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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of
this ____ day of July, 1999 by and among ServiceWare, Inc., a Pennsylvania
corporation (the "Company"), the persons or entities listed on Schedule A
attached hereto (individually, an "Investor", and collectively, the "Investors")
and the Shareholders (as hereinafter defined).
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following meanings.
(a) "Commission" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities
Act and Exchange Act.
(b) "Common Stock" means: (i) the Company's Common Stock, no
par value per share, as authorized on the date of this Agreement; (ii)
any other capital stock of any class or classes (however designated) of
the Company, authorized on or after the date hereof, the holders of
which shall have the right, without limitation as to amount, either to
all or to a share of the balance of current dividends and liquidating
dividends after the payment of dividends and distributions on any
shares entitled to preference, and the holders of which shall
ordinarily, in the absence of contingencies or in the absence of any
provision to the contrary in the Company's Articles of Incorporation,
as amended, be entitled to vote for the election of a majority of
directors of the Company (even though the right to vote has been
suspended by the happening of such a contingency or provision); and
(iii) any other securities into which or for which any of the
securities described in (i) or (ii) may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of
assets or otherwise.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, as shall be in effect at the
time.
(d) "Person" means an individual, corporation, partnership,
joint venture, trust, or unincorporated organization, or a government
or any agency or political subdivision thereof.
(e) "Registrable Securities" means any shares of Common Stock
owned by an Investor or its permitted successors and assigns, including
but not limited to shares of Common Stock issued or issuable upon
conversion of any shares of Series A Convertible Preferred Stock,
Series B Convertible Preferred Stock, Series C Convertible Preferred
Stock, Series D Convertible Preferred Stock or Series E Convertible
Preferred Stock or upon exercise of any warrants to purchase Common
Stock; except for any shares of such
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Common Stock that: (i) have at any time been sold by such parties other
than to a permitted assignee, as defined in Section 5 hereof; and (ii)
which have at any time been sold in a registered public offering or
pursuant to Rule 144 promulgated under the Securities Act.
(f) "Securities Act" means the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
(g) "Shareholders' Agreement" means that certain Shareholders'
Agreement dated as of the date hereof among the Company, the Investors
and the Shareholders.
(h) "Shareholders" mean Xxxx Xxxxxx, Xxxxx Xxxxx, and Xxxxx
Xxxxxx.
(i) "Shareholders' Shares" shall mean all shares of Common
Stock owned by the Shareholders now held or hereafter acquired, but
excluding any such Common Stock that has been: (i) registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with that registration
statement; or (ii) publicly sold pursuant to Rule 144 under the
Securities Act.
2. Registration Rights.
(a) Piggyback Registrations. If at any time or times after the
date hereof, the Company shall determine to register any of its Common
Stock or securities convertible into or exchangeable for Common Stock
under the Securities Act, whether in connection with a public offering
of securities by the Company (a "primary offering"), a public offering
thereof by shareholders (a "secondary offering"), or both (but not in
connection with a registration effected solely to register securities
issuable pursuant to, or rights or interests under, an employee benefit
plan or a transaction to which Rule 145 or any other similar rule of
the Commission under the Securities Act is applicable), the Company
will promptly give written notice thereof to the holders of Registrable
Securities and Shareholders' Shares then outstanding (the "Holders"),
and will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities and Shareholders' Shares
which the Holders may request in a writing delivered to the Company
within fifteen (15) days after the notice given by the Company;
provided, however, that in the event that any registration pursuant to
this Section 2(a) (including a registration requested under Section
2(b) and subsequently converted into a piggyback registration at the
election of the Company, as provided in Section 2(b)) shall be, in
whole or in part, an underwritten public offering of Common Stock, the
number of shares of Registrable Securities and Shareholders' Shares to
be included in such an underwriting may be reduced (pro rata among the
requesting Holders based upon the number of shares of Registrable
Securities and Shareholders' Shares owned by such Holders) if and to
the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities
to be sold by the Company therein provided, further, that, prior to any
such reduction, the Company shall first exclude from
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such registration, in the following order, all shares of Common Stock
sought to be included therein by: (i) any holder thereof not having any
such contractual, incidental registration rights; and (ii) any holder
thereof having contractual, incidental registration rights subordinate
and junior to the rights of the Holders of Registrable Securities. The
Holders acknowledge that the rights of holders of Registrable
Securities and Shareholders' Shares exercising their "piggyback rights"
pursuant to this Section 2(a) shall be junior to the rights of holders
of Registrable Securities who have exercised their demand rights under
Section 2(b) in a situation in which the Company did not elect to make
a primary offering, as provided in Section 2(b).
