 1934 Act,
or any rule or regulation promulgated under the Act, or the 1934 Act; and the
Company will pay to each such Holder, each of its officers, directors and
partners, each underwriter or each controlling person any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 1.10(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder (including its
officers, directors and partners), underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act or the 1934 Act, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder against any
losses, claims, damages or liabilities (joint or several) to which any of the
foregoing persons may become subject under the Act or the 1934 Act insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will pay any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this Section 1.10(b), in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 1.10(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld); provided further, that in no event shall any
indemnity under this Section 1.10(b) exceed the gross proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 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 any indemnifying party under this Section 1.10, deliver to
the indemnifying party a written notice of the commencement
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thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if 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 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 1.10, 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 1.10. 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.
(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall any contribution by any Holder under
this Section 1.10(d) exceed the gross proceeds from the offering received by
such Holder.
(e) 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.
(f) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
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1.11 Reports Under Securities Exchange Act of 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the 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:
(a) 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;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 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;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting 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 Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies 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.
1.12 Form S-3 Registration. In case the Company shall receive
from the Holders of at least twenty percent (20%) of the Registrable Securities
then outstanding a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holders,
the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder joining in
such request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided, however,
that the Company shall not
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be obligated to effect any such registration, qualification or compliance,
pursuant to this Section 1.12: (i) if Form S-3 is not available for such
offering by the Holders; (ii) if 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) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $250,000; (iii) if the Company shall furnish to the
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
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than sixty (60) days after receipt of the request of the
Holder under this Section 1.12; provided, however, that the Company shall not
utilize this right more than once in any twelve (12)-month period; (iv) if the
Company has, within the twelve (12)-month period preceding the date of such
request, already effected two (2) registrations on Form S-3 for the Holders
pursuant to this Section 1.12; or (v) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.12, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holders and
counsel for the Company, shall be borne by the Company for up to the first four
(4) Form S-3 Registrations, and thereafter, the expenses of such S-3
Registrations shall be borne pro rata by the participating Holders.
Registrations effected pursuant to this Section 1.12 shall not be counted as
demands for registration or registrations effected pursuant to Sections 1.2 or
1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 20,000 shares of Registrable Securities or the right to acquire at least
20,000 shares of Registrable Securities (subject to appropriate adjustment for
stock splits, stock dividends, combinations and other recapitalizations),
provided: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement, including without
limitation the provisions of Section 1.15 below; and (c) that such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act. For the purposes of determining the number of shares of Registrable
Securities held by a transferee or assignee, the holdings of transferees and
assignees of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants and siblings of
such partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the
- 10 -
13
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 1."
1.14 Limitations 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
1.2, 1.3 or 1.12 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 1.2(a) or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 1.2.
1.15 "Market Stand-Off" Agreement. Each Holder hereby agrees
that, during the period of duration specified by the Company and an underwriter
of Common Stock or other securities of the Company, following the effective date
of a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except Common Stock included in such
registration; provided, however, that:
(a) such agreement shall not exceed 180 days for the
first such registration statement of the Company which covers Common Stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering;
(b) such agreement shall not exceed ninety (90) days for
any subsequent registration statement of the Company which covers Common Stock
(or other securities) to be sold on its behalf to the public in an underwritten
offering; and
(c) all officers and directors of the Company and all
shareholders of the Company holding over one percent (1%) of the Company's
Common Stock then outstanding enter into similar agreements.
In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Registrable Securities
of each Holder (and the shares or securities of every other person subject to
the foregoing restriction) until the end of such period.
