Exhibit 4.3
VIADOR, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
May 21, 1999
TABLE OF CONTENTS
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Page
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1. Registration Rights................................................. 1
1.1 Definitions................................................... 1
1.2 Request for Registration...................................... 2
1.3 Company Registration.......................................... 4
1.4 Obligations of the Company.................................... 4
1.5 Furnish Information........................................... 6
1.6 Expenses of Demand Registration............................... 6
1.7 Expenses of Company Registration.............................. 6
1.8 Underwriting Requirements..................................... 6
1.9 Delay of Registration......................................... 7
1.10 Indemnification............................................... 7
1.11 Reports Under Securities Exchange Act of 1934................. 9
1.12 Form S-3 Registration......................................... 10
1.13 Assignment of Registration Rights............................. 11
1.14 "Market Stand-Off" Agreement.................................. 11
1.15 Termination of Registration Rights............................ 12
1.16 Limitations on Subsequent Registration Rights................. 12
2. Covenants of the Company............................................ 12
2.1 Delivery of Financial Statements.............................. 12
2.2 Inspection.................................................... 13
2.3 Termination of Information and Inspection Covenants........... 13
2.4 Right of First Offer.......................................... 13
3. Miscellaneous....................................................... 15
3.1 Successors and Assigns........................................ 15
3.2 Governing Law................................................. 15
3.3 Counterparts.................................................. 15
3.4 Titles and Subtitles.......................................... 15
3.5 Notices....................................................... 15
3.6 Expenses...................................................... 16
3.7 Amendments and Waivers........................................ 16
3.8 Severability.................................................. 16
3.9 Aggregation of Stock.......................................... 16
3.10 Entire Agreement............................................./. 16
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AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT dated as of May 21,
1999, between VIADOR, INC., a California corporation (the "Company"), the
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holders of the Company's Series A Preferred Stock (the "Series A Investors"),
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the holders of the Company's Series B Preferred Stock (the "Series B Investors")
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and the investors listed on Schedule A attached hereto (the "Series C
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Investors") and, collectively with the Series A Investors and the Series B
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Investors, the "Investors."
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RECITALS
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WHEREAS, the Company and the Series C Investors are parties to the
Series C Preferred Stock Purchase Agreement of even date herewith (the "Series C
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Purchase Agreement");
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WHEREAS, the Series A Investors and Series B Investors possess
registration rights, information rights, rights of first offer and other rights
pursuant to the Amended and Restated Investors' Rights Agreement dated as of
August 21, 1998 between the Company and such Series A Investors and Series B
Investors (the "Prior Rights Agreement");
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WHEREAS, in order to induce the Series C Investors to enter into the
Series C Agreement and to induce the Series C Investors to invest funds in the
Company pursuant to the Series C Agreement, the Company, the Series A Investors
and Series B Investors desire to terminate the Prior Agreement in its entirety
and to accept the rights created pursuant hereto in lieu of the rights granted
to them under the Prior Agreement; and
WHEREAS, the Company wishes to sell to the Series C Investor shares of
its Series C Preferred Stock pursuant to the Series C Agreement, and in
connection therewith, desires to grant certain rights to the Investors as set
forth in this Agreement, and the Investors wish to receive such rights.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as amended.
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(b) The term "Form S-3" means such form under the Act as in effect on
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the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
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(c) The term "Holder" means any person owning or having the right to
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acquire Registrable Securities, as defined below, or any assignee thereof in
accordance with Section 1.13 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
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1934, as amended.
(e) The term "register", "registered," and "registration" refer to a
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registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(f) The term "Registrable Securities" means (i) the Common Stock
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issuable or issued upon conversion of the Company's Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock, and (ii) any Common Stock
of the Company (the "Common Stock") issued as (or issuable upon the conversion
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or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) above, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
such person's rights under this Section 1 are not assigned.
(g) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
(h) The term "SEC" shall mean the Securities and Exchange Commission.
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1.2 Request for Registration.
