EXHIBIT 4.2
NETIQ CORPORATION
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
the 14th day of May, 1997, by and among NetiQ Corporation, a California
corporation (the "Company"), the purchasers of Founder's Common Stock listed on
the schedule attached hereto as Exhibit A, (the "Founders") and the Purchasers
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of Series A Preferred Stock and Series B Preferred Stock listed on the schedule
attached hereto as Exhibit B (the "Purchasers").
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SECTION 1.
1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Holder" shall mean any holder of outstanding Registrable Securities;
provided, however, that for all purposes under this Section 1, the holder of any
Shares shall be deemed to be the Holder of the Registrable Securities into which
such Shares are then convertible.
"Initiating Holders" shall mean any Holders of not less than thirty
percent (30%) of the Registrable Securities.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed), and the declaration or ordering of the effectiveness of
such registration statement.
"Registrable Securities" means (i) shares of the Company's Common
Stock issued or issuable upon conversion of the Shares, and (ii) any of the
Company's Common Stock or other securities issued or issuable pursuant to the
conversion of the Shares upon any stock split, stock dividend, recapitalization,
or similar event, or any Common Stock otherwise issued or issuable with respect
to the Shares; provided, however, that Registrable Securities shall not include
any shares of
Common Stock which have previously been sold or hereafter registered and sold to
the public or any shares sold to the public pursuant to Rule 144.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 1.2, 1.3, and 1.4 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration, (but excluding (i) underwriters' fees, discounts or
commissions relating to registrable securities sold by any Holder and (ii) the
compensation of regular employees of the Company which shall be paid in any
event by the Company), and all reasonable fees and disbursements of a single
counsel designated by the Holders of a majority of the Registrable Securities to
be registered for any Holder.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, as shall be in effect at the time.
"Shares" shall mean shares of the Company's Series A Preferred Stock
and Series B Preferred Stock issued to the Holders listed on Exhibit B hereto.
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1.2 Requested Registration.
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(a) Request for Registration. In case the Company shall receive from
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the Initiating Holders, at any time after the earlier of December 31, 2000 or
six (6) months after the effective date of the Company's initial public
offering, a written request that the Company effect any underwritten
registration, qualification, or compliance with respect to Registrable
Securities having an aggregate offering price, net of discounts and commissions,
of at least $5,000,000, the Company shall:
(i) promptly give written notice of the proposed registration,
qualification, or compliance to all other Holders; and
(ii) as soon as practicable, use its most diligent efforts to
effect all such registration, qualification, or compliance (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws, and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within fifteen (15) days after receipt of such written notice
from the Company;
Provided, however, that the Company shall not be obligated to
file any such registration, qualification, or compliance pursuant to this
Section 1.2:
(A) In any jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification, or compli-
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ance unless the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act;
(B) Within one hundred eighty (180) days immediately
following the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan);
(C) After the Company has effected two such registrations
pursuant to this Section 1.2(a), such registrations have been declared or
ordered effective, and the securities offered pursuant to such registration have
been sold; or
Subject to the foregoing clauses (A) through (C), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, and in any event within one
hundred twenty (120) days, after receipt of the request or requests of the
Initiating Holders; provided, however, that if the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company or its shareholders for such registration
statement to be filed on or before the date filing would be required and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right, exercisable one time only pursuant to each
specific request made under this Section 1.2, to defer such filing for a
reasonable period not to exceed an additional one hundred twenty (120) days.
(b) Underwriting. The right of any Holder to registration pursuant to
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Section 1.2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent requested.