(b) Demand Registrations. If at any time following the date
which is six months after the Company's initial public offering, one or
more of the holders of an aggregate of not less than 20% of the
Registrable Securities then outstanding shall notify the Company in
writing that it or they intend to offer or cause to be offered for
public sale all or any portion of their Registrable Securities, the
Company will notify all of the holders of Registrable Securities who
would be entitled to notice of a proposed registration under the terms
of this Agreement. Upon the written request of any such holder after
receipt from the Company of such notification, the Company shall
either: (A) elect to make a primary offering, in which case the rights
of Holders shall be as set forth with respect to a primary offering in
Section 2(a) and such registration shall be deemed to be a registration
under Section 2(a) and not a registration hereunder (in which event the
Company shall not be required to cause a registration statement
requested pursuant to this Section 2(b) to become effective prior to 90
days following the effective date of the registration statement
initiated by the Company under Section 2(a)); or (B) file as soon as
practicable, and in any event within 60 days of the receipt of such
written request, a registration statement, and use its best efforts to
cause to become effective the registration of such Registrable
Securities as may be requested by any holders (including the holder or
holders giving the initial notice of intent to register hereunder) to
be registered under the Securities Act in accordance with the terms of
this Section 2(b). Anything herein to the contrary notwithstanding, the
Company shall be obligated to comply with this Section 2(b) on two
occasions only.
(c) Form S-3. If the Company becomes eligible to use Form S-3,
the Company shall use its commercially reasonable efforts to continue
to qualify at all times for registration of securities on Form S-3. If
and when the Company becomes entitled to use Form S-3, the holders of
an aggregate of such number of Registrable Securities that have an
aggregate sales price of not less than $250,000 shall have the right to
request and have effected not more than one registration per year of
shares of Registrable Securities held by them on Form S-3. Such
requests shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended method of
disposition of such shares by such holder or holders. The Company shall
not be required to cause a registration statement requested pursuant to
this Section 2(c) to become effective prior to 90 days following the
effective date of a registration statement initiated by the Company, if
the request for registration has been received by the Company
subsequent to the giving of written notice by the Company, made in good
faith, to the
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holders or Registrable Securities to the effect that the Company is
commencing to prepare a Company-initiated registration statement (other
than a registration effected solely to register securities issuable
pursuant to, or rights or interests under, an employee benefit plan or
a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable); provided, however,
that the Company shall use its best efforts to achieve such
effectiveness promptly following such 90-day period. The Company shall
give notice to all holders of Registrable Securities of the receipt of
a request for registration pursuant to this Section 2(c) and shall
provide a reasonable opportunity for such holders to participate in the
registration. Subject to the foregoing, the Company will use its best
efforts to effect promptly the registration of all shares of Common
Stock on Form S-3 to the extent requested by the holder or holders
thereof for purposes of disposition. Notwithstanding the foregoing, the
Company shall not be required to effect a registration under this
Section 2(c) or Section 2(a) or 2(b) if such Holders of Registrable
Securities may then sell all Registrable Securities within any two
successive 3-month periods without registration under the Securities
Act. In connection with any Form S-3, the Shareholders agree: (i) to
provide all such information and material and take all actions as may
be reasonably required in order to enable the Company to comply with
all applicable requirements of the Commission and to obtain
acceleration of the effective dates of any Form S-3; (ii) that the
distribution of shares of Common Stock included in the Form S-3 shall
be made in accordance with the plan of distribution set forth in such
registration statement and with all applicable rules and regulations of
the Commission; (iii) not to deliver any form of prospectus in
connection with the sale of any shares of Common Stock as to which the
Company has advised the Holders in writing that it is preparing an
amendment or supplement; and (iv) to notify the Company promptly in
writing upon the sale by the Holder of any shares of Common Stock
covered by the Form S-3.
