EXHIBIT 4.3
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT is made as of July 2, 1997
by and among the stockholders listed on Schedule I hereto (individually, a
"Stockholder" and collectively, the "Stockholders") and Mission Critical
Software, Inc., a Delaware corporation, (the "Company").
WHEREAS, the Stockholders are the holders of all of the outstanding shares of
the Common Stock, par value $.001 per share, of the Company (the "Common
Stock"), all of the outstanding shares of the Series A Convertible Preferred
Stock, par value $.001 per share, of the Company (the "Series A Stock"), all of
the outstanding shares of Series B Convertible Preferred Stock, par value $.001
per share, of the Company (the "Series B Stock"), and all of the outstanding
shares of Series C Convertible Preferred Stock, par value $.001 per share, of
the Company (the "Series C Stock" and together with the Series A Stock and the
Series B Stock, the "Preferred Stock"); and
WHEREAS, the holders of the Common Stock, the Series A Stock and the Series B
Stock and the Company are parties to a Stockholders Agreement dated as of
September 4, 1996 (the "Original Agreement"); and
WHEREAS, the holders of Series C Stock, pursuant to that certain Series C
Convertible Preferred Stock Purchase Agreement dated as of the date hereof (the
"Purchase Agreement"), have agreed to purchase an aggregate of 3,450,000 shares
of Series C Stock; and it is a condition precedent to the closing of such
purchase and sale that the Company and the Stockholders enter into this
Agreement, thereby amending and restating the Original Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto
covenant and agree as follows:
1. GENERAL PROVISIONS.
1.1. SHARES SUBJECT TO THIS AGREEMENT. The Stockholders expressly agree
that, unless otherwise specified herein, the terms and restrictions of this
Agreement shall apply to the Common Stock and the Preferred Stock, and all other
equity securities of the Company now or hereafter issued (collectively referred
to herein as the "Shares") which any of them now owns or hereafter acquires by
any means, including without limitation by purchase, assignment or operation of
law, or as a result of any stock dividend, stock split, reorganization,
reclassification, whether voluntary or involuntary, or other similar
transaction, and to any shares of capital stock of any successor in interest of
the Company, whether by sale, merger, consolidation or other similar
transaction, or by purchase, assignment or operation of law. Without limiting
the foregoing, the defined terms "Preferred Stock" and "Shares" as used herein
expressly include all shares of Common Stock of the Company issued on conversion
of the Series A Stock, Series B Stock and Series C Stock, in accordance with the
Company's Amended and Restated Certificate of Incorporation.
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1.2. NO PARTNERSHIP RELATIONSHIP. Notwithstanding, but not in limitation of,
any other provision of this Agreement, the parties understand and agree that the
creation, management and operation of the Company shall not create or imply a
general partnership between or among the Stockholders and shall not make any
Stockholder the agent or partner of any other Stockholder for any purpose.
2. ELECTION OF THE BOARD OF DIRECTORS.
2.1. ELECTION OF DIRECTORS. Each of the Stockholders agrees to vote his, her
or its Shares (and any other shares of the capital stock of the Company over
which he, she or it exercises voting control) and to take such other actions as
are necessary, so as to fix the number of members of the Board of Directors of
the Company at nine (9) and (to the extent of the voting rights of the shares of
capital stock held by such party) to elect and thereafter continue in office as
directors of the Company:
(i) one (1) individual who shall be designated by International
Capital Partners, Inc. and Xxxxxxx Capital Group, LLC (the
"ICP Director");
(ii) one (1) individual who shall be designated by New
Enterprise Associates VII, Limited Partnership ("NEA VII")
(the "NEA Director");
(iii) one (1) individual who shall be designated by Austin
Ventures V, L.P. (the "Austin Ventures Director");
(iv) one (1) individual who shall be designated by JMI Equity
Fund III, L.P. (the "JMI Director");
(v) four (4) individuals who shall be designated by the
Stockholders owning a majority of the Shares of Common
Stock and Series A Stock voting together (the "Common
Directors");
(vi) one (1) individual who shall not be an employee of the
Company and who shall be designated by all of the Common
Directors and then approved by each of the ICP Director,
the NEA Director, the Austin Ventures Director and the JMI
Director (the "Independent Director").
