EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 21st day of February, 2002, by and
among Canopy Group, Inc. ("Canopy"), Xxx X. Xxxxxx ("Xxxxxx"), Island Park LP
("Island Park") and Moon Shadow, L.P. ("Moon Shadow," and together with Canopy,
Xxxxxx and Island Park, the "Sellers"), and TCV IV, L.P. and TCV IV Strategic
Partners, L.P. (collectively, the "Purchasers").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale of Shares. Subject to the terms and conditions of this
Agreement, the Purchasers agree, to purchase at the Closing and each Seller
severally agrees to sell to the Purchasers at the Closing, such number of shares
and type of securities (the "Shares") of Altiris, Inc. (the "Company") as is set
forth opposite their respective names on Schedule I hereto for a purchase price
of $7.50 per share (the "Purchase Price").
1.2 Closing. The purchase and sale of the Shares shall take place at
the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, at 10:00 a.m., on February 21, 2002, or
at such other time and place as the Sellers and Purchasers hereto mutually agree
upon orally or in writing (which time and place are designated as the
"Closing"). Consummation of the Closing shall be conditioned upon, and shall be
deemed to take place simultaneously with the closing under the Series B
Preferred Stock Purchase Agreement among the Company and the Purchasers of even
date herewith. At the Closing:
(a) The Sellers shall deliver to the Company stock certificate(s)
representing the Shares, duly endorsed to the Purchasers; and
(b) The Purchasers shall pay to each Seller the aggregate
Purchase Price for Shares being purchased from such Seller, by check or wire
transfer, or any combination thereof.
2. Representations and Warranties of Sellers. Each of the Sellers hereby
severally represents and warrants to the Purchasers that:
2.1 Ownership of Shares. Such Seller owns all right, title and
interest (legal and beneficial) in and to all of the Shares being sold by them
pursuant to this Agreement free and clear of all liens, including, but not
limited to, any lien, pledge, claim, security interest, encumbrance, mortgage,
assessment, charge, restriction or limitation of any kind, whether arising by
agreement, operation of law or otherwise, except for those imposed by applicable
federal and state securities laws ("Liens"). Such Seller has the full right,
power and authority to sell, transfer, convey, assign and deliver to the
Purchasers the Shares being sold by them, and upon payment for such Shares in
accordance with this Agreement, the Purchasers will acquire such Shares free and
clear of all Liens. Each Seller hereby agrees to take whatever additional
actions
and execute whatever additional documents that may be necessary or advisable in
order to ensure that the representations and warranties of this Section 2.1 are
true and correct.
2.2 Authorization. The execution and delivery of this Agreement, the
performance of all obligations of such Seller hereunder, and the sale and
delivery of the Shares being sold by them hereunder, has been duly authorized.
This Agreement constitutes the valid and legally binding obligation of such
Seller, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.3 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
such Seller is required in connection with the consummation of the transactions
contemplated by this Agreement.
2.4 Compliance with Other Instruments. The execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby will not result in a violation of, or default under, any
instrument, judgment, order, writ, decree or contract known to such Seller, or
an event that results in the creation of any lien, charge or encumbrance upon
the Shares being sold by such Seller. Such Seller has received all consents or
waivers necessary to transfer the Shares being sold by such Seller to the
Purchasers.
3. Representations and Warranties of Non-Affiliates. Moon Shadow and
Island Park hereby severally represent and warrant to the Purchasers that, as of
the Closing, they have beneficially owned the Shares for at least two years and
are not and will not have been for at least the three months immediately
preceding the Closing an "affiliate" (as defined in Rule 144(a)(1)) of the
Company such that neither the Shares purchased from such Seller (nor, where
applicable, any shares of Common Stock issuable upon conversion of such Shares)
would be considered "restricted securities" (as defined in Rule 144(a)(3)).
4. Representations and Warranties of the Purchasers. The Purchasers
hereby represent and warrant that:
4.1 Authorization. The execution and delivery of this Agreement, the
performance of all obligations of the Purchasers hereunder, and the purchase of
the Shares hereunder, have been duly authorized. This Agreement constitutes the
valid and legally binding obligation of the Purchasers, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
4.2 Purchase Entirely for Own Account. Each of the Purchasers hereby
confirms that the Shares will be acquired for investment for their own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and such Purchaser has no present intention of selling,
granting any participation in, or otherwise
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distributing the same. By executing this Agreement, the Purchasers further
represent that they do not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Shares.
