EXHIBIT 4.2
LINUXCARE, INC.
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
DECEMBER 17, 1999
TABLE OF CONTENTS
PAGE
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1. Registration Rights 1
1.1 Definitions 1
1.2 Request for Registration 3
1.3 Company Registration 4
1.4 Form S-3 Registration 5
1.5 Obligations of the Company 6
1.6 Information from Holder 7
1.7 Expenses of Registration 7
1.8 Delay of Registration 8
1.9 Indemnification 8
1.10 Reports Under Securities Exchange Act of 1934 10
1.11 Assignment of Registration Rights 10
1.12 Limitations on Subsequent Registration Rights 11
1.13 "Market Stand-Off" Agreement 11
1.14 Termination of Registration Rights 11
2. Covenants of the Company 12
2.1 Delivery of Financial Statements 12
2.2 Inspection 13
2.3 Termination of Information and Inspection Covenants 13
2.4 Right of First Offer 13
2.5 Qualified Small Business Status 14
2.6 Delivery of Annual Budget 15
2.7 Insurance 15
2.8 Committees 15
2.9 Board Representation 15
2.10 Termination of Certain Covenants 15
3. Miscellaneous 16
3.1 Successors and Assigns 16
3.2 Governing Law 16
3.3 Counterparts 16
3.4 Titles and Subtitles 16
3.5 Notices 16
3.6 Expenses 16
3.7 Entire Agreement: Amendments and Waivers 16
3.8 Severability 17
3.9 Aggregation of Stock 17
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is made as of December 17, 1999, by and among LinuxCare, Inc., a
Delaware corporation (the "COMPANY"), (ii) the purchasers of the Company's
Series A Preferred Stock (the "SERIES A INVESTORS") pursuant to the Series A
Preferred Stock Purchase Agreement, dated February 1, 1999 (the "FIRST SERIES A
AGREEMENT") and the Series A Preferred Stock and Warrant Purchase Agreement
dated April 16, 1999 (the "SECOND SERIES A AGREEMENT" and together with the
First Series A Agreement, the "SERIES A AGREEMENTS"), (iii) the purchasers of
the Company's Series B Preferred Stock (the "SERIES B INVESTORS") pursuant to
the Series B Preferred Stock Purchase Agreement of even date herewith, as
amended from time to time (the "SERIES B AGREEMENT"), and (iv) Messrs. Xxxxxx X.
Xxxx III, Xxxxx X. Xxxxx and Xxxxx XxXxxx (collectively, the "FOUNDERS").
Collectively, the Series A Investors and the Series B Investors are referred to
as the "Investors".
BACKGROUND
A. The Series A Investors possess registration rights, information rights,
rights of first offer, and other rights pursuant to the First Amended and
Restated Investors' Rights Agreement dated as of April 16, 1999, among the
Company and the Series A Investors (the "PRIOR AGREEMENT").
B. The holders of a majority of the "REGISTRABLE SECURITIES" of the
Company (as defined in the Prior Agreement) desire to terminate the Prior
Agreement and to accept the rights created pursuant hereto in lieu of the rights
granted to them under the Prior Agreement.
C. The Series B Agreement provides that as a condition to the closing of
the sale of the Series B Preferred Stock, this Agreement must be executed and
delivered by such Series B Investors, Series A Investors holding a majority of
the "REGISTRABLE SECURITIES" of the Company (as defined in the Prior Agreement)
and the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Existing Investors hereby agree that the Prior Agreement shall
be superseded and replaced in its entirety by this Agreement, and the parties
hereto further agree as follows:
1. Registration Rights. The Company covenants and agrees as follows
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immediately prior to the transaction or transactions:
1.1 Definitions. For purposes of this Agreement:
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(a) The term "ACT" means the Securities Act of 1933, as amended.
(b) The term "CHANGE OF CONTROL" shall be as defined in Section
2(c) of Article IV of the Amended and Restated Certificate of Incorporation of
the Company.
(c) 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 ts inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.
(d) The term "HOLDER" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.11 hereof.
(e) The term "INITIAL OFFERING" means the Company's first firm
commitment underwritten public offering of its Common Stock under the Act.
(f) The term "1934 ACT" means the Securities Exchange Act of
1934, as amended.
(g) The term "QUALIFIED PUBLIC OFFERING" means a 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, which results in automatic conversion of
Preferred Stock into Common Stock in accordance with the Company's Certificate
of Incorporation as in effect at the time of the offering.
