EXHIBIT 10.16
LINEO, INC.
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this "Agreement") is made as of February
__, 2000 by and among LINEO, INC., a Delaware corporation (the "Company") and
the investors named on Schedule 1 hereto (the "Investors").
RECITALS
A. The Investors are acquiring shares of Series A Convertible Preferred
Stock, $.001 par value per share, of the Company (the "Series A Preferred
Stock") pursuant to the terms of a Stock Purchase Agreement and a
Recapitalization Agreement dated as of the date hereof between the Company and
the Investors (the "Purchase Agreement").
B. It is a condition to the obligations of the Investors under the
Purchase Agreement that this Agreement be executed by the parties.
AGREEMENT
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" and "Affiliated" refer to any person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended. For purposes of this definition, "person"
means any individual, firm, corporation, constituent members of a partnership,
constituent members of a limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company, governmental
authority or other entity of any kind, and includes any successor (by merger or
otherwise) of such entity.
"Common Stock" means the Company's common stock, $.001 par value per share.
"Common Stock Equivalent" means shares of: (a) Common Stock; (b) Common
Stock issuable upon conversion of Series A Preferred Stock; and (c) any other
Common Stock issuable upon conversion or exercise of any security (other than
Series A Preferred Stock), including options, issued or granted by the Company
that is convertible into or exercisable for Common Stock.
"Holder" shall mean an Investor who holds Registrable Securities and any
holder of Registrable Securities to whom the registration rights conferred by
this Agreement have been transferred in compliance with the terms and conditions
hereof.
"Preferred Stock" means the Series A Preferred Stock and any other shares
of preferred stock of any series any time issued by the Company.
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"Public Offering" means a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offer and sale of Common Stock of the Corporation
to the public at a minimum price of $10.00 per share and pursuant to which the
gross proceeds received by the Corporation equal or exceed $15,000,000.
"Register," "Registered" and "Registration" shall refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of effectiveness of such registration statement.
"Registrable Securities" shall mean any shares of Common Stock held by the
Investors and permitted assignees (or subject to acquisition by the Investors
and permitted assignees upon conversion of Series A Preferred Stock), including
any shares issued by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization; provided, however, that if a Holder owns Series A Preferred
Stock, the Holder may exercise its registration rights hereunder by converting
the shares to be sold publicly into Common Stock as of the closing of the
relevant offering and shall not be required to cause such Series A Preferred
Stock to be converted to Common Stock until and unless such closing occurs; and
provided, further, that any Common Stock that is sold in a registered sale
pursuant to an effective registration statement under the Securities Act or
pursuant to Rule 144 thereunder, or that may be sold without restriction as to
volume or otherwise pursuant to Rule 144 under the Securities Act (as confirmed
by an unqualified opinion of counsel to the Company), shall not be deemed
Registrable Securities;
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder" and "Stockholders" mean the Investors and any other
stockholders of the Company that become parties to this Agreement..
"Shares" mean all shares of Stock now owned, or hereafter acquired, by any
Stockholder.
"Stock" means all shares of Common Stock and Preferred Stock, and all other
securities of the Company that may be issued in exchange for or in respect of
shares of Common Stock and Preferred Stock (whether by way of stock split, stock
dividend, combination, reclassification, reorganization or any other means), the
number of which is determined on an as-converted-into-Common Stock basis.
"Transfer" means to sell, assign, transfer, pledge, hypothecate, mortgage,
encumber or dispose of all or any part of its Shares.
2. RIGHT TO PARTICIPATE IN COMPANY SALES.
Subject to the terms and conditions specified in this Section 2, and until
such time as the Company's Public Offering, the Company grants to each Investor
the right to purchase such Investor's pro rata portion of any company shares
that the Company may, from time to time, propose to sell after the date of this
Agreement.
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2.1 NOTICE
If the Company proposes to sell Company Shares, it shall give each Investor
written notice of its intention (the "Company Notice") ten (10) days prior to
the proposed date of closing of the transaction in which the Company Shares are
to be issued (the "Company Shares Closing Date"). The Company Notice shall
include, to the extent such information is known by the Company: (a) a
description of the type of Company Shares; (b) the number and the anticipated
per share price of the Company Shares; (c) the name of any proposed purchaser;
(d) the Company Shares Closing Date; and (e) in reasonable detail, the other
terms and conditions, if any, pursuant to which the Company is proposing to sell
the Company Shares.