The Company shall (together with all Holders and holders of other
securities proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
Initiating Holders. Notwithstanding any other provision of this Section 1.2, if
the managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders and the other holders
distributing their securities through such underwriting. The Common Stock (other
than Registrable Securities) held by officers, directors, and all persons
without contractual rights to inclusion in such registration shall be excluded
from such registration to the extent required. If a limitation of the number of
shares to be included in such registration is still required, Common Stock
(other than Registrable Securities) shall be excluded from registration to the
extent required. After giving effect to the foregoing, in the event that a
limitation on the number of Registrable Securities to be included in such
underwriting is still required, the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among all Holders in that proportion, as nearly as practicable, that the number
of Registrable Securities held by each Holder bears to the total number of
Registrable Securities (determined without regard to any requirement of a
request to be included in such registration) held by all such Holders at the
time of filing the registration statement. No Registrable Securities or other
securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
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If any Holder of Registrable Securities disapproves of the terms
of the under writing, such person may elect to withdraw therefrom by written
notice to the Company, the managing underwriter, and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration; provided, however, that, if by the withdrawal of
such Registrable Securities a greater number of Registrable Securities held by
other Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities in the same proportion used in
determining the underwriter limitation in this Section 1.2(b).
If the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities
for its own account or for the account of others in such registration if the
underwriter so agrees and if the number of Registrable Securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited and the price at which such Registrable Securities would
otherwise have been sold will not thereby be reduced.
1.3 Company Registration.
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(a) Notice of Registration. If at any time or from time to time, the
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Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders (other than "Holders")
exercising their respective demand registration rights ("Initiating Party")
other than (i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Rule 145 transaction, (iii) the Company's
first registered public offering of its securities, or (iv) a registration
effected pursuant to Section 1.4 of this Agreement, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within fifteen (15) days after receipt of such written notice
from the Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.3 shall be conditioned upon the participation
by such Holder in such underwriting and the inclusion of the Registrable
Securities of such Holder in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such under writing
shall (together with the Company, the Initiating Party, and the other holders
having incidental or "piggyback" registration rights ("Other Holders")
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company. Notwithstanding any other provision of
this Section 1.3, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the Company may
limit to the extent necessary the Registrable
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Securities held by Holders to be included in such registration, but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below fifteen percent (15%) 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 entirely
excluded if the underwriters make the determination described above and no other
shareholder's securities are included. The Company shall so advise all Holders
and the Other Holders distributing their securities through such underwriting,
and the number of shares of Registrable Securities and other securities that may
be included in the registration and underwriting shall be allocated in the
following priority: The Common Stock (other than shares as to which any person
holds contractual rights to inclusion) held by officers, directors, employees,
and all other persons shall first be excluded from such registration and
underwriting to the extent required. If a limitation of the number of shares to
be included in such registration and underwriting is still required, such
limitation shall be allocated among Holders and Other Holders prior to any
limitation on the number of shares so included for the account of the Initia-
ting Party or the Company, as the case may be, in proportion, as nearly as
practicable, to the respective amounts of securities contractually entitled to
inclusion (determined without regard to any requirement of a request to be
included in such registration) in such registration held by all such Holders and
Other Holders at the time of filing the registration statement. If any Holder or
Other Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
1.4 Form S-3 Registration. In case the Company shall receive from a
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Holder or Holders of more than two percent (2%) of the Company's Common Stock
(assuming conversion of all convertible securities) a written request that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to an amount of the Registrable Securities owned by such
Holder or Holders for which the anticipated aggregate offering price, net of
discounts and commissions, would equal or exceed $1,000,000, 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 Holders joining
in such request as are specified in a written request given within fifteen (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 1.4: (1) if Form S-3 is
not available for such offering by the holders; (2) 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 one hundred twenty (120) days after receipt of the
initiating request of the Holder or Holders under this Section 1.4; provided,
however, that the Company shall not utilize this right more than once in any
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twelve (12) month period; (3) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected two registrations on
Form S-3 for the Holders pursuant to this Section 1.4; or (4) in any
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification, or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act.
Subject to the foregoing, the Company shall effect such
registration, qualification, or compliance (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) 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.
Registrations effected pursuant to this Section 1.4 shall not be counted as
demands for registration or registrations effected pursuant to Sections 1.2 or
1.3, respectively.
