Exhibit 4.2B
ALTIRIS, INC.
INVESTORS' RIGHTS AGREEMENT
February 21, 2002
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 .................................................................. 6
1.6 Expenses of Demand Registration ...................................................... 6
1.7 Expenses of Company Registration ..................................................... 6
1.8 Underwriting Requirements ............................................................ 7
1.9 Delay of Registration ................................................................ 7
1.10 Indemnification ...................................................................... 7
1.11 Reports Under Securities Exchange Act of 1934 ........................................ 9
1.12 Form S-3 Registration ................................................................ 10
1.13 Transfer or Assignment of Registration Rights ........................................ 12
1.14 Limitations on Subsequent Registration Rights ........................................ 12
1.15 "Market Stand-Off" Agreement ......................................................... 13
1.16 Termination of Registration Rights ................................................... 13
2. Covenants of the Company to the Investors ..................................................... 14
2.1 Information Rights ................................................................... 14
2.2 Visitation and Inspection ............................................................ 15
2.3 Right of First Offer ................................................................. 15
2.4 Qualified Small Business ............................................................. 16
2.5 Other Covenants ...................................................................... 17
2.6 Confidentiality, Assignment and Termination of Covenants ............................. 18
2.7 Compaq Rights Agreement .............................................................. 19
2.8 Employee Benefit Plans, ERISA ........................................................ 19
3. Covenants of the Investors to the Company ..................................................... 19
3.1 Investor Director - Membership on Boards of Other Companies .......................... 19
3.2 Investor Director - Board Observer of Other Companies ................................ 19
3.3 Compaq Registrable Securities ........................................................ 19
4. Legend ........................................................................................ 19
5. Miscellaneous ................................................................................. 20
5.1 Governing Law ........................................................................ 20
5.2 Waivers and Amendments ............................................................... 20
5.3 Successors and Assigns ............................................................... 20
5.4 Entire Agreement ..................................................................... 20
5.5 Notices .............................................................................. 20
5.6 Interpretation .................................................................... 21
5.7 Severability ...................................................................... 21
5.8 Aggregation of Stock .............................................................. 21
5.9 Counterparts ...................................................................... 22
5.10 Telecopy Execution and Delivery ................................................... 22
5.11 Expenses .......................................................................... 22
5.12 Severability ...................................................................... 22
5.13 Covenant Regarding Secured Secured Convertible Promissory Note .................... 22
Schedules:
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A - Schedule of Investors
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INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT (this "Agreement") is made as of February
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21, 2002 by and among Altiris, Inc., a Delaware corporation (the "Company"), and
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the individuals and entities listed on Schedule A hereto (each, an "Investor"
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and collectively, the "Investors").
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R E C I T A L S
WHEREAS, the Company and certain of the Investors are parties to the
Company's Series B Preferred Stock Purchase Agreement of even date herewith (the
"Series B Agreement");
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WHEREAS, the Investors' obligations under the Series B Agreement are
conditioned upon the execution and delivery of this Agreement by such Investors
and the Company; and
WHEREAS, the holders of the Company's Series A Preferred Stock desire to
have substantially the same rights under this Agreement as the holders of the
Series B Preferred Stock.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Agreement:
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(a) The term "1934 Act" shall mean the Securities
Exchange Act of 1934, as amended.
(b) The term "Act" means the Securities Act of 1933,
as amended.
(c) The term "Canopy" shall mean The Canopy Group,
Inc.
(d) The term "Common Stock" means the common stock,
par value $0.0001, of the Company.
(e) The term "Conversion Stock" shall mean the
shares of Common Stock issued or issuable upon conversion of the Shares.
(f) 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 SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(g) The term "Holder" means any person owning or
having the right to acquire Registrable Securities, initially the Investors, or
any assignee thereof in accordance with Section 1.13.
(h) The term "Preferred Stock" means the Company's
Series A Preferred Stock, par value $0.0001, and the Company's Series B
Preferred Stock, par value $0.0001.
(i) The terms "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.
(j) The term "Registrable Securities" means (i) the
Conversion 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
that is issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the shares referenced in (i) above;
provided, however, that Registrable Securities shall exclude any Registrable
Securities sold by a person in a transaction in which his rights under this
Section 1 are not assigned and provided further that shares of Common Stock or
other securities shall only be treated as Registrable Securities if they have
not been sold to or through a broker or dealer or an underwriter in a public
distribution or a public securities transaction.
(k) The number of shares of "Registrable Securities
then outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities.
(l) The term "Rule 144" shall mean Rule 144 as
promulgated by the SEC under the Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the SEC.
(m) The term "Rule 144(k)" shall mean subsection
(k) of Rule 144.
(n) The term "Rule 145" shall mean Rule 145 as
promulgated by the SEC under the Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the SEC.
(o) The term "SEC" shall mean the United States
Securities and Exchange Commission.
(p) The term "Shares" shall mean the Preferred Stock
held by the Holders.
