EXHIBIT 4.2
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement") is made and entered into
as of July 10, 1998 by and among Visio Corporation, a Washington corporation
("Buyer"), and the stockholders of Seller listed on Schedule A hereto.
RECITALS
A. Pursuant to the provisions of that certain Agreement and Plan of Merger
dated as of July 10, 1998 (the "Merger Agreement"), by and between Buyer, VMS-1,
Inc., a Delaware corporation ("Merger Sub"), Kaspia Systems, Inc., a Delaware
corporation ("Seller"), and certain of the stockholders of Seller, the parties
thereto intend to effect the merger of Merger Sub with and into Seller (the
"Merger").
B. To induce the stockholders of Seller (the "Stockholders") to execute
and deliver the Merger Agreement and to consummate the transactions contemplated
thereby, Buyer desires to provide to the Stockholders, on the terms and subject
to the conditions set forth herein, certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Securities Act"), and applicable state securities laws with
respect to the shares of Buyer Common Stock to be issued in the Merger.
C. The execution and delivery of this Agreement in the form hereof are a
condition precedent to the obligations of the parties under the Merger
Agreement.
D. Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Merger Agreement. In the event of any conflict between
the terms of this Agreement and the Merger Agreement, the terms of the Merger
Agreement shall prevail.
AGREEMENT
In consideration of the terms hereof, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms not otherwise defined in
this Agreement shall have the following respective meanings:
"Commission" shall mean the United States Securities and Exchange
Commission.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement on Form
S-3 (or such substitute or replacement Form as the Commission shall have then
approved) with the Commission in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise stated
below, incurred by Buyer in complying with Section 2, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for Buyer, and blue sky fees and
expenses.
"Registrable Securities" shall mean the shares of Buyer Common Stock to be
issued to the Stockholders in connection with the Merger.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the resale of the Registrable
Securities by the Stockholders.
"Selling Period" shall mean the period commencing on the date on which the
registration statement is declared effective by the Commission and ending on the
earlier of (i) the date that is one year after such registration statement is
declared effective and (ii) the date on which all of the Registrable Securities
have been sold or distributed by the Stockholders.
"Stockholder Representative" shall mean Xxxxxxx X. Xxxxx or any successor
representative to the Stockholders who is duly appointed in accordance with
Section 6.
2. OBLIGATIONS OF BUYER
2.1 MANDATORY REGISTRATION
Buyer and the Stockholders shall cooperate with respect to, and Buyer shall
promptly prepare and file with the Commission no later than thirty (30) days
after the Closing Date, a registration statement on Form S-3 under the
Securities Act with respect to the resale of all the Registrable Securities
(including, without limitation, appropriate qualification under applicable blue
sky or other state securities laws). Buyer shall use its best efforts, and the
Significant Stockholders will cooperate with Buyer, to cause the registration
statement to be declared effective by the Commission as promptly as practicable
thereafter and shall keep such registration statement effective until the end of
the Selling Period. If at any time during the Selling Period Buyer shall notify
the Stockholders in a writing signed by the Chief Financial Officer
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of Buyer that there exists material nonpublic information that must be disclosed
in order for the registration statement not to be false or misleading, then
Buyer may require that no sales may be made under the registration statement
until such time as disclosure is made. Buyer shall use its best efforts to cause
such disclosure to be made as soon as practicable, but in any event no later
than twenty (20) days after such written notice to the Stockholders.
2.2 EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration
pursuant to this Section 2 shall be borne by Buyer. All Selling Expenses
relating to Registrable Securities registered on behalf of the Stockholders
shall be borne by the Stockholders on the basis of the proportion which the
number of Registrable Securities registered and sold by each Stockholder bears
to the total number of Registrable Securities registered and sold.
2.3 REGISTRATION PROCEDURES
In the case of registration effected by Buyer pursuant to this Section 2,
Buyer will keep the Stockholders advised in writing as to the initiation of
registration and as to the completion thereof. At its expense Buyer will:
(a) Registration Statement. Within thirty (30) days of the Closing Date,
prepare and file with the Commission a registration statement with respect to
the Registrable Securities held by the Stockholders and use its best efforts to
cause such registration statement to become and remain effective for the Selling
Period;
(b) Amendments. Promptly prepare and file with the Commission 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) Copies. Promptly furnish to the Stockholders such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as the Stockholders may reasonably request in order to
facilitate the distribution of Registrable Securities owned by them;
(d) Blue Sky. Use its best efforts to promptly register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Stockholders, provided that Buyer shall not be required in connection therewith
or as a condition
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thereto to qualify to do business or to file a general consent to service of
process in any state or jurisdiction; and
(e) Notice. Notify the Stockholders 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 in the light of the circumstances then existing.