(h) The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(i) The term "REGISTRABLE SECURITIES" means (i) the Common Stock
issuable or issued (a) upon conversion of the Series A Preferred Stock sold
pursuant to the Series A Agreements, (b) upon conversion of the Warrant Shares
(as defined in the Second Series A Agreement), (c) upon conversion of the Series
B Preferred Stock sold pursuant to the Series B Agreement, 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, excluding in all cases, however, (i) any
Registrable Securities sold by a person in a transaction in which such person's
rights under this Section 1 are not assigned in compliance with Section 1.11
below and (ii) any Registrable Securities as to which the registration rights
set forth in this Section 1 have terminated pursuant to Section 1.14 below.
(j) The number of shares of "REGISTRABLE SECURITIES" 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.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
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) April 30, 2001 or (ii) six
(6) months after the effective date of the Initial Offering, a written request
from the Holders of fifty percent (50%) or more of the Registrable Securities
then outstanding (the "INITIATING HOLDERS") that the Company file a registration
statement under the Act covering the registration of Registrable Securities with
an anticipated aggregate offering price of at least $10,000,000, then the
Company shall, within twenty (20) business days of the receipt thereof, give
written notice of such request to all Holders, and subject to the limitations of
this Section 1.2, use its reasonable best efforts to effect, as soon as
practicable, the registration under the Act of all Registrable Securities that
the Holders request to be registered in a written request received by the
Company within twenty (20) calendar days of the mailing of the Company's notice
pursuant to this Section 1.2(a).
(b) If the Initiating Holders intend to distribute the 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 this Section 1.2
or Section 1.4 and the Company shall include such information in the written
notice referred to in Section 1.2(a) or Section 1.4(a). 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 (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders (which underwriter or underwriters shall be reasonably acceptable to the
Company). Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Company that marketing factors require a limitation of
the number of securities underwritten (including Registrable Securities), then
the Company shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares that may be
included in the underwriting shall be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including the Initiating Holders),
provided, however, that the number of shares of Registrable Securities to be
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included in such underwriting and registration shall not be reduced unless all
other securities of the Company are first entirely excluded from the
underwriting and registration. Any Registrable Securities excluded or withdrawn
from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2) registrations
pursuant to this Section 1.2, and such registration have been declared or
ordered effective; or
(iii) during the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of the filing of, and
ending on a date one hundred eighty (180) days following the effective date of,
a Company-initiated registration subject to Section 1.3 below, provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of
Registrable Securities that may be registered on Form S-3 pursuant to Section
1.4 hereof; or
(v) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2, a certificate signed by the
Company's Chief Executive Officer or Chairman of the Board stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be effected at such time, in which event the Company shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request of the Initiating Holders, provided that
such right to delay a request shall be exercised by the Company not more than
once in any twelve (12)-month period.
1.3 Company Registration.
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(a) If (but without any obligation to do so) the Company proposes
to register (including for this purpose a registration effected by the Company
for stockholders other than the Holders) any of its stock or other securities
under the Act in connection with the public offering of such securities (other
than a registration relating solely to the sale of securities to participants in
a Company stock plan, a registration relating to a corporate reorganization or
other transaction under Rule 145 of the Act, 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), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon the written
request of each Holder given within twenty (20) days after mailing of such
notice by the Company in accordance with Section 3.5, the Company shall, subject
to the provisions of Section 1.3(c), use all reasonable efforts to cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered.
(b) Right to Terminate Registration. The Company shall have the
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right to terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 1.7 hereof.
(c) Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under this Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it
(or by other persons entitled to select the underwriters) and enter into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by 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,
that 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 selling Holders according to the total amount of securities entitled
to be included therein owned by each selling Holder or in such other proportions
as shall mutually be agreed to by such selling Holders), but in no event shall
the amount of securities of the selling Holders included in the offering be
reduced below thirty percent (30%) 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 the selling Holders may be excluded if the
underwriters make the determination described above and no other stockholder's
securities are included (except with the consent of the Holders of the then
outstanding Registrable Securities). For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder that is a Holder of
Registrable Securities and that is a partnership or corporation, the partners,
retired partners and stockholders of such Holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing persons shall be deemed to be a single "selling Holder,"
and any pro rata reduction with respect to such "selling Holder" shall be based
upon the aggregate amount of Registrable Securities owned by all such related
entities and individuals.
1.4 Form S-3 Registration. In case the Company shall receive from one
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or more Holders of at least twenty percent (20%) of the Registrable Securities a
written request or requests that the Company effect a registration on Form S-3
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, 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 all reasonable 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 such Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Holders joining in such request as are specified in a written request
given within fifteen (15) days after receipt of such written notice from the
Company, provided, however, that the Company shall not be obligated to
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effect any such registration, qualification or compliance, pursuant to this
Section 1.4:
(i) if Form S-3 is not available for such offering by the
Holders;
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $1,000,000;
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of Chairman of the Board of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than one hundred twenty (120)
days after receipt of the request of the Holder or Holders under this Section
1.4; provided, however, that the Company shall not utilize this right more than
once in any twelve month period; 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.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.4 shall not be counted as requests for registration effected pursuant
to Sections 1.2.