(d) Registration Expenses. In the event of a registration
described in Section 2(a) or 2(b), all expenses of registration and
offering of the Holders participating in the offering including,
without limitation, printing expenses, fees and disbursements of
counsel (including one counsel for the selling Holders of Registrable
Securities or Shareholders' Shares), and independent public
accountants, fees and expenses (including counsel fees incurred by the
Company in connection with complying with state securities or "blue
sky" laws), fees of the National Association of Securities Dealers,
Inc. and fees of transfer agents and registrars), shall be borne by the
Company, except that the Holders shall bear underwriting commissions
and discounts attributable to their Registrable Securities or
Shareholders' Shares, as the case may be, being registered. In the
event of a registration described in Section 2(c), all expenses of
registration and offering of the Holders shall be paid for pro rata by
the Holders whose Registrable Securities are included in the Form S-3.
(e) Further Obligations of the Company. Whenever under the
preceding sections of this Agreement the Company is required hereunder
to register Registrable Securities or Shareholders' Shares, it agrees
that it shall also do the following:
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(i) use commercially reasonable efforts to diligently
prepare for filing with the Commission a registration
statement and such amendments and supplements to said
registration statement and the prospectus used in connection
therewith as may be necessary to keep said registration
statement effective and to comply with the provisions of the
Securities Act with respect to the sale of securities covered
by said registration statement for the period necessary to
complete the proposed public offering;
(ii) furnish to each selling Holder such copies of
each preliminary and final prospectus and such other documents
as such Holder may reasonably request to facilitate the public
offering of his Registrable Securities or Shareholders'
Shares;
(iii) enter into and perform its obligations under
any underwriting agreement with provisions reasonably required
by the proposed underwriter for the selling Holders, if any;
(iv) use its commercially reasonable efforts to
register or qualify the Registrable Securities and
Shareholders' Shares covered by said registration statement
under the securities or "blue-sky" laws of such jurisdictions
as any selling holder of Registrable Securities or
Shareholders' Shares may reasonably request, provided that the
Company shall not be required to register in any states which
shall require it to qualify to do business or subject itself
to general service of process as a condition of such
registration;
(v) prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection with such registration
statement as and to the extent necessary to comply with the
federal securities and any applicable state securities statute
or regulation;
(vi) 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 light of the circumstances then existing;
(vii) cause all such Registrable Securities
registered pursuant hereto to be listed or quoted on each
securities exchange or tier of The Nasdaq Stock Market on
which similar securities issued by the Company are then listed
or quoted;
(viii) provide a transfer agent and registrar for all
Registrable Securities registered hereunder not later than the
effective date of such registration.
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3. Indemnification.
(a) Incident to any registration referred to in this
Agreement, and subject to applicable law, the Company will indemnify
each underwriter, each Holder of Registrable Securities and
Shareholders' Shares so registered, the officers and directors of each
Holder of Registrable Securities and each person controlling any of
them against all claims, losses, damages and liabilities, including
legal and other expenses reasonably incurred in investigating or
defending against the same, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any prospectus
or other document (including any related registration statement) or any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities
or "blue-sky" laws or any rule or regulation thereunder in connection
with such registration; provided, however, that the Company will not be
liable in any case to the extent that any such claim, loss, damage or
liability may have been caused by an untrue statement or omission based
upon information furnished in writing to the Company by such
underwriter or such Holder expressly for use therein. In the event of
any registration of any of the Registrable Securities or Shareholders'
Shares under the Securities Act pursuant to this Agreement, each seller
of Registrable Securities or Shareholders' Shares, as the case may be,
severally and not jointly, will indemnify and hold harmless the
Company, each of its directors and officers and each underwriter (if
any) and each person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange
Act against any claim, losses, damages and liabilities, including legal
and other expenses reasonably incurred in investigating, or defending
it against the same, arising out of any untrue statement of a material
fact contained in any prospectus or other document (including any
related registration statement) or any omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of such selling Holder,
specifically for use in connection with the preparation of such
registration statement, prospectus, amendment or supplement; provided,
however, that the obligations of such selling Holders hereunder shall
be limited to an amount equal to the proceeds to each Holder of
Registrable Securities or Shareholders' Shares sold as contemplated
herein.
