EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of this 24th day of November, 1999
by and among Unica Technologies, Inc., a Massachusetts corporation (together
with any successor thereto, the "Company"), and the investors listed under the
heading "Investors" on the signature page hereto (each, an "Investor" and
collectively, the "Investors").
WHEREAS, the Company and the Investors are simultaneously
entering into a certain Stock Purchase Agreement, dated as of the date hereof
(the "Purchase Agreement"), pursuant to which the Investors have agreed to
purchase shares of Series A Convertible Participating Preferred Stock, par value
$.01 per share (the "Series A Preferred Stock"), from the Company in accordance
with the terms and conditions contained therein; and
WHEREAS, the execution of this Agreement is a condition
precedent to the purchase by the Investors of the Series A Preferred Stock under
the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the United States Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act and the Exchange Act.
"COMMON STOCK" shall mean (i) the Company's Common Stock, par
value $.01 per share, and (ii) any other securities into which or for which any
of the securities described in clause (i) above may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"PERSON" shall mean an individual, a corporation, a
partnership, a joint venture, a trust, an unincorporated organization, a limited
liability company or partnership, a government and any agency or political
subdivision thereof.
"REGISTRABLE SECURITIES" shall mean (i) any shares of Common
Stock held by the Investors, (ii) the shares of Common Stock issued and issuable
upon conversion of the Series A Preferred Stock and (iii) any other equity
securities issued and issuable with respect to any such shares described in
clauses (i) and (ii) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization (it being understood that for purposes of this
Agreement, a Person will be deemed
to be a holder of Registrable Securities whenever such Person has the right to
then acquire or obtain from the Company any Registrable Securities, whether or
not such acquisition has actually been effected); provided, however, that
notwithstanding anything to the contrary contained herein, "Registrable
Securities" shall not at any time include any securities (i) registered and sold
pursuant to the Securities Act, (ii) sold to the public pursuant to Rule 144
promulgated under the Securities Act or (iii) which could then be sold in their
entirety pursuant to Rule 144(k) without limitation or restriction.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
2. PIGGYBACK REGISTRATIONS. If at any time or times after the date
hereof the Company shall seek to register any shares of its Common Stock under
the Securities Act for sale to the public for its own account or on the account
of others (except with respect to registration statements on Form X-0, X-0 or
another form not available for registering the Registrable Securities for sale
to the public), the Company will promptly give written notice thereof to all
holders of Registrable Securities (the "Holders"). If within twenty (20) days
after their receipt of such notice one or more Holders request the inclusion of
some or all of the Registrable Securities owned by them in such registration,
the Company will use its best efforts to effect the registration under the
Securities Act of such Registrable Securities. In the case of the registration
of shares of capital stock by the Company in connection with any underwritten
public offering, if the underwriter(s) determines that marketing factors require
a limitation on the number of Registrable Securities to be offered, subject to
the following sentence, the Company shall not be required to register
Registrable Securities of the Holders in excess of the amount, if any, of shares
of the capital stock which the principal underwriter of such underwritten
offering shall reasonably and in good faith agree to include in such offering in
addition to any amount to be registered for the account of the Company. If any
limitation of the number of shares of Registrable Securities to be registered by
the Holders is required pursuant to this Section 2, the number of shares to be
excluded shall be determined in the following sequence: (i) first, securities
held by any Persons not having any such contractual, incidental "piggy back"
registration rights, (ii) second, securities held by any Persons (other than the
Holders) having such contractual, incidental "piggy back" rights pursuant to an
agreement which is not this Agreement and (iii) third, Registrable Securities
sought to be included by the Holders as determined on a pro rata basis (based
upon the respective holdings of securities by such Holders).
3. REQUIRED REGISTRATIONS.
(a) DEMAND REGISTRATION. Upon the earlier of (i) three (3)
years from the date hereof or (ii) the date that is six (6) months after the
initial public offering of Common Stock by the Company pursuant to an effective
registration statement under the Securities Act, on not more than two (2)
occasions, the holders of at least 20% of the Registrable Securities held by
such requesting Holders may request that the Company register under the
Securities Act all or a portion of the Registrable Securities held by such
requesting Holders having an aggregate value of at least $5,000,000 (based on
the then current market price).