1.5 Obligations of the Company. Whenever required under this Section
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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 all reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of up to hone hundred twenty
(120) days or, if earlier, until the distribution contemplated in the
Registration Statement has been completed, provided, however, that in the case
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of any registration of Registrable Securities 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 all
such Registrable Securities are sold;
(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 all 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 of such offering;
(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 or 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 on which similar securities
issued by the Company are then listed; and
(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.
1.6 Information from Holder. It shall be a condition precedent to the
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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 required to effect the registration of such Holder's Registrable
Securities.
1.7 Expenses of Registration. All expenses other than underwriting
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discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 1.2, 1.3 and 1.4, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company. Notwithstanding the foregoing, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 or Section 1.4 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating Holders shall bear
such expenses pro rata based upon the number of Registrable Securities that were
to be requested in the withdrawn registration), provided, however, that if at
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the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business or prospects of the Company from that known to
the Holders at the
time of their request and have withdrawn the request with reasonable promptness
following disclosure by the Company of such material adverse change, then the
Holders shall not be required to pay any of such expenses and shall retain their
rights pursuant to Section 1.2 or 1.4.
1.8 Delay of Registration. No Holder shall have any right to obtain or
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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.
1.9 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners or officers, directors and stockholders
of each Holder, legal counsel and accountants for each 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, damages or liabilities (joint or several) to which
they may become subject under the Act, the 1934 Act or any state securities
laws, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any other document incident
to any such registration, qualification or compliance, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities laws or any rule or regulation promulgated under the Act, the
1934 Act or any state securities laws; and the Company will reimburse each such
Holder, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 1.9(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 or controlling person;
provided further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder or
underwriter, or any person controlling such Holder or underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder or underwriter to
such person, if required by law so to have been delivered by such Holder or
underwriter, at or prior to the written confirmation of the sale of the shares
to such person, and if the prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, 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 any state securities laws,
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 reimburse
any person intended to be indemnified pursuant to this Section 1.9(b), for any
legal or other expenses reasonably incurred by such person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 1.9(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 Section 1.9(b) exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 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 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(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 prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9, 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 1.9.
(d) If the indemnification provided for in this Section 1.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations; provided, however, that in no event shall any contribution by a
Holder under this Section 1.9(d)
exceed the net proceeds from the offering received by such Holder. 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this Section
1.9 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.10 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the Initial Offering;
(b) 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
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
1.11 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities that (i) is an employee, affiliate, employee of an
affiliate, subsidiary, parent, partner, limited partner, retired partner or
stockholder of a Holder, (ii) is a Holder's family member or trust for the
benefit of an individual Holder, or (iii) after such assignment or transfer,
holds at least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and
other recapitalizations ("RECAPITALIZATIONS"), provided: (a) the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 1.13 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.
1.12 Limitations on Subsequent Registration Rights. From and after the
---------------------------------------------
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the then outstanding Registrable Securities (as
defined in Section 1.1(j) above), voting as a class, enter into any agreement
with any holder or prospective holder of any securities of the Company that
would allow such holder or prospective holder (a) to include such securities in
any registration filed under Section 1.3 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of 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.
1.13 "Market Stand-Off" Agreement. Provided that the officers and
---------------------------
directors of the Company who own securities of the Company also agree to similar
restrictions, 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 (180) 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
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
then owned by the Holder or are thereafter 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 the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
provisions of this Section 1.13 shall apply only to the Company's Initial
Offering and shall not apply to any shares purchased by Integral Capital
Partners IV, L.P. and Integral Capital Partners IV MS Side Fund, L.P. in the
Initial Offering or in the open market following the Initial Offering. The
underwriters in connection with the Company's Initial Offering are intended
third party beneficiaries of this Section 1.13 and shall have the right, power
and authority to enforce the provisions hereof as though they were a party
hereto.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each Holder
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
1.14 Termination of Registration Rights. No Holder shall be entitled
----------------------------------
to exercise any right provided for in this Section 1 after (a) five (5) years
following the consummation of the Initial Offering or, (b) as to any Holder,
such earlier time at which all Registrable Securities held by such Holder (and
any affiliate of the Holder with whom such Holder must aggregate its sales under
Rule 144) can be sold in any three (3)-month period without registration in
compliance with Rule 144 of the Act.
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements.