If the registration to be effected pursuant to this Section 1.4
is to be an under written public offering, it shall be managed by an underwriter
or underwriters reasonably acceptable to Company selected by a majority in
interest of the Holders requesting registration. In such event, the right of any
Holder to registration pursuant to Section 1.4 shall be conditioned upon the
participation by such Holder in such underwriting and the inclusion of the
registrable securities of such Holder in the underwriting to the extent provided
herein. If the managing underwriter so selected determines that marketing
factors require a limitation of the number of shares to be underwritten, the
Company may limit the Registrable Securities held by such Holders to be included
in such registration to such amounts as determined by the managing underwriter
(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). The Company shall so advise such Holders,
and the number of shares of Registrable Securities that may be included in the
registration shall be allocated among such Holders in proportion to the
respective amounts of Registrable Securities which would be held by each of such
Holders at the time of filing of the registration statement. Any Registrable
Securities that are so excluded from the underwriting shall be excluded from the
registration. As used throughout this Section 1 the term "Form S-3" shall be
deemed to include any equivalent successor form for registration pursuant to the
Act.
The Company shall not be required to maintain and keep any such
registration on Form S-3 effective for a period exceeding ninety (90) days from
the effective date thereof.
1.5 Expenses of Registration. The Company shall bear the Registration
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Expenses of two (2) registration pursuant to Section 1.2. However, the Company
shall not be required to pay for expenses of any registration proceeding begun
pursuant to Section 1.2, the request of which has been subsequently withdrawn by
the Initiating Holders, in which case such expenses shall be borne by the
Initiating Holders of securities pro rata in accordance with the number of
shares initially sought to be registered requesting or causing such withdrawal,
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 1.2; provided
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further, however, that if at the time of such withdrawal, the Initiating Holders
have learned of a material adverse change in the condition, business, or
prospects of the Company from that known to the Initiating Holders at the time
of their request, then the Initiating Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to Section 1.2. The
Company shall bear the Registration Expenses of all registrations pursuant to
Section 1.3. The Company shall also bear the Registration Expenses of all
registrations pursuant to Section 1.4. All other Registration Expenses shall be
paid by the selling shareholders on a pro rata basis.
1.6 Letter or Opinion of Counsel in Lieu of Registration. If, at any time
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after the Company's Common Stock is publicly traded, in the opinion of counsel
for the Company, concurred in by counsel for Holders, no registration under the
Act is required in connection with the disposition of the Registrable Securities
covered by any request made under Sections 1.2, 1.3 and 1.4 hereof in the manner
in which they propose to dispose of the Registrable Securities included in such
request because the Holder is able to dispose of all of its Registrable
Securities in one three-month period pursuant to the provisions of Rule 144, the
Company need not comply with such request or requests; provided, however, that
the Company shall not be so relieved of its obligations under Sections 1.2, 1.3
and 1.4 hereof unless the aforementioned opinion of counsel for the Company
shall have been mailed by the Company to such Holders within fifteen (15) days
after the Company's receipt of their request or requests; and provided, further,
that if counsel for the Company has opined that no registra tion is required in
connection with any such disposition, such counsel shall further opine as to
whether the removal of any legend from certificates representing all shares to
which such opinion refers is permissible, and, if so, the Company shall remove
from such certificates all legends no longer required thereon and shall rescind
any stop-transfer instructions previously communicated to its transfer agent
relating to such shares.
1.7 Lock-up. Each Holder hereby agrees that it shall not, to the extent
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requested by the Company and the managing underwriter for the initial offering
of the Company's securities to the general public, sell or otherwise transfer
any Shares (and any Common Stock issued upon conversion of the Shares), other
than securities registered in such offering, for a period of one hundred eighty
(180) days from the effective date of such offering; provided, however, that all
officers and directors of the Company and all other persons with registration
rights (whether or not pursuant to this Agreement) shall have entered into
similar agreements or be similarly obligated.
