EXHIBIT 4.2C
Registration and Expenses Agreement
This Registration and Expenses Agreement (the "Agreement") is made as of
___, 2002 between Altiris, Inc. (the "Company") and Canopy Group, Inc. ("Canopy"
or the "Selling Stockholder").
WHEREAS, the Company proposes to make an underwritten initial public
offering (the "Offering") of its Common Stock pursuant to a Registration
Statement on Form S-1 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "SEC").
WHEREAS, Canopy owns shares of the Company's Common Stock and is willing to
sell a portion of its shares to the extent the Underwriters exercise their
over-allotment option. The shares of the Company's Common Stock included by the
Selling Stockholder in such Registration Statement are sometimes referred to
herein as "Registrable Securities."
WHEREAS, the Company believes it is in the best interests of the Company
and its stockholders to include the Selling Stockholder's shares in the
Registration Statement because the sale of the shares held by the Selling
Stockholder pursuant to the Registration Statement will accomplish an orderly
distribution of such shares, will significantly increase the public float and
liquidity of the Company's shares of Common Stock on the markets where the
Company's Common Stock will be traded and will satisfy the Underwriters
over-allotment option.
WHEREAS, the Company and the Selling Stockholder are prepared to enter into
an underwriting agreement (the "Underwriting Agreement") with Credit Suisse
First Boston, as representative of the several underwriters (the "Underwriters")
with respect to the Offering, pursuant to which the Company and the Selling
Stockholder will agree to indemnify and provide contribution to the Underwriters
under certain circumstances.
WHEREAS, the Company is prepared to enter into such Underwriting Agreement
and this Agreement to pay certain expenses of registering the Selling
Stockholder's shares and to indemnify and provide contribution to the Selling
Stockholder in the event that the Selling Stockholder is required to indemnify
or provide contribution to the Underwriters under the Underwriting Agreement in
consideration of the Selling Stockholders indemnifying the Company as provided
herein and entering into a 180-day lockup agreement with respect to the balance
of the shares not sold by the Selling Stockholder under the Registration
Statement
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Expenses. The Company shall be responsible for and pay all
Registration Expenses incurred in connection with the registration to be
effected pursuant to the Registration Statement. The Selling Stockholder shall
be responsible for and pay all Selling Expenses relating to the sale of the
shares of Common Stock of the Selling Stockholder. For purposes of this Section
1, (i) "Registration
Expenses" shall mean all expenses that are not Selling Expenses incurred in
filing the Registration Statement and complying herewith, including, without
limitation, all registration, listing, qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, accounting fees and
related expenses, fees and disbursements of counsel for the Company, accounting
fees and related expenses, blue sky fees and all other expenses incident to or
required by the registration contemplated hereby and the consummation of the
sales of Common Stock referred to in the Registration Statement; and (ii)
"Selling Expenses" shall mean all underwriting discounts, selling commissions
and stock transfer taxes applicable to the shares sold by the Selling
Stockholder, all internal administrative and expenses of the Selling Stockholder
and all fees and disbursements of counsel for the Selling Stockholder.
2. Indemnification and Contribution. The Company and the Selling
Stockholder agree to provide each other with indemnification and contribution as
follows:
a. By the Company. To the extent permitted by law, the Company will
indemnify and hold harmless the Selling Stockholder, the partners, officers and
directors of the Selling Stockholder, any underwriter (as defined in the
Securities Act of 1933, as amended (the "Securities Act") for the Selling
Stockholder and each person, if any, who controls the Selling Stockholder or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act") against any losses, claims, damages
or liabilities (joint or several) to which he, it or they may become subject
under the Securities Act, the Exchange Act or other federal or state law
(including payments made to any underwriter by any Selling Stockholder, partner,
officer or director or controlling person of a Selling Stockholder pursuant to
the indemnification or contribution provisions of the Underwriting Agreement),
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 (each, a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in the 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 in the
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, 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
Securities Act, the Exchange Act, any federal, state or foreign securities law
in connection with the offering covered by the Registration Statement;
and the Company will reimburse the Selling Stockholder or the partners,
officers, directors, employees, agents, underwriters or controlling persons of
the Selling Stockholder for any legal or other expenses reasonably incurred by
them, as incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however, that the indemnity
agreement contained in this
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subsection 2(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
the Selling Stockholder, or the partners, officers, directors, employees,
agents, underwriters or controlling persons of the Selling Stockholder.