1.16 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) five (5) years following the
- 11 -
14
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act at an equivalent price per share of at least
$5.00 and with gross proceeds to the Company (net of underwriting discounts and
commissions) of not less than $15,000,000 or (ii) such time as the Holder can
sell all of such stock under Rule 144(k) (or successor rule) promulgated by the
SEC.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver
to each Investor who holds a minimum of 20,000 shares of Series A Preferred
Stock, 500,000 shares of Series B Preferred Stock, 500,000 shares of Series C
Preferred Stock, 20,000 shares of Series D Preferred Stock, or the right to
acquire 20,000 shares of Series D Preferred Stock or 20,000 shares of Series E
Preferred Stock (subject to appropriate adjustment for stock splits, stock
dividends, combinations and other recapitalizations):
(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 generally accepted
accounting principles, and if requested by the holders of a majority of the
shares of Series B, Series C, Series D and Series E Preferred Stock, audited and
certified by independent public accountants of nationally recognized standing
selected by the Company;
(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;
(c) within thirty (30) days of the end of each month, an
unaudited income statement, schedule showing the sources and application of
funds and a balance sheet for and as of the end of such month, in reasonable
detail; and
(d) as soon as practicable, but in any event sixty (60)
days prior to the end of each fiscal year, a budget and business plan for the
next fiscal year, prepared on a monthly basis, including balance sheets and
sources and applications of funds statements for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company.
2.2 Inspection. The Company shall permit each Investor, at such
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information which it
reasonably considers to be a trade secret or similar confidential information.
- 12 -
15
2.3 Termination of Covenants. Subject to their earlier
termination pursuant to the specific terms of each Section, the covenants set
forth in this Section 2 shall terminate as to Investors and be of no further
force or effect when the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the firm commitment
underwritten offering of its securities to the general public is consummated or
when the Company first becomes subject to the periodic reporting requirements of
Sections 12(g) or 15(d) of the 1934 Act, whichever event shall first occur.
2.4 Right of First Offer. Subject to the terms and conditions
specified in this paragraph 2.4, the Company hereby grants to each Investor a
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). For purposes of this Section 2.4, an Investor includes
any general partners and affiliates of an Investor. An Investor shall be
entitled to apportion the right of first offer hereby granted it among itself
and its partners and affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of,
or securities convertible into or exercisable for any shares of, any class of
its capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Investor stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) Within twenty (20) calendar days after receipt of
the Notice, the Investor may elect to purchase or obtain, at the price and on
the terms specified in the Notice, up to that portion of such Shares which
equals the proportion that the number of shares of Common Stock issued and held
(assuming full conversion and exercise of all convertible and/or exercisable
securities) by such Investor bears to the total number of shares of Common Stock
of the Company then outstanding (assuming full conversion and exercise of all
convertible and/or exercisable securities). The Company shall promptly, in
writing, inform each Investor that purchases all the shares available to it
("Fully-Exercising Investor") of any other Investor's failure to do likewise.
During the ten-day period commencing after receipt of such information, each
Fully-Exercising Investor shall be entitled to obtain that portion of the Shares
for which Investors were entitled to subscribe but which were not subscribed for
by the Investors which is equal to the proportion that the number of shares of
Common Stock then held (assuming full conversion and exercise of all convertible
and/or exercisable securities) by such Fully-Exercising Investor bears to the
total number of shares of Common Stock then held (assuming full conversion and
exercise of all convertible and/or exercisable securities) by all
Fully-Exercising Investors who wish to purchase some of the unsubscribed
shares."
(c) If all Shares which Investors are entitled to obtain
pursuant to Section 2.4(b) are not elected to be obtained as provided in Section
2.4(b) hereof, the Company may, during the 60-day period following the
expiration of the period provided in Section 2.4(b) hereof, offer the remaining
unsubscribed portion of such Shares to any person or persons at a price not
- 13 -
16
less than, and upon terms no more favorable than, those specified in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within such period, or if such agreement is not consummated within 30 days of
the execution thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first reoffered to the
Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall
not be applicable (i) to the issuance or sale of shares of Common Stock (or
options therefor) to Company employees, directors, officers or consultants for
the primary purpose of soliciting or retaining their employment or services;
(ii) to or after consummation of a bona fide, firmly underwritten public
offering of shares of Common Stock, registered under the Act pursuant to a
registration statement on Form S-1; (iii) the issuance of Common Stock pursuant
to the conversion of the Series A, Series B, Series C, Series D or Series E
Preferred Stock; (iv) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise; provided, however, that
in each such case, such issuance is approved by the Company's Board of
Directors; (v) any borrowings, direct or indirect, from financial institutions
or other persons by the Company, whether or not presently authorized, including
any type of loan or payment evidenced by any type of debt instrument; (vi)
securities issued to vendors or customers or to other persons in similar
commercial situations with the Company if such issuance is approved by the Board
of Directors; (vii) securities issued in connection with obtaining lease
financing, whether issued to a lessor, guarantor or other person; (viii)
securities issued in connection with any stock split, stock dividend or
recapitalization of the Company; and (ix) any right, option or warrant to
acquire any security convertible into the securities listed in subsections (i)
through (viii) above."
