EXHIBIT 4.3
CHORDIANT SOFTWARE, INC
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "Agreement")
is entered into as of September 28, 1999 by and among Chordiant Software, Inc.,
a Delaware corporation (the "Company") and each of the persons or entities
listed on the schedule attached hereto as Schedule A (the "Investors").
Recitals
Whereas, the Company and certain of the Investors have entered into that
certain Amended and Restated Registration Rights Agreement dated as of April 6,
1999 (the "Prior Agreement");
Whereas, the Company is entering into a Series E Preferred Stock Purchase
Agreement of even date herewith (the "Purchase Agreement") with certain of the
Investors who will purchase shares of Series E Preferred Stock (the "Series E
Preferred Stock") of the Company; and
Whereas, the parties to the Prior Agreement desire that the Prior Agreement
be amended and restated as set forth herein to grant registration rights to the
Investors with respect to the Series E Preferred Stock being purchased pursuant
to the Purchase Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
SECTION 1. Registration Rights.
1.1 Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Common Stock" means the Company's Common Stock.
(d) "Debentures" means the Company's convertible subordinated
debentures issued pursuant to the Convertible Subordinated Debenture Purchase
Agreement dated as of April 6, 1999.
(e) "Form S-3" means such form under the 1933 Act as in effect on
the date hereof or any registration form under the 1933 Act subsequently adopted
by the Securities and Exchange Commission ("SEC") which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
1.
(f) "Holder" means any person owning of record Registrable
Securities or any permitted assignee thereof in accordance with Section 1.12
hereof.
(g) "Initiating Holders" shall mean any Holders who in the
aggregate possess at least forty percent (40%) of the then outstanding
Registrable Securities.
(h) "Preferred Stock" shall mean the Company's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock issued or issuable upon conversion of the Debentures and Series E
Preferred Stock.
(i) The terms "register", "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the 1933 Act, and the declaration or
ordering of the effectiveness of such registration statement or document by the
SEC.
(j) The term "Registrable Securities" means: (i) the Common Stock
issued or issuable upon conversion of the Preferred Stock (as defined below);
and (ii) any Common Stock of the Company issued (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued) by way of a
stock split, stock dividend, recapitalization, merger or other distribution with
respect to, or in exchange for, or in replacement of, such Preferred Stock,
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which its rights under this Section 1 are not assigned. A
holder of Preferred Stock need not convert such Preferred Stock into Common
Stock prior to requesting registration hereunder but may make such a request in
contemplation of conversion of such Preferred Stock into Common Stock prior to
the closing of any such registration.
(k) The number of shares of "Registrable Securities then
outstanding" shall be the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
1.2 Requested Registration.
(a) Request for Registration. In case the Company shall receive from
Initiating Holders a written request that the Company file a registration
statement under the 1933 Act with respect to shares of Registrable Securities
having an expected aggregate offering price of at least seven million five
hundred thousand dollars ($7,500,000), the Company will:
(i) promptly give written notice of such request to all other
Holders; and
(ii) subject to the limitations of Section 1.2(b), as soon as
practicable, use its best efforts to effect such registration under the 1933 Act
(including, without limitation, appropriate qualification under applicable blue
sky or other state securities laws and appropriate compliance with applicable
regulations issued under the 1933 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
2.
such request as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 1.2:
(A) In any particular 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 1933 Act;
(B) Prior to the earlier of (i) the first anniversary of the
date of this Agreement, or (ii) six (6) months after the closing date of the
Company's first registered public offering of its stock (other than a
registration statement relating either to the sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar plan or a SEC
Rule 145 transaction) (the "Initial Offering");
(C) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the date six
(6) months immediately following the closing date of, any initial registration
statement pertaining to securities of the Company (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145
transaction); provided, however, that the Company is acting in good faith and
using all reasonable efforts to cause such initial registration statement to
become effective;
(D) After the Company has effected five (5) such registrations
pursuant to Initiating Holders' demand under this Section 1.2; or
(E) 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 it would be seriously detrimental to the Company and
its shareholders for a registration statement to be filed at such time, then the
Company's obligation to use its best efforts to register, qualify or comply
under this Section 1.2 shall be deferred for a period not to exceed one hundred
twenty (120) days from the date of receipt of written request from the
Initiating Holders; provided, however, that the Company may not make such
certification more than once every twelve (12) months.