3. OBLIGATIONS OF THE STOCKHOLDERS
3.1 INFORMATION
Each Stockholder shall furnish to Buyer such additional information
regarding itself, the Registrable Securities (and other securities of Buyer, if
any) it holds and the distribution proposed by it as Buyer may reasonably
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in Section 2, including the information
requested by the Selling Stockholder Questionnaire attached hereto as Exhibit
3.1, which questionnaire each Stockholder shall complete and execute.
3.2 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder represents with respect to himself, herself or itself
that:
(a) Good Title. (i) Such Stockholder owns, beneficially and of record, the
shares of Seller Capital Stock listed opposite such Stockholder's name on
Schedule A hereto, (ii) such shares of Seller Capital Stock are free and clear
of any lien, encumbrance, adverse claim, mortgage, pledge, deed of trust,
security interest, charge, restriction on sale or transfer (other than
restrictions imposed by applicable securities laws), preemptive right, option or
other adverse claim or interest of any kind, (iii) such Stockholder has all
necessary power, right and authority to enter into this Agreement and each of
the agreements, certificates, instruments and documents executed or delivered
pursuant to the terms of the Merger Agreement by such Stockholder and to
consummate the transactions contemplated hereby and thereby, and (iv) this
Agreement has been duly authorized, executed and delivered by Stockholder and is
a legal, valid and binding obligation of Stockholder, enforceable in accordance
with its terms.
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(b) Ability to Bear Risk. Such Stockholder is in a financial position to
hold the Buyer Common Stock for an indefinite period of time and is able to bear
the economic risk and withstand a complete loss of his, her or its investment in
the Buyer Common Stock.
(c) Commission Documents. Such Stockholder acknowledges that he, she or it
has received and had the opportunity to review to such Stockholder's
satisfaction the materials disseminated by Seller in connection with the consent
solicitation to approve the Merger and the transactions contemplated thereby,
including those filings and reports of Buyer filed with the Commission since the
completion of Buyer's most recent fiscal year, consisting of Buyer's Annual
Report on Form 10-K for the fiscal year ended September 30, 1997, as amended,
its Quarterly Reports on Form 10-Q for the fiscal quarters ended December 31,
1997 and March 31, 1998, and its Proxy Statement relating to its Annual Meeting
of Shareholders on February 25, 1998.
(d) Professional Advice. Such Stockholder has obtained, to the extent that
he, she or it deems necessary, professional advice with respect to the risks
inherent in acquiring the Buyer Common Stock, the financial condition of Buyer
and the suitability of an investment in the Buyer Common Stock in light of such
Stockholder's financial condition and investment needs.
(e) Sophistication. Such Stockholder, either alone or with the assistance
of his, her or its professional advisors, is a sophisticated investor, is able
to fend for himself, herself or itself in the transactions contemplated by this
Agreement relating to the Buyer Common Stock and has such knowledge and
experience in financial and business matters that he, she or it is capable of
evaluating the merits and risks of the prospective investment in the Buyer
Common Stock.
(f) Accredited Investor. Except as set forth on Schedule A hereto, such
Stockholder is an "accredited investor" as defined in Rule 501(a) of Regulation
D under the Securities Act (an "Accredited Investor").
(g) Investment for Own Account. The Buyer Common Stock is being acquired
by such Stockholder for investment for its respective account, not as a nominee
or agent, and not with a view to the distribution of any part thereof;
Stockholder has no present intention of selling, granting any participation in
or otherwise distributing any of the Buyer Common Stock in a manner contrary to
the Securities Act or to any applicable state securities or Blue Sky law, nor
does Stockholder have any contract, undertaking, agreement or arrangement with
any Person to sell, transfer or grant a participation to such Person or to any
third party with respect to any of the Buyer Common Stock.