2.5 Indemnification. The Company shall take all actions
necessary to indemnify its directors to the maximum extent permitted by
applicable law, including without limitation, amending the Company's Articles of
Incorporation and Bylaws and entering into contracts with the directors to
provide such indemnification; provided, however, that the Company shall not be
required to obtain directors insurance unless directed by the Board of
Directors.
2.6 Board Expenses. The Company will pay reasonable
out-of-pocket expenses (including reasonable air fare and hotel expenses), of
any representative of the Investors that is a member of the Board of Directors
in connection with attendance at meetings of the Board of Directors, upon
presentation to the Company of an itemized accounting of such expenses with
reasonable supporting data.
2.7 Management and Employee Stock.
(a) An initial pool of 3,193,321 shares of the Company's
Common Stock shall be reserved for purchase or incentive grants to employees,
consultants, directors or officers under incentive and non-qualified stock
purchase or stock option plans or agreements ("Employee Reserve").
- 14 -
17
(b) The shares or options issued from the Employee
Reserve provided for in this Section 2.7 shall vest following the grant or
issuance of such shares or options, as follows: twenty percent (20%) shall vest
after an initial twelve (12)-month cliff period and the remainder shall vest in
equal monthly installments over the next forty-eight (48) months following the
cliff period, as approved by the Company's Board of Directors. The Company shall
have a repurchase option at optionee's cost with respect to unvested shares.
Unvested shares may not be transferred.
2.8 Payment of Dividends. The Company shall declare dividends on
the Series B, Series C, Series D and Series E Preferred Stock in the full
preferential amount each year in which the Company makes a profit sharing
payment to its management or employees. The compensation committee of the Board
of Directors may approve bonuses for management or employees which are outside
any existing or future profit shares plan, and such bonus payments shall not
constitute a profit sharing payment which triggers a dividend on the Series B,
Series C, Series D and Series E Preferred Stock. Notwithstanding the foregoing,
the Company's Board of Directors may in its discretion declare and pay dividends
on the Series B, Series C, Series D and Series E Preferred Stock in accordance
with applicable law.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, upon
delivery by confirmed facsimile (with duplicate original sent by United States
mail) or three (3) days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
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18
3.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Series B, Series C, Series D and Series E Preferred Stock (and
Common Stock issued upon conversion thereof) then outstanding voting together as
a single class. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Series A, Series B, Series C,
Series D and Series E Preferred Stock (and Common Stock issued upon conversion
thereof) then outstanding, each future holder of all such shares and the
Company, whether or not such holder in fact consented to such amendment or
waiver.
3.8 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 Aggregation of Stock. All shares of Series A, Series B,
Series C, Series D and Series E Preferred Stock and Common Stock issued upon
conversion thereof held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
3.10 Entire Agreement; Amendment; Waiver. This Agreement
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof. The Investors who are parties to the Prior Agreement and the
Company hereby agree that the Prior Agreement shall be superseded and replaced
in its entirety by this Agreement.