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(a) If the Company shall receive at any time after three (3) months
following the effective date of the first registration statement for a public
offering of securities of the Company (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)
with a per share price of $7.50 and an aggregate offering price of at least
$15,000,000, a written request from the Holders of forty percent (40%) of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of at least forty percent
(40%) of the Registrable Securities then outstanding, then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) effect as soon as practicable, and in any event within 60
days of the receipt of such request, the registration under the Act of all
Registrable Securities which the Holders request to be registered within twenty
(20) days of the mailing of a notice by the Company in accordance with Section
3.5, subject to the limitations of subsection 1.2(b).
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(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
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by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to subsection 1.2(a) and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by the Company and shall be reasonably
acceptable to a majority in interest of the Initiating Holders. In such event,
the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders that propose to include their
Registrable Securities in the underwriting, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
of Registrable Securities to be included in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 120 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may not utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected two registrations pursuant to
this Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the effective date of, a
registration subject to Section 1.3 hereof; provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided that the Company may not
invoke the deferral provisions of this Section 1.2(d)(ii) more than once in any
twelve-month period; or
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(iii) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.12 below.
1.3 Company Registration. If (but without any obligation to do so)
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the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, a registration
on any form which does not include substantially the same information as would
be required to be included in a registration statement covering the sale of the
Registrable Securities, a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered or a registration in connection with the initial public
offering of the Company), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.8, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this Section
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1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC as soon as practicable a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective, and, upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for a period
of up to one hundred twenty (120) days or until the distribution contemplated in
the Registration Statement has been completed; provided, however, that (i) such
120-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at the
request of an underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable Securities on Form S-3
which are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule
415, or any successor rule under the Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (I) includes any prospectus required by
Section 10(a)(3) of the Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the 1934 Act in the registration statement.
(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
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may be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, (i) enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering, and (ii) if
requested by the underwriter, provide and include such information in the
registration statement as the underwriter may reasonably request. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act 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.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Notify each Holder of Registrable Securities covered by such
registration statement (i) when a prospectus or any amendments or supplements
thereto have been filed and, with respect to a registration statement or post-
effective amendments thereto, when the same has become effective, (ii) of the
request by the SEC for amendments or supplements to a registration statement or
related prospectus or for additional information, and (iii) of the issuance by
the SEC (or any state agency) of any stop order (a "Stop Order") suspending the
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effectiveness of a registration statement.
(j) Make every commercially reasonable effort to obtain the
withdrawal of a Stop Order at the earliest possible moment.
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1.5 Furnish Information.
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(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company
(including fees and disbursements of counsel for the Company in its capacity as
counsel to the selling Holders hereunder; if Company counsel does not make
itself available for this purpose, the Company will pay up to $12,500 of the
reasonable fees and disbursements of one counsel for the selling Holders) shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of counsel for the Company (including
fees and disbursements of counsel for the Company in its capacity as counsel to
the selling Holders hereunder; if Company counsel does not make itself available
for this purpose, the Company will pay the reasonable fees and disbursements of
up to $12,500 of one counsel for the selling Holders selected by them), but
excluding underwriting discounts and commissions relating to Registrable
Securities.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not,
jeopardize the success of the offering by
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the Company. If the total amount of securities, including Registrable
Securities, requested by Holders to be included in such offering exceeds the
amount of securities sold other than by the Company that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among the
selling Holders according to the total amount of securities entitled to be
included therein owned by each selling Holder or in such other proportions as
shall mutually be agreed to by such selling Holders) but in no event shall (i)
the amount of securities of the selling Holders included in the offering be
reduced below twenty percent (20%) of the total amount of securities included in
such offering, unless such offering is the initial public offering of the
Company's securities in which case the selling Holders may be excluded if the
underwriters make the determination described above and no other Holder's
securities are included or (ii) notwithstanding (i) above, any shares being sold
by a Holder exercising a demand registration right similar to that granted in
Section 1.2 be excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling Holder which is a
partnership or corporation, the partners, retired partners and shareholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling Holder", and any pro-rata reduction with respect
to such "selling Holder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling Holder", as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act, or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
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statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act, or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
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contained in this subsection 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act, or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 1.10(b) or under
subsection 1.10(d) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
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(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act
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(at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
such form.