Subject to the foregoing clauses (A) through (E) inclusive, the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Initiating Holders and in any event within one hundred twenty (120) days
after receipt of such request.
(b) Underwriting. In the event that a registration pursuant to
Section 1.2 is for a registered public offering involving an underwriting, the
Initiating Holders shall so advise the Company as part of their request made
pursuant to this Section 1.2 and the Company shall include such information in
the written notice given pursuant to Section 1.2(a)(i). In such event, the right
of any Holder to registration pursuant to Section 1.2 shall be conditioned upon
such
3.
Holder's participation in the underwriting arrangements required by this Section
1.2, and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent requested shall be limited to the extent provided
herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with a managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be mutually acceptable to the Company). Notwithstanding any
other provision of this Section 1.2, if the managing underwriter advises the
Initiating Holders in writing that market factors require a limitation of the
number of shares to be underwritten, then the Company shall so advise all
holders of Registrable Securities and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof (except those Holders who have indicated to
the Company their decision not to distribute any of their Registrable Securities
through such underwriting) in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders at the time of
filing the registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriter's market limitation shall be included
in such registration. To facilitate the allocation of shares in accordance with
the above provisions, the Company or the underwriters may round the number of
shares allocated to any Holder to the nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders.
1.3 Piggy-back Registration Rights. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
securities under the 1933 Act in connection with the public offering of such
securities solely for cash (other than a registration (i) on Form S-8 or any
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities, or (ii) with respect to an employee benefit plan, or
(iii) solely in connection with a Rule 145 transaction under the 1933 Act), the
Company shall, each such time, promptly give each Holder written notice of such
registration together with a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under applicable state securities
laws. Upon the written request of each Holder given within twenty (20) business
days after delivery of such written notice by the Company in accordance with
Section 4.4, the Company shall, subject to the provisions of Section 1.8, use
its best efforts to cause to be registered under the 1933 Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this Section 1 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 best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities
4.
registered thereunder, keep such registration statement effective for up to one
hundred twenty (120) 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
1933 Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under the securities laws of such
jurisdictions as shall be reasonably appropriate for the distribution of the
securities covered by the registration statement; provided, however, 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 jurisdiction, and further provided that (anything in this Agreement to
the contrary notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall require that
expenses incurred in connection with the qualification of the securities in that
jurisdiction be borne by selling shareholders, then such expenses shall be
payable by the selling Holders pro rata, to the extent required by such
jurisdiction if such Holders do not elect to withdraw from the registration
after notice of such requirement.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with terms generally
satisfactory to the managing underwriter 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 1933 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 light of the circumstances then existing.
1.5 Furnish Information. In connection with any action pursuant to this
Section 1, 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. In that connection, each selling
Holder shall be required to represent to the Company that all such information
which is given is both complete and accurate in all material respects when made.
5.
1.6 Definition of Expenses.
(a) "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 1.2, 1.3 and 1.15 hereof, including, without
limitation, all registration, filing and qualification fees, underwriters'
expense allowances, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and reasonable fees and disbursements not
to exceed thirty thousand dollars ($30,000) of a single special counsel for the
Holders and the expenses of any special audits incident to or required by any
registration (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
(b) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of the Registrable Securities in the
registration.
1.7 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 1.2 and 1.3 and the first five (5) registrations under Section 1.15
shall be borne by the Company. All Selling Expenses and all Registration
Expenses incurred in connection with any registration, qualification or
compliance after the first five registrations pursuant to Section 1.15 shall be
borne by the Holders of the securities so registered, pro rata on the basis of
the number of shares so registered (provided that each Holder shall bear the
full amount of the fees and disbursements of any counsel retained by it).