1.8 Registration Procedures. If and whenever the Company is required by
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the provisions of this Section 1 to use its most diligent efforts to effect
promptly the registration of Registrable Securities, the Company shall:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its most diligent efforts to
cause such registration statement to become and remain effective as provided
herein;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
current and to comply with the provisions of the Securities Act with respect to
the sale or other disposition of all Registrable Securities covered by such
registra-
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tion statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition of the prospective
seller or sellers of such Registrable Securities, but for no longer than one
hundred twenty (120) days subsequent to the effective date of such registration
in the case of a registration statement on Form S-1 (or any similar form of
registration statement required to set forth substantially identical
information) and for no longer than ninety (90) days in the case of a
registration statement on Form S-3;
(c) furnish to each prospective seller of Registrable Securities such
number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities of such seller;
(d) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing under writer of such offering; each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(e) 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; and
(f) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 1, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, if such securities are being
sold through underwriters, or, on the date that the registration statement with
respect to such securities become effective, (i) an opinion, dated such date, of
counsel representing the Company for the purposes of such registration, in form
and substance as is then customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is then customarily given by independent certified public
accountants of the Company, in form and substance as is then customarily given
by independent certified public accounts to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
1.9 Indemnification. In the event any of the 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 each
Holder, each of its officers and directors and partners, and such Holder's
separate legal counsel and independent accountants, and each person controlling
such Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and each
underwriter, if any, and each person who controls any underwriter within the
meaning of
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Section 15 of the Securities Act or Section 20 of the 1934 Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settle ment of any
litigation, commenced or threatened, to which they may become subject under the
Securities Act, the 1934 Act, or other federal or state law, in so far as such
expenses, claims, losses, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon the following state ments, omissions, or
violations (collectively, "Violations"): (i) any untrue statement (or alleged
untrue statement) of a material fact contained in any registration statement,
prospectus, offering circular, or other document, or any amendment or supplement
thereto, incident to any such registration, qualification, or compliance, (ii)
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or (iii) any violation or
alleged violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act, or any state securities law, applicable to the Company in con
nection with any such registration, qualification, or compliance, and the
Company will reimburse each such Holder, each of its officers and directors and
partners, and such Holders' separate legal counsel and independent accountants,
and each person controlling such Holder, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing, or defending
any such claim, loss, damage, liabi lity, or action; provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability, or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder or underwriter and stated to be specifically for
use in connection with the offering of Securities of the Company.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification, or compliance is being effected, indemnify the
Company, each of its directors and officers and its legal counsel and
independent accountants, each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the 1934 Act, and each other such Holder, each of its officers and
directors and each person controlling such Holder within the meaning of Section
15 of the Securities Act or Section 20 of the 1934 Act, against all expenses,
claims, losses, damages, and liabilities (or actions in respect thereof) to
which any of the foregoing persons may be subject, under the Securities Act, or
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 the following statements or omissions: (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or (ii) any 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 will
reimburse the Company, such Holders, such directors, officers, persons,
underwriters, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability, or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering
circular, or other document in reliance upon and in conformity with
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written information furnished to the Company by an instrument duly executed by
such Holder and stated to be specifically for use in connection with the
offering of securities of the Company; provided, however, that the obligations
any such Holder hereunder shall be limited to an amount equal to the proceeds to
such Holder of Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 1.9 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 1.9 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 herein,
then the Indemnifying Party, in lieu of indemnifying the Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party with
respect to such loss, liability, claim, damage, or expense in the proportion
that is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party in connection with the state ments 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 the Indem nified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of 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.
1.10 Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may reasonably request in writing and as
shall be required in connection with any registration, qualification, or
compliance referred to in this Section 1.
