Exhibit 4.2
RIGHT NOW TECHNOLOGIES, INC.
INVESTORS' RIGHTS AGREEMENT
December 13, 1999
TABLE OF CONTENTS
Page
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1. DEFINITIONS............................................................ 1
2. REGISTRATION RIGHTS.................................................... 2
2.1 Demand Registration.............................................. 2
2.2 Company Registration............................................. 3
2.3 Form S-3 Registration............................................ 4
2.4 Obligations of the Company....................................... 5
2.5 Termination of Registration Rights............................... 6
2.6 Furnish Information.............................................. 6
2.7 Indemnification.................................................. 6
2.8 Rule 144 Reporting............................................... 9
2.9 Assignment of Registration Rights................................ 9
2.10 Amendment of Registration Rights................................. 9
2.11 Limitations on Subsequent Registration Rights.................... 9
2.12 "Market Stand-Off" Agreement..................................... 10
3. COVENANTS OF THE COMPANY............................................... 10
3.1 Basic Financial Information and Reporting........................ 10
3.2 Inspection Rights................................................ 11
3.3 Confidentiality of Records....................................... 11
3.4 Employee Agreements.............................................. 12
3.5 Insurance........................................................ 12
3.6 Internal Revenue Code Section 1202............................... 12
3.7 Vesting of Stock Options......................................... 12
3.8 Termination of Covenants......................................... 12
4. RIGHTS OF FIRST REFUSAL................................................ 12
4.1 Subsequent Offerings............................................. 12
4.2 Exercise of Rights............................................... 13
4.3 Issuance of Equity Securities to Other Persons................... 13
4.4 Termination of Rights of First Refusal........................... 13
4.5 Transfer of Rights of First Refusal.............................. 13
4.6 Excluded Securities.............................................. 13
5. LEGENDS................................................................ 14
5.1 Legends.......................................................... 14
6. MISCELLANEOUS.......................................................... 15
6.1 Governing Law.................................................... 15
6.2 Survival......................................................... 15
6.3 Successors and Assigns........................................... 15
6.4 Severability..................................................... 15
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TABLE OF CONTENTS
(continued)
Page
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6.5 Amendment and Waiver............................................. 15
6.6 Delays or Omissions.............................................. 16
6.7 Notices, etc..................................................... 16
6.8 Attorneys' Fees.................................................. 16
6.9 Titles and Subtitles............................................. 16
6.10 Counterparts..................................................... 16
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RIGHT NOW TECHNOLOGIES, INC.
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement (the "Agreement") is entered into as of
December 13, 1999, by and among Right Now Technologies, Inc., a Montana
corporation (the "Company"), and the parties listed on Exhibit A hereto
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(collectively the "Investors" and individually an "Investor").
Recitals
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A. The Company proposes to sell and issue 5,554,853 shares of Series A
Preferred Stock pursuant to that certain Series A Preferred Stock Purchase
Agreement dated of even date herewith, by and among the Company and the
Investors (the "Series A Agreement");
B. The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Series A Agreement.
C. The Company desires to enter into this Agreement and grant the
Investors the rights contained herein in order to fulfill such condition.
Now, Therefore, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree as follows:
1. DEFINITIONS
1.1 The term "Holder" means any Investor owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 2.9 hereof.
1.2 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 the declaration or ordering of
effectiveness of such registration statement.
1.3 The term "Registrable Securities" means (a) Common Stock of the
Company issued or issuable upon conversion of the Series A Preferred Stock held
by the Holders (the "Preferred Stock"); (b) shares of Common Stock purchased by
the Holders or issued or issuable to Holders upon conversion of other securities
purchased by Holders pursuant to their right of first refusal in Section 4 of
this Agreement; and (c) any Common Stock of the Company issued as (or issuable
upon the conversion 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, such above-described securities. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person either pursuant to an effective registration statement, Rule 144 or in a
private transaction in which the transferor's rights under Section 2 of this
Agreement with respect to such registration rights are not assigned.