1.8 Underwriting Requirements in Piggy-back Registration. The right of any
Holder to registration pursuant to Section 1.3 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
(together with the Company and any other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of Section 1.3 and this Section 1.8, if the
underwriter determines that market factors require a limitation of the number of
shares to be underwritten, the underwriter may (subject to the allocation
priority set forth below) exclude some or all Registrable Securities from such
registration and underwriting. The Company shall so advise all persons
requesting registration, and the number of shares of securities that may be
included in the registration and underwriting shall be allocated in the
following manner. The number of shares that may be included in the registration
and underwriting shall be allocated first to the Company; second, among all
Holders thereof (except those Holders who have indicated to the Company their
decision not to distribute any of their Registrable Securities through such
underwriting) in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders at the time of filing the
registration statement, and third, to any shareholder of the Company (other than
a Holder) on a pro rata basis. No such reduction shall reduce the securities
being offered by the Company for its own account to be included in the
registration and underwriting, and in no event shall the amount of securities of
the selling Holders included in the registration be reduced below twenty-five
percent (25%) of the total amount of securities included in such registration,
unless such offering is the Initial Offering and such registration does not
include shares of any other selling shareholders, in which event any or all of
the
6.
Registrable Securities of the Holders may be excluded in accordance with the
immediately preceding sentence. In no event will shares of any other selling
shareholder be included in such registration which would reduce the number of
shares which may be included by Holders without the written consent of the
Holders of not less than two-thirds of the Registrable Securities proposed to be
sold in the offering. If any Holder disapproves of the terms of any such
underwriting, he 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 such registration.
1.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as a
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors and partners of each Holder,
any underwriter (as defined in the 0000 Xxx) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue 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 1933 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the 1933 Act, the 1934 Act or any state securities
law; and the Company will reimburse each such Holder, officer, director or
partner, underwriter or controlling person for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the Company's indemnity contained in this Section 1.10(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished in writing
and expressly stated for use in connection with such registration by any such
Holder, or such Holder's officers, directors or partners, underwriter, or
controlling person. The Company shall not be required to indemnify any person
against any liability arising (i) from any untrue or misleading statement or
omission contained in any preliminary prospectus if such deficiency is corrected
in the final prospectus or (ii) out of the failure of any person to deliver a
prospectus as required by the 1933 Act. The indemnity provided for in this
Section 1.10(a) shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller, underwriter, participating
person or controlling person and shall survive transfer of such securities by
such seller.
7.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter (within
the meaning of the 0000 Xxx) for the Company, any person who controls such
underwriter, and any other Holder selling securities in such registration
statement or any of its partners, directors or officers or any person who
controls such Holder, against any losses, claims, damages or liabilities (joint
or several) to which any of the foregoing persons may become subject, under the
1933 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 stated in a writing for
use in connection with such registration; and each such Holder will reimburse
any legal or other expenses, as incurred, where same are reasonably incurred by
any person intended to be indemnified pursuant to this Section 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, the liability of each Holder under this
Section 1.10(b) shall be limited to an amount equal to the net proceeds after
expenses and commissions of the shares sold by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.10, notify the
indemnifying party in writing 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 shall have the right to retain its
own counsel, with the reasonable fees and expenses to be paid by the
indemnifying party if the indemnified party reasonably determines that
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 notify an indemnifying party within a
reasonable time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.10, but the omission so to notify the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than under
this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any 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)
8.
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; provided, that in no event shall any
contribution by a Holder thereunder exceed the net proceeds after expenses and
commissions from the offering received by such Holder.
(e) The obligations of the Company and the Holders under this Section
1.10 shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this Agreement. 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.
1.11 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the 1933 Act
and any other rule or regulation of the SEC that may at any time permit a Holder
to sell securities of the Company to the public without registration, the
Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144, at all times
after ninety (90) days after the closing date of the first registration
statement filed by the Company;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the 1933 Act and the
1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request: (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 (at any time after
ninety (90) days after the closing date of the first registration statement
filed by the Company), the 1933 Act and the 1934 Act (at any time after it has
become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies); (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company; and (iii) such other information as may be reasonably requested in
order to permit any Holder to avail itself of any rule or regulation of the SEC
or any state securities authority which permits the selling of any such
securities without registration or pursuant to such form.