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(b) FORM S-3. After the Company's initial public offering of
Common Stock registered under the Securities Act, the Company shall use its best
efforts to qualify and remain qualified to register securities on Form S-3 (or
any successor form) under the Securities Act. So long as the Company is
qualified to register securities on Form S-3 (or any successor form), the
holders of Registrable Securities shall have the right to request registration
on Form S-3 (or any successor form) for the Registrable Securities held by such
requesting Holders having an aggregate value of at least $1,000,000 (based on
the then current market price), including registrations for the sale of such
Registrable Securities on a delayed or continuous basis pursuant to Rule 415
under the Securities Act. 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 requesting holders.
(c) REGISTRATION REQUIREMENTS. Following a request pursuant to
Section 3(a) or (b) above, the Company will notify all of the other holders of
Registrable Securities and such holders of Registrable Securities shall then
have 20 days to notify the Company of their desire to participate in the
registration. Thereupon, the Company will use its best efforts to cause such of
the Registrable Securities as may be requested by such Holders to be registered
under the Securities Act in accordance with the terms of this Section 3. If the
request for registration contemplates an underwritten public offering, the
Company shall state such in the written notice and in such event the right of
any Person to participate in such registration shall be conditioned upon their
participation in such underwritten public offering and the inclusion of their
securities in the underwritten public offering to the extent provided herein.
(d) UNDERWRITTEN OFFERING. If a requested registration
involves an underwritten public offering and the managing underwriter of such
offering determines in good faith that the number of securities sought to be
offered should be limited due to market conditions, then the number of
securities to be included in such underwritten public offering shall be reduced
to a number deemed satisfactory by such managing underwriter, provided that the
shares to be excluded shall be determined in the following sequence: (i) first,
securities held by any Persons not having any contractual, incidental "piggy
back" registration rights to include such securities on the registration
statement, (ii) second, securities held by any other Persons (other than the
Holders) having contractual, incidental "piggy back" rights to include such
securities in the registration statement, (iii) third, Registrable Securities of
Holders who did not make the original request for registration and (iv) fourth,
Registrable Securities of Holders who requested such registration. If there is a
reduction of the number of Registrable Securities pursuant to clauses (iii), or
(iv), such reduction shall be made on a pro rata basis (based upon the
respective holdings of securities held by such Holders). With respect to a
request for registration pursuant to Section 3(a) or (b) which is for an
underwritten public offering, the managing underwriter shall be chosen by a
majority-in-interest of the holders of Registrable Securities requesting such
registration subject to the approval of the Company, which approval will not be
unreasonably withheld. If the managing underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the Company may
include securities for its own account in such registration if the managing
underwriter so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
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(e) POSTPONEMENT. The Company may postpone the filing of any
registration statement required hereunder for a reasonable period of time, not
to exceed ninety (90) days in the aggregate during any twelve-month period, if
the Company has been advised by legal counsel that such filing would require a
special audit or the disclosure of a material impending transaction or other
matter and the Company's Board of Directors determines reasonably and in good
faith that such disclosure would have a material adverse effect on the Company.
The Company shall not be required to cause a registration statement requested
pursuant to this Section 3 to become effective prior to 180 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
commencement by the Company of the preparation of a Company-initiated
registration statement (other than a registration effected solely to implement
an employee benefit plan or a transaction to which Rule 145 or any other similar
rule under the Securities Act is applicable); provided, however, that the
Company shall use its best efforts to achieve such effectiveness promptly
following such period.
4. FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is required
hereunder to register any Registrable Securities, it agrees that it shall also
do the following:
(a) Pay all expenses of such registrations and offerings
(exclusive of underwriting discounts and commissions) and the reasonable fees
and expenses of not more than one independent counsel for the Holders in
connection with any registrations pursuant to Sections 2 or 3 hereof;
(b) Use its best efforts diligently to prepare and file 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 until the Holder
or Holders have completed the distribution described in the registration
statement relating thereto (but for no more than 180 days or such lesser period
until all such Registrable Securities are sold) and to comply with the
provisions of the Securities Act with respect to the sale of securities covered
by said registration statement for such period;
(c) 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 its Registrable
Securities;
(d) Enter into any reasonable underwriting agreement required
by the proposed underwriter, if any, in such form and containing such terms as
are customary;
(e) Use its best efforts to register or qualify the securities
covered by said registration statement under the securities or "blue sky" laws
of such jurisdictions as any selling Holder may reasonably request;
(f) Immediately notify each selling Holder, at any time when a
prospectus relating to his, her or its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein
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not misleading, and, at the request of any such selling Holder, prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(g) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(h) Make available to each selling Holder, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other agent or representative retained by any such
selling Holder or underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the Company,
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement.
(i) Otherwise use its best efforts to comply with the
securities laws of the United States and other applicable jurisdictions and all
applicable rules and regulations of the Commission and comparable governmental
agencies in other applicable jurisdictions and make generally available to its
holders, in each case as soon as practicable, but not later than 45 days after
the close of the period covered thereby, an earnings statement of the Company
which will satisfy the provisions of Section 11 (a) of the Securities Act;
(j) Furnish to each prospective selling Holder, at the request
of such Holder, a signed counterpart, addressed to the prospective selling
Holder, of (A) an opinion of counsel for the Company, dated the effective date
of the registration statement, and (B) a "comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in the registration statement, covering substantially the
same matters with respect to the registration statement (and the prospectus
included therein) and (in the case of the accountants' letter) with respect to
events subsequent to the date of the financial statements, as customarily
covered (at the time of such registration) in opinions of the Company's counsel
and in accountants' letters delivered the underwriters in underwritten public
offerings of securities; and
(k) Otherwise cooperate with the underwriter or underwriters,
the Commission and other regulatory agencies and take all actions and execute
and deliver or cause to be executed and delivered all documents necessary to
effect the registration of any Registrable Securities hereunder.
5. INDEMNIFICATION; CONTRIBUTION.
(a) Incident to any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless each underwriter, each Holder who offers or sells any such
Registrable Securities in connection with such registration statement (including
its partners (including partners of partners and
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stockholders of any such partners), and directors, officers, employees,
representatives and agents of any of them (a "Selling Holder"), and each person
who controls any of them within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (a "Controlling Person")), from and against
any and all losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted, as the same are incurred), to which they, or any of them,
may become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement (including any related preliminary or definitive
prospectus, or any amendment or supplement to such registration statement or
prospectus) or (ii) any omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading; provided, however, that the Company will not be liable to the
extent that such loss, claim, damage, expense or liability arises from and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information furnished in writing to
the Company by such underwriter, Selling Holder or Controlling Person expressly
for use in such registration statement. With respect to such untrue statement or
omission or alleged untrue statement or omission in the information furnished in
writing to the Company by such Selling Holder expressly for use in such
registration statement, such Selling Holder will indemnify and hold harmless
each underwriter, the Company (including its directors, officers, employees,
representatives and agents), each other Holder (including its partners
(including partners of partners and stockholders of such partners) and
directors, officers, employees, representatives and agents of any of them, and
each person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, expenses and liabilities, joint or several, to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise to the same extent provided in the immediately preceding sentence. In
no event, however, shall the liability of a Selling Holder for indemnification
under this Section 5(a) exceed the lesser of (i) such selling Holder's pro rata
share for such losses, claims, damages, expenses and liabilities or (ii) the net
proceeds received by such Selling Holder from its sale of Registrable Securities
under such registration statement.