--------------------------------
(a) The Company shall deliver to each Investor:
(i) as soon as practicable, but in any event within ninety
(90) days after the end of each fiscal year of the Company, an income statement
for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
and audited and certified by independent public accountants of nationally
recognized standing selected by the Company;
(ii) as soon as practicable, but in any event within forty-
five (45) days after the end of each of the first three (3) quarters of each
fiscal year of the Company, an unaudited income statement, statement of cash
flows for such fiscal quarter and an unaudited balance sheet as of the end of
such fiscal quarter;
(iii) with respect to the financial statements called for in
Section 2.1(a)(ii), 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) and
fairly present the financial condition of the Company and its results of
operation for the period specified, subject to year-end audit adjustment;
(iv) so long as an Investor holds at least 500,000 shares
Registrable Securities (as adjusted for Recapitalizations occurring after the
date of this Agreement), the Company shall provide such Investor monthly
financial statements within ten (10) days of the end of each month; and
(v) such other information relating to the financial
condition, business, prospects or corporate affairs of the Company as the
Investor or any assignee of the Investor may from time to time request,
provided, however, that the Company shall not be obligated under this subsection
-------- -------
(v) 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.
(b) So long as Patricof & Co. Ventures, Inc. ("PCV") holds at
least 500,000 shares of Registrable Securities (as adjusted for
Recapitalizations occurring after the date of this Agreement), the Company shall
deliver to PCV, within forty-five (45) days after the end of each of the first
three (3) quarters of each fiscal year of the Company, a financial summary, in a
form attached as Exhibit A, signed by the Chief Financial Officer of the
---------
Company.
2.2 Inspection. The Company shall permit each Investor that holds at
----------
least 80,000 shares of Registrable Securities (as adjusted for Recapitalizations
occurring after the date of this Agreement), 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 deems in good faith to
be a trade secret or similar confidential information.
2.3 Termination of Information and Inspection Covenants. The covenants
---------------------------------------------------
set forth in Sections 2.1 and 2.2 shall terminate as to Investors and be of no
further force or effect when the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the closing of
the firm commitment underwritten offering of its securities to the general
public or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall
first occur.
2.4 Right of First Offer. Subject to the terms and conditions specified
--------------------
in this Section 2.4, the Company hereby grants to each Major Investor (as
defined below) a right of first offer with respect to future sales by the
Company of its Shares (as defined below). For purposes of this Section 2.4, a
"MAJOR INVESTOR" shall mean any Investor or transferee that holds at least
80,000 shares of Registrable Securities (as adjusted for Recapitalizations
occurring after the date of this Agreement). A Major Investor shall be entitled
to apportion the right of first offer hereby granted it among itself and its
partners and affiliates in such proportions as it deems appropriate, provided in
each such case that each partner or affiliate is an "accredited investor" within
the meaning of Regulation D, Rule 501(a) promulgated by the Securities and
Exchange Commission.
Each time the Company proposes to offer any shares of, or securities
convertible into or exchangeable or exercisable for any shares of, any class of
its capital stock ("SHARES"), the Company shall first make an offering of such
Shares to each Major Investor in accordance with the following provisions.
(a) The Company shall deliver a notice in accordance with Section
3.5 ("NOTICE") to the Major Investors stating (i) its bona fide intention to
offer such Shares, (ii) the number of such Shares to be offered, and (iii) the
price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company, within twenty
(20) calendar days after receipt of the Notice, the Major Investor may elect to
purchase or obtain, at the price and on the terms specified in the Notice, up to
that portion of such Shares that equals the proportion that the number of shares
of Common Stock issued and held, or issuable upon conversion of the Series A
Preferred Stock or Series B Preferred Stock then held, by such Major Investor
bears to the total number of shares of Common Stock of the Company then
outstanding (assuming full conversion of all convertible securities). The
Company shall promptly, in writing, inform each Major Investor that elects to
purchase all the shares available to it (a "FULLY-EXERCISING INVESTOR") of any
other Major Investor's failure to do likewise. During the ten (10) day period
commencing after such information is given, each Fully-Exercising Investor may
elect to purchase that portion of the Shares for which Major Investors were
entitled to subscribe but which were not subscribed for by the Major
Investors that is equal to the proportion that the number of shares of Common
Stock issued and held, or issuable upon conversion of Series A Preferred Stock
or Series B Preferred Stock then held, by such Fully-Exercising Investor bears
to the total number of shares of Common Stock issued and held, or issuable upon
conversion of the Series A Preferred Stock or Series B Preferred Stock then
held, by all Fully-Exercising Investors who wish to purchase some of the
unsubscribed shares.
(c) If all Shares that Investors are entitled to obtain pursuant
to Section 2.4(b) are not elected to be obtained as provided in Section 2.4(b),
the Company may, during the ninety (90) day period following the expiration of
the period provided in Section 2.4(b), offer the remaining unsubscribed portion
of such 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 Shares within such
period, or if such agreement is not consummated within ninety (90) days of the
execution thereof, the right provided hereunder shall be deemed to be revived
and such Shares shall not be offered unless first reoffered to the Major
Investors in accordance herewith.