1.2 Request for Registration.
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(a) Subject to the conditions of this Section 1.2,
if the Company shall receive at any time after the earlier of (i) three years
from the date of this Agreement 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 solely to employee benefit
or similar plans or a registration statement relating to a Rule 145
transaction), a written request from the Holders holding at least a majority of
the Registrable Securities then outstanding that
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the Company effect a registration under the Act covering the registration of
Registrable Securities having an anticipated aggregate offering price to the
public of at least $5,000,000, then the Company shall (i) give written notice of
such request to all Holders within ten (10) business days of the date such
request is given and (ii) use its best efforts to effect as soon as practicable
(and in any event within ninety (90) calendar days of the date such request is
given) the registration under the Act of all Registrable Securities that the
Holders request to be registered within twenty (20) calendar days of the date
the Company's notice referred to in this subsection 1.2(a)is given.
(b) If the Holders initiating the registration
request hereunder (the "Initiating Holders") intend to distribute the
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Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
subsection 1.2(a) and the Company shall include such information in the written
notice referred to in subsection 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 its
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 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
selected for such underwriting. 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 Company shall so advise all Holders holding Registrable
Securities that would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated first among all Holders electing to include shares in the
underwriting, including the Initiating Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities requested by each such
Holder to be included in such underwriting; provided, however, that the number
of shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all other securities (including those to be sold for the
Company's account) are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company
shall furnish to the Holders requesting a registration pursuant to this Section
1.2, a certificate signed by the Company's President stating that in the good
faith judgment of the Company's Board of Directors, such registration would be
seriously detrimental to the Company and its stockholders and that it is,
therefore, essential to defer taking action with respect to such registration,
the Company shall have the right to defer taking action with respect to such
filing for a period of not more than ninety (90) calendar days after the date
the request of the Initiating Holders is given; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period; provided further that the Company shall not register any securities for
the account of itself or any other stockholder during such ninety (90) day
period (other than a registration relating solely to the sale of securities of
participants in a Company stock plan, a registration relating to a corporate
reorganization or transaction under Rule 145 of the Act, a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities,
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or a registration in which the only Common Stock being registered is Common
Stock issuable upon conversion of debt securities that are also being
registered).
(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 (2)
registrations pursuant to this Section 1.2 and such registration statements have
been declared or ordered effective;
(ii) during the period starting with the
date sixty (60) calendar days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) calendar days
after the effective date of, any registration statement pertaining to a public
offering of securities for the Company's account subject to Section 1.3 below;
provided that the Company is actively employing its best efforts to cause such
registration statement to be effective;
(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; or
(iv) 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 unless the Company is already subject to service in such jurisdiction
and except as may be required by the Act.
1.3 Company Registration. If the Company proposes to register
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any of its stock or other securities either for its own account or the account
of a stockholder or stockholders exercising their respective demand registration
rights (other than (i) the Company's initial public offering, (ii) pursuant to
Sections 1.2 or 1.12, (iii) a registration relating solely to employee benefit
or similar plans, (iv) a registration on Form S-4, or its successor, in
connection with acquisition transactions or (v) relating to a transaction listed
in Rule 145(a) under the Act), 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) calendar days of the date such notice is
given, the Company shall, subject to the provisions of Section 1.8, include in
the registration all of the Registrable Securities that each such Holder has
requested to be registered.
1.4 Obligations of the Company. Whenever required under this
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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 commercially
reasonable efforts to cause such registration statement to become effective,
and, upon the request of the Holders holding at least a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for a period of up to one hundred twenty (120) calendar days or any
less period of time in the event the distribution described in the registration
statement has been completed; provided, however, that (i) such one hundred
twenty (120) day period shall be extended for a period of time
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equal to the period the Holder refrains from selling any securities included
in such registration at the request of an underwriter of Common Stock (or other
securities) of the Company and (ii) in the case of any registration statement on
Form S-3 which are intended to be offered on a continuous or delayed basis, such
120-day period shall be extended, if necessary, to keep the registration
statement effective until either all such Registrable Securities are sold or the
registration statement has been effective for a period of 180 calendar days,
provided that Rule 415, or any successor rule under the Act, permits an offering
on a continuous or delayed basis, and provided further that applicable rules
under the Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (A) includes any
prospectus required by Section 10(a)(3) of the Act or (B) reflects facts or
events representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (A) and (B) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act in the
registration statement.
(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 commercially reasonable 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;
(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(s) 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;
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange or nationally
recognized quotation system on which similar securities issued by the Company
are then listed; and
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(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.5 Furnish Information.
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(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, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required by the Company or the managing underwriters, if
any, 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(d)(ii), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses (other than
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underwriting discounts and commissions) incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2 and 1.12,
including (without limitation) all registration, filing and qualification fees,
printer's fees, accounting fees and fees and disbursements of counsel for the
Company and the reasonable fees up to a maximum of $15,000 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 or 1.12 if the registration request is
subsequently withdrawn at the request of the Holders holding at least a majority
of the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders holding at least 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 not forfeit their right to one demand registration pursuant
to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear
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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, printer's fees, accounting fees and
fees and disbursements of counsel for the Company (including fees and
disbursements of counsel for the Company in its capacity as counsel to the
selling Holders hereunder; but if Company counsel does not make itself available
for this purpose, the Company will pay the reasonable fees and disbursements up
to a maximum of $15,000 of one counsel for the selling
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Holders) but excluding underwriting discounts and commissions relating to
Registrable Securities.