1.12 Form S-3 Registration. In case the Company shall receive from any
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Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or
Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within 15
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this section 1.12: (1) if Form S-3 is
not available for such offering by the Holders; (2) if the Holders, together
with the holders of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $500,000.00; (3) if the
Company shall furnish to the 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 seriously detrimental to the Company and its
shareholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 60 days after receipt of
the request of the Holder or Holders under this Section 1.12; provided, however,
that the Company shall not utilize this right more than once in any twelve month
period; (4) if the Company has, within the six (6) month period preceding the
date of such request, already effected one registration on Form S-3 for the
Holders pursuant to this Section 1.12; or (5) in any particular jurisdiction in
which the Company would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to Section 1.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities,
10
shall be borne pro rata by the Holder or Holders participating in the Form S-3
Registration. Registrations effected pursuant to this Section 1.12 shall not be
counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who is an affiliate, parent, subsidiary or limited
partner of such Holder or who, after such assignment or transfer, holds at least
500,000 shares of Registrable Securities (subject to appropriate adjustment for
stock splits, stock dividends, combinations and other recapitalizations),
provided: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement, including without
limitation the provisions of Section 1.14 below; and (c) such assignment shall
be effective only if immediately following such transfer the further disposition
of such securities by the transferee or assignee is restricted under the Act.
For the purposes of determining the number of shares of Registrable Securities
held by a transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable Securities by gift, will or intestate
succession) shall be aggregated together and with the partnership; provided that
all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this Section
1.
1.14 "Market Stand-Off" Agreement. Each Investor hereby agrees that,
----------------------------
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the effective date of
a registration statement of the Company filed under the Act, it shall not, to
the extent requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except common stock included in such
registration; provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of the Company and all other persons
with registration rights (whether or not pursuant to this Agreement) enter into
similar agreements; and
(c) such market stand-off time period shall not exceed one hundred
eighty (180) days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the
11
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-l or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be promulgated
in the future.
1.15 Termination of Registration Rights.
----------------------------------
(a) No Holder shall be entitled to exercise any right provided for in
this Section 1 after five (5) years following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public.
(b) In addition, the right of any Holder to request registration or
inclusion in any registration pursuant to Section 1.3 shall terminate on the
closing of the first Company-initiated registered public offering of Common
Stock of the Company if all shares of Registrable Securities held or entitled to
be held upon conversion by such Holder may immediately be sold under Rule 144
during any 90-day period, or on such later date after the closing of the first
Company-initiated registered public offering of Common Stock of the Company as
all shares of Registrable Securities held or entitled to be held upon conversion
by such Holder may immediately be sold under Rule 144 during any 90-day period;
provided, however, that the provisions of this Section 1.15(b) shall not apply
to any Holder who owns more than two percent (2%) of the Company's outstanding
stock until such time as such Holder owns less than two percent (2%) of the
outstanding stock of the Company.
1.16 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of at least two-thirds of the outstanding Registrable
Securities, enter into any agreement with any Holder or prospective holder of
any securities of the Company which would allow such Holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one hundred twenty (120) days of the effective date of any