1.11 Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, beginning ninety
(90) days after (i) the effective date of the first registration statement filed
by the Company for an offering of its securities to the general
-10-
public, (ii) the Company registers a class of securities under Section 12 of the
1934 Act, or (iii) the Company issues an offering circular meeting the
requirements of Regulation A under the Securities Act;
(b) Then file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the 1934
Act, (at any time after it has become subject to such reporting requirements);
and
(c) Furnish to any Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the 1934 Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company and other information in the possession of or
reasonably obtainable by the Company as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder to
sell any such securities without registration.
1.12 Transfer of Registration Rights. The rights to cause the Company to
-------------------------------
register securities granted Holders under Sections 1.2, 1.3, and 1.4 may be
assigned to a transferee or assignee of the Shares in connection with the
transfer or assignment to a person who thereafter holds 50,000 Shares, if the
Company is given written notice of the transfer of the registration rights under
this Agreement at the time of transfer of the Registerable Securities; provided,
however, that the minimum share restriction imposed by this Section 1.12 on the
transfer of registration rights shall not apply to a transfer of Registrable
Securities by a Holder to a partner (limited or general) or affiliates of such
Holder.
1.13 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 a majority 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 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.
1.14 Amendment of Outstanding Registration Rights. Any amendments hereto
--------------------------------------------
shall be effected only by an amendment to this Agreement by vote of the holders
of a majority of the Registrable Securities then outstanding.
1.15 Termination of Registration Rights. All rights under this Agreement
----------------------------------
shall terminate on the fifth anniversary of the effective date of the Company's
initial public offering.
-11-
SECTION 2.
MISCELLANEOUS
-------------
2.1 Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the State of California.
2.2 Successors and Assigns. Except as otherwise expressly limited herein,
----------------------
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
2.3 Entire Agreement; Amendment, and Waiver. This Agreement and the other
---------------------------------------
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof, and supersedes any prior agreements between the parties to this
Agreement, including the Registration Rights Agreement entered February 14,
1995 between the Company, the Founders and the Series A Preferred Stock
Purchasers. Any term of this Agreement may be amended and the observance of any
term hereof may be waived (either prospectively or retroactively and either
generally or in a particular instance) only with the written consent of the
holders of at least a majority of the Registrable Securities at the time
outstanding (and, in the case of an amendment, the Company). Any amendment or
waiver effected in accordance with this Section 2.3 shall be binding upon each
Holder of the Registrable Securities and the Company. In addition, the Company
may waive performance of any obligation owing to it, as to some or all of the
Holders of the Registrable Securities or agree to accept alternatives to such
performance, without obtaining the consent of any Holder of the Registrable
Securities.
2.4 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, at such Holder's address as such Holder shall have
furnished to the Company in writing, or (b) if to any Other Holder of any of the
Registrable Securities, at such address as such Holder shall have furnished the
Company in writing, or, until any such Holder so furnishes an address to the
Company, then to and at the address of the last Holder of such Registrable
Securities who has so furnished an address to the Company, or (c) if to the
Company, to the Company's then current principal offices and addressed to the
attention of the Corporate Secretary, or at such other address as the Company
shall have furnished to the Holders, and another copy should be sent to the
Company's legal counsel to the attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2.5 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power, or remedy accruing to any Holder of any of the Registrable Securities,
upon any breach or default of the Company under this Agreement, shall be deemed
a waiver of any other breach or default theretofore or thereafter occurring.
Any waiver, permit, consent, or approval of any kind or character on the part of
any Holder of any breach or default under this Agreement, or any waiver on the
part of any Holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to
-12-
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
2.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the Holders,
each of which shall be enforceable against the parties actually executing such
counterparts or otherwise bound by this Agreement, and all of which together
shall constitute one instrument.
2.7 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.
2.8 Aggregation of Stock. All 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.
-13-
Executed effective as of the date first set forth above.