1.8 Underwriting Requirements. In connection with any
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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'
Registrable 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. 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 selected for such
underwriting. If the total amount of securities, including Registrable
Securities requested by stockholders to be included in such offering, exceeds
the amount of securities sold other than by the Company 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 pro rata among the
Holders selling Registrable Securities hereunder according to the total amount
of securities requested to be included therein by each such selling stockholder
or in such other proportions as shall mutually be agreed to by such selling
stockholders), but in no event shall 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, in which case such
Holders may be excluded entirely if the underwriters make the determination
described above and no other stockholder's securities are included in such
registration statement. For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a Holder of Registrable
Securities and which is a partnership, limited liability company or corporation,
the partners (or retired partners), members (or retired members) and
stockholders of such selling stockholder, or the estates and family members of
any such partners (retired partners), members (or retired members) or
stockholders and any trusts for the benefit of any of the foregoing persons and
any affiliates or entities under common investment management with such Holders
shall be deemed to be a single "selling stockholder" and any pro rata reduction
with respect to such "selling stockholder" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "selling stockholder" as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
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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.
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(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, members, officers, and
directors of such Holder, 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,
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damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state securities law or rule or
regulation promulgated thereunder, 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
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fact contained in a registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto
(collectively, the "Filings"), (ii) the omission or alleged omission to state in
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the Filings 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, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay any legal or other expenses reasonably
incurred by any person to be indemnified pursuant to this subsection 1.10(a) in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 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 that occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter, controlling person or other
aforementioned person.
(b) To the extent permitted by law, each selling
Holder will severally 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, 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, the 1934 Act or other
federal or state securities law or rule or regulation promulgated thereunder
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 subsection 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 subsection 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, that, in no
event shall any indemnity under this subsection 1.10(b)exceed the net 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 thereof
and the indemnifying party shall have the right to participate in, and, to
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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 that may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the 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 materially 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.
(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 of any loss, 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, 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 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 Holder
be required under this Section 1.10(d) to contribute an amount in excess of the
net 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 of 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.
1.11 Reports Under Securities Exchange Act of 1934. With a
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view to making available the benefits of certain rules and regulations of the
SEC, including Rule 144, 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 Rule 144, at all times after ninety
(90) days after the effective date of
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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 Rule 144
(at any time after ninety (90) calendar 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 that permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration.
---------------------
(a) Subject to the conditions of this Section 1.12,
if the Company shall receive from any Holder a written request 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
Holder(s), then the Company shall (a) promptly give written notice of the
proposed registration, and any related qualification or compliance, to all other
Holders and (b) use its best efforts to effect, as soon as practicable, 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 the Registrable Securities 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)
calendar days of the date the Company's notice referred to in clause (a) of this
sentence is given.
(b) If the Holders requesting registration pursuant
to this Section 1.12 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 1.12 and the Company shall
include such information in the written notice referred to in clause (a) of
Section 1.12(a). The underwriter will be selected by the Company and shall be
reasonably acceptable to a majority in interest of the Holders requesting
registration. 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 to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the
- 10 -
Company as provided in Section 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.12, if the
underwriter advises the Holders requesting registration in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders holding Registrable
Securities that would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated first among all Holders thereof, including the Holders
requesting registration, in proportion (as nearly as practicable) to the amount
of Registrable Securities requested by each such Holder to be included in such
underwriting; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities (including those to be sold for the Company's account) are
first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company
shall furnish to the Holder(s) requesting a registration pursuant to this
Section 1.12, a certificate signed by the Company's President stating that in
the good faith judgment of the Company's Board of Directors, such registration
would be seriously detrimental to the Company and its stockholders and that it
is, therefore, essential to defer taking action with respect to such
registration, the Company shall have the right to defer taking action with
respect to such filing for a period of not more than ninety (90) calendar days
after the date the request of the Holder(s) requesting a registration pursuant
to this Section 1.12 is given; provided, however, that the Company shall not
utilize this right more than once in any twelve (12) month period; provided
further that the Company shall not register any securities for the account of
itself or any other stockholder during such ninety (90) day period (other than a
registration relating solely to the sale of securities of participants in a
Company stock plan, a registration relating to a corporate reorganization or
transaction under Rule 145 of the Act, a registration on any form that does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of the Registrable Securities, or
a registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities that are also being registered).
(d) In addition, the Company shall not be obligated
to effect, or to take any action to effect, any registration pursuant to this
Section 1.12:
(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 of less than $5,000,000;
(iii) 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;
- 11 -
(iv) during the period starting with the
date sixty (60) calendar days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) calendar days
after the effective date of, any registration statement pertaining to a public
offering of securities for the Company's account subject to Section 1.3;
provided that the Company is actively employing its best efforts to cause such
registration statement to be effective; 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 unless the Company is already subject to service in
such jurisdiction and except as may be required by the Act.