(b) If the indemnification provided for in Section 5(a) above
for any reason is held by a court of competent jurisdiction to be unavailable to
an indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
5, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the other
Selling Holders and the underwriters from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the other Selling Holders and the underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
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equitable considerations; provided, however, that in the event of a registration
statement filed in response to a demand under Section 3(a) and in which the
Company does not register any shares of capital stock, the proportion of
contribution by the Company, the other Selling Holders and the underwriters
shall in all cases be governed by clause (ii) above. The relative benefits
received by the Company, the Selling Holders and the underwriters shall be
deemed to be in the same respective proportions that the net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Holders and the underwriting discount received by the underwriters, in each case
as set forth in the table on the cover page of the applicable prospectus, bear
to the aggregate public offering price of the Registrable Securities. The
relative fault of the Company, the Selling Holders and the underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Holders or the underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Holders, and the underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
5(b) were determined by pro rata or per capita allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. In no event, however, shall
a Selling Holder be required to contribute any amount under this Section 5(b) in
excess of the lesser of (i) such selling Holder's pro rata share for such
losses, claims, damages, expenses and liabilities or (ii) the net proceeds
received by such Selling Holder from its sale of Registrable Securities under
such registration statement. No person found 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 found guilty of
such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5 will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified parties
or any officer, director, employee, agent or controlling person of the
indemnified parties. No indemnifying party, in the defense of any such claim or
litigation, shall enter into a consent of entry of any judgment or enter into a
settlement without the consent of the indemnified party, which consent will not
be unreasonably withheld.
6. RULE 144 AND RULE 144A REQUIREMENT. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use its best efforts to take all action as may be required as a condition
to the availability of Rule 144 or Rule 144A under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). The Company shall
furnish to any Holder, within 15 days of a written request, a written statement
executed by the Company as to the steps it has taken to comply with the current
public information requirement of Rule 144 or Rule 144A or such successor rules.
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7. TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights set
forth in this Agreement are transferable to any transferee of Registrable
Securities who receives any shares of Registrable Securities. Each subsequent
holder of Registrable Securities must consent in writing to be bound by the
terms and conditions of this Agreement in order to acquire the rights granted
pursuant to this Agreement.
8. RIGHTS WHICH MAY BE GRANTED TO SUBSEQUENT INVESTORS. Other than
transferees of Registrable Securities under Section 7 hereof, the Company shall
not, without the prior written consent of the holders of a majority of the
outstanding Registrable Securities, grant any other registration rights to any
third parties which are senior to or on a parity with the rights of the Holders
hereunder..
9. MISCELLANEOUS.
(a) AMENDMENTS. For the purposes of this Agreement and all
agreements executed pursuant hereto, no course of dealing between or among any
of the parties hereto and no delay on the part of any party hereto in exercising
any rights hereunder or thereunder shall operate as a waiver of the rights
hereof and thereof. This Agreement may not be amended or modified or any
provision hereof waived without the joint written consent of the Company and the
holders of not less than a majority of the outstanding Registrable Securities.
(b) NOTICES AND DEMANDS. Any notice or demand which, by any
provision of this Agreement or any agreement, document or instrument executed
pursuant hereto or thereto, except as otherwise provided therein, is required to
be given shall be deemed to have been sufficiently given or served and received
for all purposes when delivered by hand, telecopy, telex or other method of
facsimile or two (2) days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two (2) days after
being sent by overnight delivery providing receipt of delivery, to the following
addresses: if to the Company, at its address as shown on the signature page
hereto, or at any other address designated by the Company to the Investors in
writing; if to the Investors, at its mailing address as shown on the signature
page hereto, or at any other address designated by the Investors to the Company
in writing; and if to an assignee of an Investor, at his, her or its address as
designated to the Company in writing.
(c) DISPUTE RESOLUTION.
All disputes, claims, or controversies arising out of or
relating to this Agreement or any other agreement executed and delivered
pursuant to this Agreement or the negotiation, validity or performance hereof
and thereof or the transactions contemplated hereby and thereby that are not
resolved by mutual agreement shall be resolved solely and exclusively by binding
arbitration to be conducted before the American Arbitration Association ("AAA").
If AAA ceases operation, then the parties shall select a comparable organization
that provides qualified arbitration services. the arbitration shall be held in
Boston, Massachusetts before a single arbitrator and shall be conducted in
accordance with the rules and regulations promulgated by AAA unless specifically
modified herein.
