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EXHIBIT 10.1
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
FIREPOND, INC.,
and
THE SHAREHOLDERS NAMED HEREIN
Dated: February 23, 1999
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS.............................................................3
2. GENERAL: SECURITIES SUBJECT TO THIS AGREEMENT...........................9
(a) GRANT OF RIGHTS................................................9
(b) REGISTRABLE SECURITIES.........................................9
(c) HOLDERS OF REGISTRABLE SECURITIES..............................9
3. DEMAND REGISTRATION....................................................10
(a) REQUEST FOR DEMAND REGISTRATION...............................10
(b) INCIDENTAL OR "PIGGY-BACK" Rights with Respect to a Demand
REGISTRATION..................................................10
(c) EFFECTIVE DEMAND REGISTRATION.................................11
(d) EXPENSES......................................................11
(e) UNDERWRITING PROCEDURES.......................................11
(f) SELECTION OF UNDERWRITERS.....................................12
4. FORM S-3...............................................................12
(a) REQUEST FOR S-3 REGISTRATION..................................12
(b) FORM S-3 UNDERWRITING PROCEDURES..............................12
(c) LIMITATIONS ON FORM S-3 REGISTRATIONS.........................13
(d) NO DEMAND REGISTRATION........................................13
(e) EXPENSES......................................................13
(f) SELECTION OF UNDERWRITERS.....................................14
5. INCIDENTAL OR "PIGGY-BACK" REGISTRATION................................14
(a) REQUEST FOR INCIDENTAL REGISTRATION...........................14
(b) EXPENSES......................................................15
6. HOLDBACK AGREEMENTS....................................................15
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS.............15
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY....................15
7. REGISTRATION PROCEDURES................................................16
(a) OBLIGATIONS OF THE COMPANY....................................16
(b) SELLER INFORMATION............................................19
(c) NOTICE TO DISCONTINUE.........................................19
(d) REGISTRATION EXPENSES.........................................20
8. Indemnification: Contribution..........................................20
(a) INDEMNIFICATION BY THE COMPANY................................20
(b) INDEMNIFICATION BY DESIGNATED HOLDERS.........................20
(i)
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(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS........................21
(d) CONTRIBUTION..................................................21
9. REPORTS UNDER THE EXCHANGE ACT.........................................22
10. Miscellaneous..........................................................23
(a) RECAPITALIZATIONS. EXCHANGES. ETC.............................23
(b) NO INCONSISTENT AGREEMENTS....................................23
(c) REMEDIES......................................................23
(d) AMENDMENTS AND WAIVERS........................................23
(e) NOTICES.......................................................24
(f) SUCCESSORS AND ASSIGNS........................................26
(g) THIRD PARTY BENEFICIARIES.....................................26
(h) COUNTERPARTS..................................................26
(i) HEADINGS......................................................27
(j) GOVERNING LAW.................................................27
(k) SEVERABILITY..................................................27
(l) ENTIRE AGREEMENT..............................................27
(m) FURTHER ASSURANCES............................................27
(n) AGGREGATION OF STOCK..........................................27
Schedule 1........Major Shareholders
Schedule 2........Other Shareholders
(ii)
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made, by and among FirePond, Inc. (f/k/a Clear With Computers,
Inc. and CWC Incorporated), a Minnesota corporation (the "Company"), General
Atlantic Partners 40, L.P., a Delaware limited partnership ("GAP 40"), General
Atlantic Partners 46, L.P., a Delaware limited partnership ("GAP 46"), General
Atlantic Partners 52, L.P., a Delaware limited partnership ("GAP 52"), GAP
Coinvestment Partners, L.P., a New York limited partnership ("GAP
Coinvestment"), GAP Coinvestment Partners 11, L.P., a Delaware limited
partnership ("GAP Coinvestment IF'), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxx Xxx
Xxxxxxx Trust ("Xxxxxxx Trust #1"), Xxxx Xxxxx Xxxxxxx Trust ("Xxxxxxx Trust
#2"), Xxxxxx/Xxxxxx Associates Incorporated ("Xxxxxx/Xxxxxx"), Xxx Xxxxxx
("Xxxxxx"), TCV III (GP), a Delaware general partnership ("TCV III GP"), TCV
III, L.P., a Delaware limited partnership ("TCV III LP"), TCV III (Q), L.P., a
Delaware limited partnership ("TCV III Q"), TCV III Strategic Partners, L.P., a
Delaware limited partnership, ("TCV III SP" and, collectively with TCV III GP,
TCV III LP and TCV III Q, "TCV") and Xxxxxx Brothers VC Partners L.P., a
Delaware limited partnership ("Xxxxxx").