(e) 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 Transfer or Assignment of Registration Rights. The rights
---------------------------------------------
to cause the Company to register Registrable Securities pursuant to this Section
1 may be transferred or assigned, but only with all related obligations, by a
Holder to a transferee or assignee who (a), after such transfer or assignment,
holds at least 200,000 shares (subject to appropriate adjustment for stock
splits, stock dividends, combinations and other recapitalizations) of
Registrable Securities from such transferring Holder, (b) is a partner or
retired partner of the transferring Holder that is a partnership, (c) a member
or retired member of the transferring Holder that is a limited liability company
or (d) is an "affiliate" (as defined in Rule 144 of the Regulations under the
Act) of the transferring Holder or an entity under common investment management
with the transferring Holder; provided that (i) prior to such transfer or
assignment, the Company is furnished with written notice stating the name and
address of such transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned,
(ii) 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 Error! Reference source not found., (iii) such transfer or
assignment shall be effective only if immediately following such transfer or
assignment the further disposition of such securities by the transferee or
assignee is restricted under the Act, and (iv) all assignees and transferees of
a transferor pursuant to clauses (b), (c) or (d) who would not otherwise qualify
individually for assignment of registration rights under clause (a) above shall
designate a single attorney-in-fact for the purpose of exercising any rights,
receiving notices or taking any action under this Section 1. Shares of
Registrable Securities that are "affiliates" shall be aggregated for the
purposes of determining whether such persons or entities meet the threshold in
clause (a) above.
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 holding at least a majority of the Registrable
Securities then outstanding, 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, Section 1.3 or Section 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
- 12 -
extent that the inclusion of such securities will not reduce the amount of the
Registrable Securities of the Holders that are included or (b) to demand
registration of their securities.
1.15 "Market Stand-Off" Agreement. Each Holder hereby agrees
---------------------------
that it will not, without the prior written consent of the managing underwriter,
during the period commencing on the date of the final prospectus relating to the
Company's initial public offering and ending on the date specified by the
Company and the managing underwriter (such period not to exceed one hundred
eighty (l80) calendar days) (i) lend, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any securities of the Company, including
(without limitation) shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock (whether now owned or hereafter
acquired) or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
any securities of the Company, including (without limitation) shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (whether now owned or hereafter acquired), whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of securities, in cash or otherwise. The foregoing covenants (A) shall apply
only to the Company's initial public offering of equity securities, (B) shall
not apply to the sale of any shares of the Company's capital stock by a Holder,
including Canopy, to the underwriters of the Company's initial public offering
pursuant to the underwriting agreement of the initial public offering or to the
sale of shares acquired by a Holder in the initial public offering or in open
market transactions on or after the date of the final prospectus for such
initial public offering and (C) shall only be applicable to the Holders if all
officers and directors and greater than one percent (1%) stockholders of the
Company enter into similar agreements. Each Holder agrees to execute an
agreement(s) as may be requested by the managing underwriters at the time of the
initial public offering that are consistent with this Section 1.15, and further
agrees that the Company may impose stop transfer instructions with its transfer
agent in order to enforce the covenants in (i) and (ii) above. The underwriters
in connection with the Company's initial public offering are intended third
party beneficiaries of the covenants in this Section 1.15 and shall have the
right, power and authority to enforce such covenants as though they were a party
hereto. Any discretionary waiver or termination of the above market standoff
agreement restrictions by the Company or representatives of the underwriters
shall apply to all persons and entities subject to such agreements pro rata
based on the number of shares subject to such agreements. The Company agrees to
use its best efforts to ensure that all the shares of its capital stock (upon
issuance after the date hereof) shall be subject to market standoff provisions
at least as restrictive as those set forth above.
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 consummation of the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the initial firm commitment underwritten offering of its
securities to the general public or (ii) as to any Holder, such earlier time
after such initial offering at which such Holder (A) can sell all shares held by
it in compliance with Rule 144(k) or (B) holds one percent (1%) or less of the
Company's outstanding Common Stock and all Registrable Securities held by such
Holder (together with any affiliate of the Holder with whom such Holder
- 13 -
must aggregate its sales under Rule 144) can be sold in any three (3)-month
period without registration in compliance with Rule 144.
2. Covenants of the Company to the Investors.
-----------------------------------------
2.1 Information Rights. The Company shall deliver to each
------------------
Investor:
(a) as soon as practicable, but in any event within
ninety (90) calendar days after the end of each fiscal year of the Company,
consolidated balance sheets of the Company and its subsidiaries, if any, as of
the end of such fiscal year, and consolidated statements of income, consolidated
statements of equity and consolidated statements of cash flows of the Company
and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles ("GAAP"), all in reasonable detail and
----
audited by independent public accountants of national standing selected by the
Company;
(b) as soon as practicable, but in any event within
forty-five (45) calendar days after the end of each of the first three (3)
quarters of each fiscal year of the Company, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such quarter, and
consolidated statements of income and consolidated statements of cash flows of
the Company and its subsidiaries, if any, for such quarter prepared in
accordance with GAAP, all in reasonable detail;
(c) within thirty (30) calendar days of the end of
each month, consolidated balance sheets of the Company and its subsidiaries, if
any, as of the end of such month, and consolidated statements of income and
consolidated statements of cash flows of the Company and its subsidiaries, if
any, for such month prepared in accordance with GAAP, all in reasonable detail;
(d) at least 10 days prior to the beginning of each
fiscal year, a budget and business plan for the next fiscal year, prepared on a
monthly basis, including balance sheets and income statements for such months
and, as soon as prepared, any other budgets or revised budgets prepared by the
Company; and
(e) such other information relating to the financial
condition, business or corporate affairs of the Company as the Investor may from
time to time reasonably request, provided, however, that the Company shall not
be obligated under this subsection (e) or any other subsection of Section 2.1 to
provide information that it deems in good faith to be a trade secret or similar
confidential information, provided, further, however, that the Company shall not
be obligated to provide any information under this Section 2.1 to an Investor
who nominated an Investor Director (as defined below) that violates the
covenants set forth in Sections 3.1 and 3.2 hereof.