1.4 "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar United States federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.5 The term "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any successor registration form under the
Securities 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.
1.6 The term "SEC" or "Commission" means the Securities and Exchange
Commission.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
(a) Subject to the conditions of this Section 2.1, if the Company
shall receive at any time after the earlier of (i) six (6) months after the
effective date of the Company's first registered public offering of its stock,
or (ii) December 13, 2002, a written request from the Holders of not less than
fifty percent (50%) of the Registrable Securities (the "Initiating Holders")
that the Company file a registration statement under the Securities Act covering
the registration of Registrable Securities which will have an aggregate offering
price of at least $7,500,000 then the Company shall, within ten (10) days of the
effective date of such notice as defined in Section 6.7 of this Agreement, give
written notice of such request to all Holders, and, subject to the limitations
of Section 2.1(b), effect as soon as practicable the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered within twenty (20) days of the effective date of such notice by the
Company in accordance with Section 6.7.
(b) In the event that a registration pursuant to Section 2.1 is for a
registered public offering involving an underwriting, the Initiating Holders
will so advise the Company as part of the written request given by such
Initiating Holders and the Company shall in turn so advise the Holders in the
written notice referred to in Section 2.1(a). The right of any Holder to include
his or her 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 to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters. Notwithstanding any other provision of this
Section 2.1, if the underwriter advises the Company in writing that marketing
factors require a limitation of the number of securities to be underwritten
(including Registrable Securities), then the Company shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated, first, to the Holders of Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders); second, to shares to be registered and sold
for the Company's own account; and third, to the stockholders (other than the
Holders) invoking contractual rights to have their securities registered, if
any, on a pro rata basis.
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(c) The Company is obligated to effect only two (2) such registrations
pursuant to this Section 2.1. A registration pursuant to this Section 2.1 may be
the first public offering of the Company's securities (the "Initial Offering").
(d) Notwithstanding the foregoing, the Company may delay initiating
the preparation and filing of any registration statement requested pursuant to
Section 2.1(a) if (i) in the good faith judgment of the Company's Board of
Directors effecting the registration would adversely affect or would require the
premature disclosure of any financing, acquisition, disposition or assets or
stock, merger or other comparable transaction or would require the Company to
make public disclosure of information the public disclosure of which would have
a material adverse effect on the Company or (ii) a request for registration is
received during the period starting with the date thirty (30) days prior to the
Company's good faith estimate of the date of the filing of, and ending on a date
one hundred fifty (150) days following the effective date of, a Company-
initiated registration subject to Section 2.2 relating to the Initial Offering,
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective.
(e) All expenses incurred in connection with each registration by the
Holders pursuant to this Section 2.1 (excluding underwriters' discounts and
commissions, which shall be paid by the selling Holders pro rata and the fees
and disbursements of counsel for the selling Holders), including without
limitation all registration, filing, qualification, printers' and accounting
fees, and fees and disbursements of counsel for the Company shall be borne by
the Company; provided, however, that the Company shall not be required to pay
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for any expenses of any registration proceeding begun pursuant to Section 2.1 if
the registration request is subsequently withdrawn by the Initiating Holders,
unless the withdrawal of the registration request results from either (i)
intentional actions by the Company outside the normal course of business, or
(ii) the discovery of information about the Company which was not known at the
time of the Initiating Holders' request made pursuant to Section 2.1(a), that
materially reduces the feasibility of the registration proceeding.
2.2 Company Registration. The Company shall promptly notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of equity securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of equity securities of
the Company, but excluding registration statements relating to employee benefit
plans or a transaction covered by Rule 145 under the Securities Act) and will
afford each such Holder an opportunity to include in such registration statement
all or part of such Registrable Securities held by such Holder. Each Holder
desiring to include in any such registration statement all or any part of the
Registrable Securities held by it shall, within fifteen (15) days after the
effective date of the above-described notice from the Company as defined in
Section 6.7, so notify the Company in writing. Such notice shall state the
intended method of disposition of the Registrable Securities by such Holder. If
a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent
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registration statement or registration statements as may be filed by the Company
with respect to offerings of its securities, all upon the terms and conditions
set forth herein.