The Stockholders agree that no individual designated as a Common Director
or the Independent Director shall be an ancestor, descendent, spouse, sibling,
or spouse or descendent of a sibling of any other director of the Company. As
used herein, the ICP Director, the NEA Director, the Austin Ventures Director
and the JMI Director are collectively referred to as the "VC Directors."
As of the date hereof, each of the parties agrees that (i) Xxxxxxx X. Xxxx
shall be designated as the ICP Director, (ii) Xxxxx X. Xxxxxxx shall be
designated as the NEA Director,
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(iii) Xxxx X. Xxxxxxxx shall be designated the Austin Ventures Director, (iv)
Xxxx Xxxxxx shall be designated the JMI Director, (v) Xxxxxx X. Xxxxxxxxx, Xxxxx
X. Xxxxxxxx and Xxxx X. Xxxxxxx, Xx. shall be designated as the Common
Directors, and (vi) E. Xxxxxxxxx Xxxxxxxxx shall be designated as the
Independent Director. As of the date hereof, one Common Director shall be
undesignated. Without limiting the generality of the foregoing, at each annual
meeting of the stockholders of the Company, and at each special meeting of the
stockholders called for the purpose of electing directors of the Company, and at
any time at which the stockholders of the Company have the right to, or shall,
elect directors of the Company, then, and in each event, each Stockholder shall
vote or cause to be voted all Shares owned or controlled by him, her or it (or
shall consent in writing in lieu of a meeting of stockholders of the Company, as
the case may be) to set the number of, and to elect persons as, directors of the
Company in accordance with this Section 2.1.
2.2. REMOVAL OF BOARD MEMBERS. Each of the Stockholders agrees to vote
his, her or its Shares (and any other shares of the capital stock of the Company
over which he, she or it exercises voting control) and take such other actions
as are necessary, for the removal of any director upon the request of the party
or parties designating such director or in the case of the Independent Director
upon the unanimous consent of either (i) all of the VC Directors or (ii) all of
the Common Directors. Any such removal shall create a vacancy which shall be
filled in accordance with Section 2.3.
2.3. VACANCIES ON THE BOARD OF DIRECTORS. Each of the Stockholders agrees
to vote his, her or its Shares (and any other shares of the capital stock of the
Company over which he, she or it exercises voting control) and take such other
actions as are necessary, in such manner as shall be necessary or appropriate to
ensure that any vacancy on the Board of Directors of the Company shall be filled
either (i) in accordance with Section 2.1 or (ii) pending such shareholder
action, by the vote of a majority of the Board of Directors.
2.4. OBLIGATION OF THE COMPANY. The Company hereby agrees not to take any
action or fail to object to any action which would be inconsistent with the
parties' exercise of their obligations under this Section 2.
2.5. ELECTION OF DIRECTORS. The Company shall provide the Stockholders
with 30 days' prior written notice of any meeting at which directors are to be
elected. Each group of Stockholders designating a director hereunder shall give
written notice to the Company no later than 20 days prior to such meeting, of
the persons designated by such group as nominees for election as directors. The
Company agrees to nominate and recommend for election as directors only the
individuals designated, or to be designated, pursuant to Section 2.1. If such
Stockholders fail to give notice to the Company as provided above, it shall be
deemed that the designee[s] of such Stockholders then serving as director[s]
shall be their designee[s] for reelection.
2.6. REIMBURSEMENT OF EXPENSES. The Company shall pay the reasonable out-
of-pocket expenses of all Directors (other than any Directors who are employees
of the Company, who shall be reimbursed in accordance with the Company's
existing employee travel policy) in attending meetings of the Board of Directors
and committees thereof (including, without limitation, travel, room and board).
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2.7. COMMITTEES OF THE BOARD. The Stockholders shall cause their director-
nominees to vote in favor of (i) the establishment of a Compensation Committee
comprised solely of each VC Director and the Independent Director to oversee (A)
the compensation of all executive officers of the Company, (B) the compensation
of all employees of the Company earning $100,000 or more per year, and (C) all
awards of stock, stock options or other form of equity compensation to officers,
employees and consultants of the Company, whether pursuant to an equity
incentive plan approved by the Company's shareholders or otherwise, and (ii) the
appointment of each VC Director to any other committee of the Board of Directors
which may from and after the date hereof be established.