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(h) Restricted Securities. Such Stockholder acknowledges that the Buyer
Common Stock has not been and will not prior to issuance be registered under the
Securities Act and that the Buyer Common Stock is characterized under the
Securities Act as "restricted securities" and, therefore, cannot be sold or
transferred until such sale or transfer is registered under the Securities Act
as provided in this Agreement or an exemption from such registration is
available.
(i) Exemption Reliance. Such Stockholder has been advised that the Buyer
Common Stock is being issued under this Agreement pursuant to exemptions from
applicable federal and state securities laws, and that Buyer's reliance on such
exemptions is predicated in part on such Stockholder's representations contained
herein.
(j) Residence. For purposes of the application of state securities laws,
each Stockholder is a resident of the state as set forth on the signature page
hereto.
(k) Legend. It is understood that the certificates evidencing the Buyer
Common Stock may bear the following or a comparable legend:
The securities evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or
applicable state securities laws, and no interest therein may be sold,
distributed, assigned, offered, pledged or otherwise transferred
unless (a) there is an effective registration statement under the Act
and applicable state securities laws covering any such transaction
involving such securities, (b) this corporation receives an opinion of
legal counsel for the holder of the securities reasonably satisfactory
to this corporation stating that such transaction is exempt from
registration, or (c) this corporation otherwise satisfies itself that
such transaction is exempt from registration.
3.3 INVESTOR QUESTIONNAIRE
Each Stockholder who is not an Accredited Investor shall complete and
execute an Investor Questionnaire in the form attached hereto as Exhibit 3.3.
4. INDEMNIFICATION AND CONTRIBUTION
4.1 INDEMNIFICATION BY BUYER
Upon the registration of the Registrable Securities pursuant to Section 2,
Buyer hereby agrees to indemnify and hold harmless the Stockholders (and each of
their
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respective officers and directors) and each underwriter, selling agent or other
securities professional, if any, that facilitates the disposition of the
Registrable Securities, and each of their respective officers and directors and
each person who controls the Stockholders, underwriter, selling agent or other
securities professional within the meaning of Section 15 of the Securities Act
or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any losses, claims, damages or liabilities, joint or several, to
which the Stockholders or such other persons may become subject, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on an untrue statement or alleged untrue statement of a material
fact contained in any effective registration statement under which such
Registrable Securities are to be registered under the Securities Act, or any
final prospectus contained therein or furnished by Buyer to the Stockholders or
other such person, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and Buyer hereby agrees to reimburse the Stockholders or other
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that Buyer shall not be liable to the Stockholders
or other person in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based on an untrue statement or alleged untrue
statement or omission or alleged omission made in such effective registration
statement or final prospectus, or amendment or supplement, in reliance upon and
in conformity with written information furnished to Buyer by the Stockholders or
such other person expressly stated for use therein. The indemnity provided for
in this Section 4.1 shall remain in full force and effect regardless of any
investigation made by or on behalf of any Stockholder, underwriter or
controlling person (or any officer, director, partner, employee or agent of any
of the foregoing) and shall survive transfer of such Registrable Securities by
such Stockholder or such other person.
4.2 INDEMNIFICATION BY THE STOCKHOLDERS AND ANY AGENTS AND UNDERWRITERS
The Stockholders agree, as a consequence of the inclusion of the
Registrable Securities held by such Stockholders in such registration, to (i)
indemnify and hold harmless Buyer, its directors, officers and each person, if
any, who controls Buyer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which Buyer or such other persons may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such effective
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registration statement or final prospectus, or any amendment or supplement, or
arise out of or are based on the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance on and in conformity with written information
furnished to Buyer by the Stockholders and expressly stated for use therein, and
(ii) reimburse Buyer for any legal or other expenses reasonably incurred by
Buyer in connection with investigating or defending any such action or claim as
such expenses are incurred. The indemnity provided for in this Section 4.2 shall
remain in full force and effect regardless of any investigation made by or on
behalf of Buyer or any controlling person (or any officer, director, partner,
employee or agent of Buyer or any controlling person) and shall survive the
transfer of the Registrable Securities by the Stockholders.
4.3 NOTICE OF CLAIMS
Promptly after receipt by an indemnified party under Section 4.1 or 4.2 of
notice of the commencement of any action (including any governmental action),
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 4, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party otherwise than under this Section 4. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). Nothing in this Section 4.3 limits in any
way the right of the indemnified party to defend against any claim or litigation
in such manner as it may deem appropriate, including, but not limited to,
settling such claim or litigation (after giving notice of the same to the other
party) on such terms as the indemnified party may in good xxxxx xxxx appropriate
(provided, however, that no such settlement shall occur without the indemnifying
party's prior written consent, which shall not be unreasonably withheld), and
the indemnifying party will promptly indemnify the indemnified party in
accordance with this Section 4.