registration effecting pursuant to Section 1.2
2. Covenants of the Company.
------------------------
2.1 Delivery of Financial Statements. The Company shall deliver to
--------------------------------
each Major Investor (as defined in Section 2.4):
12
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company and statement of shareholder's
equity as of the end of such year, and a schedule as to the sources and
applications of funds for such year, such year-end financial reports to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles ("Gaap"), and audited and certified by independent public accountants
----
of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company, an unaudited profit or loss statement, schedule as to the
sources and application of funds for such fiscal quarter and an unaudited
balance sheet as of the end of such fiscal quarter;
(c) with respect to the financial statements called for in subsection
(b) of this Section 2.1, an instrument executed by the Chief Financial Officer
or President of the Company and certifying that such financials were prepared in
accordance with gaap consistently applied with prior practice for earlier
periods (with the exception of footnotes that may be required by gaap) and
fairly present the financial condition of the Company and its results of
operation for the period specified, subject to year-end audit adjustment;
(d) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the Major Investor or
any assignee of the Major Investor may from time to time request, provided,
however, that the Company shall not be obligated under this subsection (d) or
any other subsection of Section 2.1 to provide information which it deems in
good faith to be a trade secret or similar confidential information.
2.2 Inspection. The Company shall permit each Investor, at such
----------
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information which it
reasonably considers to be a trade secret or similar confidential information.
2.3 Termination of Information and Inspection Covenants. The
---------------------------------------------------
covenants set forth in subsections 2.1(c) and (d) and Section 2.2 shall
terminate as to Investors and be of no further force or effect when the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated or when the Company first
becomes subject to the periodic reporting requirements of Sections 12(g) or
15(d) of the 1934 Act, whichever event shall first occur.
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this paragraph 2.4, the Company, hereby grants to each Major
Investor a right of first offer with respect to future sales of its Shares. For
purposes of this Section 2.4, a Major Investor shall mean any Series A Investor
who holds a minimum of 190,000 shares of Registrable Securities and any Series B
Investor or Series C Investor who holds a minimum of 500,000 shares of Series
13
B Preferred Stock or Series C Preferred Stock, respectively. For purposes of
this Section 2.4, Investor includes any general partners and affiliates of such
Major Investor. A Major Investor shall be entitled to apportion the right of
first offer hereby granted it among itself and its partners and affiliates in
such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of the Company's
capital stock ("Shares"), the Company shall first make an offering of such
------
Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail ("Notice")
------
to the Major Investors stating (i) its bona fide intention to offer such Shares,
(ii) the number of such Shares to be offered, and (iii) the price and terms, if
any, upon which it proposes to offer such Shares.
(b) Within 20 calendar days after receipt of the Notice, the Major
Investor may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of such Shares which equals the
proportion that the number of shares of common stock issued and held, or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock and/or Series C Preferred Stock then held, by such Major Investor bears to
the total number of shares of common stock issued and held, or issuable upon
conversion of the Series A Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock then held, by all the Major Investors. The Company shall
promptly, in writing, inform each Major Investor which purchases all the shares
available to it ("Fully-Exercising Investor") of any other Major Investor's
-------------------------
failure to do likewise. During the ten-day period commencing after receipt of
such information, each Fully-Exercising Investor shall be entitled to obtain
that portion of the Shares not subscribed for by the Major Investors which is
equal to the proportion that the number of shares of common stock issued and
held, or issuable upon conversion of Series A Preferred Stock, Series B
Preferred Stock and/or Series C Preferred Stock then held, by such Fully-
Exercising Investor bears to the total number of shares of common stock issued
and held, or issuable upon conversion of the Series A Preferred Stock, Series B
Preferred Stock and/or Series C Preferred Stock then held, by all Fully-
Exercising Investors who wish to purchase some of the unsubscribed shares.