With respect to the financial statements called for in subsections (b) and
(c) of this Section 2.1, the Company shall, concurrent with the delivery of such
financial statements, provide an instrument executed by the Chief Financial
Officer or President of the Company certifying that such financials were
prepared in accordance with GAAP consistently applied with prior practice for
earlier periods (with the exception of footnotes that may be required by GAAP)
- 14 -
and fairly present the financial condition of the Company and its results of
operation for the period specified, subject to year-end audit adjustment.
2.2 Visitation and 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 that it reasonably considers in good faith to be a
trade secret or similar confidential information or to provide any information
under this Section 2.2 to an Investor who nominated an Investor Director (as
defined below) that violates the covenants set forth in Sections 3.1 and 3.2
hereof. The provisions of this Section 2.2 shall not be in limitation of any
rights which any Investor may have with respect to the books and records of the
Company and its subsidiaries, or to inspect their properties or discuss their
affairs, finances and accounts, under the laws of the State of Delaware.
2.3 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.3, the Company hereby grants to each Investor, a
right of first offer to purchase its Pro Rata Share (as hereinafter defined for
the purpose of this Section 2.3) (in whole or in part) with respect to future
sales by the Company of its Future Shares (as hereinafter defined).
Notwithstanding Section 2.6(b), each Investor shall be entitled to assign or
apportion the right of first offer hereby granted it among itself, its partners,
members and its affiliates (including in the case of a venture capital fund
other venture capital funds affiliated and/or under common investment management
with such fund) in such proportions as it deems appropriate. For purposes of
this Section 2.3, an Investor's "Pro Rata Share" of Future Shares shall be a
fraction, the numerator of which is the number of shares of Common Stock
issuable upon conversion of Preferred Stock then held by such Investor plus the
number of shares of Common Stock then held by such Investor that were actually
issued to such Investor upon conversion of Preferred Stock and the denominator
of which is the total number of shares of the Company's Common Stock then
outstanding (assuming full conversion and exercise of all convertible or
exercisable securities and including all shares of Common Stock reserved for
future issuance pursuant to the Company's 1998 Stock Option Plan and 2002 Stock
Plan). 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 ("Future Shares"), the Company shall first make an offering of such Future
-------------
Shares to each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice ("Notice") to
------
each of the Investors stating (i) its bona fide intention to offer such Future
Shares, (ii) the number of such Future Shares to be offered, and (iii) the price
and a summary of the terms, if any, upon which it proposes to offer such Future
Shares.
(b) Each Investor may elect to purchase or obtain,
at the price and on the terms specified in the Notice, up to its Pro Rata Share
of such Future Shares by notifying the Company in writing within ten (10)
calendar days from the date the Notice is given by the Company. The Company
shall promptly, in writing, inform each Investor that elects to purchase all the
Future Shares available to it (a "Fully-Exercising Investor") of any other
-------------------------
Investor's failure to do likewise. During the ten (10) calendar day period
commencing after such information is
- 15 -
given, each Fully-Exercising Investor may elect to purchase that portion of
the Future Shares for which Investors were entitled to subscribe but that were
not subscribed for by the Investors that is equal to the proportion that the
number of shares of Common Stock issuable upon conversion of the Preferred Stock
then held by such Fully-Exercising Investor plus the number of shares of Common
Stock then held by such Fully-Exercising Investor that were actually issued to
such Investor upon conversion of Preferred Stock bears to the total number of
shares of Common Stock issued and held, or issuable upon conversion of the
Preferred Stock then held by all Fully-Exercising Investors who wish to purchase
some of the unsubscribed Future Shares.
(c) To the extent that Future Shares are not
obtained by the Investors as provided in subsection b, the Company may, during
the ninety (90) calendar days following the expiration of the period provided in
subsection b, offer the remaining unsubscribed portion of such Future Shares to
any person or persons at a price not less than, and upon terms no more favorable
to the offeree than those specified in the Notice. If the Company does not enter
into an agreement for the sale of the Future Shares within such period, or if
such agreement is not consummated within thirty (30) calendar days of the
execution thereof, the right provided in this Section 2.3 shall be deemed to be
revived and such Future Shares shall not be offered unless first reoffered to
the Investors in accordance herewith.
(d) The right of first offer in this Section 2.3 shall
not be applicable to the issuance of (i) shares of Common Stock issuable or
issued to employees, consultants or directors of the Company directly or
pursuant to the Company's 1998 Stock Option Plan, 2002 Stock Plan or other
employee stock incentive programs or arrangements approved by a majority of the
Board of Directors, (ii) shares of Common Stock or Preferred Stock issuable upon
exercise of warrants outstanding as of the date of hereof, (iii) capital stock
or warrants or options to purchase capital stock issued to unaffiliated entities
of the Company in connection with bona fide acquisitions, mergers or similar
transactions, the terms of which are approved by a majority of the Board of
Directors, (iv) shares of Common Stock issued or issuable to banks, equipment
lessors or other financial institutions pursuant to a commercial leasing or debt
financing transaction approved by a majority of the Board of Directors, (v)
shares of Common Stock issued or issuable upon conversion of the Shares, (vi)
shares of Common Stock issued or issuable in a public offering prior to or in
connection with which all outstanding shares of Preferred Stock will be
converted to Common Stock, (vii) shares of Common Stock issued in connection
with any stock split, stock dividend, recapitalization, or the like by the
Company, and (viii) shares of Common Stock issued pursuant to a transaction
involving a strategic partner or non-employee service provider the primary
purpose of which is other than raising equity capital and which is approved by a
majority of the Board of Directors.