4.4 CONTRIBUTION
In order to provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either (i) any indemnified party
makes a claim under this Section 4 or any controlling person of such indemnified
party makes such a
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claim but it is judicially determined (by entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 4 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such person seeking indemnity under the terms of
this Section 4, then, and in each such case, Buyer and such person shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were determined by
pro rata allocation (even if the Stockholders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 4.4. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person 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 guilty of such fraudulent
misrepresentation. The obligations of each Stockholder and any underwriters,
selling agents or other securities professionals in this Section 4.4 to
contribute shall be, subject to the limitation set forth in Section 4.5, several
in the proportion which the number of Shares registered, underwritten, or sold
as the case may be, by him, her or it bears to the number of Shares registered,
underwritten or sold by all Stockholders, underwriters, selling agents or other
securities professionals, as the case may be, and not joint.
4.5 LIMITATION
Notwithstanding any other provision of this Section 4, in no event will any
Stockholder be required to undertake liability to any person under this Section
4 for
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any amounts in excess of the dollar amount of the proceeds to be received by
such Stockholder from the sale of such Stockholder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any registration statement under which such Registrable Securities
are to be registered under the Securities Act.
4.6 NONEXCLUSIVITY
The obligations of Buyer under this Section 4 shall be in addition to any
liability that Buyer may otherwise have to the Stockholders, underwriter,
selling agent or other securities professional within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and the obligations of
the Stockholders or other such person under this Section 4 shall be in addition
to any liability which the Stockholders or other person may otherwise have to
Buyer, its directors, officers who sign any registration statement with respect
to such Registrable Securities and each person, if any, who controls Buyer
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act. The remedies provided in this Section 4 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to an
indemnified party at law or in equity.
5. CONDITIONS
To the extent permitted by applicable law:
(a) The obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the fulfillment at or prior to the Closing Date of
each of the conditions in Article V of the Merger Agreement, unless waived by
Buyer.
(b) The obligations of the Stockholders to consummate the transactions
contemplated hereby shall be subject to the fulfillment at or prior to the
Closing Date of the conditions set forth in Section Article VI of the Merger
Agreement, unless waived by Seller and the Stockholder Representative.
6. STOCKHOLDER REPRESENTATIVE
(a) Each undersigned Stockholder hereby irrevocably authorizes and appoints
Xxxxxxx X. Xxxxx (the "Stockholder Representative"), with full power of
substitution and resubstitution, as his or her representative and true and
lawful attorney-in-fact and agent to act in his, her or its name, place and
stead and to execute in the name and on behalf of such Stockholder the Escrow
Agreement and any other agreement, certificate, instrument or document to be
delivered by the Stockholders in connection with the Merger.
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(b) Each of the undersigned Stockholders agrees that the Stockholder
Representative shall have the full power, authority and right to perform, do and
take any and all actions he deems necessary or advisable to carry out the
purposes of the Merger Agreement and each Operative Document all without
liability to such Stockholder (except as expressly stated herein or therein), so
long as same are carried out by the Stockholder Representative in good faith.
Such actions include the power to amend, modify or waive any agreement in the
name of each Stockholder as if such Stockholder had himself, herself or itself
amended, modified or waived such agreement; provided that the Stockholder
Representative shall have no power to alter any term of the Merger Agreement
which would change the consideration to be received by any Stockholder in
respect of the Merger unless a majority of the Stockholders of each class of
Seller's securities (or such other number, if any, as is otherwise required by
Seller's Certificate of Incorporation or other contractual arrangement) shall so
agree. In particular, but not by way of limitation, the Stockholder
Representative shall have the power to make and carry out decisions under the
Merger Agreement, the Escrow Agreement and this Agreement on behalf of each
Stockholder and to sign documents and make filings on behalf of each Stockholder
as if such Stockholder had himself, herself or itself signed or filed such
document.
(c) Each Stockholder understands that this appointment is irrevocable.
(d) Each Stockholder agrees to pay a pro rata portion of the reasonable
costs and expenses of such Stockholder Representative.