3.11 Representation. By executing this Agreement, Investor
acknowledges and agrees that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP represents the
Company solely and that Investor has had an opportunity to consult with its own
attorney in connection with this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: FAIRBANKS SYSTEMS GROUP, a California
corporation
By: /s/ XXXX XXXXXX
------------------------------------
Xxxx Xxxxxx, Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
INVESTORS:
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
20
ALTA CALIFORNIA PARTNERS, L.P.,
a Delaware limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Xxxxxxx Xxxxxxx, General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS, L.L.C.,
a California limited liability company
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Xxxxxxx Xxxxxxx, Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
CG&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
21
CENDANT CORPORATION,
a Delaware corporation
By: /s/ XXXXX XXXXXXX
---------------------------------
Xxxxx Xxxxxxx, Senior Vice President,
Strategic Development
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
Windward Ventures Management, L.P.
By: Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
a New York corporation
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
-------------------------
Title: Senior Vice President
------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
22
SECURITY PACIFIC FINANCE, LTD.
By: /s/ Ian Xxxxxx Xxxxxx
---------------------------------
Print: Ian Xxxxxx Xxxxxx
------------------------------
Title: Director
------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY13BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By: /s/ X. XXXX /s/ X. XXXXXX
---------------------------------
Print: X. Xxxx X. Xxxxxx
------------------------------
Title: Authorised Signatories
------------------------------
Address: X.X. Xxx 000
Bordage House, Le Bordage
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX00XX
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
------------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
23
THE RIBLE LIVING TRUST DATED
JANUARY 15, 1988
By:
------------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXX X. XXXXXXXX FAMILY TRUST
By:
------------------------------------
Xxxx X. Xxxxxxxx, Trustee
Address: 000 00xx Xxxxxx
Xxx Xxx, XX 00000
MARGALAUR LLC
By: /s/ XXXXXXX XXXXX
------------------------------------
Xxxxxxx Xxxxx, President
Address: 00000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
24
XXXXXX X. XXXXX, DDS, A PROFESSIONAL
CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX
XXXXXXXX FAMILY TRUST, UTD
DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
------------------------------------
Xxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
------------------------------------
Xxx Xxxxx
Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
25
SCHEDULE A
Schedule of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.
Enterprise Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners LLC
Security Pacific Finance, Ltd.
Xxxxxx Investment Holdings, Ltd.
CG&H Investments
Xxxxxx Xxxxx
Xxxxx Xxxxxx
The Xxxxx Living Trust dated January 15, 1988
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx, DDS, a Professional corporation
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx Family Trust, UTD dated August 28, 1995
Xxxxx and Xxxxxxx X. Xxxxxxxxx
Xxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
A-1
26
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 1 to the Amended and Restated Investors' Rights
Agreement (the "Amendment") is made this 23rd day of August 1999 by and between
Fairbanks Systems Group, a California corporation doing business as @ Backup,
Inc. (the "Company"), and the investors listed on Schedule A hereto (each of
whom is herein referred to individually as an "Investor" and all of whom are
herein referred to collectively as the "Investors"). Capitalized terms used
herein which are not defined herein shall have the definition ascribed to them
in the Amended and Restated Investors' Rights Agreement, dated July 30, 1999
(the "Agreement"), between the Company and certain of the Investors (the
"Existing Investors").
RECITALS
WHEREAS, the Existing Investors possess information rights, rights of
first offer and other rights pursuant to the Agreement;
WHEREAS, the Company desires to complete the second sale of its Series E
Preferred Stock to certain of the Investors (the "New Series E Investors"), and
these New Series E Investors desire to purchase the Series E Preferred Stock
from the Company;
WHEREAS, the Company and the Existing Investors acknowledge that they
are entering into this Amendment as an inducement to and in consideration of the
New Series E Investors' purchase of the Series E Preferred Stock; and
WHEREAS, Section 3.7 of the Agreement provides that the Agreement may be
amended with the written consent of the Company and the holders of a majority in
interest of the Series A, Series B, Series C, Series D and Series E Preferred
Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained herein and in the Agreement, and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Amendment to Schedule A. Schedule A to the Agreement is amended and
replaced in its entirety by Schedule A attached hereto.