2.8. INDEMNIFICATION AND INSURANCE. The Company shall indemnify each
member of the Board of Directors to the fullest extent provided by law and shall
advance expenses in connection with defending such claims to the extent provided
in the By-laws of the Company as such By-laws exist on the date hereof. Upon
the consummation of an initial public offering of the Common Stock of the
Company, the Company shall obtain directors liability insurance with per-claim
coverage of at least $1,000,000.
3. RIGHT OF FIRST REFUSAL ON COMMON STOCK AND SERIES A STOCK.
3.1. RESTRICTED TRANSFER. Except as otherwise provided for in Sections
3.2 and 3.4 below, and except in connection with transfers to the Company, each
holder of Common Stock and each holder of Series A Stock listed on Schedule II
hereto (each, a "Selling Stockholder") agrees that he, she or it shall not sell,
transfer, pledge, hypothecate or otherwise dispose of, by operation of law or
otherwise (collectively, "transfer"), any of the Common Stock or Series A Stock
held by him, her or it except for transfers pursuant to this Agreement.
3.2. PERMITTED TRANSFERS. A Selling Stockholder may transfer Common Stock
or Series A Stock (a "Permitted Transfer") to or for the benefit of any
Permitted Transferee (as defined below), provided that such Common Stock and
Series A Stock shall remain subject to this Agreement and such Permitted
Transferee shall, as a condition to such transfer, deliver to the Company a
written instrument confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement. For the purposes of this Agreement, a
"Permitted Transferee" shall mean (i) an ancestor, descendant, sibling or spouse
of an individual Selling Stockholder or to any trust for the benefit of, or
partnership solely owned by, any such persons or to a trust for the benefit of,
or partnership solely owned by, the Selling Stockholder, provided such transfer
does not effect any change in the voting control of the Common Stock or Series A
Stock, as the case may be, and (ii) an entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, a corporation or partnership Selling Stockholder.
3.3. SALE NOTICE. At least twenty (20) days prior to making any transfer
of Common Stock or Series A Stock other than a Permitted Transfer, a Selling
Stockholder (and/or a Permitted Transferee of a Selling Stockholder), shall
deliver a written notice (the "Sale Notice") to each holder of Series B Stock
(each, a "Series B Stockholder"), each holder of Series C Stock (each, a "Series
C Stockholder", and together with the Series B Stockholders, the "Series B and C
Stockholders") and to the Company disclosing in reasonable detail the identity
of the proposed transferees and the terms and conditions of the proposed
transfer.
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3.4. RIGHT OF FIRST REFUSAL. The Company may elect to purchase some or all
of the Common Stock and/or Series A Stock to be transferred (the "Offered
Stock") upon the terms and conditions set forth in the Sale Notice by delivering
a written notice of such election to the transferring Selling Stockholder (the
"Offeror") and the Series B and C Stockholders within ten (10) business days
after the date of delivery of the Sale Notice by the Offeror as determined
pursuant to Section 6.1 below (the "Delivery Date"). If the Company fails to
elect to purchase all of the Offered Stock, it shall promptly notify the Series
B and C Stockholders and the Series B and C Stockholders may elect to purchase
some or all of the Offered Stock which the Company did not elect to purchase
("Remaining Offered Stock") upon the terms and conditions set forth in the Sale
Notice by delivering a written notice of such election to the Company, the
Offeror and the other Series B and C Stockholders within twenty (20) business
days after the Delivery Date. If more than one Series B and C Stockholder elects
to purchase the Remaining Offered Stock, the Remaining Offered Stock shall be
apportioned among such electing Series B and C Stockholders pro rata to their
respective holdings of the Common Stock issued or issuable upon conversion of
such Series B and C Stockholders' shares of Series B Stock or Series C Stock, as
the case may be. The closing of the purchase and sale of the Offered Stock and
Remaining Offered Stock shall take place on a date agreed upon by the Offeror
and the Company and/or the Series B and C Stockholders purchasing the remaining
shares of Common Stock or Series A Stock, as the case may be, but in any event
within thirty (30) business days after the Delivery Date, at the principal
office of the Company, or such other place as may be agreed to by the Offeror,
the Company and such Series B and C Stockholders. Such purchase and sale shall
take place upon the terms and conditions set forth in the Sale Notice that in
the event that the transaction described in a Sale Notice involves in whole or
in part the payment of non-cash consideration, or the payment of consideration
over time, the Company and any purchasing Series B and C Stockholder shall have
the right to elect, upon exercise of their rights set forth in this Section 3,
to pay to the Selling Stockholders in full consideration for the Offered Stock
the market price of such securities which shall be the present cash value of the
consideration described in the Sale Notice as determined by the Board of
Directors of the Company in good faith. If the Company and the Series B and C
Stockholders fail to elect to purchase all of the Offered Stock, the Offeror
may, subject to Section 4, transfer the Offered Stock not purchased by the
Company and the Series B and C Stockholders at a price and on terms no more
favorable to the transferee than those specified in the Sale Notice during the
120-day period immediately following the date on which the Series B and C
Stockholder's right of first refusal expired. Any Offered Stock not sold or
transferred during such 120-day period will again be subject to the provisions
of this Section 3.