(a) If the registration statement under which the Company gives notice
under this Section 2.2 is for an underwritten offering, the Company shall so
advise the Holders of Registrable Securities. In such event, the right of any
such Holder to be included in a registration pursuant to this Section 2.2 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 provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. If the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to
the Company for its own account; second, to the Holders on a pro rata basis
based on the total number of Registrable Securities held by the Holders; and
third, to any stockholder (other than a Holder) invoking contractual rights to
have their securities registered, if any, on a pro rata basis; provided, in the
Initial Offering, the underwriters and the Company, may exclude all of the
Registrable Securities held by the Holders. If any Holder disapproves of the
terms of any such underwriting, he or she may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from the
registration.
(b) The Company shall bear all fees and expenses incurred in
connection with any registration under this Section 2.2, including without
limitation all registration, filing, qualification, printers' and accounting
fees, fees and disbursements of counsel to the Company, except that each
participating Holder shall bear its proportionate share of all amounts payable
to underwriters in connection with such offering for discounts and commissions
and the fees and disbursements of counsel to the selling Holders.
2.3 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 with respect to all or a part of
the Registrable Securities owned by such Holder or Holders, the Company will:
(i) promptly give written notice of the proposed registration to all
other Holders of Registrable Securities; and
(ii) as soon as practicable, effect such registration 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 fifteen (15) days after the
effective date of such written notice from the Company as defined in Section
6.7; provided, however, that the Company shall not be obligated to effect any
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such registration pursuant to this Section 2.3: (a) if Form S-3 is not available
for such offering by the Holders, (b) 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 at an
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aggregate price to the public of less than $1,000,000, (c) if the Company shall
furnish to the Holders a certificate signed by the Chief Executive Officer or
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 stockholders 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 and twenty
(120) days after receipt of the request of the Holder or Holders under this
Section 2.3, or (d) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders pursuant to this Section 2.3.
(iii) Subject to the foregoing, the Company shall file a Form S-3
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. The Company shall pay all expenses incurred
in connection with any registrations requested pursuant to this Section 2.3
(excluding underwriters' discounts and commissions, which shall be paid by the
selling Holders pro rata and any fees and disbursements of counsel for the
selling Holders), including without limitation all registration, filing,
qualification, printers' and accounting fees, and fees and disbursements of
counsel for the Company.
2.4 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable 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 up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders 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 they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable 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, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing
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underwriter(s) of such offering. 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 Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Use its reasonable best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
2.5 Termination of Registration Rights. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect as to
any Holder upon the earlier of (a) the date five (5) years following the closing
of the Initial Offering or (b) such time as such Holder could sell all of the
Registrable Securities held by such Holder in any one three-month period under
the terms of Rule 144 under the Securities Act, provided that the Company is
subject to the reporting requirements of the 1934 Act (as defined below).
2.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 2.1, 2.2 or
2.3 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to effect the
registration of their Registrable Securities.
2.7 Indemnification. In the event any Registrable Securities are included
in a registration statement under Sections 2.1, 2.2 or 2.3.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers and directors of each Holder,
any underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as
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amended (the "1934 Act"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities 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") by the Company (i) any untrue statement or alleged
untrue 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 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 in connection with the offering covered
by such registration statement; and the Company will reimburse each such Holder,
partner, officer or director, underwriter or controlling person for 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 contained in this Section 2.7(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 such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(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, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder, against any losses, claims,
damages or liabilities joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder, or
partner, director, officer or controlling person of such other Holder may become
subject under the Securities 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 reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, or partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided,
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however, that the indemnity agreement contained in this Section 2.7(b)
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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 further, that
in no event shall any indemnity under this Section 2.7(b) exceed the net
proceeds from the offering received by such Holder.