(d) The right of first offer in this Section 2.4 shall not be
applicable to (i) the issuance or sale of shares of Common Stock (or options
therefor) to employees, directors and consultants for the primary purpose of
soliciting or retaining their services issued pursuant to a Company Stock Plan;
(ii) the issuance of securities pursuant to a bona fide, firmly underwritten
public offering of shares of Common Stock, registered under the Act, (iii) the
issuance of securities pursuant to the conversion or exercise of convertible or
exercisable securities (collectively, "CONVERTIBLE SECURITIES") outstanding as
of the date hereof, and the issuance of securities issued pursuant to the
conversion or exercise of Convertible Securities issued after the date hereof,
provided that the right of first offer in this Section 2.4 shall apply with
respect to the initial sale or grant by the Company of such Convertible
Securities, (iv) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise, (v) the issuance of
stock, warrants or other securities or rights to persons or entities with which
the Company has business relationships, provided (A) that such issuances are for
other than primarily equity financing purposes, and (B) that such issuances be
approved by both the full board of directors of the Company and the directors
elected by the holders of Series A Preferred Stock and Series B Preferred Stock
pursuant to Section 5(b) of Article IV of the Company's Amended and Restated
Certificate of Incorporation, (vi) the issuance of securities pursuant to a
Recapitalization and (vii) the issuance of 1,000 shares of Common Stock as a
charitable contribution to the National Alliance Research on Schizophrenia &
Depression and Aldea.
2.5 Qualified Small Business Status. After the Closing Date of the
-------------------------------
Series B Preferred Stock (the "CLOSING DATE"), the Company shall (a) not make
any purchase of its stock during the one-year period following the Closing Date
having an aggregate value, when added to the aggregate value of stock purchased
by the Company during the one-year period preceding the Closing Date (in each
case determined as of the purchase date), exceeding 5% of the aggregate value of
all of the Company's stock (such value determined as of the date one year prior
to the Closing Date) without having given the holders of the Series A Preferred
and Series B Preferred prior notice of such purchase and the opportunity to
discuss with the Company means of achieving such purchase without adversely
affecting the qualification of the Series A Preferred and Series B
Preferred as "qualified small business stock" set forth in Section 1202(c) of
the Code and without such repurchase having been approved by the Board of
Directors, (b) use commercially reasonable efforts to use at least 80% (by
value) of its assets in the active conduct of one or more qualified trades or
business for substantially all of the five-year period following the Closing
Date, and (c) not cease to be a C corporation which is an eligible corporation,
as defined by Code Section 1202(e)(4).
2.6 Delivery of Annual Budget. The Company shall submit for the
-------------------------
approval of the Board of Directors prior to the beginning of each fiscal year an
annual budget and strategic plan for each fiscal year.
2.7 Insurance.
---------
(a) As soon as practicable after the Closing Date, the Company
shall obtain a policy of directors' and officers' liability insurance covering
directors of the Company in an amount as the Board of Directors shall specify.
(b) As soon as practicable after the Closing Date, the Company
shall obtain and cause to be maintained a policy of key man life insurance, with
the Company as the sole beneficiary, covering each of Messrs. Xxxxxxx Xxxxxx,
Xxxxxx Xxxx and Xxxxx Xxxxx in the amount of at least $1,000,000 for each of
such individual or in such amount as the Board of Directors shall specify.
2.8 Committees. The members of each of the compensation and audit
----------
committees of the Board of Directors shall include one director designated by
the holders of a majority of the Series B Preferred Stock. The Compensation
Committee of the Board of Directors shall have, among other responsibilities,
the review and approval of stock option grants and the establishment of
executive compensation and bonuses.
2.9 Board Representation. At each election of directors the Investors
--------------------
and the Founders (and their permitted transferees) shall vote all of their
respective capital stock so as to elect: (a) one person designated by holders of
a majority of the Series A Preferred Stock, which individual shall initially be
Xx. Xxx Xxxxxxx; (b) one person designated by the holders of a majority of the
outstanding shares of Series B Preferred, which individual shall initially be
Xx. Xxxx Xxxx; (c) two persons designated by the holder of a majority of the
Common Stock, which individuals shall initially be Messrs. Xxxxxxx Xxxxxx and
Xxxxxx X. Xxxx III; and (d) three persons who are not an officer, employee or
affiliate of the Company, to be designated by a majority of the outstanding
shares of Common Stock and Common Stock issued or issuable upon conversion of
the Series A Preferred Stock or Series B Preferred Stock, voting together as a
class which individuals shall initially be Messrs. Xxxxx XxXxxxx, Xxxxx Xxx
Xxxxxx and Xxxx Xxxx. Any vote taken to remove any director elected pursuant to
this Section 2.9, or to fill any vacancy created by the resignation or death of
a director elected pursuant to this Section 2.9, shall be filled by the majority
vote of the holders of that class or series of stock.