THE COMPANY: NETIQ CORPORATION
a California corporation
By: /s/ CHING-▇▇ ▇▇▇▇▇
--------------------------------------
Title: PRESIDENT
------------------------------------
THE FOUNDERS:
/s/ CHING-▇▇ ▇▇▇▇▇
------------------------------------------
Ching-▇▇ ▇▇▇▇▇
/s/ HER-DAW CHE
------------------------------------------
Her-Daw Che
Wongfratris Company
By: /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇
--------------------------------------
Title: PARTNER
-----------------------------------
-14-
[Signature Page to NetiQ Corporation Registration Rights Agreement]
THE SERIES A PREFERRED SHAREHOLDERS:
Wongfratris Company Direct International, Inc.
By:_____________________________ By:_________________________________
Title:__________________________ Title:______________________________
F&B Limited Liability Company WS Investment Company '95B
By:_____________________________ By:_________________________________
Title:__________________________ Title:______________________________
________________________________ ____________________________________
Che Family Trust, dated 1/18/95 Ms. Ping-Daw Che
/s/ CHII-JAU-YEH
________________________________ ------------------------------------
Ching-▇▇ ▇▇▇▇▇ & Chi-▇▇▇ ▇▇▇▇▇, Mr. Chii-Jau Yeh
Joint Tenancy
________________________________ ____________________________________
▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇-Fu Hung
________________________________ ____________________________________
▇▇. ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇ & Hui-▇▇▇ ▇▇▇▇ Ho
-15-
[Signature Page to NetiQ Corporation Registration Rights Agreement]
THE SERIES A PREFERRED SHAREHOLDERS:
/s/ TEH-▇▇▇▇ ▇▇▇▇ /s/ TZI-▇▇▇▇ ▇▇▇▇
________________________________ -------------------------------------
Chiueh Chin ▇▇▇ ▇▇▇ Teh-▇▇▇▇ ▇▇▇▇ & Tzi-▇▇▇▇ ▇▇▇▇, Joint
Tenancy
/s/ ▇▇▇▇▇-▇▇▇▇ LIN /s/ YUN ▇▇▇ ▇▇▇
-------------------------------- -------------------------------------
▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
________________________________ _____________________________________
Yi-▇▇▇▇ ▇▇▇▇ & Ru-▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇▇ Wu & ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇,
Joint Tenancy Joint Tenancy
________________________________ _____________________________________
Chen-▇▇▇▇ ▇▇▇▇ & ▇▇▇▇-▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇, Joint Tenancy
Joint Tenancy
________________________________ _____________________________________
Mon ▇▇▇ ▇▇▇▇ Chen Family Trust, dated 1/15/93
/s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- -------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
/s/ KAI CHIH-▇▇▇ ▇▇▇ &
/s/ ▇▇▇▇-▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇ SHOW-LAN SUN
-------------------------------- -------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇ Kai Chih-▇▇▇ ▇▇▇ & ▇▇▇▇▇ Show-Lan Sun
/s/ YU ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇ /s/ PRAYON PHATHAYAKORN
-------------------------------- -------------------------------------
Yu ▇. ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇ Prayoon Phathayakorn
-16-
[Signature Page to NetiQ Corporation Registration Rights Agreement]
EACH OF THE SERIES B PREFERRED STOCK PURCHASES:
Wongfratris Company InveStar Burgeon Venture Capital, Inc.
By:/s/ ▇▇▇▇-▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------------
Title: Partner Title: Controller
-------------------------- --------------------------------
CSK Venture Capital Co. Ltd. as
Investment Manager for CSK-2
Investment Fund Concord Venture Capital Co., Ltd.
By:/s/ MASAHIRO AOZONO By:/s/ YU-▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------------
Title: President Title: President
-------------------------- --------------------------------
Concord II Venture Capital Co., Ltd. Golden Venture Capital Investment Corp.
By:/s/ YU-▇▇▇ ▇▇▇▇▇ By:/s/ LO-HOU CHEW
----------------------------- -----------------------------------
Title: President Title: President
-------------------------- --------------------------------
Cosmos Venture Capital Investment Legend Venture Capital Investment Corp.