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(c) Promptly after receipt by an indemnified Party under this Section
2.7 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 2.7, 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
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shall have the right to retain its own 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 materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.7, 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 2.7.
(d) If the indemnification provided for in this Section 2.7 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability 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 Violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law 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) The foregoing indemnity agreements of the Company and Holders are
subject to the condition that, insofar as they relate to any Violation made in a
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any person if a copy of the Final Prospectus was furnished to the
indemnified party and was not furnished by the indemnified party to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(f) The obligations of the Company and Holders under this Section 2.7
shall survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
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2.8 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable 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 use its reasonable best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended.
(b) Use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements);
(c) Furnish to any Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of 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 such Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such Holder
to sell any such securities without registration.
2.9 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to a transferee or assignee of Registrable Securities; provided, however,
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that no such transferee or assignee shall be entitled to registration rights
under Sections 2.1, 2.2 or 2.3 hereof unless it owns a minimum of 100,000 shares
of Registrable Securities (as presently constituted and subject to subsequent
adjustments for stock splits, stock dividends, reverse stock splits and similar
events), and the Company shall promptly be 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. Notwithstanding the
foregoing, rights to cause the Company to register securities may be assigned to
any subsidiary or parent company of a Holder or any partner of any Holder.
2.10 Amendment of Registration Rights. Any provision of this Section 2 may
be amended and the observance thereof 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 a majority of the Registrable
Securities. Any amendment or waiver effected in accordance with this Section
2.10 shall be binding upon each Holder and the Company. By acceptance of any
benefits under this Section 2, Holders of Registrable Securities hereby agree to
be bound by the provisions hereunder.
2.11 Limitations on Subsequent Registration Rights. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the
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Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company that would permit such holder or
prospective holder (a) to include such securities in any registration filed
under Section 2.1 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 or her 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 2.1 or within one hundred twenty (120) days of the effective date
of any registration effected pursuant to Section 2.1.
2.12 "Market Stand-Off" Agreement. Each Holder hereby agrees that during
the one hundred eighty (180)-day following the effective date of a registration
statement of the Company filed under the 1933 Act, it shall not, to the extent
requested by the Company and the managing underwriter, sell or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any Common Stock of the Company held by it at any time during such period except
Common Stock included in such registration; provided, however, that:
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(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;
and
(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.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each Holder
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
3. COVENANTS OF THE COMPANY
3.1 Basic Financial Information and Reporting.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
(b) As soon as practicable after the end of each fiscal year of the
Company, and in any event within ninety (90) days thereafter, the Company will
furnish each Holder of at least 250,000 shares of Registrable Securities (as
presently constituted and subject to subsequent adjustments for stock splits,
stock dividends, reverse stock splits and similar events) an audited
consolidated balance sheet of the Company, as at the end of such fiscal year,
and an audited consolidated statement of income and an audited consolidated
statement of cash flows of the Company, for such year, all prepared in
accordance with generally accepted accounting principles
10
and setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail. Such financial statements shall be
accompanied by a report and opinion thereon by independent public accountants of
national standing selected by the Company's Board of Directors.
(c) So long as a Holder shall own at least 250,000 shares of
Registrable Securities (as presently constituted and subject to subsequent
adjustments for stock splits, stock dividends, reverse stock splits and similar
events), as soon as practicable after the end of the first, second and third
quarterly accounting periods in each fiscal year of the Company, and in any
event within forty-five (45) days thereafter, the Company will furnish each such
Holder a consolidated balance sheet of the Company as of the end of each such
quarterly period, and a consolidated statement of income and a consolidated
statement of cash flows of the Company for such period and for the current
fiscal year to date, prepared in accordance with generally accepted accounting
principles, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
(d) So long as a Holder shall own at least 250,000 shares of
Registrable Securities (as presently constituted and subject to subsequent
adjustments for stock splits, stock dividends, reverse stock splits and similar
events), the Company will furnish each such Holder (i) at least thirty (30) days
prior to the beginning of each fiscal year an annual budget and operating plans
for such fiscal year, beginning with the Company's fiscal year ended December
31, 2001; and (ii) within thirty (30) days after the end of each month, an
unaudited balance sheet and statements of income and cash flows, prepared in
accordance with generally accepted accounting principles (other than for
accompanying notes).