9.
1.12 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned by a
Holder to a transferee or assignee of such securities: (i) if such transferee or
assignee was a Holder of Registrable Securities hereunder prior to such
transfer, (ii) if such transferee or assignee acquires at least five percent
(5%) of the then outstanding Registrable Securities, (iii) if such Holder
transfers all, but not less than all, of its Registrable Securities to such
transferee, or (iv) if such transferee or assignee is an affiliate of such
Holder. For the purpose of this Agreement, "affiliate" means any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with the Company (or other referenced person) and includes
without limitation, (a) any person who is an officer, director, or direct or
indirect beneficial holder of at least five percent (5%) of the then outstanding
capital stock of the Company (or other referenced person), and any of the family
members of any such person, (b) any person of which the Company (or other
referenced person) and/or its affiliates (as defined in clause (a) above),
directly or indirectly, either beneficially own(s) at least five percent (5%) of
the then outstanding equity securities, either beneficially own(s) at least five
percent (5%) of the then outstanding equity securities or constitute(s) at least
a five percent (5%) equity participant, (c) in the case of a specified person
who is an individual, family members of such person, and (d) in the case of the
Holders, any entities for which a Holder or any of its affiliates serve as
general partner and/or investment adviser or in a similar capacity, and all
mutual funds and/or other pooled investment vehicles or entities under the
control or management of such Holder or the general partner or investment
adviser thereof, or any affiliate of any of them, or any affiliates of any of
the foregoing.
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 at least a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company which would: (i) allow such holder or prospective
holder to include such securities in any registration filed under Sections 1.2,
1.3 or 1.15 hereof if such inclusion would adversely affect the rights of any
Holder of Registrable Securities hereunder; (ii) permit such holder or
prospective holder to require the Company to initiate any registration of any
securities of the Company; or (iii) otherwise be in conflict with the terms
hereof.
1.14 "Market Stand-off" Agreement. Each Holder agrees, so long as such
Holder holds securities totaling or convertible into at least one percent (1%)
of the Company's outstanding voting equity securities, in connection with the
Company's initial underwritten public offering of the Company's securities that,
upon request of the Company or the underwriters managing any underwritten
offering of the Company's securities, not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any Common Stock
of the Company (other than those Common Stock shares included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the closing date of such registration as may be
requested by the underwriters; provided, however, that such covenants shall
apply only if all of the officers, directors and holders of at least one percent
(1%) of the Company's Equity Securities who own stock of the Company also agree
to such restrictions on any shares not being registered in such offering.
10.
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 of securities of every other person subject to the
foregoing restriction) until the end of such period.
1.15 Form S-3 Registration. In case the Company shall receive from
Initiating Holders a written request or requests that the Company effect a
registration on Form S-3 (or any similar successor form) and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Initiating Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, use its best efforts to effect such
registration and all such qualifications and compliance as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Initiating 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 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 1.15: (i) if the Company is not qualified as a
registrant entitled to use Form S-3 (or the applicable successor form); (ii) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public of less than one million dollars ($1,000,000); (iii) 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 request of the Holder or Holders under this Section 1.15;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; or (iv) in any particular jurisdiction in which
the Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
Subject to the foregoing, the Company shall file and use its best efforts
to bring effective a registration statement covering the Registrable Securities
and other securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
1.16 Termination of the Company's Obligations.
(a) The Company shall have no obligations pursuant to Sections 1.2,
1.3 or 1.15 with respect to any request or requests made by any Holder six (6)
years after the Company's first firm commitment underwritten public offering of
its Common Stock registered under the 0000 Xxx.
11.
(b) Notwithstanding any contrary provision of this Section l, the
Company shall not be required to effect any registrations under the 1933 Act or
under any state securities laws on behalf of any Holder or Holders if, in the
opinion of counsel to the Company, the offering or transfer by such Holder or
Holders in the manner proposed (including, without limitation, the number of
shares proposed to be offered or transferred, the time of sale, and the method
of offering or transfer) is exempt from the registration requirements of the
1933 Act and the securities laws of applicable states and the Company consents
to such transfer, if required.