Corp.
By:/s/ LO-HOU CHEW By:/s/ LO-HOU CHEW
----------------------------- -----------------------------------
Title: President Title: Director
-------------------------- --------------------------------
-17-
[Signature Page to NetiQ Corporation Registration Rights Agreement]
EACH OF THE SERIES B PREFERRED STOCK PURCHASERS:
Direct International Limited CMC Magnetics Corporation
By:/s/ ▇. ▇. ▇▇ By:/s/ MING SEN ▇▇▇▇
----------------------------- ------------------------------------
Title: Director Title: Chairman
-------------------------- ---------------------------------
Sunsino International Development
Associate, Inc. F&B LLC
By:/s/ CHENG ▇▇▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- ----------------------------------
Title: General Manager Title: President
-------------------------- -------------------------------
/s/CHING-▇▇ ▇▇▇▇▇ &
/s/ CHI ▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- -------------------------------------
Ching-▇▇ ▇▇▇▇▇ & Chi ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ AUSTIN J. CHE
-------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Austin J. Che
/s/ ▇▇▇▇▇ ▇. CHE /s/ HER-DAW CHE, Trustee
-------------------------------- --------------------------------------
▇▇▇▇▇ ▇. Che Che Family Trust, Dated Jan. 18, 1995
/s/ SEN-▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇
-------------------------------- --------------------------------------
Sen-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇
-18-
/s/ CHEN-▇▇▇▇ ▇▇▇▇ &
/s/ CHAO-HUA ▇. ▇▇▇▇ /s/ ▇▇▇-▇▇▇▇▇ WU
--------------------------------- --------------------------------------
Chen-▇▇▇▇ ▇▇▇▇ & ▇▇▇▇-▇▇▇ ▇. ▇▇▇▇ ▇▇▇-▇▇▇▇▇ Wu
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ CHIUH CHIN-▇▇▇ ▇▇▇
--------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Chiuh Chin-▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ /s/ CHEN-FU HUNG
--------------------------------- --------------------------------------
▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇-Fu Hung
/s/ ▇▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇ /s/ HON-▇▇▇▇ ▇▇▇▇
-------------------------------- --------------------------------------
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ Hon-▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇ /s/ HANG-▇▇▇▇▇ ▇▇▇
-------------------------------- --------------------------------------
▇▇▇▇▇ ▇.▇. ▇▇▇▇ Hang-▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇-▇▇▇ FAN /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------------
▇▇▇▇▇-▇▇▇ Fan ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
-19-
EXHIBIT A
---------
HOLDERS OF FOUNDER'S COMMON STOCK
NETIQ CORPORATION
Founder's Name and Address
--------------------------
Ching-▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Her-Daw Che
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Wongfratris Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇-▇▇▇ ▇▇▇▇
EXHIBIT B
---------
HOLDERS OF SERIES A PREFERRED STOCK
NETIQ CORPORATION
Holder's Name and Address
-------------------------
Wongfratris Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Ying-▇▇▇ ▇▇▇▇
Che Family Trust, dated 1/18/95
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Her-Daw Che
Ms. Ping-Daw Che
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ching-▇▇ ▇▇▇▇▇ & Chi-▇▇▇ ▇▇▇▇▇,
Joint Tenancy
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. Chii-Jau Yeh
▇/▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Fan-Chi ▇▇▇
▇▇▇▇-Fu Hung
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Fan-▇▇▇ ▇▇▇
Holder's Name and Address
-------------------------
Mr. Sen-▇▇▇▇ ▇▇▇
▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
F&B Limited Liability Company
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Chiueh Chin ▇▇▇ ▇▇▇
5th ▇▇▇▇▇
▇▇▇-▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Teh-▇▇▇▇ ▇▇▇▇ & Tzi-▇▇▇▇ ▇▇▇▇,
Joint Tenancy
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Teh-Ling ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Yun ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ Chen
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Yi-▇▇▇▇ ▇▇▇▇ & Ru-▇▇▇ ▇▇▇ ▇▇▇▇,
Joint Tenancy
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
-2-
Holder's Name and Address
-------------------------