2.2 ELECTION
Each Investor shall have until five (5) days after the date of the Company
Notice to notify the Company in writing of its election and agreement to
purchase its respective pro rata portion of such Company Shares at the same
price and upon the same terms as any other investors in such offering or, if
there are no investors in such offering other than the Investors, then at the
price and upon the terms specified in the Company's Notice. Each such notice by
an Investor to the Company shall specify the maximum quantity of Company Shares
that such Investor is willing to agree to purchase.
2.3 PRO RATA PORTION
For purposes of this Section 2, each purchasing Investor's pro rata portion
of the Company Shares is that proportion of the Company Shares as the number of
Shares then held by such purchasing Investor bears to the total number of Common
Stock Equivalents then outstanding.
2.4 SUBSEQUENT OFFERING
If all Company Shares referred to in the Company Notice are not elected to
be purchased as provided in this Section 2 or if for any reason any Investor
that had elected to purchase such Company Shares does not timely consummate such
purchase, then the Company may, on the Company Shares Closing Date or during the
ninety (90)-day period following the Company Shares Closing Date, sell such
unsubscribed Company Shares to any person or persons at a price not less, and
upon terms no more favorable to the purchasers of such securities, than those
specified in the Company Notice. If the Company has not sold all of the Company
Shares within such ninety (90)-day period, then this Section 2 participation
right shall be revived and such Company Shares shall not be offered unless first
reoffered to the Stockholders in accordance with this Section 2.
2.5 EXCLUDED OFFERINGS
The right of participation in this Section 2 shall not apply to the
Company's currently anticipated Series B Preferred Stock financing, information
about which has been disclosed separately to the Investors. The right of
participation in this Section 2 shall also not apply where the Company, with the
approval of the Board of Directors, issues or reserves shares of common stock in
connection with (i) a stock dividend to holders of common stock or upon the
subdivision or combination of shares of common stock, (ii) any stock option plan
or other restricted stock plan or employee stock bonus program or grant or other
similar arrangement designated and approved by the Board of Directors, (iii) the
conversion of convertible preferred stock, (iv) in connection with the merger or
consolidation
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of the Company or a subsidiary of the Company with any other operating company,
or the exchange of the capital stock of the Company for the capital stock of
another operating company, (v) the acquisition of any assets, stock or other
interest in any other operating entity, and (vi) pursuant to any equipment
leasing arrangement or debt financing from a bank or similar financial
institution; provided, that in the case of any transaction described in clauses
(iv) or (v) of this Section 2.5, such transaction must receive prior approval by
the Company's Board of Directors and shall not be excluded from the right of
participation in this Section 2 where such transaction is with a five percent or
greater stockholder of the Company or an "affiliate" of the Company, as that
term is defined in Rule 144 under the Securities Act of 1933, as amended. Any
determination made by the Company's Board of Directors with respect to any
matter described in this Section 2.5 shall be conclusive.
2.6 ASSIGNMENT
The right of participation under this Section 2 is not assignable except by
an Investor: (a) to an Affiliated entity or to a partner or retired partner of
such Investor or to a partner or retired partner of an Affiliated entity; or (b)
to a constituent member of an Affiliated entity that is a limited liability
company.
3. COMPANY COVENANTS.
3.1 INFORMATION RIGHTS
The Company shall deliver to the Investors the following:
(a) Annual financial statements prepared in accordance with Generally
Accepted Accounting Principles ("GAAP") within 90 days following the fiscal year
end.
(b) Quarterly unaudited financial statements prepared in accordance
with GAAP within 45 days following each fiscal quarter.
3.2 INSPECTION RIGHTS The Investors shall have the right to inspect the
books and records of the Company during normal business hours upon written
request made at least one (1) business day in advance; provided, that the
Investors shall avail themselves of such right no more often than once every
fiscal quarter.
3.3 INSURANCE
(a) The Company agrees to maintain in full force and effect a policy
or policies of insurance issued by insurers of recognized responsibility,
insuring it and its properties and business against such losses and risks, and
in such amounts, as are customary in the case of corporations of established
reputation engaged in the same or a similar business and similarly situated, and
within ninety (90) days following the Closing, obtain and maintain in full force
and effect thereafter a policy of directors and officers liability insurance in
an amount that is commercially reasonable.