2.10 Termination of Certain Covenants. The covenants set forth in
--------------------------------
Section 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9 shall terminate and be of no further
force or effect upon (i) the
consummation of the sale of securities pursuant to a Qualified Public Offering
or (ii) Change of Control of the Company.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided herein, the
----------------------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties
(including 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.
3.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
delivery by confirmed facsimile transmission, nationally recognized overnight
courier service, or upon deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
3.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Entire Agreement: Amendments and Waivers. This Agreement
----------------------------------------
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of a majority of the Registrable
Securities, provided, however, that any amendment or waiver that is detrimental
-------- -------
to a holder of the Series B Preferred Stock in a manner different than any other
holder of Preferred Stock shall require the written consent of the holders of a
majority of the Series B Preferred Stock then outstanding. Any amendment or
waiver effected in accordance with
this paragraph shall be binding upon each holder of any Registrable Securities,
each future holder of all such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LINUXCARE, INC.
/s/ Xxxxxxx Xxxxxx
By: --------------------------------
Name:
Title:
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
APA EXCELSIOR V, L.P.
By: APA Excelsior v Partners, L.P.
Its General Partner
--------------------------------------
[Type or Print Name of Investor]
By: Patricof & Co. Managers, Inc.
Its General Partner
By: /s/ Xxxx X. Xxxx
----------------------------
Print Name: Xxxx X. Xxxx
-------------
Title: Managing Director
------------------
(if applicable)
Address: 0000 Xxxx Xx.
-------------
Suite 150
---------
PALO Xxxx, XX 00000
-------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
APAX EUROPE IV - A, L.P.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ Signature Illegible
---------------------------
Name: CAEHELYAR
---------
Title: DIRECTOR
--------
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
APAX EUROPE IV - B, L.P.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ Signature Illegible
---------------------------
Name: CAEHELLAR
---------
Title: DIRECTOR
--------
APAX EUROPE IV C GmbH & Co. KG
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ Signature Illegible
---------------------------
Name: CAEHELYAR
---------
Title: DIRECTOR
--------
APAX EUROPE IV - D, L.P.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ CAEHELYAR
--------------------------
Name: CAEHELYAR
Title: DIRECTOR
--------
APAX EUROPE IV - E, L.P.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ CAEHELYAR
--------------------------
Name: CAEHELYAR
Title: DIRECTOR
--------
APAX EUROPE IV - F, C.V.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ CAEHELYAR
--------------------------
Name: CAEHELYAR
Title: DIRECTOR
--------
APAX EUROPE IV - G, C.V.
By: Apax Europe IV GP, L.P.
Its: Managing General Partner
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ CAEHELYAR
--------------------------
Name: CAEHELYAR
---------
Title: DIRECTOR
--------
APAX EUROPE IV - H GmbH & Co K.G.
By: Apax Europe IV GP, L.P.
Its: attorney
By: Apax Europe IV GP. Co. Limited
Its: Managing General Partner
By: /s/ Signature Illegible
---------------------------
Name: CAEHELYAR
---------
Title: DIRECTOR
--------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
AUSTIN I LLC
------------
[Type or Print Name of Investor]
By: /s/ XXXXX XXXXXXX
--------------------------
Print Name: XXXXX XXXXXXX
-------------
Title: MANAGER
-------
(if applicable)
Address: c/o MSD CAPITAL
---------------
000 XXXXX XXX. 43rd FLOOR
-------------------------
XXX XXXX, XX 00000
------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
BLACK MARLIN INVESTMENTS, LLC
-----------------------------
[Type or Print Name of Investor]
By: /s/ XXXX XXXXXX
----------------------------
Print Name: XXXX XXXXXX
-----------
Title: MANAGER
-------
(if applicable)
Address: c/o MSD CAPITAL
---------------
000 XXXXX XXX - 00xx XX.
------------------------
XXX XXXX, XX 00000
------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
--------------------------------------
[Type or Print Name of Investor]
By: /s/ Signature Illegible
----------------------------
Print Name: XXXX XXXXXXXXXXX
----------------
Title:_________________________
(if applicable)
Address: ______________________
______________________
______________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
ComDisco, Inc.
--------------
[Type or Print Name of Investor]
By: /s/ Xxxx Xxxxx
--------------------------
Print Name: Xxxx Xxxxx
-----------
Title: SR VP
-----
(if applicable)
Address: 0000 X Xxxxx Xx.