(c) If all Shares which Major Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the 30-day period following
the expiration of the period provided in subsection 2.4(b) hereof, offer the
remaining unsubscribed portion of such Shares to any person or persons at a
price not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for
the sale of the Shares within such period, or if such agreement is not
consummated within 30 days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not be
applicable (i) to the issuance or sale of shares of Common Stock (or options
therefor) to employees for the
14
primary purpose of soliciting or retaining their employment, (ii) to or after
consummation of a bona fide, firmly underwritten public offering of shares of
common stock, registered under the Act pursuant to a registration statement on
Form S-1, at an offering price of at least $7.50 per share (appropriately
adjusted for any stock split, dividend, combination or other recapitalization)
and $15,000,000 in the aggregate, (iii) the issuance of securities pursuant to
the conversion or exercise of convertible or exercisable securities, (iv) shares
of Common Stock issued in connection with mergers or acquisitions of stock or
assets of other corporations in transactions approved by the Board of Directors,
(v) the sale by the Company of up to an aggregate of 8,000,000 shares of Series
B Preferred Stock (including the Series B Preferred Stock issued pursuant to the
Series B Purchase Agreement) on terms and conditions no more beneficial to the
purchaser than terms contained in the Series B Purchase Agreement, (vi) the sale
by the Company up to an aggregate of 6,000,000 shares of Series C Preferred
Stock (including the Series C Preferred Stock issued pursuant to the Series C
Purchase Agreement) on terms and conditions no more beneficial to the purchaser
than terms contained in the Series C Purchase Agreement and (vii) the issuance
by the Company of Warrants to purchase up to 300,000 shares of Common Stock or
Series B Preferred Stock to consultants, lenders, executive search firms or
other professionals.
(e) The right of first offer set forth in this Section 2.4 may not be
assigned or transferred, unless such assignment or transfer is to a parent,
subsidiary or affiliate (who are not in competition with the Company).
3. Miscellaneous.
-------------
3.1 Successors and Assigns. Except as otherwise provided herein,
----------------------
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon
15
personal delivery to the party to be notified, (ii) upon deposit with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties or (iii) upon
sending by e-mail or facsimile if sent to the e-mail address or facsimile number
indicated on the signature page hereof, or at such other e-mail address or
facsimile number as such party may designate by ten (10) days' advance written
notice to the other parties.
3.6 Expenses. If any action at law or in equity is necessary to
--------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of two-thirds (2/3) of
the outstanding Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock, voting together as a class. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held
--------------------
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
3.10 Entire Agreement. This Agreement contains the entire agreement of
----------------
the parties with respect to the subject matter hereof, and all prior agreements,
written or oral, are merged herein and are of no further force or effect. This
Agreement amends and restated, in its entirety, that certain Amended and
Restated Investors' Rights Agreement dated as of August 21, 1998 by and between
the Company, the Series A Investors and the Series B Investors.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VIADOR, INC.
By:_______________________________________
ββββ ββββ
President and Chief Executive Officer
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
NORTH AMERICA VENTURE FUND, L.P.
a Cayman Islands Limited Partnership
By: CDC North America Venture Management, L.D.C.,
a Cayman Islands Limited Duration Company
Title: General Partner
By: ___________________________________
Name: βββββ ββββ
Title: Member
By: __________________________________
Name: βββββββ βββ
Title: Member
Address: c/o CDB Venture Management (U.S.A.), Inc.