(b) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this subsection, notify the indemnifying party
who shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that the
indemnified parties in any such proceeding shall have the right to
retain one counsel at the expense of the indemnifying party, if there
is or could reasonably be expected to be a conflict of interest with
respect to a third party between
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the position of the indemnified parties and the indemnifying party. The
failure to notify an indemnifying party promptly of the commencement of
any such action, if prejudicial to his ability to defend such action,
shall relieve such indemnifying party of any liability to the
indemnified party under this subsection, but the omission so to notify
the indemnifying party will not relieve him of any liability that he
may have to any indemnified party otherwise than under this Section.
(c) To the extent that the indemnification provided for in
this Section 3 from the indemnifying party is held by a court of
competent jurisdiction (by the entry of a final judgment or decree and
the expiration of time to appeal or the denial of the last right of
appeal) to be unavailable to an indemnified party hereunder in respect
of any losses, claims, damages liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among
other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. No
person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) The obligations of the Company and the Holders under this
Section 3 shall survive the completion of any offering of Registrable
Securities in a registration statement under Section 2.
4. Rule 144 Requirements. If the Company becomes subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange
Act, the Company will use its best efforts to file with the Commission such
information as the Commission may require under either of said Sections; and in
such event, the Company shall use its best efforts to take all action as may be
required as a condition to the availability of Rule 144 under the Securities Act
(or any successor exemptive rule hereinafter in effect). The Company shall
furnish to any Holder of Registrable Securities or Shareholders' Shares upon
request, a written statement executed by the Company as to the steps it has
taken to comply with the reporting requirements of Rule 144.
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5. Transfer of Registration Rights. The registration rights of the
Holders under this Agreement may be transferred to any transferee of any shares
of Series A Convertible Preferred Stock, shares of Series B Convertible
Preferred Stock, shares of Series C Convertible Preferred Stock, shares of
Series D Preferred Stock, shares of Series E Convertible Preferred Stock,
Registrable Securities or Shareholders' Shares who: (i) is a Holder of shares of
Series A Convertible Preferred Stock, shares of Series B Convertible Preferred
Stock, shares of Series C Convertible Preferred Stock, shares of Series D
Convertible Preferred Stock, shares of Series E Convertible Preferred Stock,
Registrable Securities or Shareholders' Shares as of the date of this Agreement;
(ii) is an affiliate, as that term is defined in the Investment Company Act of
1940, of a Holder of Registrable Securities as of the date of this Agreement
(including a partner of such Holder); or (iii) is the owner of an investment
account which is managed or advised by an Investor, an affiliate of an Investor,
or any person or entity that acquires 76,000 shares of Series B Convertible
Preferred Stock (as adjusted for stock splits, stock dividends,
reclassifications, recapitalizations or other similar events) (each a "permitted
assignee"). Each such transferee shall be deemed to be a "Holder" for purposes
of this Agreement; provided, that, no transfer of registration rights by a
Holder pursuant to this Section 5 shall create any additional rights in the
transferee beyond those rights granted to Holders in this Agreement.
6. Granting of Registration Rights. The Company shall not, without the
prior written consent of the holders of at least a majority in interest of the
Registrable Securities, grant any rights to any Persons to register any shares
of capital stock or other securities of the Company if such rights could
reasonably be expected to be superior to or be on parity with, the rights of the
holders of Registrable Securities granted pursuant to this Agreement.