SECTION 2. Right of First Refusal.
2.1 Right to Purchase New Securities. The Company hereby grants to each
Investor, as long as the Investor holds Debentures or Preferred Stock, the right
of first refusal to purchase, pro rata, all or any part of New Securities (as
defined in Section 2.2 below) which the Company may, from time to time, propose
to sell and issue. An Investor's pro rata share, for purposes of this right of
first refusal, is equal to such Investor's percentage interest in the
outstanding Common Stock of the Company at the time such New Securities are
offered (assuming, for purposes of such percentage interest, complete conversion
of all outstanding convertible securities, including the Debentures, and
complete exercise of all outstanding options and warrants of the Company). This
right of first refusal shall be subject to the following provisions.
2.2 Definition of New Securities. "New Securities" shall mean any shares
of capital stock of the Company, including Common Stock and Preferred Stock,
whether or not now authorized, and any rights, options or warrants to purchase
said shares, and securities of any type whatsoever that are, or may become,
convertible into said shares; provided that "New Securities" does not include
(a) Common Stock issuable upon conversion of any series of the Company's
Preferred Stock, (b) securities issued for consideration other than cash
pursuant to the acquisition of another corporation by the Company by merger,
purchase of all or substantially all of the assets or other reorganization
whereby the Company acquires not less than fifty-one percent (51%) of the voting
power of such corporation, (c) shares of the Company's Common Stock (or related
options exercisable for such Common Stock) issued to employees, officers and
directors of, and consultants to, the Company pursuant to any arrangement
unanimously approved by the Board of Directors of the Company, (d) any security
if Investors holding at least a majority of the outstanding shares of Preferred
Stock and at least a majority of the outstanding shares of Series E Preferred
Stock consent in writing that the right of first refusal shall not apply to such
securities, (e) stock issued in connection with any stock split, stock dividend
or reclassification of Common Stock, distributable on a pro rata basis to all
holders of Common Stock, and (f) shares of Series D Preferred Stock issuable
upon conversion of the Debentures.
2.3 Notice. In the event the Company proposes to undertake an issuance of
New Securities, it shall give each Investor written notice of its intention,
describing the type of New Securities, and the price and terms upon which the
Company proposes to issue the same. Each Investor shall have twenty-five (25)
days from the date of receipt of any such notice to agree to purchase up to the
Investor's pro rata share of such New Securities for the price and upon the
terms specified in the notice by giving written notice to the Company and
stating therein the quantity of New Securities to be purchased. If not all of
the Investors elect to purchase their pro rata share of the New Securities
within said twenty-five (25) day period, then the Company shall
12.
promptly notify in writing the Investors who do so elect and shall offer such
Investors the right to acquire such unsubscribed shares. The Investors shall
have five (5) days after receipt of such notice to notify the Company of its
election to purchase all or a portion thereof of the unsubscribed shares. If the
Investors fail to exercise in full the rights of first refusal, the Company may
within sixty (60) days thereafter sell any or all of such New Securities not
purchased by the Investors, at a price and upon general terms no more favorable
to the purchasers thereof than specified in the notice given to each Investor
pursuant to the foregoing paragraph. In the event the Company has not sold such
New Securities within such sixty (60) day period, the Company shall not
thereafter issue or sell any New Securities without first offering such New
Securities to the Investors in the manner provided above.
2.4 Expiration of Right of First Refusal. The right of first refusal
granted under this Agreement shall expire upon the first to occur of the
following: (a) the closing of the first public offering of the Common Stock of
the Company to the general public which is effected pursuant to a registration
statement filed with, and declared effective by, the Commission under the 1933
Act, provided that such offering results in thirty million dollars ($30,000,000)
or more in aggregate cash proceeds to the Company, and that the public offering
price is not less than five dollars ($5.00) per share (adjusted to reflect
subsequent stock dividends, stock splits, or recapitalizations); or (b) as to an
Investor if such Investor (when aggregated with any of such Investor's wholly-
owned subsidiaries) has disposed of all of its shares of Preferred Stock and
Debentures.