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The parties covenant and agree that the arbitration hearing
shall commence ninety (90) days of the date on which a written demand for
arbitration is filed by any party hereto. In connection with the arbitration
proceeding, the arbitrator shall have the power to order the production of
documents by each party and any third-party witnesses. In addition, each party
may take up to three depositions as of right, and the arbitrator may in his or
her discretion allow additional depositions upon good cause shown by the moving
party. However, the arbitrator shall not have the power to order the answering
of interrogatories or the response to requests for admission. In connection with
any arbitration, each party shall provide to the other, no later than seven (7)
business days before the date of the arbitration hearing, the identity of all
persons that may testify at the arbitration and a copy of all documents that may
be introduced at the arbitration hearing or considered or used by a party's
witness or expert. The arbitrator's decision and award shall be made and
delivered within three (3) months of the selection of the arbitrator. The
arbitrator's decision shall set forth a reasoned basis for any finding of
liability or award of damages. The arbitrator shall not have power to award
damages in excess of actual compensatory damages and shall not multiply actual
damages or award punitive damages or any other damages that are specifically
excluded under this Agreement, and each party hereby irrevocably waives any
claim to such damages.
The parties covenant and agree that they will participate in
the arbitration in good faith and that they will share equally its costs, except
as otherwise provided herein. The arbitrator may in his or her discretion assess
costs and expenses (including the reasonable legal fees and expenses of the
prevailing party whether claimant or respondent) against any party to a
proceeding. Any party failing or refusing to comply with an order of the
arbitrators shall be liable for costs and expenses, including attorneys' fees,
incurred by the other party in enforcing the award. Nothing in this Section 9(c)
shall prohibit any party from proceeding in court without prior arbitration for
the limited purpose of seeking a temporary or permanent injunction to avoid
immediate and irreparable harm. The provisions of this Section 9(c) shall be
enforceable in any court of competent jurisdiction.
Unless otherwise ordered, the parties shall bear their own
attorneys' fees, costs and expenses in connection with the arbitration. The
parties will share equally in the fees and expenses charged by AAA.
(i) Each of the parties hereto irrevocably and
unconditionally consents to the exclusive use of AAA to resolve all disputes,
claims or controversies arising out of or relating to this Agreement or any
other agreement executed and delivered pursuant to this Agreement or the
negotiation, validity or performance hereof and thereof or the transactions
contemplated hereby and thereby and further consents to the jurisdiction of the
courts of the Commonwealth of Massachusetts for the purposes of enforcing the
arbitration provisions of Section 9(c)(i) of this Agreement. Each party further
irrevocably waives any objection to proceeding before AAA based upon lack of
personal jurisdiction or to the laying of venue and further irrevocably and
unconditionally waives and agrees not to make a claim in any court that
arbitration before AAA has been brought in an inconvenient forum. Each of the
parties hereto hereby consents to service of process by registered mail at the
address to which notices are to be given. Each of the parties hereto agrees that
its or his submission to jurisdiction and its or his consent to service of
process by mail is made for the express benefit of the other parties hereto.
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(d) REMEDIES; SEVERABILITY. Notwithstanding Section 9(c), it
is specifically understood and agreed that any breach of the provisions of this
Agreement by any person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other remedies which they may
have, such other parties may enforce their respective rights by actions for
specific performance (to the extent permitted by law). Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be deemed prohibited or invalid under such applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
(f) EFFECT OF HEADING. The Section headings herein are for
convenience only and shall not affect the construction hereof.
(g) GOVERNING LAW. This Agreement shall be deemed a contract
made under the laws of the Commonwealth of Massachusetts and together with the
rights and obligations of the parties hereunder, shall be construed under and
governed by the laws of the Commonwealth of Massachusetts, without giving effect
to its conflicts of laws principles.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed as of the date first set forth
above.
THE COMPANY:
UNICA TECHNOLOGIES, INC
By: /s/ Xxxxxx Xxx
______________________________________________
Xxxxxx Xxx, President
Address:
Unica Technologies, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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INVESTORS:
SUMMIT ACCELERATOR FUND, L.P.