3.5. EFFECT OF PROHIBITED TRANSFER. The Company shall not be required (a)
to transfer on its books any of the Common Stock or Series A Stock which shall
have been sold or transferred in violation of any of the provisions set forth in
this Agreement, or (b) to treat as owner of such Common Stock or Series A Stock
or to pay dividends to any transferee to whom any such Common Stock or Series A
Stock shall have been so sold or transferred.
3.6. ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, ETC. If from time to
time during the term of this Agreement there is any stock split-up, stock
dividend, stock distribution or other reclassification of the Common Stock or
Series A Stock of the Company, any and all new, substituted or additional
securities to which a Selling Stockholder is entitled by reason of his, her or
its ownership of Common Stock or Series A Stock shall be immediately subject to
the provisions of this Agreement in the same manner and to the same extent as
the Shares.
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3.7. ACQUISITION OF COMMON STOCK AND SERIES A STOCK BY SERIES B AND C
STOCKHOLDERS. Notwithstanding anything in this Agreement to the contrary,
shares of Common Stock and Series A Stock acquired pursuant to this Agreement by
a Series B and C Stockholder not listed on Schedule II shall no longer be
subject to the transfer restrictions of Sections 3 and 4 hereto.
4. RIGHT OF CO-SALE ON COMMON STOCK.
4.1. CO-SALE RIGHT. If the Company and/or Series B and C Stockholders do
not elect to purchase all of the Offered Stock from the Selling Stockholder
pursuant to Section 3 above, any Series B and C Stockholder not electing to
purchase any of the Offered Stock pursuant to Section 3 above may elect to
participate in the contemplated sale by delivering written notice to the Selling
Stockholder and the Company within twenty (20) business days after receipt of
the Sale Notice. If such Series B and C Stockholder (each a "Participating
Seller") elects to so participate, such Participating Seller shall be entitled
to sell, at the same price and on the same terms, such number of shares of
Common Stock as is determined by multiplying the number of shares of Offered
Stock (or the number of shares of Common Stock into which the Offered Stock is
convertible, as the case may be) by a fraction, the numerator of which is the
number of Shares owned by such Participating Seller (assuming the conversion of
such Participating Seller's Preferred Stock into shares of Common Stock) at the
time of the transfer and the denominator of which is the number of Shares owned
by all Series B and C Stockholders and the Selling Stockholders at the time of
the transfer (assuming the conversion of all Preferred Stock into Common Stock).
4.2. OVERALLOTMENT. If any Series B and C Stockholder does not elect to
fully participate in the Selling Stockholder's sale pursuant to this Section 4,
the Selling Stockholder shall promptly give notice of such failure to the
Participating Sellers who did so elect. Such notice may be made by telephone if
confirmed in writing within two (2) days. Such Participating Sellers shall have
five (5) days from the date such notice was given to agree to sell their pro
rata share of the unsold portion. For purposes of this Section 4.2, a
Participating Seller's pro rata share shall be the ratio of (x) the number of
Shares (assuming the conversion of all shares of Preferred Stock into Common
Stock) held by such Participating Seller to (y) the total number of Shares
(assuming the conversion of all shares of Preferred Stock into Common Stock)
held by all Participating Sellers.