(b) The Company agrees to maintain in full force and effect a policy
or policies of key person life insurance issued by insurers of recognized
responsibility covering the life of Xxxxx Xxxxxx in the amount of no less that
$2,000,000.
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3.4 PROPRIETARY RIGHTS AGREEMENTS
All of the Company's current and future employees and consultants shall
enter into a proprietary rights agreement or another standard proprietary rights
agreements containing such provisions regarding confidentiality, non-use and
invention assignments as are customary for similarly situated companies.
3.5 BOARD APPROVAL
The following matters shall be approved by the Company's Board of Directors
in accordance with the Company's Bylaws and Delaware law:
(a) Annual Company budgets;
(b) Appointment of corporate officers;
(c) Changes in Compensation for any Company officer with annual
compensation of more than $100,000 per year;
(d) Amendments to the Company's Stock Option Plan;
(e) Grants of stock options;
(f) Sale or issuance of any capital stock;
(g) The purchase of any non-budgeted capital equipment for more than
$100,000; and
(h) Transactions between the Company and any officer or director of
the Company, or their affiliates (such approval to be granted
only by the Company's disinterested directors).
(i) Any merger or consolidation of the Company with another company
or any acquistion by the Company of the stock or substantially
all the assets of another business.
3.6 BOARD COMPENSATION Non-employee directors shall be reimbursed for
their reasonable out-of-pocket expenses incurred in connection with
attending meetings of the Board of Directors or any Committee thereof.
4. CONFIDENTIALITY AGREEMENT.
Each Investor, and any successor or assign of such Investor, who receives
from the Company or its agents, directly or indirectly, any information that the
Company has not made generally available to the public, pursuant to the
preparation and execution of this Agreement or disclosure in connection
therewith or pursuant to the provisions of Section 3: (a) acknowledges and
agrees that such information is confidential and for its use only in connection
with evaluating its investment in the Company; (b) agrees that it will not
disseminate such information to any person other than its
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accountant, investment advisor, limited partners or attorney and that such
dissemination shall be only for purposes of evaluating its investment; and (c)
agrees to execute and to cause Affiliates to execute such confidentiality
agreements as are necessary or desirable to further the intent of this Section
4.
5. REGISTRATION RIGHTS.
5.1. REQUEST FOR REGISTRATION
(a) If the Company shall receive at any time after the earlier of (i)
January __ 2003 or (ii) six (6) months after the effective date of a Public
Offering, a written request from the holders (the "Initiating Holders") of a
majority of the Registrable Securities that the Company file a registration
statement under the Securities Act covering the registration of all or part of
the Registrable Securities having an aggregate offering price, net of
underwriting discounts and commissions, equal to or exceeding $5,000,000, then
the Company shall, subject to Section 5.1(b) below:
(i) Promptly give written notice of the proposed registration to
all other Holders; and
(ii) As soon as practicable, either (A) elect to make a primary
offering, in which case the rights of such Holders shall be as set forth in
Section 5.2 hereof or (B) use its best efforts to effect such registration
(including, without limitation, filing post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the Securities Act) and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Company within twenty (20)
days after such written notice from the Company is mailed or delivered.
(b) The Company shall not be obligated to effect, or to take any
action to effect, any such registration pursuant to this Section 5.1 after the
Company has initiated two (2) such registrations pursuant to this Section 5.1
(counting for these purposes only registrations which have been declared or
ordered effective and pursuant to which securities have been sold and
registrations which have been withdrawn by the Holders as to which the Holders
have not elected to bear the expenses of registration pursuant to Section 5.3
hereof and would, absent such election, have been required to bear such
expenses).
(c) Subject to Section 5.1(b) above, the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders; provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would be
detrimental to the Company, and the Board of Directors of the Company concludes,
as a result, that it is essential to defer the filing of such registration
statement at such time, and (ii) the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be detrimental
to the Company for such registration statement to be filed in the near future
and that it is, therefore, essential to defer the filing of such registration
statement, then the Company shall have the right to defer such filing for a
period of not more than ninety (90) days after receipt of the request of the
Initiating Holders, and, provided further,
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that the Company shall not defer its obligation in this manner more than once in
any twelve-month period.
(d) The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 5.13 hereof,
include other securities of the Company with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company.