RECITALS
WHEREAS, this Agreement amends and restates in its entirety that
certain REGISTRATION RIGHTS AGREEMENT, dated May 20, 1997 (the "Original
Agreement"), among the Company, GAP 40, GAP Coinvestment, and the shareholders
listed on SCHEDULE 1 thereto, as amended on July 30, 1997 by AMENDMENT NO. 1
(the "First Amendment") among the Company, GAP 40, GAP Coinvestment, Xxxxxxx,
Xxxxxxx Trust #1, Xxxxxxx Trust #2, Xxxxxx/Xxxxxx and Xxxxxx, and as further
amended on April 30, 1998 by AMENDMENT NO. 2 (the "Second Amendment"), among the
Company, GAP 46, GAP 40, GAP Coinvestment, Xxxxxxx, Xxxxxxx Trust #1, Xxxxxxx
Trust #2, Xxxxxx/Xxxxxx and Xxxxxx;
WHEREAS, the Original Agreement was made in connection with the
Preferred Stock and Warrant Purchase Agreement, dated May 9, 1997 (the "Series A
Stock Purchase Agreement"), among the Company, CWC International, Inc., Clear
With Computers of Michigan, Inc., Quality Disk Copy, Inc., Clear with Leasing,
Inc., CWC Studios, LLC, GAP 40 and GAP Coinvestment, pursuant to which the
Company agreed to, among other things, issue and sell: (a) to GAP 40, and GAP 40
agreed to purchase from the Company, (i) an aggregate of 709,973 shares of
Series A Convertible Participating Preferred Stock, par value $.01 per share, of
the Company (the "Series A Preferred Stock") and (ii) a warrant (the "GAP LP
Warrant") to purchase, subject to the terms and conditions thereof, an aggregate
of 161,387 shares of Series B Convertible Preferred Stock, par value $.01 per
share, of the Company (the "Series B Preferred Stock"); and (b) to GAP
Coinvestment, and GAP Coinvestment agreed to purchase from the Company, (i) an
aggregate of 127,803 shares of Series A Preferred Stock and (ii) a warrant (the
"GAPCO Warrant" and, together with the GAP LP Warrant, the "Warrants") to
purchase, subject to the terms and conditions thereof, an aggregate of 29,051
shares of Series B Preferred Stock. Each share of Series A Preferred
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Stock and Series B Preferred Stock is convertible (subject to adjustment) into
one (1) share of Common Stock, par value $.01, of the Company (the "Common
Stock"); and
WHEREAS, the First Amendment was made in connection with (a) the Series
C Stock Purchase Agreement, dated July 30, 1997 (the "Series C Stock Purchase
Agreement"), among the Company, Xxxxxx/Xxxxxx and Xxxxxx, pursuant to which the
Company agreed to, among other things, sell to each of Xxxxxx/Xxxxxx and Xxxxxx
the aggregate number of shares, par value $.01 per share, of Series C
Convertible Participating Preferred Stock of the Company (the "Series C
Preferred Stock") set forth opposite their names on Schedule 2 thereto; and (b)
the warrant, dated July 30, 1997 (the "Xxxxxx/Xxxxxx Warrant"), issued to
Xxxxxx/Xxxxxx to purchase, subject to the terms and conditions thereof, an
aggregate of 300,000 shares of Common Stock; and
WHEREAS, the Second Amendment was made in connection with (a) the
Series E Preferred Stock Purchase Agreement, dated April 30, 1998 (the "Series E
Stock Purchase Agreement"), among the Company, GAP 46 and GAP Coinvestment,
pursuant to which the Company agreed to, among other things, sell to each of GAP
46 and GAP Coinvestment an aggregate of 3,194,234 shares and 608,048 shares,
respectively, of the Company's Series E Convertible Participating Preferred
Stock, par value $.01 per share (the "Series E Preferred Stock"); and (b) that
certain Amendment No. 2 ("Amendment No. 2 to the Shareholders Agreement"), dated
April 30, 1998 and among the parties thereto, to the Shareholders Agreement,
dated May 20, 1997, as amended by Amendment No. 1 thereto on July 30, 1997,
among the Company, GAP 40, GAP Coinvestment, Xxxxxxx, Xxxxxxx Trust #1, Xxxxxxx
Trust #2, Xxxxxx/Xxxxxx and Xxxxxx; and