SECTION 3. AMENDMENT AND RESTATEMENT; WAIVER.
3.1 Amendment and Restatement. Effective upon the closing of the sale and
issuance of the Series E Preferred Stock pursuant to the Purchase Agreement, all
provisions of, rights granted and covenants made in the Prior Agreement are
hereby waived released and terminated in their entirety and shall have no
further force or effect whatsoever. The rights and covenants contained in this
Agreement set forth the sole and entire agreement among the Company and the
Investors on the subject matter hereof and supersede any and all rights granted
or covenants made under any prior agreement.
3.2 Waiver. Pursuant to Section 2 of the Prior Agreement, the Investors
who were parties to the Prior Agreement hereby waive (i) the notice provisions
with respect to the right of first refusal set forth in Section 2.3 of the Prior
Agreement and (ii) the right of first refusal set forth in Section 2.1 of the
Prior Agreement with respect to the issuance of the Series E Preferred Stock and
the issuance of any equity securities upon conversion thereof.
SECTION 4. General Provisions.
4.1 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
any other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to effect the intents and purposes of this
Agreement.
13.
4.2 Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties hereto shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
4.3 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person, persons, entity or entities may require.
4.4 Notices. All notices, consents or demands of any kind which any party
to this Agreement may be required or may desire to serve on any other party
hereto in connection with this Agreement shall be in writing and may be
delivered by personal service or overnight courier, by telex or facsimile
transfer, or by registered or certified mail, return receipt requested,
deposited in the United States mail with postage thereon fully prepaid,
addressed: (a) if to the Company, at its address set forth on the signature page
hereof, to the attention of the Chief Financial Officer; or (b) if to an
Investor, at its address as set forth on Exhibit A attached hereto. Service of
any such notice or demand so made by mail shall be deemed complete on the date
of actual delivery as shown by the addressee's registry or certification receipt
or at the expiration of the third (3rd) business day after the date of mailing,
whichever is earlier in time. Any party hereto may from time to time by notice
in writing served upon the others as aforesaid, designate a different mailing
address or a different person to which such notices or demands are thereafter to
be addressed or delivered.
4.5 Captions. Captions are provided herein for convenience only and they
form no part of this Agreement and are not to serve as a basis for
interpretation or construction of this Agreement, nor as evidence of the
intention of the parties hereto.
4.6 Severability. The provisions of this Agreement are severable. The
invalidity, in whole or in part, of any provision of this Agreement shall not
affect the validity or enforceability of any other of its provisions. If one or
more provisions hereof shall be so declared invalid or unenforceable, the
remaining provisions shall remain in full force and effect and shall be
construed in the broadest possible manner to effectuate the purposes hereof. The
parties further agree to replace such void or unenforceable provisions of this
Agreement with valid and enforceable provisions which will achieve, to the
extent possible, the economic, business and other purposes of the void or
unenforceable provisions.
4.7 Attorneys' Fees. In any action at law or in equity to enforce any of
the provisions or rights under this Agreement, the unsuccessful party to such
litigation, as determined by the court in a final judgment or decree, shall pay
the successful party all reasonable costs, expenses and attorneys' fees incurred
by the successful party (including, without limitation, costs, expenses and fees
on any appeal) with respect to such action.
4.8 Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and when executed,
separately or together, shall constitute
14.
a single original instrument, effective in the same manner as if the parties
hereto had executed one and the same instrument.
4.9 Waiver. Any party hereto may, as to itself, by a writing signed by an
authorized representative of such party: (i) extend the time for the performance
of any of the obligations of another party; (ii) waive any inaccuracies in
representations and warranties made by another party contained in this Agreement
or in any documents delivered pursuant hereto; (iii) waive compliance by another
party with any of the covenants contained in this Agreement or the performance
of any obligations of such other party; or (iv) waive the fulfillment of any
condition that is precedent to the performance by such party of any of its
obligations under this Agreement. No waiver of any term, provision or condition
of this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or be construed as, a further or continuing
waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement.