(e) The right of any Holder to registration pursuant to this Section
5.1 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 with respect to such participation and inclusion) to the
extent provided herein. A Holder may elect to include in such underwriting all
or a part of the Registrable Securities it holds.
(f) If the Company shall request inclusion in any registration
pursuant to this Section 5.1 of securities being sold for its own account, or if
other persons shall request inclusion in any registration pursuant to this
Section 5.1, the Initiating Holders shall, on behalf of all Holders, offer to
include such securities in the underwriting and may condition such offer on
their acceptance of the further applicable provisions of this Agreement. The
Company shall (together with all Holders and other persons proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders, which underwriters are reasonably acceptable
to the Company. Notwithstanding any other provision of this Section 5.1, if the
representative of the underwriters in good faith advises the Initiating Holders
in writing that marketing factors require a limitation on the number of shares
to be underwritten, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 5.11 hereof. If a person
who has requested inclusion in such registration as provided above does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company, the underwriter or the Initiating
Holders. The securities so excluded shall also be withdrawn from registration.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall also be withdrawn from such registration. If shares are so
withdrawn from the registration and if the number of shares to be included in
such registration was previously reduced as a result of marketing factors
pursuant to this Section 5.1(f), then the Company shall offer to all Holders who
have retained rights to include securities in the registration the right to
include additional securities in the registration in an aggregate amount equal
to the number of shares so withdrawn, with such shares to be allocated among
such Holders requesting additional inclusion in accordance with Section 5.11.
5.2 COMPANY REGISTRATION
(a) Subject to Section 5.2(e) below, if at any time or times after
the date hereof the Company shall determine to register any of its equity
securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights, the Company
will:
(i) Promptly give to each Holder written notice thereof; and
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(ii) Use its best efforts to include in such registration (and
any related qualification under blue sky laws or other compliance), except as
set forth in Section 5.2(c) below, and in any underwriting involved therein, all
the Registrable Securities specified in a written request or requests, made by
any Holder and received by the Company within ten (10) days after the written
notice from the Company described in (i) above is mailed or delivered by the
Company. Such written request may specify all or a part of a Holder's
Registrable Securities.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
5.2(a)(i) above. In such event, the right of any Holder to registration pursuant
to this Section 5.2 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders of securities of the Company with registration
rights to participate therein distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected by the Company.
(c) Notwithstanding any other provision of this Section 5.2, if the
representative of the underwriters in good faith advises the Company in writing
that marketing factors require a limitation on the number of shares to be
underwritten, the representative may (subject to the limitation set forth below)
exclude all Registrable Securities from, or limit the number of Registrable
Securities to be included in, the registration and underwriting. The Company
shall so advise all holders of securities requesting registration, and the
number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter as set forth in Section
5.11. If any person does not agree to the terms of any such underwriting, he,
she or it shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(d) If shares are so withdrawn from the registration or if the number
of shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, the Company shall then
offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares so withdrawn, with such shares
to be allocated among the persons requesting additional inclusion in accordance
with Section 5.11 hereof.
(e) This Section 5.2 shall not apply to a registration on any
registration form that does not permit secondary sales or to registrations
relating solely to (i) employee benefit plans, (ii) transactions pursuant to
Rule 145 or any other similar rule promulgated under the Securities Act or (iii)
securities issued in connection with mergers with or acquisitions of other
corporations by the Company.
5.3. EXPENSES
In the case of any registration under Sections 5.1 and 5.2 hereof, the
Company shall bear all costs and expenses of each such registration, including,
but not limited to, printing, legal and
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accounting expenses, Securities and Exchange Commission ("SEC") filing fees and
"blue sky" fees and expenses (the "Registration Expenses"); provided, however,
that the Company shall have no obligation to pay or otherwise bear (i) any
portion of the fees or disbursements of more than one (1) counsel for the
selling Holders of Registrable Securities in connection with the registration of
their Registrable Securities, and in any event shall not responsible for fees
for such counsel in excess of $10,000, or (ii) any portion of the underwriter's
commissions or discounts attributable to the Registrable Securities being
offered and sold by the Holders of Registrable Securities; and, provided
further, that if the Holders bear the Registration Expenses for any registration
proceeding commenced pursuant to this Agreement and subsequently withdrawn by
the Holders registering shares therein, such registration proceeding shall not
be counted as a requested registration pursuant to Section 5.1 hereof.