2. Amendment to Section 1.10(a) of the Agreement. Section 1.10(a) of the
Agreement is amended and replaced in its entirety by the following:
"(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, each of its officers, directors and partners, and any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the 1934
Act, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Act, or the 1934 Act, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any
27
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act the 1934 Act,
or any rule or regulation promulgated under the Act, or the 1934 Act; and the
Company will pay to each such Holder, each of its officers, directors and
partners, each underwriter or each controlling person any legal or other
expenses reasonably incurred by them, on an as-incurred basis, in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 1.10(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder (including its officers, directors and partners), underwriter or
controlling person."
3. Amendment to Section 1.10(b) of the Agreement. Section 1.10(b) of the
Agreement is amended and replaced in its entirety by the following:
"(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act or the 1934 Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
persons may become subject under the Act or the 1934 Act insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this Section 1.10(b), on an as-incurred basis, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
1.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder (which consent shall not be unreasonably withheld); provided
further, that in no event shall any indemnity under this Section 1.10(b) exceed
the gross proceeds from the offering received by such Holder."
4. Amendment to Section 1.10(c) of the Agreement. Section 1.10(c) of the
Agreement is amended and replaced in its entirety by the following:
"(c) Promptly after receipt by an indemnified party under this Section
1.10 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 any indemnifying party under this Section 1.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
-2-
28
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel and
one local counsel if the action is commenced outside the State of New York with
the reasonable fees and expenses to be paid by the indemnifying party, if
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 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
1.10, 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 1.10. 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 (I) 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 or (II) which includes a statement as to, or an
admission as to, fault or culpability or a failure to act by or on behalf of any
indemnified party."
5. Effect of Amendment. Except as expressly modified by this Amendment,
the Agreement shall remain unmodified and in full force and effect.
6. Entire Agreement. This Amendment together with the Agreement and all
documents referred to herein and therein constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
7. Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Amendment shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. Nothing in this
Amendment, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Amendment,
except as expressly provided in this Amendment.
8. Governing Law. This Amendment shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
9. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. Amendments and Waivers. Any term of this Amendment may be amended and
the observance of any term of this Amendment may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of a majority of the Series
B, Series C, Series D and Series E Preferred Stock
-3-
29
(and Common Stock issued upon conversion thereof) then outstanding voting
together as a single class. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any Series A, Series B,
Series C, Series D and Series E Preferred Stock (and Common Stock issued upon
conversion thereof) then outstanding, each future holder of all such shares and
the Company, whether or not such holder in fact consented to such amendment or
waiver.
11. Severability. If one or more provisions of this Amendment are held
to be unenforceable under applicable law, such provision shall be excluded from
this Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
12. Representation. By executing this Amendment, each Investor
acknowledges and agrees that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP represents the
Company solely and that Investor has had an opportunity to consult with its own
attorney in connection with this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
30
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
COMPANY: FAIRBANKS SYSTEMS GROUP,
a California corporation doing business as
@BACKUP, INC.
By: /s/ XXXX XXXXXX
---------------------------------------------
Xxxx Xxxxxx, Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
INVESTORS: ADVANCED DIGITAL INFORMATION CORPORATION, a
Washington corporation
By: /s/ Xxxxx xxx Xxxxx
---------------------------------------------
Address: X.X. Xxx 00000
00000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
31
XXXXXXX XXXXX KECALP L.P. 1999
By: KECALP Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx
23rd Floor
New York, New York 10080-6123
KECALP INC., as Nominee for Xxxxxxx Xxxxx
KECALP International L.P. 1999
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
CREST COMMUNICATIONS PARTNERS
L.P.
By: Crest Communications Holding L.L.C.
Its: Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------
Its: Xxxxx X. Xxxxxxxxxxx
--------------------------------
Title: Managing Director
--------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
32
CENDANT CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx, Senior Vice President,
Strategic Development
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC., a New York corporation
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
33
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III,
L.P. Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
34
ALTA CALIFORNIA PARTNERS, L.P., a Delaware
limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx, General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS, L.L.C., a
California limited liability company
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx, Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
CG&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
35
SECURITY PACIFIC FINANCE, LTD.