4.10 Entire Agreement. This Agreement (together with its Exhibits and the
other documents referred to herein) is intended by the parties hereto to be the
final expression of their agreement and constitutes and embodies the entire
agreement and understanding of the parties with regard to the subject matter
hereof and is a complete and exclusive statement of the terms and conditions
thereof, and shall supersede any and all prior correspondence, conversations,
negotiations, agreements or understandings relating to the same subject.
4.11 Choice of Law. It is the intention of the parties that the internal
laws of the State of California (irrespective of its choice of law principles)
shall govern the validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the parties.
4.12 Binding on Heirs, Successors and Assigns. This Agreement and all of
its terms, conditions and covenants are intended to be fully effective and
binding, to the extent permitted by law, on the heirs, executors,
administrators, successors and permitted assigns of the parties hereto.
4.13 Survival. The respective representations and warranties given by each
of the parties, as contained herein shall survive without regard to any
investigation made by any party. All statements as to factual matters contained
in any certificates, exhibits or other instruments delivered by or on behalf of
any party pursuant to the terms hereto or in connection with the transactions
contemplated hereby shall be deemed, for all purposes, to constitute
representations and warranties by such party under the terms of this Agreement
given as of the date of such certificate or instrument.
4.14 Amendment. Any provision of this Agreement may be amended or the
observance thereof may be waived upon the written consent of the Company and the
Holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 4.14 shall be
binding upon each Holder of any Registrable Securities then outstanding
(including securities into which such securities are convertible), each future
Holder of all such Registrable Securities, and the Company; provided that, in
the event that such amendment or waiver would disproportionately or adversely
affect a holder or group of
15.
holders of Registrable Securities in a manner different than any of the holders
of Registrable Securities, then such amendment or waiver will require the
consent of such holder(s) of Registrable Securities disproportionately or
adversely affected.
[THIS SPACE INTENTIONALLY LEFT BLANK]
16.
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: CHORDIANT SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: ________________________________
(Print Name of Investor)
By:_____________________________
Title:__________________________
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: Foundation Capital, L.P.
By Foundation Capital Management, LLC
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
Title: Manager
-------------------------------------
Foundation Capital Entrepreneurs Fund, LLC
By Foundation Capital Management, LLC
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
Title: Manager
-------------------------------------
By:________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: Orchid & Co., Nominee for
X. Xxxx Price Threshold Fund III, LP
-------------------------------------------
(Print Name of Investor)
By: Xxxxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
------------------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By: ______________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR:
NORWEST VENTURE PARTNERS VI, LP
By: Itasca VC Partners VI, LLP, General Partner
-----------------------------------------
(Print Name of Investor)
By: /s/ Xxxxxx X. Still, Jr.
--------------------------------------
Title: Xxxxxx X. Still, Jr., Partner
-----------------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR:
XXXXXXXX X. XXXXXX
--------------------------------
(Print Name of Investor)
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: _________________________
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR:
/s/ Xxxxxx Xxxxx
--------------------------------
(Print Name of Investor) FOR AND ON BEHALF OF
LION INVESTMENTS LIMITED
By: XXXXXX XXXXX
-----------------------------
Title: DIRECTOR
-------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR:
LION INVESTMENTS LIMITED
--------------------------------
(Print Name of Investor)
By: /s/ X. Xxxxxxx
-----------------------------
Title: DIRECTOR
--------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR:
VERTEK INVESTMENT (II) LTD.
---------------------------------
(Print name of Investor)
By: /s/ Chua Xxx Xxxx
------------------------------
Title: President
---------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:___________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
Brentwood Associates VII, L.P.
By: Brentwood VII Ventures, L.P.
INVESTOR: its General Partner
--------------------------------------
(Print Name of Investor)
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Title: Xxxxxxx Xxxxx
--------------------------------
General Partner
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: BATTERY VENTURES, III, L.P.
--------------------------------
(Print Name of Investor)
By: BATTERY PARTNERS, III, L.P.