(e) The Stockholder Representative may resign at any time. Upon such
resignation, each Stockholder hereby authorizes the Stockholder Representative
to appoint a new Stockholder Representative to replace such resigning
Stockholder Representative with the same powers and duties as such resigning
Stockholder Representative, provided that such newly appointed Stockholder
Representative shall have been a member of the Board of Directors of Seller
immediately prior to the Effective Time and, if the Survival Period has not yet
expired, the Escrow Agent shall be notified of such appointment forthwith.
(f) If the Stockholder Representative or any successor shall die, or become
unable to act as the Stockholder Representative, a replacement shall promptly be
appointed by a writing signed by Stockholders who received a majority of the
Merger Consideration, provided that such newly appointed Stockholder
Representative shall have been a member of the Board of Directors of Seller
immediately prior to the Effective Time and, if the Survival Period has not yet
expired, the Escrow Agent shall be notified of such appointment forthwith.
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(g) Unless and until Buyer, and if the Survival Period has not yet expired,
the Escrow Agent, shall have received written notice of the appointment of a
successor Stockholder Representative for the Stockholders, Buyer and the Escrow
Agent shall be entitled to rely on, and shall be fully protected in relying on,
the power and authority of the Stockholder Representative to act on behalf of
the Stockholders.
7. ESTABLISHMENT/ENFORCEMENT OF INDEMNIFICATION OBLIGATION
Each Stockholder, by his, her or its signature below, represents that he,
she or it has read Article VIII of the Merger Agreement as well as Section 4
hereof with respect to the indemnification rights and obligations of the
Stockholders stated therein and herein and agrees for the benefit of Seller and
the Surviving Corporation to abide by such provisions (as well as those with
respect to specific performance), including with respect to the potential loss
of the benefit of the shares of Buyer Common Stock to be received as a result of
the Merger.
8. ABANDONMENT OF MERGER
In the event that the Merger Agreement is terminated and the Merger
abandoned pursuant to Article VII of the Merger Agreement, no party hereto not
in breach of its obligations hereunder shall have any liability to any other
party, including, but not limited to, liability for expenses incurred by any
such other party in connection with this Agreement.
9. NOTICES
Notices to parties pursuant to this Agreement shall be in writing and
delivered as set forth in Section 9.2 of the Merger Agreement to the address in
the case of Buyer set forth therein and in the case of any Stockholder, set
forth herein.
10. AMENDMENTS
This Agreement may not be amended except by an instrument signed by Buyer
and the Stockholder Representative and each undersigned Stockholder hereby
grants expressly to the Stockholder Representative the authority and discretion,
so long as such authority and discretion are exercised in good faith, to enter
into such amendments as he, she or it chooses in the exercise of such authority
and discretion.
11. SEVERABILITY
If any term or other provision of this Agreement is determined by a court
or by arbitration to be invalid, illegal or incapable of being enforced under
any rule of law, or public policy, all other conditions and provisions of this
Agreement will
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nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
12. ASSIGNMENT
This Agreement will not be assigned by operation of law or otherwise
without the prior written consent of the other parties hereto (acting in the
case of the Stockholders through the Stockholder Representative).
13. PARTIES IN INTEREST
This Agreement will be binding upon and inure solely to the benefit of each
party hereto and its permitted assigns, and nothing in this Agreement, express
or implied, is intended to or will confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14. SPECIFIC PERFORMANCE
Each of the parties acknowledges and agrees that the other parties hereto
would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties hereto agrees the other parties
hereto will be entitled to an injunction to prevent breaches of the provisions
of this Agreement and to enforce specifically this Agreement and the terms and
provisions hereof (including the indemnification provisions hereof) in any
competent court having jurisdiction over the parties, in addition to any other
remedy to which they might be entitled at law or in equity.
15. GOVERNING LAW; JURISDICTION AND VENUE
This Agreement shall be governed by and construed in accordance with and
subject to the internal laws and decisions of the State of Washington,
regardless of its or any other jurisdiction's conflict of law provisions. The
parties hereto agree that venue for any dispute hereunder, or action on any
obligation under this Agreement, shall be in King County, Washington or the
United States District Court for the Western District of Washington, and the
parties hereto submit to the jurisdiction of
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the state and federal courts of the State of Washington for any dispute
hereunder or action on any obligation under this Agreement.