4.3 Investment Experience. Each Purchaser is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, can bear the economic risk of this investment, and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares.
4.4 Accredited Investor. Each Purchaser is an "accredited investor"
within the meaning of Securities and Exchange Commission Rule 501 of Regulation
D, as presently in effect.
5. Miscellaneous.
5.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
5.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
5.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.5 Finder's Fee. Each party represents that it neither is nor will
be obligated for any finders' fee or commission in connection with this
transaction. Each Seller also severally represents that it has not entered into
any agreements for which such Seller would be liable for finders' fees or
commissions in connection with this transaction or any other contemplated
transaction. The Sellers severally agree to indemnify and hold harmless the
Purchasers from any liability for any commission or compensation in the nature
of a finders' fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Sellers or any of his directors,
stockholders, employees or representatives is responsible.
5.6 Amendment and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the parties hereto.
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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 Entire Agreement. This Agreement constitutes the entire agreement
among the parties; provided, however, that the parties hereto hereby acknowledge
that as a condition to the sale of Shares hereunder, the Company must effect the
sale of Series B Preferred Stock to the Purchasers.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
[signature page follows]
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SELLERS:
CANOPY GROUP, INC.
/s/
------------------------------------------------
Name:
Title:
/s/
------------------------------------------------
Xxx X. Xxxxxx
/s/
------------------------------------------------
Xxxxx Xxxxxx
/s/
------------------------------------------------
Xxxxx X. Xxxxx
PURCHASERS:
TCV IV, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management IV, L.L.C.,
Its: General Partner
By: /s/
---------------------------------------------
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/
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney in Fact
SIGNATURE PAGE TO
STOCK PURCHASE AGREEMENT
SCHEDULE I
Series A Convertible
Security Type: Preferred Stock Common Stock
SELLER CANOPY GROUP, INC. CANOPY GROUP, INC.
Cost per Share: $ 7.50 $ 7.50
Total Shares: 565,720 1,131,440
Total Purchase Cost: $4,242,900.00 $8,485,800.00
PURCHASER PRO RATA SHARES COST SHARES COST
------------- ------------- ------------- ------------- -------------
TCV IV, L.P. 96.41% 545,383 $4,090,372.50 1,090,767 $8,180,752.50
TCV IV Strategic Partners, L.P. 3.59% 20,337 $ 152,527.50 40,673 $ 305,047.50
------------- ------------- ------------- ------------- -------------
Totals 100.00% 565,720 $4,242,900.00 1,131,440 $8,485,800.00
============= ============= ============= ============= =============
Security Type: Common Stock Common Stock
SELLER XXX X. XXXXXX ISLAND PARK
Cost per Share: $ 7.50 $ 7.50
Total Shares: 205,000 50,000
Total Purchase Cost: $1,537,500.00 $ 375,000.00
PURCHASER PRO RATA SHARES COST SHARES COST
------------- ------------- ------------- ------------- -------------
TCV IV, L.P. 96.41% 197,631 $1,482,232.50 48,203 $ 361,522.50
TCV IV Strategic Partners, L.P. 3.59% 7,369 $ 55,267.50 1,797 $ 13,477.50
------------- ------------- ------------- ------------- -------------
Totals 100.00% 205,000 $1,537,500.00 50,000 $ 375,000.00
============= ============= ============= ============= =============
Security Type: Common Stock
SELLER MOON SHADOW
Cost per Share: $ 7.50
Total Shares: 47,840
Total Purchase Cost: $ 358,800.00
PURCHASER PRO RATA SHARES COST
------------- ------------- -------------
TCV IV, L.P. 96.41% 46,120 $ 345,900.00
TCV IV Strategic Partners, L.P. 3.59% 1,720 $ 12,900.00
------------- ------------- -------------
Totals 100.00% 47,840 $ 358,800.00
============= ============= =============