By:
---------------------------------
Print:
---------------------------------
Title:
---------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY13BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By: /s/ X. Xxxx X. Xxxxxx
-------------------------------
Print: X. Xxxx X. Xxxxxx
----------------------------
Title: Authorized Signatories
---------------------------
Address: X.X. Xxx 000
Bordage House, Le Bordage
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX00XX
/s/ Xxxxxx Xxxxx
---------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
---------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
36
THE RIBLE LIVING TRUST DATED JANUARY 15, 1988
By:
----------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXX X. XXXXXXXX FAMILY TRUST
By:
----------------------------------
Xxxx x. Xxxxxxxx, Trustee
Address: 000 00xx Xxxxxx
Xxx Xxx, XX 00000
MARGALAUR LLC
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Xxxxxxx Xxxxx, President
Address: 00000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
----------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
37
XXXXXX X. XXXXX, DDS, A PROFESSIONAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX FAMILY TRUST,
UTD DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
----------------------------------
Xxxxx Xxxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
----------------------------------
Xxx Xxxxx
Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
38
XXXXXX X. XXXXXX TTEE
UTA DTA DATED 10/20/86
By:
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxx Xxxxx
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXX AND XXXXXXXXX XXXXX-XXXXXX,
TRUSTEES UNDER TRUST AGREEMENT DATED 12/4/1984
----------------------------------------
Xxxxxxx Xxxxx, Trustee
Address: 000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX
A/C #000-00000-00
By: Delaware Charter Guarantee & Trust
Co.TTEE, its Trustee
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
DOMINION CAPITAL MANAGEMENT L.L.C., a Delaware
limited liability company
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO.1 TO THE AMENDED
AND RESTATED INVESTOR'S RIGHTS AGREEMENT]
39
SCHEDULE A
Schedule of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.
Enterprise Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners LLC
Security Pacific Finance, Ltd.
Xxxxxx Investment Holdings, Ltd.
CG&H Investments
Xxxxxx Xxxxx
Xxxxx Xxxxxx
The Xxxxx Living Trust dated January 15, 1988
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx, DDS, a Professional corporation
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx Family Trust, UTD dated August 28, 1995
Xxxxx and Xxxxxxx X. Xxxxxxxxx
Xxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
Dominion Capital Management L.L.C.
Advanced Digital Information Corporation
Crest Communications Partners X.X.
Xxxxxxx Xxxxx KECALP L.P. 1999
Xxxxxxx Xxxxx KECALP International L.P. 1999
A-1
40
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 2 to the Amended and Restated Investors' Rights
Agreement ("Amendment No. 2") is made this 17th day of September 1999 by and
among Fairbanks Systems Group, a California corporation doing business as
@Backup, Inc. (the "Company"), and the investors listed on Schedule A hereto
(each of whom is herein referred to individually as an "Investor" and all of
whom are herein referred to collectively as the "Investors"). Capitalized terms
used herein which are not defined herein shall have the definitions ascribed to
them in the Amended and Restated Investors' Rights Agreement, dated July 30,
1999 (the "Agreement"), as amended by Amendment No. 1 to the Amended and
Restated Investors' Rights Agreement, dated August 23, 1999 ("Amendment No. 1"),
between the Company and certain of the Investors (the "Existing Investors").
RECITALS
WHEREAS, the Existing Investors possess information rights, rights of
first offer and other rights pursuant to the Agreement and Amendment No. 1;
WHEREAS, the Company desires to complete the third sale of its Series E
Preferred Stock to certain of the Investors (the "New Investors"), and these New
Investors desire to purchase the Series E Preferred Stock from the Company;
WHEREAS, the Company and the Existing Investors acknowledge that they are
entering into this Amendment No. 2 as an inducement to and in consideration of
the New Investors' purchase of the Series E Preferred Stock; and
WHEREAS, Section 3.7 of the Agreement provides that the Agreement may be
amended with the written consent of the Company and the holders of a majority in
interest of the Series A, Series B, Series C, Series D and Series E Preferred
Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the promises and
covenants contained herein and in the Agreement and in Amendment No. 1, and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Additional Party to the Agreement and Amendment No. 1. By
executing this Amendment No. 2, each New Investor becomes a party to and agrees
to be bound by the terms and conditions of the Agreement and Amendment No. 1.