Furthermore, in the event that a withdrawal by the Holders is based upon
material adverse information relating to the Company that is different from the
information known or available (upon request from the Company or otherwise) to
the Holders requesting registration at the time of their request for
registration under Section 5.1, such registration shall not be treated as a
counted registration for purposes of Section 5.1 hereof, even though the Holders
do not bear the Registration Expenses for such registration.
5.4 OBLIGATIONS OF THE COMPANY
In the case of each registration effected by the Company pursuant to this
Agreement, the Company will keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, the Company will use its best efforts to:
(a) Keep such registration effective for a period of one (1) month or
until the Holder or Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
(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
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a Holder
from time to time may reasonably request;
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or incomplete in the light to the circumstances then existing;
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(e) Enter into any reasonable underwriting agreement required by the
proposed underwriter, if any, in such form and containing such terms as are
customary; provided, however, that no Holder shall be required to make any
representations or warranties other than with respect to its title to the
Registrable Securities and any written information provided by the Holder to the
Company, and if the underwriter requires that representations or warranties be
made and that indemnification be provided, the Company shall make all such
representations and warranties and provide all such indemnities, including,
without limitation, in respect of the Company's business, operations and
financial information and the disclosures relating thereto in the prospectus;
(f) Use its best efforts to register or qualify the securities covered by said
registration statement under the securities or "blue sky" laws of such
jurisdictions as any selling Holder may reasonably request, provided that the
Company shall not be required to register or qualify the securities in any
jurisdictions which require it to qualify to do business therein;
(g) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(h) Otherwise use its best efforts to comply with the securities laws
of the United States and other applicable jurisdictions and all applicable rules
and regulations of the SEC and comparable governmental agencies in other
applicable jurisdictions and make generally available to its stockholders, in
each case as soon as practicable, but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company which will
satisfy the provisions of Section 11(a) of the Securities Act;
(i) Obtain and furnish to each selling Holder, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable Securities
sold pursuant thereto), a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the Holders of a majority of the
Registrable Securities being sold may reasonably request; and
(j) Otherwise cooperate with the underwriter or underwriters, the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration of any Registrable Securities under this Agreement.
5.5 SUSPENSION
In the case of a registration for the sale of Registrable Securities, upon
receipt of any notice (a "Suspension Notice") from the Company of the happening
of any event which makes any statement made in the registration statement or
related prospectus untrue or which requires the making of any changes in such
registration statement or prospectus so that they will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, each Holder of
Registrable Securities registered under such registration statement shall
forthwith discontinue disposition of such Registrable Securities pursuant to
such registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed, and has
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received copies of any additional or supplemental filings which are incorporated
by reference in the prospectus; provided, however, that the Company shall not
give a Suspension Notice until after the registration statement has been
declared effective and shall not give more than one Suspension Notice to the
Holders in respect to all Registrable Securities and pursuant to this Section
5.5 during any period of 12 consecutive months and in no event shall the period
from the date on which any Holder receives a Suspension Notice to the date on
which any Holder receives either the Advice or copies of the supplemented or
amended prospectus (the "Suspension Period") exceed 60 days. In the event that
the Company shall give any Suspension Notice, the Company shall use its best
efforts and take such actions as are reasonably necessary to render the Advice
and end the Suspension Period as promptly as practicable.
5.6 INDEMNIFICATION
(a) Incident to any registration statement referred to herein, the
Company will indemnify and hold harmless each Holder who offers or sells any
such Registrable Securities in connection with such registration statement
(including its partners (including partners of partners and stockholders of any
such partners), and directors, officers, employees and agents of any of them (a
"Selling Holder"), and each person who controls any of them within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (a
"Controlling Person"), from and against any and all losses, claims, damages,
expenses and liabilities, joint or several (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, as the same
are incurred), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement
(including any related preliminary or definitive prospectus, or any amendment or
supplement to such registration statement or prospectus), (ii) any omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading, or (iii) any
violation by the Company of the Securities Act, any state securities or "blue
sky" laws or any rule or regulation thereunder in connection with such
registration; provided, however, that the Company will not be liable to the
extent that such loss, claim, damage, expense or liability arises from and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information furnished in writing to
the Company by such underwriter, Selling Holder or Controlling Person expressly
for use in such registration statement. With respect to such untrue statement or
omission or alleged untrue statement or omission in the information furnished in
writing to the Company by such Selling Holder expressly for use in such
registration statement, such Selling Holder will indemnify and hold harmless
each underwriter, the Company (including its directors, officers, employees and
agents), each other Holder (including its partners (including partners of
partners and stockholders of such partners) and directors, officers, employees
and agents of any of them, and each person who controls any of them within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)),
from and against any and all losses, claims, damages, expenses and liabilities,
joint or several, to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise to the same extent provided in the
immediately preceding sentence.