3.2 Inspection Rights. So long as a Holder shall own at least 250,000
shares of Registrable Securities (as presently constituted and subject to
subsequent adjustments for stock splits, stock dividends, reverse stock splits
and similar events), each such Holder (at such Holder's expense) shall have the
right to visit and inspect any of the properties of the Company or any of its
subsidiaries, and to discuss the affairs, finances and accounts of the Company
or any of its subsidiaries with its officers, all at such reasonable times and
as often as may be reasonably requested; provided, however, that the Company
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shall not be obligated under this Section 3.2 with respect to a competitor of
the Company or with respect to information which the Board of Directors
determines in good faith is confidential and should not, therefore, be
disclosed.
3.3 Confidentiality of Records. Each Holder agrees to use, and to use its
reasonable best efforts to insure that its authorized representatives use, the
same degree of care as such Holder uses to protect its own confidential
information to keep confidential any information furnished to it which the
Company identified or marked as being confidential or proprietary (so long as
such information is not in the public domain), except that such Holder may
disclose such proprietary or confidential information to any partner, subsidiary
or parent of such Holder for the purpose of evaluating its investment in the
Company as long as such partner, subsidiary or parent is advised of the
confidentiality provisions of this Section 3.3.
11
3.4 Employee Agreements. All future employees of the Company and
consultants to the Company shall be required to execute an Employee Inventions
and Proprietary Rights Assignment Agreement substantially in the form attached
as Exhibit G to the Series A Agreement, with such amendments thereto or
---------
deviations therefrom as the Board of Directors may from time to time deem
appropriate.
3.5 Insurance. The Company agrees to maintain valid policies of workers'
compensation insurance and, to the extent such insurance is available on
commercially reasonable terms, insurance with respect to its properties and
business of the kinds and in the amounts not less than is customarily obtained
by corporations engaged in the same or similar business and similarly situated,
including, without limitation, insurance against loss, damage, fire, theft,
public liability and other risks. In addition, as soon as practicable following
the closing of the transaction contemplated by the Series A Agreement, the
Company agrees to procure and maintain a key man life insurance policy on Greg
Gianforte in an amount to be determined by the Board of Directors.
3.6 Internal Revenue Code Section 1202. The Company shall furnish to each
Purchaser, and shall make such filings with the Internal Revenue Service, as
shall from time to time be required pursuant to Section 1202(d)(1) of the
Internal Revenue Code of 1986, as amended (the "Code"). In addition, the Company
agrees that it will not make any purchases of its stock within the meaning of
and which would exceed the limitation contained in Section 1202(c)(3)(B) of the
Code, unless such purchases (i) have been consented to by holders of a majority
of the Series A Preferred or (ii) are required by contractual obligations
entered into prior to the closing of the transaction contemplated by the Series
A Agreement. Any such information provided to the Purchaser under this Section
3.6 shall not be disclosed by any Purchaser to any party except as required and
solely in order for such Purchaser to claim any benefits under Section 1202 of
the Code.
3.7 Vesting of Stock Options. After the closing of the transaction
contemplated by the Series A Agreement, the standard vesting schedule for
options to purchase shares of Common Stock of the Company granted to employees
and directors of the Company under the Company's 1998 Long-Term Incentive and
Stock Option Plan and any other stock option plans of the Company shall provide
for vesting over a four (4)-year period, although alternative vesting schedules
may be used with respect to certain options if deemed by the Board of Directors
of the Company to be in the best interest of the Company. All stock options or
rights to purchase stock of the Company granted to employees, officers,
directors or consultants shall grant to the Company a right of first refusal to
purchase any and all stock acquired on exercise of the option or other right to
purchase such stock.
