EXHIBIT 10.17
AMENDMENT NO. 1 TO
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT (this "Amendment No.
1") is made as of March __, 2000 by and among Lineo, Inc., a Delaware
corporation (the "Company"), the investors listed on Schedule 1 hereto
(individually and collectively, the "Series A Investors"), and the investors
listed on Schedule 2 hereto (individually and collectively, the "Series B
Investors"), with respect to that certain Investor Rights Agreement dated
February 17, 2000 by and among the Company and the Series A Investors (the
"Investor Rights Agreement").
WHEREAS, in connection with their purchase of shares of the Company's
Series A Convertible Preferred Stock, the Series A Investors were extended
certain registration, information and inspection rights as set forth in the
Investor Rights Agreement, and
WHEREAS, the Company is willing to grant registration, information and
inspection rights as set forth on EXHIBIT A and EXHIBIT B hereto, respectively,
to the Series B Investors on terms identical to those already granted to the
Series A Investors pursuant to the Investor Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein and in
the Series B Preferred Stock Purchase Agreement of even date herewith, the
parties hereto mutually agree to amend the Investor Rights Agreement, for the
benefit of the Series B Investors, to provide as follows:
1. DEFINITIONS.
A. The definition of "Registrable Securities" set forth in the Investor
Rights Agreement is hereby deleted in its entirety and replaced with the
following definition:
"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 or Series B Convertible Preferred Stock, $.001 par value per
share, of the Company ("Series B 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 or Series B 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 or Series B 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
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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.
B. For purposes of the definition of "Holder" in Section 1 and for
purposes of Sections 3, 4 (regarding "Confidentiality Agreement," as set forth
in EXHIBIT C hereto) and 5 of the Investor Rights Agreement only, the definition
of "Investor" and "Investors" as set forth in the preamble to the Investor
Rights Agreement is hereby amended by adding the Series B Investors such that,
for purposes of the definition of "Holder" in Section 1 and for purposes of
Sections 3, 4 and 5 only, each of the Series A Investors and Series B Investors
shall individually be considered an "Investor," and collectively they shall be
considered "Investors."
2. MISCELLANEOUS.
2.1 RATIFICATION. Except as expressly set forth in this Amendment No.
1, the terms of the Investor Rights Agreement shall remain in full force and
effect. In the event of a conflict between the terms of this Amendment No. 1 and
the terms of the Investor Rights Agreement, the terms of this Amendment No. 1
shall control.
2.2 SPECIFIC ENFORCEMENT. The Company, the Series A Investors and the
Series B Investors expressly agree that they will be irreparably damaged if this
Amendment No. 1 is not specifically enforced. Upon a breach or threatened breach
of the terms, covenants and/or conditions of this Amendment No. 1 by any party,
the Company and the Series A and B Investors 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 Amendment No. 1.
2.3 NOTICES. Unless otherwise provided, any notice under this Amendment
No. 1 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.
2.4 GOVERNING LAW. This Amendment No. 1 shall be governed by and
construed under the laws of the State of Delaware without regard to principles
of conflict of laws.
2.5 SUCCESSORS AND ASSIGNS. The terms and conditions of this Amendment
No. 1 shall inure to the benefit of and be binding on the respective successors
and assigns of the parties.
2.6 SEVERABILITY. If one or more provisions of this Amendment No. 1 are
held to be unenforceable under applicable law, such provision shall be excluded
from this Amendment No.
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1, and the balance of this Amendment No. 1 shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
2.7 COUNTERPARTS. This Amendment No. 1 may be executed in two or more
counterparts, which together shall constitute one instrument.
2.8 AUTHORIZATION. Each party represents that this Amendment No. 1 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.
2.9 LEGEND. Each certificate evidencing any of the shares of capital
stock of the Company owned by the Series B Investors 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 MARCH 15,
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.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first above written.
COMPANY:
Lineo, Inc.,
a Delaware corporation
By:________________________________________
Xxxxx Xxxxxx, President and Chairman
SERIES A INVESTORS
Xxxx-Managed Capital, L.P.
By EMC Partners, L.P.,
its General Partner
By____________________________
Xxxxxxx X. Xxxxxxxx
General Partner
Motorola, Inc.
By: ______________________
Its: __________________
The Canopy Group, Inc.
By: ______________________
Its: __________________
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SERIES B INVESTORS
Rainier Investors, LLC
By__________________________________
Xxxxxxx X. Xxxxxxxx, Member
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SCHEDULE 1
SERIES A INVESTORS
Xxxx-Managed Capital, L.P.
Motorola, Inc
The Canopy Group, Inc.
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SCHEDULE 2
SERIES B INVESTORS
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EXHIBIT A
REGISTRATION RIGHTS
5. REGISTRATION RIGHTS.
5.1. REQUEST FOR REGISTRATION
(a) If the Company shall receive at any time after the earlier of (i)
February 17, 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, 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
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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
(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
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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 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.
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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;
(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,
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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
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
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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.
(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
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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
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
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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
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.
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EXHIBIT B
INFORMATION AND INSPECTION RIGHTS
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.
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EXHIBIT C
CONFIDENTIALITY AGREEMENT
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 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.
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