WHEREAS, this Agreement is made in connection with (a) the Series F
Preferred Stock and Warrant Purchase Agreement, dated the date hereof (the
"Series F Stock Purchase Agreement"), between the Company, GAP 52, GAP
Coinvestment II, TCV and Xxxxxx (each a "Series F Purchaser" and collectively,
the "Series F Purchasers"), pursuant to which the Company has agreed to, among
other things, (i) sell to each Series F Purchaser that number of shares of the
Company's Series F Convertible Preferred Stock, par value $.01 per share (the
"Series F Preferred Stock") set forth opposite such Series F Purchaser's name on
EXHIBIT A to said Series F Stock Purchase Agreement and (ii) sell to each Series
F Purchaser that number of warrants to purchase Series F Preferred Stock (the
"Series F Warrants") set forth opposite such Series F Purchaser's name on
EXHIBIT A to said Series F Stock Purchase Agreement; (b) the Amended and
Restated Shareholders Agreement, dated the date hereof and among the parties
thereto, amending the Shareholders Agreement, dated May 20, 1997, as amended by
Amendments No. 1 and No. 2 thereto dated, respectively, July 30, 1997 and April
30, 1998, among the Company, GAP 46, GAP 40, GAP Coinvestment, Xxxxxxx, Xxxxxxx
Trust #1, Xxxxxxx Trust #2, Xxxxxx/Xxxxxx and Xxxxxx; and (c) that certain
Exchange Agreement dated the date hereof (the "Series E Exchange Agreement"), by
and among the Company, GAP 40, GAP 46 and GAP Coinvestment pursuant to which GAP
40 will exchange 3,156,559 shares of Series E Preferred Stock for 3,156,559
shares of Series G Convertible Participating Preferred Stock, par value $.01 per
share, of the Company (the "Series G Preferred Stock"), GAP 46
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will exchange 3,194,234 shares of Series E Preferred Stock for 3,194,234 shares
of Series G Preferred Stock and GAP Coinvestment will exchange 1,253,770 shares
of Series E Preferred Stock for 1,253,770 shares of Series G Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the undersigned, representing (i) the
Company, (ii) the FirePond Shareholders (as hereinafter defined) holding
Registrable Securities (as hereinafter defined) representing (after giving
effect to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the FirePond Shareholders and (iii) the holders of
Registrable Securities representing (after giving effect to any adjustments) at
least 75 % of (x) the aggregate number of Registrable Securities owned by all of
the General Atlantic Shareholders (as hereinafter defined) plus (y) the
aggregate number of Registrable Securities owned by the Xxxxxx/Xxxxxx
Shareholders (as hereinafter defined) and the Xxxxxx Shareholders (as
hereinafter defined), as a group, hereby agree as follows:
1. DEFINITIONS. As used in this Agreement the following terms
have the meanings indicated:
"AFFILIATE" shall mean (a) any Person who is an "affiliate" as defined
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act and
(b) the following Persons, who shall be deemed to be Affiliates of GAP 40, GAP
46 and GAP 52: (i) GAP LLC, the members of GAP LLC and the limited partners of
GAP 40, GAP 46 or GAP 52; (ii) any Affiliate of the limited partners of GAP 40,
GAP 46 or GAP 52; and (iii) any limited liability company or partnership, a
majority of whose members or partners, as the case may be, are members, former
members, consultants or key employees of GAP LLC. In addition, GAP 40, GAP 46,
GAP 52, GAP Coinvestment and GAP Coinvestment II shall be deemed to be
Affiliates of one another. Notwithstanding the foregoing, no Person that
competes with a line or lines of business of the Company shall be considered an
Affiliate of GAP 40, GAP 46, GAP 52, GAP Coinvestment, GAP Coinvestment II
Xxxxxx, TCV or the Xxxxxx/Xxxxxx Shareholders or any of the Xxxxxx Shareholders.