4.3. DELIVERY OF CERTIFICATES. The Participating Sellers shall effect
their participation in the sale by promptly delivering to the Selling
Stockholder for transfer to the prospective purchaser one or more certificates,
properly endorsed for transfer, which represent:
(a) the type and number of shares of Common Stock which the
Participating Seller elects to sell; or
(b) that number of shares of Series B Stock and Series C Stock which
is at such time convertible into the number of shares of Common Stock (or the
number of shares of Common Stock into which the Offered Stock is convertible, as
the case may be) which the Participating Seller elects to sell; PROVIDED,
HOWEVER, that if the prospective purchaser objects to the delivery of Series B
Stock or Series C Stock in lieu of Common Stock or Series A Stock, the
Participating Seller shall convert such Series B Stock or Series C Stock into
Common Stock and deliver Common Stock as provided in this paragraph 4.3. The
Company agrees to make any such conversion concurrent with the actual transfer
of such shares to the purchaser.
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4.4. CONSUMMATION OF SALE. The stock certificate or certificates that the
Participating Sellers deliver to the Selling Stockholder pursuant to paragraph
4.3 shall be transferred to the prospective purchaser along with the stock
certificate or certificates representing the Selling Stockholders' Shares to be
sold by the Selling Stockholder, such number of Selling Stockholders' Shares to
be correspondingly reduced by the Participating Sellers' shares, in consummation
of the sale of the Selling Stockholders' Shares pursuant to the terms and
conditions specified in the Sale Notice, and the purchaser of such shares shall
concurrently therewith remit to each Participating Seller and to the Selling
Stockholder that portion of the sale proceeds to which such Participating Seller
or the Selling Stockholder, as the case may be, is entitled by reason of its
participation in such sale. To the extent that any prospective purchaser or
purchasers prohibit such assignment or otherwise refuse to purchase shares or
other securities from a Participating Seller who is exercising its rights of co-
sale hereunder, the Selling Stockholder shall not sell to such prospective
purchaser or purchasers any Selling Stockholders' Shares unless and until,
simultaneously with such sale, the Selling Stockholder shall purchase such
shares or other securities from such Participating Seller for the same
consideration and on the same terms and conditions as the proposed transfer
described in the Sale Notice.
5. MISCELLANEOUS.
5.1. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered mail, return receipt requested, postage prepaid.
If to the Stockholders: at their respective addresses listed on
Schedule 1
With a copy to: International Capital Partners, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Managing Partner
If to the Company: Mission Critical Software, Inc.
000 Xxxxx Xxxx Xxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, President
With a copy to: Xxxxx & Xxxxxxxxx
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Xx., Esq.
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
mail, on the fifth business day following the day such mailing is made.
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5.2. RESTRICTIVE LEGEND. All certificates representing Common Stock or
Preferred Stock shall have affixed thereto a legend in substantially the
following form, in addition to any other legends that may be required under
federal or state securities laws:
"The shares of stock represented by this certificate are subject to
transfer restrictions and voting agreements set forth in a certain Amended
and Restated Stockholders' Agreement dated as of July 2, 1997 among the
corporation, the registered owner of this certificate (or his predecessor
in interest) and others, and such Agreement is available for inspection
without charge at the offices of the corporation."
If requested by a holder of Common Stock or Preferred Stock, the Company
will remove any legend set forth on the certificate representing such shares of
Common Stock or Preferred Stock, unless counsel to the Company advises the
Company that such legend is necessary or advisable in light of contractual
obligations or is necessary in light of provisions of applicable law.
5.3. TRANSFERS AMONG XXXXXXX STOCKHOLDERS. Stockholders owning shares of
Common Stock or Preferred Stock and who are party to an investment advisory
agreement with Xxxxxxx Capital Group LLC ("Xxxxxxx Stockholders") may transfer,
without provision of an opinion of counsel and regardless of any legends stated
on the stock certificates representing such shares, such Common Stock or
Preferred Stock to or for the benefit of any other Xxxxxxx Stockholder (each, a
"Xxxxxxx Transferee"); provided that such Common Stock and Preferred Stock shall
remain subject to this Agreement and such Xxxxxxx Transferee shall, as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Agreement.
5.4. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
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5.5. TERMINATION. This Agreement shall terminate and shall be of no
further force or effect upon the conversion of all of the outstanding shares of
Preferred Stock into Common Stock under the Company's Amended and Restated
Certificate of Incorporation.
5.6. MODIFICATIONS AND AMENDMENTS. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by (a)
the Company, (b) the holders of record of more than 66 2/3% of the Common Stock
and Series A Stock, voting together, exclusive of Common Stock issued on
conversion of Series B Stock and Series C Stock, and (c) the holders of record
of more than 66 2/3% of the Common Stock issued or issuable on conversion of the
Series B Stock and Series C Stock voting together as a class. Notwithstanding
the foregoing, no amendment shall affect the right of a Stockholder or group of
Stockholders to designate a representative to the Board of Directors as provided
in Section 2 without the written consent of such Stockholder, or in the case of
a group of Stockholders holders of 66 2/3% of the Shares held by such group.