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(b) The foregoing indemnity provisions are subject to the condition
that, insofar as they relate to any violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or in the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity provisions shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(c) If the indemnification provided for in Section 5.6(a) above for
any reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
5.6, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the other
Selling Holders and the underwriters from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the other Selling Holders and the underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Holders and the underwriters shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Holders and the underwriting
discount received by the underwriters, in each case as set forth in the table on
the cover page of the applicable prospectus, bear to the aggregate public
offering price of the Registrable Securities. The relative fault of the Company,
the Selling Holders and the underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Holders or the underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5.6(c) were determined by
pro rata or per capita allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. In no event, however, shall a Selling Holder be
required to contribute any amount under this Section 5.6(c) in excess of the
lesser of (i) that proportion of the total of such losses, claims, damages or
liabilities indemnified against equal to the proportion of the total Registrable
Securities sold under such registration statement which are being sold by such
Selling Holder or (ii) the proceeds received by such Selling Holder from its
sale of Registrable Securities under such registration statement. No person
found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not found guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by the indemnified party under this
Section 5.6 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 the indemnifying party under this Section 5.6, deliver to
the indemnifying party a written notice of the commencement thereof, and the
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indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that the indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if, in the opinion of counsel for the
indemnifying party, 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.
(e) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5.6 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5.6 will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any officer, director, employee, agent or controlling person of the
indemnified parties.
5.7 INFORMATION BY HOLDER
Each Holder of Registrable Securities shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
5.8 RULE 144 REPORTING
In the event that the Company becomes subject to Section 13 or Section
15(d) of the Exchange Act, the Company shall use its best efforts to take all
action as may be required as a condition to the availability of Rule 144 or Rule
144A under the Securities Act (or any successor or similar exemptive rules
hereafter in effect). The Company shall furnish to any Holder, within 15 days of
a written request, a written statement executed by the Company as to the steps
it has taken to comply with the current public information requirement of Rule
144 or Rule 144A or such successor rules.
5.9 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS
The registration rights of the Holders of Registrable Securities under this
Agreement may be transferred or assigned by any Holder to (i) any general or
limited partner or other comparable affiliate of such Holder, (ii) any fund
managed by or associated with such Holder or (iii) any transferee or assignee of
such Holder's Registrable Securities who after such transfer or assignment will
hold at least fifty percent (50%) of the Registrable Securities owned by such
Holder on the date hereof; provided that the Company is given prior written
notice of such transfer or assignment setting forth the name and address of the
transferee or assignee and identifying the number of Registrable Securities so
transferred or assigned, and, provided further, that the transferee or assignee
of such rights assumes in writing the obligations of such Holder under this
Agreement.
5.10 MARKET STAND-OFF AGREEMENT
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In connection with a public offering by the Company, the Holders, if
requested in good faith by the Company and the managing underwriter of the
public offering, shall agree not to sell or otherwise transfer or dispose of any
securities of the Company held by them (except for any securities sold pursuant
to such registration statement) for a period following the effective date of the
applicable registration statement that in no event shall exceed 180 days.
Notwithstanding the foregoing, such an agreement shall not be required unless
all of the officers and directors and five percent (5%) or greater stockholders
of the Company and all other persons with registration rights enter into similar
agreements. In order to enforce the foregoing, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares of securities of every other person subject to the
foregoing restriction) until the end of such period.