----------------
Rosemont, IL
------------
ATTN: Venture Group 60018
-------------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
XXXXXXXXXX XXXXXXXXX
--------------------
[Type or Print Name of Investor]
By: /s/ XXXXXXXXXX XXXXXXXXX
-----------------------------
Print Name: XXXXXXXXXX XXXXXXXXX
--------------------
Title:___________________________
(if applicable)
Address: 00000 XXXXXXX XX
----------------
XXX XXXXX XXXXX, XX 00000
-------------------------
------------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
DELL USA L.P.
-------------
[Type or Print Name of Investor]
By: Del. Gen. P. Corp., its General
Partner
By: /s/ Xxxx X. Xxxxx
--------------------------
Print Name: Xxxx X. Xxxxx
-------------
Title: V.P., Dell Ventures
-------------------
(if applicable)
Address: Round Rock 1, Mail Code # 8033
------------------------------
Xxx Xxxx Xxx
------------
Xxxxx Xxxx XX 00000
-------------------
Attn: Xxxxxx X. Xxxxx, Xx. - Legal
Vice President, Deputy General Counsel
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Dibachi Family Trust
--------------------
[Type or Print Name of Investor]
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Print Name: Xxxxxx Xxxxxxx
--------------
Title: Trustee
-------
(if applicable)
Address: ______________________
______________________
______________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
XXXX XXXX
---------
[Type or Print Name of Investor]
By: /s/ Xxxx Xxxx
-----------------------------
Print Name:_____________________
Title:__________________________
(if applicable)
Address: _______________________
_______________________
_______________________
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Xxxxxx Xxxx Xxxxxx
------------------
[Type or Print Name of Investor]
By: /s/ Xxxxxx Xxxx Xxxxxx
--------------------------
Print Name:__________________
Title:_______________________
(if applicable)
Address: c/o Antenna Group, Inc.
-----------------------
000 Xxxxxx Xx., Xxx. 0000
-------------------------
Xxx Xxxx., XX 00000
-------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Integral Capital Partners IV, L.P.
----------------------------------
[Type or Print Name of Investor]
By Integral Capital Management IV, LLC
Its General Partner
By: Xxxxxx Xxxxxxx
--------------
Print Name: Xxxxxx Xxxxxxx
--------------
Title: Manager
-------
(if applicable)
Address: 0000 Xxxx Xxxx Xxxx
-------------------
Xxxxx Xxxx, XX 00000
--------------------
--------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Integral Capital Partners IV MS side fund, L.P.
-----------------------------------------------
[Type or Print Name of Investor]
By Integral Capital Partners NBT, LLC
Its General Partner
By: Xxxxxx Xxxxxxx
--------------
Print Name: Xxxxxx Xxxxxxx
--------------
Title: Manager
-------
(if applicable)
Address: 0000 Xxxx Xxxx Xxxx
-------------------
Xxxxx Xxxx, XX 00000
-------------------
------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
KPCB HOLDINGS, INC.
-------------------
[Type or Print Name of Investor]
/s/ Xxx Xxxxxxx
By: ------------------------
Print Name: XXX XXXXXXX
-----------
Title:______________________
(if applicable)
Address: ___________________
___________________
___________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
___________________________________
[Type or Print Name of Investor]
/s/ Xxxx XxXxxxxx
By: ------------------------------
Print Name: Xxxx XxXxxxxx
-------------
Title:____________________________
(if applicable)
Address: 00 Xxxxx Xxxx
-------------------
Xxx Xxxxx, XX 00000
-------------------
___________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
XxXxxxx Ventures, L.P.
----------------------
[Type or Print Name of Investor]
/s/ Xxxxx XxXxxxx
By: ---------------------------
Print Name: Xxxxx XxXxxxx
-------------
Title: G.P.
----
(if applicable)
Address: 0000 XXXXXXXX XX
----------------
XXXXXXXXX, XX
-------------
94087
-----
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Motorola, Inc.
--------------
[Type or Print Name of Investor]
/s/ Xxxxx X. Xxxxxxx
By: ----------------------------
Print Name: Xxxxx X. Xxxxxxx
----------------
Title: Corp VP & GM
------------
(if applicable)
Address: 2900 S. Diablo Way
------------------
Xxxxx XX 00000
--------------
_________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
MSD Portfolio, L.P. - Investments
---------------------------------
[Type or Print Name of Investor]
/s/ Xxxx Xxxxxxx
By: -----------------------------
Print Name: XXXX XXXXXXX
------------
Title: MANAGING PRINCIPAL
------------------
(if applicable)
Address: c/o MSD CAPITAL
---------------
000 XXXXX XXX
-------------
XXX XXXX, XX 00000
------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Oracle Corporation
------------------
[Type or Print Name of Investor]
/s/ Xxxx Xxxxxx
By:-------------------------
Print Name: Xxxx Xxxxxx
-----------
Title: Vice President, Corporate
--------------------------
Development
--------------------------
(if applicable)
Address: 000 Xxxxxx Xxxxxxx
------------------
Xxxxxxx Xxxx, XX 00000
----------------------
_____________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
PATRICOF PRIVATE INVESTMENT CLUB II, L.P.