5.7. WAIVERS AND CONSENTS. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by written
document executed by the party (or in the case of the Stockholders, the
percentage of such group set forth in Section 5.5) entitled to the benefits of
such terms or provisions. No such waiver or consent shall be deemed to be or
shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent shall be effective only in the specific instance and for the purpose for
which it was given, and shall not constitute a continuing waiver or consent.
5.8. ASSIGNMENT; BENEFIT. The rights and obligations under this Agreement
may be assigned by any party hereto in connection with an assignment of Shares,
to the extent permitted hereby, and provided that such transferee shall, as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Agreement. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors and permitted
transferees and assigns of each party hereto; provided however, that no such
succession in interest or permitted transfer or assignment shall be effective
unless and until such successor or permitted transferee or assign shall agree in
writing to be bound by the terms hereof. Nothing in this Agreement shall be
construed to create any rights or obligations except among the parties hereto,
and no person or entity shall be regarded as a third-party beneficiary of this
Agreement.
5.9. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
5.10. SEVERABILITY. In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Agreement shall be unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall nevertheless remain in full force
and effect.
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5.11. HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
5.12. ENFORCEMENT. Each of the parties hereto acknowledges and agrees
that the rights acquired by each party hereunder are unique and that irreparable
damage would occur in the event that any of the provisions of this Agreement to
be performed by the other parties were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, in addition to any
other remedy to which the parties hereto are entitled at law or in equity, each
party hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement by any other party and to enforce specifically the
terms and provisions hereof in any federal or state court to which the parties
have agreed hereunder to submit to jurisdiction.
5.13. NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing among the parties hereto, shall operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
5.14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the parties hereto in this Agreement or in any other
agreement, certificate or instrument provided for or contemplated hereby, shall
survive (i) the execution and delivery hereof, and (ii) any investigations made
by or on behalf of the parties. No claim shall be made by a party for any
alleged misrepresentation or breach of warranty by any other party unless notice
for such claim shall have been given to such other party in accordance with the
notice provision hereof.
5.15. 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed by their duly authorized representatives, as of
the date first written above.
MISSION CRITICAL SOFTWARE, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Title: President
STOCKHOLDERS
MISSION CRITICAL SOFTWARE I, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Chairman
NEW ENTERPRISE ASSOCIATES VI, LIMITED
PARTNERSHIP
By: NEA Partners VI, Limited Partnership
its general partner
By:
-----------------------------
General Partner
NEW ENTERPRISE ASSOCIATES VII, LIMITED
PARTNERSHIP
By: NEA Partners VII, Limited Partnership
its general partner
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
General Partner
NEA PRESIDENTS' FUND, L.P.
By: NEA General Partners, L.P.
its general partner
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
General Partner
11
NEA VENTURES 1996, L.P.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: Vice President
INTERNATIONAL CAPITAL PARTNERS, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Title: President and Managing Partner
XXXXXXX CAPITAL GROUP LLC, as agent and
attorney-in-fact for certain of the investors
as indicated on Schedule I
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------
Title: Principal
AUSTIN VENTURES V, L.P.
By: AV Partners V, L.P.
its general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------
Title: General Partner
COMMERCE FUNDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
President
12
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx, Xx.
---------------------------------
Xxxx X. (Mick) Koffend, Jr.
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
/s/ E. Xxxxxxxxx Xxxxxxxxx
---------------------------------
E. Xxxxxxxxx Xxxxxxxxx
/s/ Xxxxx X. XxXxxxx
---------------------------------
Xxxxx X. XxXxxxx
/s/ Xxxxx X. Xxxxxxxxx by X.X. Xxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Goran Rynger by X.X. Xxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
13
/s/ Xxxxxx X. Xxx
---------------------------------
Xxxxxx X. Xxx
/s/ Xxxxxxxx X.X. Xxxxxx
---------------------------------
Xxxxxxxx X.X. Xxxxxx
/s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
14
JMI EQUITY FUND III, L.P.