(e) The right of first offer in this Section 2.3
with respect to holders of Series B Preferred Stock may be waived by the
affirmative vote or consent of the holders of a majority of the Series B
Preferred Stock. The right of first offer with respect to holders of Series A
Preferred Stock may be waived by the affirmative vote or consent of the holders
of a majority of the Series A Preferred Stock.
2.4 Qualified Small Business. The Company will use
------------------------
reasonable best efforts to comply with the reporting and recordkeeping
requirements of Section 1202(c) of the Internal Revenue Code of 1986, as amended
(the "Code") pertaining to "Qualified Small Business
----
- 16 -
Stock", any regulations promulgated thereunder and any similar state laws and
regulations, and agrees not to repurchase any stock of the Company (unless
approved by the Board of Directors of the Company) if such repurchase would
cause the Shares not to so qualify as "Qualified Small Business Stock." The
Company shall submit to the Holders and to the Internal Revenue Service any
reports that may be required under Section 1202(d)(1)(C) of the Code and any
related Treasury Regulations. In addition, within ten (10) days after any Holder
has delivered to the Company a written request therefor, the Company shall
deliver to such Holder a certificate informing the Holder whether such Holder's
interest in the Company constitutes "qualified small business stock" as defined
in Section 1202(c) of the Code (a "QSBS Certificate"). The Company's obligation
to furnish this QSBS Certificate pursuant to this Section 2.4 shall continue
notwithstanding the fact that a class of the Company's stock may be traded on an
established securities market.
2.5 Other Covenants
---------------
(a) Board of Directors. The Company shall promptly
------------------
reimburse in full each director of the Company who is not an employee of the
Company (an "Outside Director") for all of his or her reasonable out-of-pocket
expenses incurred in attending each meeting of the Company's Board of Directors
or any committee thereof.
(b) Compensation Committee. The Company has as of
----------------------
the date hereof or shall at the next board meeting create a Compensation
Committee, which shall contain no more than three persons, one of whom shall be
the Investor Director (as defined below) provided that the Company shall not be
required to appoint the Investor Director to the Compensation Committee at such
time as the Investor Director is no longer a member of the Board of Directors.
The Investor Director shall initially be the person nominated by Technology
Crossover Ventures and elected by the holders of a majority of the Common Stock
issued or issuable upon conversion of the Series B Preferred Stock (the
"Investor Director"). Technology Crossover Ventures initially nominates Xxx X.
Xxxx to be the Investor Director. The Compensation Committee shall administer
the Company's equity incentive plans and make recommendations to the Company's
Board with respect to management compensation and the terms of any Compensation
Committee Charter.
(c) Directors and Officers Insurance. The Company
--------------------------------
shall within ninety (90) calendar days of the date hereof use its commercially
reasonable efforts to obtain from financially sound and reputable insurers
directors and officers insurance with coverage not less than $5,000,000. The
Company will cause to be maintained the directors and officers insurance
required by this subsection. Such policy shall not be cancelable by the Company
without prior approval of the Board of Directors, including the Investor
Director, provided that six months after the closing of the Company's Initial
Public Offering, the separate consent of the Investor Director shall not be
required to cancel such policy.
(d) Key-man Insurance. The Company shall within
-----------------
ninety (90) calendar days of the date hereof use its commercially reasonable
efforts to obtain from financially sound and reputable insurers term life
insurance on the life of Xxxx Xxxxxxxxxxx. The Company will cause to be
maintained the term life insurance required by this subsection. Such policies
shall name the Company as loss payee and shall not be cancelable by the Company
- 17 -
without prior approval of the Board of Directors, including the Investor
Director, provided that upon the closing of the Company's Initial Public
Offering, the separate consent of the Investor Director shall not be required to
cancel such policy.
(e) Liability Insurance. The Company shall within
-------------------
ninety (90) calendar days of the date hereof use its commercially reasonable
efforts to obtain from financially sound and reputable insurers general
liability insurance of the type and in amounts customary for companies similarly
situated, except as otherwise decided in accordance with policies adopted by the
Company's Board of Directors. The Company will cause to be maintained the
general liability insurance required by this subsection, except as otherwise
decided in accordance with policies adopted by the Company's Board of Directors.
Such policy shall name the Company as loss payee and shall not be cancelable by
the Company without prior approval of the Board of Directors.
(f) Use of Proceeds. The Company may not use more
---------------
than $3,300,000 of the proceeds from the sale of its capital stock pursuant to
the Series B Agreement for the repayment of that certain convertible promissory
note issued to Canopy on January 1, 2001.