ββββ βββββββ ββββββ, βββββ βββ
βββββ βββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
__________________________________________
βββββ βββββ & ββββββ ββ-ββ βββββ
Address: ββββ βββββββββ βββ
βββββββββ, ββ βββββ
__________________________________________
βββββ Te-βββ ββββ
Address: ββββ βββββββ βββββ
βββββββββ, ββ βββββ
_________________________________________
Ter-ββββ ββββ
Address: ββββ βββββββ βββββ
βββββββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
CHENG LIVING TRUST, dated 8/8/95
By: ____________________________________
Tu-ββββ βββββ
Trustee
By: ____________________________________
Te-ββββ βββββ
Trustee
Address: βββ ββββ ββββββ βββββ
βββββββββ, ββ βββββ
CHEN LIVING TRUST, dated 7/22/96
By: _____________________________________
βββββ β. ββββ
Trustee
By: ____________________________________
βββ Te-βββ ββββ
Trustee
Address: ββββ βββββββ βββββ
βββββββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
INFORMATION TECHNOLOGY VENTURES II, L.P.,
a California limited partnership
By: ITV MANAGEMENT II, LLC
a California limited liability company
Title: General Partner
By: __________________________________
ββββββββ β. βββββββ
Title: Managing Member
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
ITV AFFILIATES FUND II, L.P.,
a California limited partnership
By: ITV MANAGEMENT II, LLC
a California limited liability company
Title: General Partner
By: __________________________________
ββββββββ β. βββββββ
Title: Managing Member
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
TECHNOLOGY ASSOCIATES CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address: ββ, βββ βββββββ ββββ ββββ, βββββββ β
ββββββ βββ, ββββββ
Republic of China
TECH ALLIANCE CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address: ββ, βββ βββββββ ββββ ββββ, βββββββ β
ββββββ βββ, ββββββ
Republic of China
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
INDUSTRIAL TECHNOLOGICAL
INVESTMENT CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address: ββ, βββ ββ-ββββ ββββ ββββ, βββββββ β
ββββββ, ββββββ
Republic of China
ALPHA VENTURE CAPITAL FUND
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address: ββ, βββ ββ-ββββ ββββ ββββ, βββββββ β
ββββββ, ββββββ
Republic of China
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
By:__________________________________________
K.B. βββββββββββββ
Address: βββββ βββββββ ββββ
βββββββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
JK&B CAPITAL, L.P.
By: JK&B Management, L.L.C.
Its: General Partner
By: ___________________________________________
βββββ βββββ, its Member
Address: JK&B Capital, L.P.
Corporate Centre/West Bay Road
Leeward 1
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
Attn: βββββββ ββββββ
Copy to: JK&B Capital, L.P.
βββ βββββ ββββββββ ββββββ, βββββ βββ
βββββββ, ββ βββββ
Attn: βββββ βββββ
JK&B CAPITAL II, L.P.
By: JK&B Management, L.L.C.
Its: General Partner
By:
βββββ βββββ, its Member
Address: JK&B Capital II, L.P.
Corporate Centre/West Bay Road
Leeward 1
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
Attn: βββββββ ββββββ
Copy to: JK&B Capital II, L.P.
βββ βββββ ββββββββ ββββββ, βββββ βββ
βββββββ, ββ βββββ
Attn: βββββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
STARTOP INVESTMENTS LIMITED
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
Address: βββ βββββββββββ ββββ
ββββββ ββββ, ββ βββββ
Attn: βββββ β. ββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
SUPERCOM, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
Address: βββ βββββ ββββ
βββββββ, ββ βββββ
_______________________________________________
βββ ββββ
Address: c/o Supercom, Inc.
βββ βββββ ββββ
βββββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
βββββββ, βββββββ & ββββββββ LLP
By:______________________________________________
ββββββ β. Mo
Partner
Address: βββββ ββββββ βββββ
βββ ββββββ
βββ βββββββββ, ββ βββββ
AttN; ββββββ βββββ, Chief Financial Officer
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
________________________________________
βββ ββ
Address: βββ βββββ ββββ βββββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
________________________________________
Name:___________________________________
Address:________________________________
________________________________
________________________________
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
HOLDER:
STANDARD FOODS TAIWAN LTD.