By: JMI Associates III, L.L.C.
its general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Managing Member
15
SCHEDULE 1
Stockholders of Mission Critical Software, Inc.
NAME ADDRESS
---- -------
Mission Critical Software I, Inc. 000 Xxxxx Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
New Enterprise Associates VI, Limited c/o New Enterprise Associates
Partnership 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
New Enterprise Associates VII, Limited c/o New Enterprise Associates
Partnership 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA President's Fund, L.P. c/o New Enterprise Associates
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA Ventures 1996, L.P. c/o New Enterprise Associates
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Commerce Funding Corporation Xxxxxxx X. Xxxxxx, President
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Austin Ventures V, L.P. 000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
International Capital Partners, Inc. 000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Managing Partner
JMI Equity Fund 000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxx 00 Xxx Xxxxxx Xx.
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 00 Xxxxx Xxxx Xxx Xxxx
#0000
Xxxxxxx, XX 00000
Xxxx X. (Xxxx) Xxxxxxx, Jr. 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
1
NAME ADDRESS
---- -------
Xxxxxx X. Xxx 0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 00000 Xxxxxxxxx Xxxx
Xxxx, XX 00000
Xxxxxx Xxxxxxxx 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxx 0000 Xxxxxxxxxx
Xxxxxxx, XX 00000
E. Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx X. XxXxxxx 0 Xxx Xxxxxx, Xxx 0000
Xxxxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx 0000 X. Xxxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxx XX Xxxxxx 000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxxx Xxxxxxxxx XX
X-00000 Xxxx
Xxxxxx
Xxxxx and Xxxx Xxxxxxx 000 Xxxx Xxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
2
*A. Xxxxx Xxxxxxx See footnote below
*Xxxxxx X. Xxxxxxx See footnote below
*Alexa X. Xxxxxxx See footnote below
*Alza Corporation Retirement Plan See footnote below
*Xxxxxx Xxxxxx Xxxxxxx See footnote below
*Xxxxxxxx School General Investment Fund See footnote below
*Xxxxxx School Ltd. - Endowment Fund See footnote below
*State of Oregon PERS/ZCG See footnote below
*Xxxxx Xxxxxxx See footnote below
*Xxxx Xxxxxx Foundation See footnote below
*Xxxxxxxxx Xxxxxx Xxxxxxx Trust See footnote below
*Xxxxxx & Xxxxx Xxxxxxx JTWROS See footnote below
*Xxxxxxx Xxxxxxxx See footnote below
*Xxxx X. Xxxx See footnote below
*Xxxx Xxx X. Xxxxxxxx Trust for Self See footnote below
*Xxxx Xxx Xxxxxxxx Raiser See footnote below
*Xxxxxx Trust Co. of the Bahamas Ltd. See footnote below
*Xxxxxx X. Xxxxxxx See footnote below
*Xxxxxxx Xxxxxxxxxx of NY See footnote below
*Psychology Associates See footnote below
*Tab Products Co. Pension Plan See footnote below
*The Xxxxxx Xxxxxxxx Family Trust See footnote below
*The Xxxxxxx Xxxxxx Foundation See footnote below
*The Xxxxxx Investment Partnership I, L.P. See footnote below
*Van Loben Sels Foundation See footnote below
*Xxxxxx Investment Group Ltd. See footnote below
*Public Employees Retirement System of Idaho See footnote below
------------------
* An asterisk next to a stockholders name indicates that the stockholder has
designated Xxxxxxx Capital Group LLC as his, her or its agent and attorney-in-
fact. A copy of the Limited Power of Attorney signed by the Stockholder has
been provided to Mission Critical Software, Inc. The address of all such
stockholders is c/o Zesiger Capital Group LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000.
3
*Xxxxx Family LLC See footnote below
*The Trustees of Amherst College See footnote below
* An asterisk next to a stockholders name indicates that the stockholder has
designated Xxxxxxx Capital Group LLC as his, her or its agent and attorney-in-
fact. A copy of the Limited Power of Attorney signed by the Stockholder has
been provided to Mission Critical Software, Inc. The address of all such
stockholders is c/o Zesiger Capital Group LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000.
4
SCHEDULE II
Selling Stockholders under Section 3
Mission Critical Software I, Inc.
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. (Xxxx) Xxxxxxx, Jr.
Xxxxxx Xxxxxxxx
E. Xxxxxxxxx Xxxxxxxxx
1