2. Amendment to Schedule A. Schedule A to the Agreement, as
amended by Amendment No. 1, is amended and replaced in its entirety by Schedule
A attached hereto.
3. Waiver and Consent. The Company and the Existing Investors
hereby (a) consent to adding the New Investors as parties to the Agreement and
Amendment No. 1 and
41
(b) consent to the amendments to the Agreement and Amendment No. 1 set forth in
this Amendment No. 2.
4. Effect of Amendment. Except as expressly modified by this
Amendment No. 2, the Agreement and Amendment No. 1 shall remain unmodified and
in full force and effect.
5. Entire Agreement. This Amendment No. 2 together with the
Agreement and Amendment No. 1 and all documents referred to herein and therein
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof.
6. Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Amendment No. 2 shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Amendment No. 2, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Amendment No. 2, except as expressly provided in this Amendment No. 2.
7. Governing Law. This Amendment No. 2 shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
8. Counterparts. This Amendment No. 2 may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. Amendments and Waivers. Any term of this Amendment No. 2 may
be amended and the observance of any term of this Amendment No. 2 may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Series B, Series C, Series D and Series E Preferred Stock (and
Common Stock issued upon conversion thereof) then outstanding voting together as
a single class. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Series A, Series B, Series C,
Series D and Series E Preferred Stock (and Common Stock issued upon conversion
thereof) then outstanding, each future holder of all such shares and the
Company, whether or not such holder in fact consented to such amendment or
waiver.
10. 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.
11. Representation. By executing this Amendment No. 2, each
Investor acknowledges and agrees that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP represents
the Company solely, and that the Investor has had an opportunity and has been
encouraged to consult with its own attorney in connection with this Amendment
No. 2, the Agreement and Amendment No. 1.
-2-
42
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as of
the date first above written.
COMPANY: FAIRBANKS SYSTEMS GROUP,
a California corporation doing business as
@BACKUP, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
INVESTORS: ADVANCED DIGITAL INFORMATION
CORPORATION, a Washington corporation
By: /s/ [Signature Illegible]
----------------------------------------
Address: X.X. Xxx 00000
00000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
-3-
43
ALTA CALIFORNIA PARTNERS, L.P., a
Delaware limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ [Signature Illegible]
-------------------------------------
, General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS,
L.L.C., a California limited liability company
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
CG&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
44
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III,
L.P. Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III
ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
45
SECURITY PACIFIC FINANCE, LTD.
By:
----------------------------------------
Print:
-------------------------------------
Title:
-------------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY1 3BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By: /s/ Xxxxxx Xxxxxx & /s/ Xxxxx Xxxxxxx
----------------------------------------
Print Name: Xxxxxx Xxxxxx & Xxxxx Xxxxxxx
--------------------------------
Title: Authorised Signatories
-------------------------------------
Address: X.X. Xxx 000
Bordage House, Xx Xxxxxxx
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX0 0XX
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
/s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
46
XXXXXXX XXXXX KECALP L.P. 1999
By: KECALP, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
KECALP INC., AS NOMINEE FOR XXXXXXX
XXXXX KECALP INTERNATIONAL L.P. 1999
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
CREST COMMUNICATION PARTNERS L.P.
By: Crest Communications Holding L.L.C.
Its: Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx
--------------------------------
Title: Managing Director
-------------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
47
XXXXXX X. XXXXX, DDS, A PROFESSIONAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX
XXXXXXXX FAMILY TRUST, UTD
DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
-------------------------------------------
Xxxxx Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
-------------------------------------------
Xxx Xxxxx
Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
48
XXXXXX X. XXXXX, DDS, A PROFESSIONAL
CORPORATION
By:
-------------------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX
FAMILY TRUST, UTD DATED: AUGUST 28, 1995
By:
-------------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
NEW INVESTORS:
XXXXXX XXXXX, individually
By:
-------------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
XXX XXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Print Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: Vice President New Business Development
----------------------------------------
Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
49
WINDWARD VENTURES, L.P.