7. Prior Agreements. All parties to that certain Registration Rights
Agreement dated June 29, 1995 (the "June 29 Agreement") acknowledge and agree
that the June 29 Agreement which was superseded and replaced by the April 24
Agreement (defined below) has no effect whatsoever and is null and void. Poly
Ventures II, L.P. acknowledges and agrees that this Agreement supersedes and
replaces the registration rights provisions contained in Section 11 ("Section
11") of that certain Share Purchase Agreement with the Company dated as of July
25, 1994 in all respects and Section 11 is hereby rendered null and void. All
parties to that certain Registration Rights Agreement dated April 24, 1996 (the
"April 24 Agreement") acknowledge and agree that this Agreement supersedes and
replaces the April 24 Agreement in all respects, and the April 24 Agreement is
hereby rendered null and void.
8. Miscellaneous.
(a) Damages. The Company recognizes and agrees that the
holders of Registrable Securities will not have an adequate remedy if
the Company fails to comply with this Agreement and that damages may
not be readily ascertainable, and the Company expressly agrees that, in
the event of such failure, it shall not oppose an application by a
Holder of Registrable Securities requiring specific performance of any
and all provisions hereof or enjoining the Company from continuing to
commit any such breach of this Agreement.
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(b) No Waiver; Cumulative Remedies. No failure or delay on the
part of any party to this Agreement in exercising any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(c) Amendments and Waivers. Except as hereinafter provided,
amendments to this Agreement shall require and shall be effective upon
receipt of the written consent of: (i) the Company; (ii) the holders of
at least a majority in interest of the Registrable Securities; and
(iii) in the case of any amendment adversely affecting the rights of
the Shareholders, the holders of at least a majority in interest of the
Shareholders' Shares. Except as hereinafter provided, compliance with
any covenant or provision set forth herein may be waived upon written
consent by the party or parties whose rights are being waived;
provided, that: (i) if the rights of holders of Registrable Securities
are being waived, upon the written consent of the holders of at least a
majority in interest of the Registrable Securities; and (ii) if the
rights of holders of Shareholders' Shares are being waived, upon the
written consent of the holders of at least a majority in interest of
the Shareholders' Shares. Notwithstanding the foregoing, no waivers or
amendments shall be effective to reduce the percentage in interest of
the Registrable Securities or Shareholders' Shares the consent of the
holders of which is required under this Section. Any waiver or
amendments may be given subject to satisfaction of conditions stated
therein and any waiver or amendments shall be effective only in the
specific instance and for the specific purpose for which given.
(d) Notices. As the terms "notice" or "notices" are used
herein as between the parties, such term shall mean a written document,
explaining the reason for the notice, and the same shall be mailed by
United States Postal Service, via Certified Mail, Return Receipt
Requested, addressed as follows:
to the Company:
ServiceWare, Inc.
000 Xxxxxxxxx Xxx.
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
with a copy by mail and fax (which shall not constitute notice) to:
Xxxxxx X. Xxxxx, Esquire
Xxxxxx, Xxxxx & Xxxxxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
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to the holders of Series B Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Xxxxxxx X. Xxxxx, Xx., Esquire
Xxxxx, Xxxxxxx & Xxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
and
to the holders of Series C Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxx, Esquire
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
to the holders of Series D Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Golenbock, Eiseman, Assor & Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxx, Esq.
Telephone: 000-000-0000
Facsimile: 212-754-0330
to the holders of Series E Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Golenbock, Eiseman, Assor & Xxxx
000 Xxxxxxx Xxxxxx
00
00
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxx, Esq.
Telephone: 000-000-0000
Facsimile: 212-754-0330
Such notice shall be deemed to have been given on the date received by
the addressee. The parties shall, as a matter of convenience and
courtesy, send each party receiving notice a copy of said notice by
facsimile or electronic means, or by courier, Federal Express, or
similar service, but such notifications shall not be deemed lawful
"notice" as required hereby. The parties may from time to time amend
the above addresses and names by written notice given the other party.