16. HEADINGS
The descriptive headings contained in this Agreement are included for
convenience of reference only and will not affect in any way the meaning or
interpretation of this Agreement.
17. FURTHER ASSURANCES
Each party (acting in the case of the Stockholders through the Stockholder
Representative) will, at the reasonable request of any other party hereto, from
time to time execute and deliver such other assignments, transfers, conveyances
and other instruments and documents and do and perform such other acts and
things as may be reasonably necessary or desirable for effecting complete
consummation of this Agreement and the transactions contemplated hereby.
18. COUNTERPARTS; ELECTRONIC SIGNATURES
This Agreement may be executed and delivered in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed and delivered will be deemed to be an original but all of which taken
together will constitute one and the same agreement. To expedite the process of
entering into this Agreement, the parties acknowledge that Transmitted Copies of
this Agreement will be equivalent to original documents until such time as
original documents are completely executed and delivered. "Transmitted Copies"
will mean copies that are reproduced or transmitted via photocopy, facsimile or
other process of complete and accurate reproduction and transmission.
19. BUSINESS DAY
Should the day on which any act required to be performed under this
Agreement fall on a Saturday, Sunday or legal holiday, the day required for such
performance shall be the next day that is not a Saturday, Sunday or legal
holiday.
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IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of the date and year first above written.
VISIO CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
------------------------------------------
Its: Sr. Vice President-Finance & Administration
-------------------------------------------
-15-
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxx Xxxxx
--------------------------------------------
Name: Xxxx Xxxxx
------------------------------------------
Address: Kaspia Systems, Inc.
0000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Number of Shares: Common: 3,675,000
-----------------------------
Series B: 0
-----------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxx Xxx Xxxxxx
--------------------------------------------
Name: Xxx Xxx Xxxxxx
------------------------------------------
Address: Kaspia Systems, Inc.
0000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Number of Shares: Common: 540,001
------------------------------
Series B: 0
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
------------------------------------------
Address: Kaspia Systems, Inc.
0000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Number of Shares: Common: 420,000
------------------------------
Series B: 0
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Address: Kaspia Systems, Inc.
0000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Number of Shares: Common: 420,000
------------------------------
Series B: 0
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------------
Address: Kaspia Systems, Inc.
0000 X.X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx XX 00000
Number of Shares: Common: 267,241.5
------------------------------
Series B: 37,037
------------------------------
///
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ J. Xxxxxx Xxxxxx
--------------------------------------------
Name: J. Xxxxxx Xxxxxx
------------------------------------------
Address: 00000 Xxxxxx Xxxxx
Xxxxxx Xxxxx Xxxxxx XX 00000
Number of Shares: Common: 75,000
------------------------------
Series B: 18,519
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------------
Address: Switch Soft Systems, Inc.
000 Xxxxxxxx Xxxx., #000
Xxxxxxx Xxxx XX 00000
Number of Shares: Common: 75,000
------------------------------
Series B: 49,736
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
------------------------------------------
Address: 00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 71,293.5
------------------------------
Series B: 22,222
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ PARVEST U.S. PARTNERS II C.V.
----------------------------------
by Xxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxx
--------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
--------------------
Series B: 537,740
--------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ PARTECH U.S. PARTNERS III C.V.
-----------------------------------
by Xxxxxx Van der Meer
----------------------------------------
Name: Xxxxxx Van der Meer
---------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 537,740
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ DOUBLE BLACK DIAMOND II LLC
----------------------------------
by Xxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxx
--------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 74,808
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxxx Van der Meer
--------------------------------------------
Name: Xxxxxx Van der Meer
------------------------------------------
Address: Communication Ventures
000 Xxxxxxxx Xxx., Xxxxx 000
Xxxx Xxxx XX 00000
Number of Shares: Common: 0
------------------------------
Series B: 14,962
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ ALAMANORI LIMITED
----------------------------------
by Xxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxx
--------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 29,923
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ THREECEDARS S.A.
----------------------------------
by Xxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxx
--------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 74,807
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ PARTECH INTERNATIONAL SALARY DEFERRAL PLAN
----------------------------------------------
U/A DATED 1/1/92 FBO: XXXXXX X. XXXXXXXX
---------------------------------------------------
by Xxxxxx X. XxXxxxxx
---------------------------------------------------
Name: Xxxxxx X. XxXxxxxx
--------------------------------------------
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
--------------------------------
Series B: 7,481
--------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ NEWBRIDGE NETWORKS formerly
----------------------------------
UNGERMANN-BASS NETWORKS, INC.