By: ________________________________________
βββββ βββββ
Title: ________________________________
Address: ββββ βββββ ββββββ
βββββ βββββ, ββ βββββ
CROSSLINK SEMICONDUCTOR, INC. (TAIWAN)
By: ________________________________________
βββββ βββββ
Title: ________________________________
Address: ββββ βββββ ββββββ
βββββ βββββ, ββ βββββ
SIGNATURE PAGE TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
Investor Number of Shares Purchase Price
-------- ---------------- --------------
NORTH AMERICA VENTURE FUND, L.P. 1,232,539 $ 3,000,000
INFORMATION TECHNOLOGY VENTURES II, L.P. 989,441 $ 2,408,299.39
ITV AFFILIATES FUND II, L.P. 37,675 $ 91,700.95
βββββ βββββ AND ββββββ ββ-ββ βββββ 246,508 $ 600,000
βββββ TE-βββ ββββ 246,508 $ 600,000
CHENG LIVING TRUST, DATED 8/8/95: 246,508 $ 600,000
TU-ββββ ββββ, TRUSTEE AND TE-ββββ βββββ, TRUSTEE
TER-ββββ ββββ 246,508 $ 600,000
βββββ β. ββββ AND βββ TE-βββ ββββ 246,508 $ 600,000
AS CO-TRUSTEES OF THE CHEN LIVING
TRUST, DATED 7/22/96
TECHNOLOGY ASSOCIATES CORPORATION 205,423 $ 500,000
TECH ALLIANCE CORPORATION 205,423 $ 500,000
INDUSTRIAL TECHNOLOGY INVESTMENT CORPORATION 328,677 $ 800,000
ALPHA VENTURE CAPITAL FUND, INC. 82,169 $ 200,000
K.B. βββββββββββββ 410,846 $ 1,000,000
JK&B CAPITAL, L.P. 342,372 $ 833,333.33
JK&B CAPITAL II, L.P. 171,186 416,666.67
STARTOP INVESTMENTS LIMITED 246,508 $ 600,000
βββ ββ 61,627 $ 150,000
TOW-ββββ ββββ 164,339 $ 400,000
βββββ β. ββββ 82,169 $ 200,000
βββββββ ββββββ TRUST, DATED 9/22/95, 41,085 $ 100,000
J. βββββ βββββββ, TRUSTEE
SUPERCOM, INC. 20,542 $ 50,000
βββββ β. ββββ 20,542 $ 50,000
ββββββ ββββ 20,542 $ 50,000
ββββββ βββββββββ 20,542 $ 50,000
βββββββ, PHLEGER & ββββββββ LLP 16,434 $ 40,000.36
ββββββ β. MO 8,217 $ 20,000.18
βββββββ βββββ 10,000 $ 24,340
βββββββ βββ 10,000 $ 24,340
βββ βββββ ββββ ββββ 8,000 $ 19,472
J. ββββ ββββββ 2,055 $ 5,001.87
ββββ βββββββ 10,271 $ 25,000
TOTAL: 5,981,164 $14,558,154.75
AMENDMENT NO. 1
to
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amendment No. 1, dated as of July 23, 1999, amends that certain
Amended and Restated Investors' Rights Agreement, dated as of May 21, 1999 (the
"Agreement"), by and among Viador Inc., a California corporation (the
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"Company"), and the individuals or entities listed on the signature pages
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thereto (each a "Holder" and collectively, the "Holders"). Capitalized terms
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used herein without definition shall have the respective meanings ascribed to
them in the Agreement.
WHEREAS, the Company intends to undertake an Initial Public Offering;
and
WHEREAS, the Company and the Holders wish to amend the Agreement to
facilitate the Initial Public Offering; and
WHEREAS, the Agreement, pursuant to Section 14.8 thereof, may be
amended with the written consent of the Company and the Holders of at least 66
2/3% of the outstanding Series A Preferred, Series B Preferred, Series C
Preferred and Registrable Securities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 9 of the Agreement is hereby deleted in its entirety and
the following is substituted therefor:
"Section 9
Standoff Agreement
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In connection with the Company's Initial Public Offering, each Holder
agrees not to offer to sell or sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any securities of the
Company held by Holder at any time during such period (other than those included
in the Initial Public Offering, if any), directly or indirectly, without the
prior written consent of the Company or the underwriters of such Initial Public
Offering for a period of one-hundred eighty (180) days following the effective
date of the Initial Public Offering. In connection with the Company's Initial
Public Offering, each Holder further agrees to enter into the managing
underwriter's standard lockup letter. In order to enforce the foregoing, the
Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the share or securities of every other person subject to the
foregoing restrictions) until the end of such period."
2. Each of the other provisions of the Agreement shall remain in full
force and effect.
This Amendment No. 1 may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment No. 1 as of the date first above written.
By:
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Print Name:
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Title:
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2