3.8 Termination of Covenants. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Holder upon
the date that the Company first becomes subject to the reporting obligations of
the 1934 Act.
4. RIGHTS OF FIRST REFUSAL.
4.1 Subsequent Offerings. Each Holder shall have a right of first refusal
to purchase its pro rata share of all Equity Securities (as defined below) that
the Company may, from time to time, propose to sell and issue after the date of
this Agreement, other than the Equity Securities excluded
12
by Section 4.6 hereof. Each Holder's pro rata share is equal to the ratio of the
number of shares of Preferred Stock (or Common Stock issuable upon conversion
thereof) with respect to which such Holder is deemed to be a holder immediately
prior to the issuance of such Equity Securities to the total number of
outstanding shares of Preferred Stock or Common Stock of the Company. Greylock
IX Limited Partnership (assuming it is then entitled to the rights granted
pursuant to this Section 4.1), shall have a right of first refusal to purchase
up to 250,000 shares of Common Stock in the Initial Offering. Equity Securities
shall mean shares of, or securities convertible into or exercisable for any
shares of, any class of the Company's capital stock.
4.2 Exercise of Rights. If the Company proposes to issue any Equity
Securities, it shall give each Holder written notice of its intention,
describing the Equity Securities, the price, and the terms and conditions upon
which the Company proposes to issue the same. Each Holder shall have fifteen
(15) days from the effective date of such notice as defined in Section 6.7 to
agree to purchase its pro rata share of the Equity Securities for the price and
upon the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of Equity Securities to be
purchased. Notwithstanding the foregoing, the Company shall not be required to
offer or sell such Equity Securities to any Holder who would cause the Company
to be in violation of applicable federal securities laws by virtue of such offer
or sale.
4.3 Issuance of Equity Securities to Other Persons. If the Holders fail to
exercise in full the rights of first refusal within such fifteen (15)-day
period, the Company shall have ninety (90) days thereafter to sell the Equity
Securities in respect of which the Holders' rights were not exercised, at a
price and upon terms and conditions no more favorable to the purchasers thereof
than specified in the Company's notice to the Holders pursuant to Section 4.2
hereof. If the Company has not sold such Equity Securities within such ninety
(90) days, the Company shall not thereafter issue or sell any Equity Securities,
without first offering such securities to the Holders in the manner provided
above.
4.4 Termination of Rights of First Refusal. The rights of first refusal
established by this Section 4 shall terminate upon the closing of an
underwritten public offering of Common Stock of the Company made pursuant to an
effective registration statement under the Securities Act.
4.5 Transfer of Rights of First Refusal. The rights of first refusal of
each Holder under this Section 4 may be transferred (a) to any subsidiary or
parent company of such Holder, to any partner of such Holder or to any successor
in interest to all or substantially all the assets of such Holder, or (b) with
respect to at least 100,000 shares of Registrable Securities (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reverse stock splits and similar events), to a transferee other than
a direct competitor of the Company, provided that the Company is given written
notice by the Holder stating the name and address of the transferee and
identifying the Registrable Securities with respect to which the rights under
this Section 4 are being assigned.
4.6 Excluded Securities. The rights of first refusal established by this
Section 4 shall have no application to any of the following Equity Securities:
13
(a) Shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or other rights)
issued or to be issued to employees, officers or directors of, or consultants or
advisors to the Company or any subsidiary, pursuant to stock purchase or stock
option plans or other arrangements that are approved by the Board of Directors
of the Company;
(b) any Equity Securities issued pursuant to any rights or agreements
outstanding as of the date of this Agreement, including without limitation
convertible securities, options and warrants; and any Equity Securities issued
pursuant to any such rights or agreements granted after the date of this
Agreement, provided that the rights of first refusal established by this Section
4 applied with respect to the initial sale or grant by the Company of such
rights or agreements;
(c) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(d) except for the right granted to Greylock IX Limited Partnership
pursuant to Section 4.1, any Equity Securities that are issued by the Company as
part of an underwritten public offering referred to in Section 4.4 hereof;
(e) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company; and
(f) shares of Common Stock issued upon conversion of the Preferred
Stock.