b. By Selling Stockholders. To the extent permitted by law, the
Selling Stockholder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, each underwriter, or any person who controls such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, employee, agent, controlling person, underwriter, partner,
director, officer or controlling person of such underwriter may become subject
under the Securities Act, the Exchange Act or other federal or state law
(including payments made to any underwriter by the Company, or any director,
partner, officer, or controlling person of the Company pursuant to the
indemnification or contribution provisions of the Underwriting Agreement),
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 the indemnifying Selling
Stockholder expressly for use in connection with the Registration Statement; and
the indemnifying Selling Stockholder will reimburse any legal or other expenses
reasonably incurred by the Company, any such director, officer, employee, agent,
controlling person, underwriter, partner, officer, director or controlling
person of such underwriter in connection with the investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 2(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 indemnifying Selling
Stockholder, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by the Selling Stockholder
under this Section 2(b) or for contribution under Section 2(e) below in respect
of any Violation shall not exceed the net proceeds received by the Selling
Stockholder in the registered offering out of which such Violation arises. To
the extent the Selling Stockholder shall make payments pursuant to Section ___
of the Underwriting Agreement, such amounts shall serve as a credit against the
aggregate maximum amount payable by such Selling Stockholder pursuant to this
Section 2(b).
c. Notice. Promptly after receipt by an indemnified party under
this Section 2 of notice of the commencement of any action (including any
government action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, 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 shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation
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of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential conflict of interests between
such indemnified party and any other party represented by such counsel in such
proceeding and the indemnifying party has not replaced counsel within a period
of 10 business days after receipt of written notice from the indemnified party
as to such conflicts of interest. 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
2, 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 2.
d. Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and any Selling Stockholder are subject to
the condition that, insofar as they relate to any Violation made in a
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any indemnified party if a copy of the Final Prospectus was furnished
to the indemnified party and the indemnified party was required to, but did not,
furnish the Final Prospectus to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
e. Contribution. In order to provide for such and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) the Selling Stockholder or any partner, officer, director or
controlling person of the Selling Stockholder, makes a claim for indemnification
pursuant to this Section 2 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 2 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of the Selling Stockholder
or any such partner, officer, director or controlling person in circumstances
for which indemnification is provided under this Section 2; then, and in each
such case, the Company and the Selling Stockholder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) (x) in proportion to the amount of information
provided by each party for use in the registration statement and the access of
each party to, and ability of each party to correct, the information resulting
in the violation or (y) if the allocation provided for in clause (x) above is
not permitted by applicable law the in portion represented by the percentage
that the public offering price of its Registrable Securities offered by and sold
under the Registration Statement bears to the public offering price of all
securities offered by and sold under such Registration Statement, and the
Company is responsible for the remaining portion; provided, however, that, in
any such case, (A) the Selling Stockholder will not be required to contribute an
amount in excess of the net proceeds received by the Selling Stockholder from
all such securities offered and sold by the Selling Stockholder pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
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f. Survival. The obligations of the Company and the Selling
Stockholder under this Section 2 shall survive the completion of the Offering
and be applicable only with respect to Violations arising in connection with the
Offering.
3. Underwriting Agreement. If the Underwriters, the Company and the
attorneys-in-fact for the Selling Stockholder decide to consummate the Offering
by entering into the Underwriting Agreement, the Company and the Selling
Stockholder agree to be bound by such Underwriting Agreement, including the
indemnification provisions of Section ___ and the lockup provisions of Section
___ and the provisions of Section ___.
4. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware
without reference to principles of conflict of laws or choice of laws.
b. Third Party Beneficiaries. Notwithstanding anything to the
contrary contained herein, no provision of this Agreement is intended to benefit
any party other than Canopy and the Company and their respective heirs,
distributees, executors, administrators, personal representatives, successors,
and assigns, and no provision shall be enforceable by any other party.
c. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
d. Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which are incorporated herein by this reference.
e. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms to the maximum extent possible.
f. Entire Agreement. This Agreement, together with all exhibits and
schedules hereto, constitutes the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all prior
negotiations, correspondence, agreements, understandings, duties or obligations
among the parties with respect to the subject matter hereof.
g. Further Assurances. From and after the date of this Agreement,
upon the request of a party, the other parties shall execute and deliver such
instruments, documents or other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ALTIRIS, INC.
_______________________________________
Signature of Authorized Signatory
___________________________________________
Print Name and Title
CANOPY GROUP, INC.
___________________________________________
Signature of Authorized Signatory
___________________________________________
Print Name and Title