---------------------------------------
by Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
--------------------------------
Address: c/o Xxxxx X. Xxxxxxxxxxx
Newbridge Networks
000 Xxxxxxx Xxxxxxx
Xxxxxxx XX 00000-0000
Number of Shares: Common: 2,020,090.5
---------------------
Series B: 0
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXXX ASSOCIATES II, L.P.
----------------------------------
by Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
--------------------------------
Address: 000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx XX 00000
Number of Shares: Common: 974,931
---------------------
Series B: 305,447
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ DISCOVERY VENTURES II LLC
----------------------------------
by Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------
Address: c/o Xxxxxx Xxxxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 374,041
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXXXX X. XXXXX CANCER
----------------------------------
FOUNDATION
---------------------------------------
by Xxxxxx X. Xxxxx, Chairman
---------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------
Address: c/o Xxxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx XX 00000
Number of Shares: Common: 0
---------------------
Series B: 112,212
---------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXXX X. XXXXX TRUSTEE FOR XXXXXX X. XXXXX &
--------------------------------------------------
XXXXX X. XXXXX TRUST DATED 12/3/94
-------------------------------------------------------
by Xxxxxx X. Xxxxx
-------------------------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------------------
Address: c/o Xxxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx XX 00000
Number of Shares: Common: 0
------------------------------------
Series B: 51,528
------------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXXX X. XXXXX SUCCESSOR TRUSTEE XXXXXX X.
------------------------------------------------
XXXXX PROFIT SHARING TRUST DATED 1/1/84
-----------------------------------------------------
by Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------------------
Address: c/o Xxxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx XX 00000
Number of Shares: Common: 0
----------------------------------
Series B: 37,037
----------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
------------------------------------------
Address: 000 X. Xxxxxxxx Xxxxx
Xxxx Xxxx XX 00000
Number of Shares: Common: 0
------------------------------
Series B: 74,074
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ Xxxxxxx X. and Xxxxx X. Xxxxxxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. and Xxxxx X. Xxxxxxxxxxxxxx
------------------------------------------
Address: 00000 Xxxx Xxxxxxxxxx Xxxxx X.X.
Xxxxxx XX 00000
Number of Shares: Common: 84,483
------------------------------
Series B: 14,815
------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXX X. XXXXXXXX UNIFIED CREDIT TRUST, XXXXXX
--------------------------------------------------
X. XXXXXXXX TRUSTEE
-------------------------------------------------------
by Xxxxxx X. Xxxxxxxx, Trustee
-------------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxxx XX 00000
Number of Shares: Common: 84,483
------------------------------------
Series B: 7,407
------------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXX XXXXXX AS XXX CUSTODIAN FBO XXXXXXX X.
-------------------------------------------------
LONG, ACCOUNT # 441-68031-1-4-001
------------------------------------------------------
by Xxxxxxx X. Xxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------------------
Address: 000 X.X. Xxxxxx Xxxxxx, #0000
Xxxxxxxx XX 00000
Number of Shares: Common: 84,483
-----------------------------------
Series B: 29,630
-----------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ XXXXX XXXXXX AS XXX CUSTODIAN FBO XXXXX XXX
------------------------------------------------
LONG, ACCOUNT # 441-69070-1-4-001
-----------------------------------------------------
by Xxxxx Xxx Xxxx
-----------------------------------------------------
Name: Xxxxx Xxx Xxxx
----------------------------------------------
Address: 000 X.X. Xxxxxx Xxxxxx, #0000
Xxxxxxxx XX 00000
Number of Shares: Common: 0
----------------------------------
Series B: 0
----------------------------------
SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT
STOCKHOLDER
By: /s/ BUILDING C PARTNERS, A
----------------------------------
CALIFORNIA GENERAL PARTNERSHIP
---------------------------------------
by Xxxx Xxxxxxxx, General Partner
---------------------------------------
Name: Xxxx Xxxxxxxx
--------------------------------
Address: c/o Xxxx Xxxxxxxx of Xxxxxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx XX 00000
Number of Shares: Common: 0
--------------------
Series B: 18,518
--------------------