(g) any Equity Securities issued to financial institutions or lessors
in connection with commercial credit arrangements, equipment financings, or
similar transactions as approved by the Board of Directors; or
(h) any Equity Securities issued to an entity as an integral
component of a strategic partnering transaction with such entity as approved by
the Board of Directors.
5. LEGENDS.
5.1 Legends. Each Investor understands that the share certificates
evidencing any Registrable Securities shall be endorsed with the following
legends (in addition to any legends required under applicable state securities
laws):
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
14
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN INVESTORS' RIGHTS AGREEMENT WHICH PLACES CERTAIN
RESTRICTIONS ON THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST
IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH INVESTORS' RIGHTS AGREEMENT WILL BE
FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS."
(c) Any legend required to be placed thereon by any applicable state
securities laws.
6. MISCELLANEOUS.
6.1 Governing Law. This Agreement shall be governed in all respects by the
laws of California.
6.2 Survival. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
6.3 Successors and Assigns. Except as otherwise expressly provided 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
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
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prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
6.4 Severability. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.5 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of not less than a majority of the Registrable Securities.
15
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of not less than a majority of the
Registrable Securities.
6.6 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
6.7 Notices, etc. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed effective on the date of delivery, when
delivered personally or by overnight courier, upon electronic confirmation of
receipt when or sent by telegram or fax, or forty-eight (48) hours after being
deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address or
fax number as set forth on Exhibit A, or as subsequently modified by written
notice.
6.8 Attorneys' Fees. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and legal costs in connection therewith.
6.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
COMPANY:
RIGHT NOW TECHNOLOGIES, INC.
By: /s/ Greg Gianforte
---------------------------------------
Greg Gianforte, Chief Executive Officer
16
INVESTORS:
GREYLOCK IX LIMITED PARTNERSHIP
By: Greylock IX GP Limited Partnership,
its general partner
By: /s/ Roger Evans
---------------------------------------
General Partner
SUMMIT ACCELERATOR FUND, L.P.
By: SUMMIT ACCELERATOR PARTNERS, L.L.C.
Its General Partner
By: Summit Accelerator Management, L.P.
A Member
By: Summit Accelerator Management, L.L.C.
Its General Partner
By: /s/ Kip Sheeline
--------------------
A Managing Member
/s/ Robert Ryan
- ----------------------------------
Robert Ryan
/s/ Greg Gianforte
- ----------------------------------
Greg Gianforte
/s/ Susan Carstensen
- ----------------------------------
Susan Carstensen
17
EXHIBIT A
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INVESTORS
- ---------
GREYLOCK IX LIMITED PARTNERSHIP
Address: 755 Page Mill Road, Bldg. A, Suite 100
Palo Alto, California 94304
Fax: 650-493-5575
GREG GIANFORTE
Address: c/o Right Now Technologies, Inc.
601 Haggerty Lane, Suite D
Bozeman, Montana 59715
Fax: 406-522-4208
ROBERT RYAN
Address: 77 Storm King Road
Hamilton, Montana 59840
Fax: 406 363-0155
SUSAN CARSTENSEN
Address: c/o Right Now Technologies, Inc.
601 Haggerty Lane, Suite D
Bozeman, Montana 59715
Fax: 406-522-2908
SUMMIT ACCELERATOR FUND, L.P.
Address: 499 Hamilton Ave., Suite 200
Palo Alto, California 94301
Attention: Kip Sheeline
Fax: 650 321-1188
18