(e). Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns, except that the
Company shall not have the right to delegate its obligations hereunder
or to assign its right hereunder or any interest herein without the
prior written consent of the holders of at least a majority in interest
of the Registrable Securities.
(f) Prior Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings
or agreements concerning the subject matter hereof.
(g) Severability. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of a
provision contained in this Agreement, shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of a provision, had never been
contained herein, and such provisions or part reformed so that it would
be valid, legal and enforceable to the maximum extent possible.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the Commonwealth
of Pennsylvania, excluding its conflict of laws principles.
(i) Headings. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose.
(j) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
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(k) Further Assurances. From and after the date of this
Agreement, upon the request of any party hereto, the other parties
shall execute and deliver such Agreements, documents and other writings
as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the day and year first above written.
SERVICEWARE, INC.
By: ___________________________
Xxxxx Xxxxx
Chief Executive Officer
SHAREHOLDERS:
_______________________________
Xxxx Xxxxxx, individually and as trustee under various
family trusts
_______________________________
Xxxxx Xxxxx, individually and as trustee under various
family trusts and Voting Trust Agreement dated as
of December 28, 1995
_______________________________
Xxxxx Xxxxxx
SERIES A INVESTOR:
POLY VENTURES II, L.P.
By: ___________________________
General Partner
SERIES B INVESTORS:
POLY VENTURES II, L.P.
By: ___________________________
General Partner
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GEOCAPITAL III, L.P.
By: Geocapital Management, L.P.
By:______________________
General Partner
_________________________
Xxxx Xxxxxxxx
_________________________
Xxxxxxx Xxxxxxxx
_________________________
Xxxxxxx Xxxxxxxxx
_________________________
Xxxxxx Xxxxxx
_________________________
Xxxxxxx Xxxxx
SERIES C INVESTOR:
NORWEST EQUITY PARTNERS V
A Minnesota Limited Liability Partnership
By: ITASCA PARTNERS V, L.L.P.,
General Partner
By:_____________________
Xxxxx X. Xxxx, Partner
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SERIES D INVESTORS:
POLY VENTURES II, L.P.
By:____________________________
Name:_________________________
Title:__________________________
GEOCAPITAL III, L.P.
By:____________________________
Name:_________________________
Title:__________________________
NORWEST EQUITY PARTNERS V
A Minnesota limited liability partnership
By: Itasca Partners V, LLP, General Partner
By:__________________________
Xxxxx X. Xxxx
Partner
XXXXXX XXXXXX VENTURE FUND II,
Limited Partnership
By: Xxxxxx Xxxxxx Venture Partners II, LLC
Its General Partner
By:__________________________
W. Xxxxx Xxxxxx
Managing Director
16
CEO VENTURE FUND III
By:____________________________
Name:_________________________
Title:__________________________
_______________________________
Xxxxxx Xxxx
LANCASTER INVESTMENT PARTNERS
By:____________________________
Name:_________________________
Title:__________________________
_______________________________
Xxxxx Xxxxxxxx
_______________________________
Xxxx Xxxxx
_______________________________
Xxxxxx Xxxx
_______________________________
Xxxx Xxxxxxx
_______________________________
Xxxxxxx Xxxxxxxx
_______________________________
Xxxxx Xxxxxx
_______________________________
Xxxxxxxx Xxxxx
17
COMMONWEALTH ASSOCIATES LP
By:____________________________
Name:_________________________
Title:__________________________
LINDEN PARTNERS
By:____________________________
Name:_________________________
Title:__________________________
HULL OVERSEAS, LTD.
By:____________________________
Name:_________________________
Title:__________________________
_______________________________
Xxxx Xxxxxx
_______________________________
Xxxxxxx Xxxxx
XXXXXXX XXXXX 1994 IRREVOCABLE
RETAINED ANNUITY TRUST
By:____________________________
Name:_________________________
Title:__________________________
_______________________________
Xxxxx Xxxxxxx
18
RADIX ASSOCIATES
By:____________________________
Name:_________________________
Title:__________________________
TAMAR VENTURE CAPITAL LTD.