2.6 Confidentiality, Assignment and Termination of Covenants.
--------------------------------------------------------
(a) Confidentiality. Each Investor receiving
---------------
information under the covenants set forth in Sections 2.1 and 2.2 hereby agrees
to hold in confidence and trust and to act in a fiduciary manner with respect to
all information so provided; provided, however, that notwithstanding the
foregoing, the Holders may include summary financial information concerning the
Company and general statements concerning the nature and progress of the
Company's business in their reports to their limited partners.
(b) Assignment. The rights of the Investors set
----------
forth in Sections 2.1, 2.2 and 2.3 may be assigned or transferred, but only with
all related obligations, by an Investor to an assignee or transferee who
acquires at least 200,000 shares of Conversion Stock (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations) from such transferring Investor; provided that in no event
shall this Section 2.5(b) limit or otherwise restrict an Investor's ability to
apportion its Right of First Offer under Section 2.3 above.
(c) Termination. The covenants set forth in Sections
-----------
2.1, 2.2, and 2.3 shall terminate as to all Investors and be of no further force
or effect upon the earlier to occur of (i) the closing of the Company's initial
underwritten public offering of its securities to the general public pursuant to
an effective registration statement filed by the Company under the Act, or (ii)
the closing of the Company's sale of all or substantially all of its assets or
the acquisition of the Company by another entity by means of any transaction or
series of related transactions (including, without limitation, any merger,
consolidation or other form of reorganization in which outstanding shares of the
Company are exchanged for securities or other consideration issued, or caused to
be issued, by the acquiring entity or its subsidiary, but excluding any
transaction effected primarily for the purpose of changing the Company's state
of incorporation) in which the consideration to the stockholders of the Company
consists entirely of cash and/or securities of a company that are tradeable on a
national securities exchange or the
- 18 -
Nasdaq National Market, and the covenants set forth in Sections 2.1 and 2.2
shall terminate as to all Investors and be of no further force or effect upon
the date upon which the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act.
2.7 Compaq Rights Agreement. As soon as practicable, the
-----------------------
Company shall use its best efforts to resolve any conflicts between the
registration rights granted to Compaq Computer Corporation ("Compaq") in that
certain Investors Rights Agreement dated March 30, 2001 (the "Compaq Rights
Agreement") and the registration rights granted under this Agreement.
2.8 Employee Benefit Plans, ERISA. Within 14 days after the
-----------------------------
Closing, the Company shall use it best efforts to obtain its own 401(k) plan,
health plan, 125 plan and any other plan necessary to comply with the ERISA and
the rules and regulations promulgated thereunder as a result of the Company no
longer being an ERISA affiliate of Canopy.
3. Covenants of the Investors to the Company.
-----------------------------------------
3.1 Investor Director - Membership on Boards of Other
-------------------------------------------------
Companies. The Investors shall not elect a person to be the Investor Director if
---------
such person serves on the Board of Directors of any other company that competes
in the systems management software market or otherwise competes directly with
the Company and shall vote to remove such Investor Director from the Company's
Board of Directors if the Investor Director subsequently serves on the Board of
Directors of such a competitor.
3.2 Investor Director - Board Observer of Other Companies.
-----------------------------------------------------
The Investors shall vote to remove the Investor Director from the Company's
Board of Directors if the Investor Director serves in a Board observer capacity
of any other company that competes in the systems management software market or
otherwise competes directly with the Company without giving prior notice to the
Company's Board of Directors.
3.3 Compaq Registrable Securities. The Investors will consent
-----------------------------
to amendment of this Agreement to include the Compaq Registrable Securities (as
defined hereafter) as Registrable Securities on a pari passu basis with respect
to any Company Registration pursuant to Section 1.3 hereof and on a subordinate
basis with respect to any cut-backs in the number of shares to be registered
under Sections 1.2 and 1.12. The term "Compaq Registrable Securities" means the
-----------------------------
400,000 shares of Common Stock (subject to adjustment for stock splits, stock
dividends, combinations or recapitalizations with respect to such shares) held
by Compaq that have the registration rights set forth in the Compaq Rights
Agreement.
4. Legend. Each certificate representing the shares of Preferred
------
Stock held by the Investors shall be endorsed with the following legend (the
"Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING A MARKET STANDOFF RESTRICTION, OF
A CERTAIN INVESTORS' RIGHTS AGREEMENT BETWEEN THE CORPORATION AND
THE ORIGINAL HOLDER OF THESE
- 19 -
SHARES. A COPY OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE CORPORATION."
5. Miscellaneous.
-------------
5.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL
-------------
RESPECTS BY THE LAWS OF THE STATE OF DELAWARE AS SUCH LAWS ARE APPLIED TO
AGREEMENTS BETWEEN DELAWARE RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY
WITHIN DELAWARE, WITHOUT REGARD TO CONFLICT OF LAWS RULES.
5.2 Waivers and Amendments. This Agreement may be terminated
----------------------
and any term of this Agreement may be amended or waived (either generally or in
a particular instance and either retroactively or prospectively) with the
written consent of the Company and the Holders holding at least a majority of
the Registrable Securities then outstanding (the "Majority Investors").