By: Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
SENVEST INTERNATIONAL LLC
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Print Name: Xxxxxxx Xxxxxxx
-------------------------------
Title: President
------------------------------------
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX, individually
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000
XXX XXXXXX, individually
/s/ Xxx Xxxxxx
------------------------------------------
Xxx Xxxxxx
Address: 00 Xxxxx Xxxxxx
00000 Xxx Xxxx, Xxxxxx
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
50
XXXX X. XXXXXX, individually
/s/ Xxxx X. Xxxxxx
------------------------------------------
Xxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXX X. XXXXXX III, individually
/s/ Xxxxx X. Xxxxxx III
------------------------------------------
Xxxxx X. Xxxxxx III
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
51
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
----------------------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX, an individual
/s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
52
XXXXXX X. XXXXXX TTEE UTA DTA Dated 10/20/86
By: /s/ Xxxxxx X. Xxxxxx, Trustee
--------------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxx Xxxxx
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
53
XXXXXXX X. XXXXX AND XXXXXXXXX XXXXX-XXXXXX,
TRUSTEES UNDER TRUST AGREEMENT DATED 12/4/1984
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxxx Xxxxx, Trustee
Address: 0000 Xx Xxxx Xxxx
Xx Xxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX A/C #000-00000-00
By: Delaware Charter Guarantee & Trust Co.
Its: Trustee
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Print Name: Xxxxx Xxxxxxxxx
------------------------------------
Title:
-----------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
VBW RAPTOR FUND, LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Print Name: Xxxxx X. Xxxxx
------------------------------------
Title: Member of Management Committee
-----------------------------------------
Address: 0 Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
54
CENDANT CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Xxxxx Xxxxxxx, Senior Vice President
Strategic Development
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
Windward Ventures Management, L.P.
By:
--------------------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY,
INC., a New York corporation
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Print Name: Xxxxxx Xxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
55
THE RIBLE LIVING TRUST DATED
JANUARY 15, 1988
By:
-----------------------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXX X. XXXXXXXX FAMILY TRUST
By:
-----------------------------------------------
Xxxx X. Xxxxxxxx, Trustee
Address: 000 00xx Xxxxxx
Xxx Xxx, XX 00000
MARGALAUR LLC
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Xxxxxxx Xxxxx, President
Address: 0000 Xx Xxxxx Xxxxxxx Xxxxx, #000
Xxx Xxxxx, XX 00000
--------------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
56
XXXXXXX, PHLEGER &
XXXXXXXX LLP
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxx, Partner
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
XXXXXX X. XXXXXXX, an Individual
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxx
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX, an Individual
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
57
XXXXX XXXX TRUST
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Its: Trustee
Address: c/o Xxxxx Xxxx
0000 Xxxxxxxx Xxxxxxx
Xx Xxxxx, XX 00000
XXXXX XXXX, an Individual
/s/ Xxxxx Xxxx
--------------------------------------------------
Xxxxx Xxxx
Address: 0000 Xxxxxxxx Xxxxxxx
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED
AND RESTATED INVESTORS' RIGHTS AGREEMENT]
58
SCHEDULE A
Schedule of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.
Enterprise Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners LLC
Security Pacific Finance, Ltd.
Xxxxxx Investment Holdings, Ltd.
CG&H Investments
Xxxxxx Xxxxx
Xxxxx Xxxxxx
The Xxxxx Living Trust dated January 15, 1988
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx, DDS, a Professional corporation
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx Family Trust, UTD dated August 28, 1995
Xxxxx and Xxxxxxx X. Xxxxxxxxx
Xxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
Dominion Capital Management L.L.C.
Advanced Digital Information Corporation
Crest Communications Partners X.X.
Xxxxxxx Xxxxx KECALP L.P. 1999
Xxxxxxx Xxxxx KECALP International L.P. 1999
XXX Xxxxxxxxxxx
Senvest International LLC
Xxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx III
VBW Raptor Fund, LLC
A-1