By:____________________________
Name:_________________________
Title:__________________________
SERIES E INVESTORS:
_______________________________
Xxxx Xxxx
_______________________________
Xxxxxx X. Xxxxxx, Xx.
_______________________________
Xxxx X. Xxxxxxxxx
_______________________________
Xxxxxx X. Xxxxxxxxx
_______________________________
A. Xxxxxx Xxxxxx
19
PARK CITY INVESTMENTS
By: _________________________
Name: _______________________
Title: ________________________
UNTERBERG HARRIS PRIVATE EQUITY
PARTNERS, LP
By: _________________________
Name: _______________________
Title: ________________________
UNTERBERG HARRIS PRIVATE EQUITY
PARTNERS, CV
By: _________________________
Name: _______________________
Title: ________________________
UNTERBERG HARRIS 401K PROFIT SHARING
FBO XXXXXX XXXX
By: _________________________
Name: _______________________
Title: ________________________
XXXXXX XXXX, ACF
XXXXXXX XXXX, U/NY/UGMA
(DOB - 8/10/93)
By: _________________________
Name: _______________________
20
XXXXXX XXXX, ACF
XXXXX XXXX, U/NY/UGMA
(DOB - 10/8/89)
By: _________________________
Name: _______________________
_______________________________
Xxxxxx Xxxxxxx
XXXXX XXXXXX F/B/O XXXXXX X. XXXXXXX XXX
By: _________________________
XXXXXX X. XXXXXXX AND XXXXXXX X. XXXXXXX
TRUSTEES, FAMILY REVOCABLE TRUST UAD
7/6/88
By: _________________________
X. X. XXXXXXXXX, TOWBIN, LLC
By: _________________________
Name: _______________________
Title: ________________________
X. X. XXXXXXXXX, TOWBIN INTERACTIVE
MEDIA PARTNERSHIP LP, CV
By: _________________________
Name: _______________________
Title: ________________________
21
X. X. XXXXXXXXX, TOWBIN, LP
By: _________________________
Name: _______________________
Title: ________________________
________________________
Xxxxx X. Xxxxxx
________________________
Xxxxxx X. Xxxxxx, III
XXXXXX X. XXXXXX, ACF
G. XXXXX XXXXXX, U/NY/UGMA
(DOB - )
By: _________________________
Name: Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, ACF
XXXXX X. XXXXXX, U/NY/UGMA
(DOB - )
By: _________________________
Name: Xxxxxx X. Xxxxxx
_______________________________
Xxxx X. Xxxxxx
_______________________________
Xxxxxx Xxxxx
_______________________________
Xxxxxx Xxxxx
_______________________________
Xxxxx X. Xxxx
22
UNTERBERG TOWBIN CAPITAL PARTNERS I
By: _________________________
Name: _______________________
Title: ________________________
_______________________________
Xxxxxx Xxxxxxxxx
XXXXXXXX & XXXXXXXX X. XXXXXXXXX
FOUNDATION, INC.
By: ___________________________
_______________________________
Xxxxx Xxxxxxxxx Xxxxx
_______________________________
Xxxxx Xxxxxxxxx Xxxxxxx
_______________________________
Xxxxx Xxxxxxx
FTS CAPITAL MANAGEMENT AG
By: _________________________
Name: _______________________
Title: ________________________
TIGAN CAPITAL HOLDINGS LTD.
By: _________________________
Name: _______________________
Title: ________________________
23
SCHEDULE A
NAMES AND ADDRESSES OF PARTIES
Xxxx Xxxxxx
ServiceWare, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxx
ServiceWare, Inc.
000 Xxxxxxxxx Xxxxx Xxxx.
Xxxxxxx, XX 00000
Xxxxx Xxxxxx
Xxxxxx Group, Inc.