▇▇▇-▇▇▇▇▇ Wu
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇ & ▇▇▇▇-▇▇▇ ▇. ▇▇▇▇,
Joint Tenancy
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇, Joint Tenancy
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mon ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Chen Family Trust, dated 1/15/93
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kai Chih-▇▇▇ ▇▇▇ & ▇▇▇▇▇ Show-Lan Sun
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Yu ▇. ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Prayoon Phathayakorn
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-3-
Holder's Name and Address
-------------------------
WS Investment Company '95B
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
-4-
EXHIBIT B
---------
HOLDERS OF SERIES B PREFERRED STOCK
NETIQ CORPORATION
Holder's Name and Address
-------------------------
Ching-▇▇ ▇▇▇▇▇ & Chi ▇▇▇ ▇▇▇▇▇
Joint Tenancy
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Wongfratris Company
Attn. Y. ▇▇▇ ▇▇▇▇, Partner
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Austin J. Che
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. Che
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Che Family Trust, Dated Jan. 18, 1995
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InveStar Burgeon Venture Capital, Inc.
Attn. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Leeware One Building
Safe Haven Corporate Centre, West Bay Rd.
Seven Mile Beach, Grand Cayman
Cayman Islands, British West Indies
Holder's Name and Address
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CSK Venture Capital Co., Ltd. as
Investment Manager for CSK-2 Investment Fund
Attn. ▇▇▇▇▇ ▇▇▇▇▇▇
CSK Venture Capital Co., Ltd.
Kenchiku ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇-▇▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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Concord Venture Capital Co., Ltd.
Attn. ▇▇▇▇ ▇▇▇, Vice President
14F, #117 Min Sheng East Road, Sec. 3
Taipei 105, Taiwan, R.O.C.
Concord II Venture Capital Co., Ltd.
Attn. ▇▇▇▇ ▇▇▇, Vice President
14 Fl., #117 Min Sheng East Road, Sec. 3
Taipei 105, Taiwan, R.O.C.
Golden Venture Capital Investment Corp.
Attn. ▇▇▇▇ ▇▇▇▇, Vice President
11 Fl. ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Cosmos Venture Capital Investment Corp.
Attn. ▇▇▇▇ ▇▇▇▇, Vice President
11 Fl. ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Legend Venture Capital Investment Corp.
Attn. ▇▇▇▇ ▇▇▇▇, Vice President
11 Fl. ▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
Direct International Limited
Attn. C.S. ▇▇
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P.O. Box N-341
Nassau, Bahamas
Sen-▇▇▇▇ ▇▇▇
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Holder's Name and Address
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Chen-▇▇▇▇ ▇▇▇▇ & ▇▇▇▇-▇▇▇ ▇. ▇▇▇▇
Joint Tenancy
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇▇▇ Wu
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Chiuh Chin-▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
F&B LLC
Attn. ▇▇▇▇▇ ▇▇▇▇▇
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▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chen-Fu Hung
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇
Joint Tenancy
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▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CMC Magnetics Corporation
Attn. ▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇.
Min-Der Building
Taipei, Taiwan, R.O.C.
Hon-▇▇▇▇ ▇▇▇▇
14F/2, ▇▇ ▇▇▇-▇▇▇▇▇ ▇. ▇▇., ▇▇▇. ▇
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Holder's Name and Address
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Sunsino International Development
Associate, Inc.
Attn. ▇▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇, ▇▇. ▇▇▇ ▇▇▇▇-▇▇ ▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
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▇▇, ▇▇. ▇▇▇ ▇▇▇▇-▇▇ ▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
▇▇▇▇-▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇▇▇-▇▇▇ Fan
▇-▇, ▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇
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Room 706, Num. ▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C.
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