Notwithstanding the foregoing, additional parties may be added as Holders under
this Agreement (i) upon the transfer of rights hereunder in accordance with
Sections 1.13 and/or 2.5(b) without further action; provided that such parties
execute a counterpart hereto and agree to be bound by this Agreement as an
"Investor" hereunder; or (ii) with the written consent of the Company and the
Majority Investors. No such amendment or waiver shall reduce the aforesaid
percentage of the Registrable Securities, the holders of which are required to
consent to any termination, amendment or waiver without the consent of the
record holders of all of the Registrable Securities. Any termination, amendment
or waiver effected in accordance with this Section 5.2, including any waiver of
the Right of First Offer in Section 2.3 hereof by the Majority Investors, shall
be binding upon each holder of Registrable Securities then outstanding, each
future holder of all such Registrable Securities and the Company.
5.3 Successors and Assigns. Except as otherwise expressly
----------------------
provided herein, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto (including the transferees of any shares of
Registrable Securities). 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.
5.4 Entire Agreement. This Agreement constitutes the full and
----------------
entire understanding and agreement among the parties with regard to the subject
matter hereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein.
5.5 Notices. All notices and other communications required or
-------
permitted under this Agreement shall be in writing and shall be delivered
personally by hand, by courier, mailed by United States first-class mail,
postage prepaid or sent by facsimile directed (a) if to an Holder, at such
Holder's address or facsimile number address set forth in the Company's records,
or at such other address or facsimile number as such Holder may designate by ten
(10) days' advance written notice to the other parties hereto or (b) if to the
Company, to its address or
- 20 -
facsimile number set forth below, or at such other address or facsimile number
as the Company may designate by ten (10) days' advance written notice to the
other parties hereto. All such notices and other communications shall be deemed
given upon personal delivery, on the date of mailing, or upon confirmation of
facsimile transfer.
Altiris, Inc.
000 Xxxx 000 Xxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx
Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
(which shall not constitute notice to the Company)
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxx X. X'Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.6 Interpretation. The words "include," "includes" and
--------------
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The titles and subtitles used in this Agreement are
used for convenience only and are not considered in construing or interpreting
this Agreement.
5.7 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.
5.8 Aggregation of Stock. All shares of Registrable
--------------------
Securities held or acquired by a Holder and its affiliated entities shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement. For purposes of the foregoing, any shares of
Registrable Securities held by a Holder that (X) is a partnership, limited
liability company or corporation shall be deemed to include shares held by (i)
entities affiliated or under common investment management with such partnership,
limited liability company or corporation, (ii) any partner (or retired partner),
member (or retired member) or stockholder of such partnership, limited liability
company or corporation, (iii) the spouse, siblings, lineal descendants or
ancestors of any such partner (or retired partner), member (or retired member)
or stockholder, (iv) the estate of any such partner (or retired partner), member
(or retired member) or stockholder and (v) any custodian or trustee for the
benefit of any such partner (or retired partner), member (or retired member) or
stockholder or the spouse, siblings, lineal descendants or ancestors of any such
partner (or retired partner), member (or retired member) or stockholder
- 21 -
and (Y) is an individual shall be deemed to include shares held by (i) the
estate of such individual or (ii) the spouse, siblings, lineal descendants or
ancestors of such individual and any custodian or trustee for the benefit of any
of the foregoing persons.
5.9 Counterparts. This Agreement may be executed in
------------
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
5.10 Telecopy Execution and Delivery. A facsimile, telecopy or
-------------------------------
other reproduction of this Agreement may be executed by one or more parties
hereto, and an executed copy of this Agreement may be delivered by one or more
parties hereto by facsimile or similar electronic transmission device pursuant
to which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
5.11 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.
5.12 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.
5.13 Covenant Regarding Secured Secured Convertible Promissory
---------------------------------------------------------
Note. Canopy hereby covenants that, contingent upon the closing of the Series B
----
Preferred Stock financing, it will accept payment in full from the Company of
all principal and interest accrued on its Secured Convertible Promissory Note
dated January 1, 2001, and covenants that it will accept such full payment
rather than convert such note into capital stock of the Company.
[Remainder of page intentionally left blank]
- 22 -
IN WITNESS WHEREOF, the parties have executed this Agreement on the day,
month and year first set forth above.
"Company"
ALTIRIS, INC.
By:/s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxxxxx
Vice President and General Counsel
"Investors"
TCV IV, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management
IV, L.L.C.,
Its: General Partner
By:/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney in Fact
TCV IV Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management
IV, L.L.C.,
Its: General Partner
By:/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney in Fact
ALTIRIS, INC.
INVESTORS' RIGHTS AGREEMENT SIGNATURE PAGE
VSPRING SBIC, L.P.
a Delaware Limited Partnership
By: vSpring SBIC Management, L.L.C.
Its: General Partner
By:/s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
Managing Partner
Address:
vSpring SBIC, L.P.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx@xxxxxxx.xxx
THE CANOPY GROUP, INC.
By:/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
President
Address:
The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxx@Xxxxxx.xxx
ALTIRIS, INC.
INVESTORS' RIGHTS AGREEMENT SIGNATURE PAGE
SCHEDULE A
----------
Schedule of Investors
TCV IV, L.P.
Technology Crossover Ventures
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
email: xxxxx@xxx.xxx
with a copy to:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxx@xxx.xxx
vSpring SBIC, L.P.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
email: xxxx@xxxxxxx.xxx
The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attn:
Telephone:
Facsimile:
email:
S-1