By: SUMMIT ACCELERATOR PARTNERS, L.L.C.
Its General Partner
By: Summit Accelerator Management, L.P.
A Member
By: Summit Accelerator Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
_________________________________
A Managing Member
Address:
c/o Summit Partners
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
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JMI EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
______________________________________________
Name:
Its: Managing Member
Address:
JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
JMI EQUITY FUND IV (AI), L.P.
By: JMI Associates IV, L.L.C.,
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
______________________________________________
Name:
Its: Managing Member
Address:
JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
13
JMI EURO EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.,
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
_____________________________________________
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
Address:
JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
JMI EQUITY SIDE FUND, L.P.
By: JMI Side Associates, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________________
Name: Xxxxxxx X. Xxxxx,
Its: Managing Member
Address:
JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
14
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
(the "Amendment") is made as of March ___, 2001, by and among Unica Corporation,
a Massachusetts corporation (together with any successor thereto, the
"Corporation"), and those Series A Investors (as defined herein) executing this
Amendment.
Unless otherwise defined herein, capitalized terms used herein and not
defined shall have the meaning ascribed to them in the Registration Rights
Agreement, dated as of November 24, 1999 (the "Registration Rights Agreement").
I. RECITALS
WHEREAS, on November 24, 1999, the Corporation and certain of the
Investors (the "Series A Investors") entered into a Stock Purchase Agreement
(the "Series A Purchase Agreement"), pursuant to which the Corporation sold an
aggregate of 49,874 shares of Series A Convertible Participating Preferred
Stock, par value $.01 per share (the "Series A Preferred Stock");
WHEREAS, in connection with the purchase and sale of Series A Preferred
Stock pursuant to the Series A Purchase Agreement, the Corporation and the
Series A Investors entered into the Registration Rights Agreement in order to
provide certain registration rights to the holders of Series A Preferred Stock;
WHEREAS, the Corporation desires to issue an aggregate of 1,635,799
shares of Series B Convertible Participating Preferred Stock, par value $.01 per
share (the "Series B Preferred Stock"), pursuant to a Stock Purchase Agreement
of even date herewith (the "Series B Purchase Agreement"), by and among the
Corporation and the Persons listed on Annex A hereto (the "Series B Investors");
WHEREAS, as a condition precedent to the Series B Investors' obligations
under the Series B Purchase Agreement, the Corporation agrees to amend the
Registration Rights Agreement to provide the Series B Investors with the same
registration rights provided to the Series A Investors under the Registration
Rights Agreement by adding the Series B Investors to the definition of
"Investors" and adding the Series B Preferred Stock to the definition of
"Registrable Securities;"
WHEREAS, in accordance with Section 8 of the Registration Rights
Agreement, the holders of a majority of the Series A Preferred Stock, consent to
the grant of registration rights to the holders of Series B Preferred Stock on
parity with the rights of the holders of Series A Preferred Stock;
15
WHEREAS, in accordance with Section 9(a) of the Registration Rights
Agreement, the holders of not less than a majority of the outstanding
Registrable Securities as of the date hereof desire to amend the Registration
Rights Agreement to add the Series B Investors to the definition of "Investors"
and add the Series B Preferred Stock to the definition of "Registrable
Securities."
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. DEFINITIONS. As of the date hereof, the following terms shall have
the meanings set forth below in lieu of the definitions set forth in the
Registration Rights Agreement:
"Investors" shall mean the Investors as defined in the Series
A Purchase Agreement and the Series B Purchase Agreement.
"Preferred Shares" shall mean the Series A Preferred Stock and
the Series B Preferred Stock.
"Registrable Securities" shall mean (i) any shares of Common
Stock held by the Investors, (ii) the shares of Common Stock issued and issuable
upon conversion of the Preferred Shares and (iii) any other equity securities
issued and issuable with respect to any such shares described in clauses (ii)
and (ii) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization (it being understood that for purposes of this Agreement, a
Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to then acquire or obtain from the Corporation any
Registrable Securities, whether or not such acquisition has actually been
effected); provided, however, that notwithstanding anything to the contrary
contained herein, "Registrable Securities" shall not at any time include any
securities (ii) registered and sold pursuant to the Securities Act, (ii) sold to
the public pursuant to Rule 144 promulgated under the Securities Act or (iii)
which could then be sold in their entirety pursuant to Rule 144(k) without
limitation or restriction.