5.11 ALLOCATION OF REGISTRATION OPPORTUNITIES
In any circumstance in which all of the Registrable Securities and other
shares of Common Stock of the Company (including shares of Common Stock issued
or issuable upon conversion of shares of any currently unissued series of
Preferred Stock of the Company) with registration rights (the "Other Shares")
requested to be included in a registration on behalf of the Holders or other
selling stockholders cannot be so included as a result of limitations of the
aggregate number of shares of Registrable Securities and Other Shares that may
be so included, the number of shares of Registrable Securities and Other Shares
that may be so included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares pro rata on the basis of the number
of shares of Registrable Securities and Other Shares that would be held by such
Holders and other selling stockholders, assuming conversion; provided, however,
that if any Holder or other selling stockholder does not request inclusion of
the minimum number of shares of Registrable Securities and Other Shares
allocated to him, her or it pursuant to the above-described procedure, the
remaining portion of his, her or its allocation shall be reallocated among those
requesting Holders and other selling stockholders whose allocations did not
satisfy their requests pro rata on the basis of the number of shares of
Registrable Securities and Other Shares that would be held by such Holders and
other selling stockholders, assuming conversion, and this procedure shall be
repeated until all of the shares of Registrable Securities and Other Shares
which may be included in the registration on behalf of the Holders and other
selling stockholders have been so allocated.
5.12 TERMINATION OF REGISTRATION RIGHTS
The rights of any Holder to request registration or inclusion in any
registration pursuant to this Agreement shall terminate upon the earlier of (i)
five (5) years after the closing of the Company's first Public Offering or (ii)
as to any Investor on such date after the closing of the Company's first Public
Offering as such Investor owns less then thirty percent (30%) of the number of
Registrable Securities originally purchased by such Investor.
6. MISCELLANEOUS.
6.1 TERM
This Agreement, except for the provisions set forth in Section 5, shall
terminate upon the closing of the Company's first Public Offering.
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6.2 SPECIFIC ENFORCEMENT
The Company and the Stockholders expressly agree that they will be
irreparably damaged if this Agreement is not specifically enforced. Upon a
breach or threatened breach of the terms, covenants and/or conditions of this
Agreement by any party, the Company and the Stockholders shall, in addition to
all other remedies, each be entitled to a temporary or permanent injunction,
without showing any actual damage, and/or a decree for specific performance, in
accordance with the provisions of this Agreement.
6.3 LEGEND
Each certificate evidencing any of the Shares shall bear a legend
substantially as follows:
The shares represented by this certificate are subject to the
terms and conditions of a certain Investor Rights Agreement
dated as of FEBRUARY __, 2000, as at any time amended, and may
not be sold, transferred or encumbered except in accordance
with the terms and provisions of said Agreement, a copy of
which is on file at the principal executive office of the
Company and will be furnished to the holder of this
certificate upon request and without charge.
6.4 NOTICES
Unless otherwise provided, any notice under this Agreement shall be given
in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified; (b) upon confirmation of receipt by fax by the party
to be notified; (c) one business day after deposit with a reputable overnight
courier, prepaid for overnight delivery and addressed as set forth in (d); or
(d) three days after deposit with the U.S. Post Office, postage prepaid,
registered or certified with return receipt requested and addressed to the party
to be notified at the address indicated for such party on the signature page, or
at such other address as such party may designate by 10 days' advance written
notice to the other parties given in the foregoing manner.
6.5 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
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 then outstanding Shares held by the Investors.
6.7 GOVERNING LAW; JURISDICTION; VENUE
This Agreement shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflict of laws.
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6.8 SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective successors and assigns of the parties.
6.9 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 this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
6.10 ENTIRE AGREEMENT; COUNTERPARTS
This Agreement constitutes the entire agreement between the parties about
its subject and supersedes all prior agreements. This Agreement may be executed
in two or more counterparts, which together shall constitute one instrument.
6.11 AUTHORIZATION
Each party represents that this Agreement has been duly authorized,
executed and delivered by such party and constitutes a valid and binding
obligation of such party, enforceable against such party in accordance with
its terms.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Lineo, Inc.
By:
------------------------------------
Xxxxx Xxxxxx, President and Chairman
Xxxx-Managed Capital, L.P.
By EMC Partners, L.P.,
its General Partner
---------------------------
By Xxxxxxx X. Xxxxxxxx
General Partner
Motorola, Inc.
By:
-----------------------
Its: -------------------
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Canopy Group, Inc.
By:
-----------------------
Its: -------------------
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SCHEDULE 1
INVESTORS
Xxxx-Managed Capital, L.P.
Motorola, Inc
The Canopy Group, Inc.
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