BY: APA Excelsior V Partners, L.P.
Its General Partner
--------------------------------
[Type or Print Name of Investor]
By: Patricof & Co. Managers, Inc.
Its General Partner
/s/ Xxxx X. Xxxx
By:-------------------------
Print Name: Xxxx X. Xxxx
------------
Title: Managing Director
-----------------
(if applicable)
Address: 0000 Xxxx Xx.
-------------
Suit 150
--------
Xxxx Xxxx, XX 00000
-------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Xxxxx Xxxxxxxx
--------------
[Type or Print Name of Investor]
/s/ Signature Illegible
By:--------------------------------
By: Xxxx Xxxxxxxxxx Attorney-In-Fact
--------------------------------
Print Name:_________________________
Title:______________________________
(if applicable)
Address: c/x XXXXXXXXXX CAPITAL
----------------------
000 XXXXXXXXXX XX. XXX 000
--------------------------
XXX XXXXXXXXX, XX 00000
-----------------------
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
-------------------------------------
[Type or Print Name of Investor]
/s/ X. XXXXXXXXXX
By:------------------------------
Print Name: X. XXXXXXXXXX
-------------
Title: _________________________
(if applicable)
Address: _______________________
_______________________
_______________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
RPKS Investments, LLC
---------------------
[Type or Print Name of Investor]
/s/ XXXXX XXXXXX
By:-----------------------------
Print Name: XXXXX XXXXXX
------------
Title: MANAGER
-------
(if applicable)
Address: c/o MSD CAPITAL
---------------
000 XXXXX XXX
-------------
XXX XXXX, XX 00000
------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Sun microsystems, Inc.
----------------------
[Type or Print Name of Investor]
/s/ Xxxxxxx Xxxxxx
By: ----------------------------
Print Name: Xxxxxxx Xxxxxx
--------------
Title: Vice President, Corporate Resources
Chief Financial Officer
-----------------------------------
(if applicable)
Address: Sun microsystems, Inc.
----------------------
000 Xxx Xxxxxxx Xxxx
--------------------
Xxxx Xxxx, XX 00000
-------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
Triple Xxxxxx Investments, LLC
------------------------------
[Type or Print Name of Investor]
/s/ Xxxx Xxxxxx
By:----------------------------
Print Name: XXXX XXXXXX
-----------
Title: MANAGER
-------
(if applicable)
Address: C/O MSD CAPITAL
---------------
000 XXXXX XXX
-------------
XXX XXXX, XX 00000
------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
VERMEER INVESTMENTS, LLC
------------------------
[Type or Print Name of Investor]
/s/ Xxxxx Xxxxxxx
By:----------------------------
Print Name: XXXXX XXXXXXX
-------------
Title: MANAGER
-------
(if applicable)
Address: c/o MSD CAPITAL
---------------
000 XXXXX XXX - 00XX XX.
------------------------
XXX XXXX, XX 00000
------------------
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
XXXXXX X. XXX XXXXXX
--------------------
[Type or Print Name of Investor]
/s/ XXXXXX X. XXX XXXXXX
By:----------------------------
Print Name: XXXXXX X. XXX XXXXXX
--------------------
Title:__________________________
(if applicable)
Address: 00 Xxxx 00
----------
Xxx Xxxx, XX 00000
------------------
__________________
-2-
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
__________________________________
[Type or Print Name of Investor]
/s/ XXXXX XXXXXXXX
By:-------------------------------
Print Name: XXXXX XXXXXXXX
--------------
Title:____________________________
(if applicable)
Address: _________________________
_________________________
_________________________
LINUXCARE, INC.
INVESTOR SIGNATURE PAGE
TO
SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
The undersigned hereby executes and delivers the Second Amended and
Restated Investors' Rights Agreement (the "Agreement") to which this Signature
Page is attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of said Agreement and Signature
Pages of the other parties named in said Agreement, shall constitute one and the
same document in accordance with the terms of said Agreement.
WS Investment Company 99B
-------------------------
[Type or Print Name of Investor]
/s/ Xxxxx X. Xxxxxxxxx
By:-----------------------------
Print Name: Xxxxx X. Xxxxxxxxx
------------------
Title:__________________________
(if applicable)
Address:________________________
________________________
________________________
Exhibit A
Patricof Form of Financial Summary (pursuant to Section 2.1(b)).