"Series B Preferred Stock" shall mean shares of the
Corporation's Series B Convertible Participating Preferred Stock, par value $.01
per share.
2. The holders of a majority of Series A Preferred Stock
hereby consent to the granting of registration rights to the
holders of Series B Preferred Stock on a parity with the
rights of the holders of Series A Preferred Stock in
accordance with Section 8 of the Registration Rights
Agreement. This Amendment is effective for all purposes at
such time as holders of a majority of the Series A Preferred
Shares shall have executed and delivered a counterpart of this
Amendment in accordance with Section 9(a) of the Registration
Rights Agreement.
16
3. This Amendment may be executed in several counterparts, and all so
executed shall constitute one agreement binding on all parties hereto,
notwithstanding that all parties are not signatory to the original or same
counterpart.
4. Except as otherwise amended herein, the terms and provisions of the
Registration Rights Agreement shall remain unmodified, shall continue in full
force and effect and shall govern the relations of the Corporation and the
holders of Preferred Shares.
[SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Registration Rights Agreement as of the date and year first above
written.
THE CORPORATION:
UNICA CORPORATION
By: /s/ Xxxxxx Xxx
--------------------------------------------
Xxxxxx Xxx, President and
Chief Executive Officer
Address:
Unica Corporation
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
SERIES A INVESTORS:
SUMMIT ACCELERATOR FUND, L.P.
By: Summit Accelerator Partners, L.L.C.
Its General Partner
By: Summit Accelerator Management, L.P.
A Member
By: Summit Accelerator Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
A Managing Member
SUMMIT ACCELERATOR FOUNDERS FUND, L.P.
By: SUMMIT ACCELERATOR PARTNERS, L.L.C.
Its General Partner
By: Summit Accelerator Management, L.P.
A Member
By: Summit Accelerator Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
A Managing Member
SUMMIT (SAF) INVESTORS IV, L.P.
By: Summit Accelerator Management, L.L.C.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
A Managing Member
Address:
c/o Summit Partners
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
-19-
JMI EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
JMI EQUITY FUND IV (AI), L.P.
By: JMI Associates IV, L.L.C.,
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
JMI EURO EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.,
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
JMI EQUITY SIDE FUND, L.P.
By: JMI Side Associates, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx,
Its: Managing Member
Address:
c/o JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
-20-
/s/ Xxxxxxx Xxxxxx
------------------------------------------------
Xxxxxxx Xxxxxx
Address:
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
-21-
AMENDMENT NO. 2 AND JOINDER TO THE
STOCKHOLDERS AGREEMENT AND
REGISTRATION RIGHTS AGREEMENT
April 24, 2000
To each of the several "Management Stockholders",
"Additional Stockholders" and "Investors" set forth in
Schedule A, attached hereto
Dear Sirs:
On November 24, 1999, Unica Corporation (f/k/a Unica Technologies, Inc.),
a Massachusetts corporation (the "Company"); the "Management Stockholders" and
the "Additional Stockholders" listed on the attached Schedule A (collectively,
the "Stockholders"); and the "Investors" listed on the attached Schedule A
entered into a Stockholders Agreement (the "Stockholder Agreement"). Also on
November 24, 1999, the Company and the Investors entered into a Registration
Rights Agreement (the "Rights Agreement"). The Stockholders Agreement and the
Rights Agreement are collectively referred to herein as the "Agreements," and
copies of such Agreements are attached hereto as Annex I and Annex II,
respectively. The undersigned constituting the holders of a majority-in-interest
of each of the Stockholders and the Investors now wish to amend the Agreements
to permit Xxxxxxx Xxxxxx to become a Management Stockholder, as defined under
the Stockholders Agreement, for purposes of the Stockholders Agreement and to
enjoy certain rights pursuant to the Rights Agreement. In consideration and
pursuant to the foregoing, the Company covenants and agrees with each of you as
follows:
I. Joinder and Amendment to the Stockholders Agreement.
Xxxxxxx Xxxxxx hereby agrees, effective as of the date hereof, to become a
party to the Stockholders Agreement and for all purposes of the Stockholder
Agreement, the undersigned shall be included within the term Management
Stockholder (as defined in the Stockholder Agreement). The address and facsimile
number to which notices may be sent to the undersigned is as follows:
Xxxxxxx Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No. ________________________
A majority-in-interest of the undersigned Stockholders and Investors consent to
this joinder.
II. Joinder to the Rights Agreement. Section 2 of the Rights Agreement is
amended to add the following to the end of the section: "Notwithstanding any
contrary provision, Xxxxxxx Xxxxxx shall be deemed a "Holder" for the sole
purpose of his Series A Convertible Participating Preferred Stock."
April 24, 2000
Page 2
III. Miscellaneous.
A. Except as amended hereby, the Agreements shall remain in full force
and effect.
B. Except as the context may otherwise require, capitalized terms used
herein and not defined herein shall have the meaning ascribed to
such term in the agreement with respect to which the term is used.
C. This Amendment No. 2 and Joinder to the Stockholder Agreement and
the Rights Agreement shall be governed in all respects by the
internal laws of the Commonwealth of Massachusetts, without giving
effect to the principles of conflicts of laws of such state.
D. This Amendment No. 2 and Joinder to the Stockholder Agreement and
the Rights Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
April 24, 2000
Page 3
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Amendment No. 2 and
Joinder to the Stockholders Agreement and the Rights Agreement shall be a
binding agreement between the Company and you.
Very truly yours,
UNICA CORPORATION
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: President
AGREED TO AND ACCEPTED as of
the date first above written.
A majority-in-interest of the "Management
Stockholders," the "Additional Stockholders"
and the "Investors" set forth in Schedule A,
attached hereto:
MANAGEMENT STOCKHOLDERS:
/s/ Xxxxxx Xxx
-------------------------------------------
Xxxxxx Xxx
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
-------------------------------------------
Xxxxxxx Xxxxxx
Address for Management Stockholders:
c/o Unica Corporation
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
April 24, 2000
Page 4
INVESTORS:
SUMMIT ACCELERATOR FUND, L.P.
By: SUMMIT ACCELERATOR PARTNERS, L.L.C.
By: Summit Accelerator Management, L.P.
A Member
By: Summit Accelerator Management, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
A Managing Member
SUMMIT (SAF) INVESTORS IV, L.P.
By: SUMMIT ACCELERATION MANAGEMENT, LLC
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name:
Title:
SUMMIT ACCELERATOR FOUNDERS FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name:
Title:
Address for Summit entities:
Summit Partners
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
April 24, 2000
Page 5
JMI EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
JMI EQUITY FUND IV (AI), L.P.
By: JMI Associates IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
April 24, 2000
Page 6
JMI EURO EQUITY FUND IV, L.P.
By: JMI Associates IV, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Managing Member
JMI EQUITY SIDE FUND, L.P.
By: JMI Side Associates, L.L.C.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Its: Vice President
Address for JMI entities:
JMI Equity Fund
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
SCHEDULE A
LIST OF MANAGEMENT STOCKHOLDERS, ADDITIONAL STOCKHOLDERS AND INVESTORS
MANAGEMENT STOCKHOLDERS
Xxxxxx Xxx
Xxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxx (added by this Amendment No. 2 and Joinder Agreement)
ADDITIONAL STOCKHOLDERS
None
INVESTORS
Summit Accelerator Fund, L.P.
Summit (SAF) Investors IV, L.P.
Summit Accelerator Founders Fund, L.P.
JMI Equity Fund IV, L.P.
JMI Equity Fund IV (AI), L.P.
JMI Euro Equity Fund IV, L.P.
JMI Equity Side Fund, L.P.