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Poly Ventures II, L.P.
000 Xxxxx 000
Xxxx 000
Xxxxxxxxxxx, XX 00000
Geocapital Capital III, L.P.
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
Xxxx Xxxxxxxx
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
Xxxxxxx Xxxxxxxxx
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
24
Xxxxxxx Xxxxxxxx
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
Xxxxxx Xxxxxx
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
Xxxxxxx Xxxxx
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxx, XX 00000
Norwest Equity Partners V
0000 Xxxx Xxxx Xxxx
Xxxxx 0-000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxxxx Xxxxxx Venture Fund II, Limited Partnership
Xxxxxxxx Xxxxx Xxxxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx/Xxxxx Xxxxxx
CEO Venture Fund III
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Xxxxxx Xxxx
c/o X. X. Xxxxxxxxx, Towbin
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Lancaster Investment Partners
000 Xxxxx Xxxxx Xxxx, Xxxxx 00
Xxxx xx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
25
Xxxxx Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxx
000 Xxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx
c/o X. X. Xxxxxxxxx, Xxxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx
000 X. Xxxxxxxx Xxxxxx
Xx. Xxxxxx, XX 00000
Xxxxxxxx Xxxxx
c/o X. X. Xxxxxxxxx, Towbin
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Commonwealth Associates LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
Linden Partners
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Hull Overseas, Ltd.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Xxxx Xxxxxx
26
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx
c/o X. X. Xxxxxxxxx, Towbin
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Xxxxxxx Xxxxx 1994 Irrevocable Retained Annuity Trust
c/o X. X. Xxxxxxxxx, Towbin
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Radix Associates
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tamar Venture Capital Ltd.
00 Xxxxx Xxx
00000 Xxxxxxx Xxxxxxx
Xxxxxx
Attn: Zohar Gilan
Xxxx Xxxx
000 Xxxx Xxx Xxxxxx (00X)
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxxx
00 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
27
A. Xxxxxx Xxxxxx
0000 Xxxxx Xxxxxx (00X)
Xxx Xxxx, XX 00000
Park City Investments
Swiss Bank Tower,
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Unterberg Harris
Private Equity Partners, LP
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Unterberg Harris
Private Equity Partners, CV
X.X. Xxx 000, Xxxx Xxxxxx 00
Xxxxxxx, Xxxxxxxxxxx Antilles
X.X. Xxxxxxxxx, Towbin, LLC
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Unterberg Harris 401k Profit Sharing
Fbo Xxxxxx Xxxx
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxx, ACF
Xxxxxx Xxxx, U/NY/UGMA
(DOB = 8/10/93)
000 Xxxx Xxx Xxxxxx (0X)
Xxx Xxxx, XX 00000
28
Xxxxxx Xxxx, ACF
Xxxxx Xxxx, U/NY/UGMA
(DOB = 10/8/89)
000 Xxxx Xxx Xxxxxx (0X)
Xxx Xxxx, XX 00000
X.X. Xxxxxxxxx, Towbin, LP
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Unterberg Harris Interactive Media Limited Partnership, C.V.
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxx Xxxxxx
Xxx Xxxxxx
c/o Vernat Company
Vermont National Bank Trust Department
00 Xxxx Xx, Xxx 000
Xxxxxxx, XX 00000-0000
Xxxx X. Xxxxxx
The Fort Hill Group
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx, ACR G. Xxxxx Xxxxxx U/NY/UGMA
Xxxxxx Xxxxxx, ACR Xxxxxx X. Xxxxxx U/NY/UGMA
FTS Capital Management XX
Xxxxx Capital Holdings Ltd.
c/o Xxxxxx Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxx
The Swyer Companies
00 Xxxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxx
29
0 Xxxxxxx Xxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Unterberg Towbin Capital Partners I
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx & Xxxxxxxx X. Xxxxxxxxx Foundation, Inc.
Xxxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxxx
c/o Xxxxxx Xxxxxxxxx
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx
Xxxxxx Group, Inc.
0 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