-----------------------------
Title: GENERAL PARTNER
---------------------------
BY: /s/ Xxxxxx X. Xxxxx
------------------------------
XXXXXX X. XXXXX
GENERAL PARTNER
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: ASPECT COMMUNICATIONS
---------------------------------
(Print Name of Investor)
By: /s/ Xxxx Xxxxxxx
------------------------------
Title: V.P. GENERAL COUNSEL
---------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: Xxxxx Family Trust dated 1/6/89
--------------------------------
(Print Name of Investor)
By: /s/ Xxxxxx Xxxxx
--------------------------------
Title: Trustee
--------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:______________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: EDS/SHL Corporation
---------------------------------
(Print Name of Investor)
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Title: Treasurer
---------------------------
In Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: Charter Growth Capital, L.P.
---------------------------------
(Print Name of Investor)
By: /s/ Xxxxxx X. Xxxx
------------------------------
Title: General Partner of the
---------------------------
General Partner
IN Witness whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:___________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: Charter Growth Capital Co-Investment Fund, L.P.
-----------------------------------------------
(Print Name of Investor)
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Title: General Partner of the
-----------------------------------------
General Partner
-----------------------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_____________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: CGC Investors, L.P.
--------------------------------
(Print Name of Investor)
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Title: General Partner of the
--------------------------
General Partner
--------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:__________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: THE CHASE MANHATTAN BANK, AS TRUSTEE
FOR FIRST PLAZA GROUP TRUST
-------------------------------------
(Print Name of Investor)
By: /s/ Xxxx X. Xxxxx
----------------------------------
XXXX XXXXX
Title: VICE PRESIDENT
-------------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
Managing Director
Tudor Global Trading LLC as General Partner
Tudor Private Equity Fund L.P.
-------------------------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_______________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxx
Managing Director
Tudor Investment Corporation as Investment Advisor
Raptor Global Fund Ltd.
--------------------------------------------------
In Witness Whereof, the parties hereto have executed this Amended and
Restated Registration Rights Agreement with the intent and agreement that the
same shall be effective as of the day and year first above written.
THE COMPANY: Chordiant Software, Inc.
By:_______________________________________________
Xxxxxx X. Xxxxxxxxxxx,
Chief Financial Officer
INVESTOR: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxx
Managing Director
Tudor Investment Corporation as General Partner
Raptor Global Fund, L.P.
--------------------------------------------------
Schedule A
INVESTORS
Name and Address
-----------------------------------------------
Foundation Capital
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Foundation Capital Entrepreneurs Fund, L.L.C.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
ORCHID & CO., nominee for X. Xxxx Price Threshold Fund III, L.P.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Norwest Venture Partners VI, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Xxxxxxxx Xxxxxx
PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx, Xxxx. 0
Xxxxxxxxxx, XX 00000
Xxxxx Bushri
PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx, Xxxx. 0
Xxxxxxxxxx, XX 00000
Lion Investments Limited
c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx X0X 0XX
Vertex Investment (II) Ltd.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Name and Address
-----------------------------------------------
Vertex Asia Ltd.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
HWH Investment PTE. Ltd.
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Brentwood Associates VII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Brentwood Affiliates Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Battery Ventures
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Aspect Telecommunications Corporation
0000 Xxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Family Trust dated 1/6/89
c/o Xxxxxx X. Xxxxx
Bluewater Capital Management, Inc.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Name and Address
-----------------------------------------------
MCI Systemhouse Corp.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
cc: MCI Systemhouse Corp.
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attn: General Counsel
Charter Growth Capital, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Charter Growth Capital Co-Investment Fund, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
CGC Investors, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
First Plaza Group Trust
The Chase Manhattan Bank
0 Xxxxx Xxxxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxxx, XX 00000
Tudor Private Equity Fund L.P.
00 Xxxxx Xxxxx, 0/xx/ Xxxxx
Xxxxxx, XX 00000
Raptor Global Fund Ltd.
00 Xxxxx Xxxxx, 0/xx/ Xxxxx
Xxxxxx, XX 00000
Raptor Global Fund, L.P.
00 Xxxxx Xxxxx, 0/xx/ Xxxxx
Xxxxxx, XX 00000