"AGREEMENT" has the meaning assigned to such term in the recital to
this Agreement.
"AMENDMENT NO. 2 TO THE SHAREHOLDERS AGREEMENT" has the meaning
assigned to such term in the recital to this Agreement.
"APPROVED UNDERWRITER" has the meaning set forth in Section 3(f) of
this Agreement.
"COMMON STOCK " means the common stock, par value $.01 per share, of
the Company or any other capital stock of the Company into which such shares are
converted, reclassified, reconstituted or exchanged.
"COMPANY" has the meaning assigned to such term in the recital to this
Agreement.
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"COMPANY UNDERWRITER" has the meaning set forth in Section 5(a) of this
Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section 3(a) of this
Agreement.
"DESIGNATED HOLDER" means (i) each of the FirePond Shareholders, each
of the General Atlantic Shareholders, each of the Xxxxxx/Xxxxxx Shareholders,
each of the Xxxxxx Shareholders, each of the TCV Shareholders, each of the
Xxxxxx Shareholders and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with the provisions of the
Shareholders Agreement and Section 10(f) of this Agreement and (ii) the
shareholders listed on Schedule 2 hereto and any transferee of them to whom
Registrable Securities have been transferred in accordance with the provisions
of Section 10(f) of this Agreement, other than a transferee to whom such
securities have been transferred pursuant to a registration statement under the
Securities Act or Rule 144 or Regulation S under the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"FIREPOND SHAREHOLDERS" means the Major Shareholders and any Permitted
Transferee (as defined in the Shareholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Shareholders Agreement.
"FIRST AMENDMENT" has the meaning assigned to such term in the recital
to this Agreement.
"GAP 40" has the meaning assigned to such term in the recital to this
Agreement.
"GAP 46" has the meaning assigned to such term in the recital to this
Agreement.
"GAP 52" has the meaning assigned to such term in the recital to this
Agreement
"GAP COINVESTMENT" has the meaning assigned to such term in the recital
to this Agreement.
"GAP COINVESTMENT I" has the meaning assigned to such term in the
recital to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP 40, GAP 46, GAP 52 and any
successor to such entity.
"GAP LP WARRANT" has the meaning assigned such term in the recital to
this Agreement.
"GAPCO WARRANT" has the meaning assigned such term in the recital to
this Agreement.
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"GENERAL ATLANTIC SHAREHOLDERS" means GAP 40, GAP 46, GAP 52, GAP
Coinvestment, GAP Coinvestment II and any Permitted Transferee (as defined in
the Shareholders Agreement) thereof to which Registrable Securities are
transferred in accordance with Section 2.2 of the Shareholders Agreement.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7(a)(i) of this
Agreement.
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 5(a) of
this Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c) of this
Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c) of this
Agreement.
"INITIAL PUBLIC OFFERING" means a firm commitment underwritten initial
public offering pursuant to an effective Registration Statement filed under the
Securities Act covering the offer and sale of shares of Common Stock for the
account of the Company.
"INITIATING HOLDER(S)" has the meaning set forth in Section 3(a) of
this Agreement.
"INSPECTOR" has the meaning set forth in Section 7(a)(viii) of this
Agreement.
"IPO EFFECTIVENESS DATE" means the effective date of the registration
statement filed in connection with the Company's Initial Public Offering.
"XXXXXXX" has the meaning assigned to such term in the recital of this
Agreement.
"XXXXXXX TRUST # 1" has the meaning assigned to such term in the
recital to this Agreement.
"XXXXXXX TRUST #2" has the meaning assigned to such term in the recital
to this Agreement.
"XXXXXX" has the meaning assigned to such term in the recital of this
Agreement.
"XXXXXX SHAREHOLDERS" means Xxxxxx and any Permitted Transferee (as
defined in the Shareholders Agreement) thereof to which Registrable Securities
are transferred in accordance with Section 2.2 of the Shareholders Agreement.
"MAJOR SHAREHOLDERS" means Xxxxxxx, Xxxxxxx Trust #1 and Xxxxxxx Trust
#2.
"MARKET PRICE" means (a) if such shares are listed on a national
securities exchange or admitted to unlisted trading privileges on such an
exchange, the last reported sale price of a share of Common Stock on such
exchange on each of such days or if no such sale is made on any such day, the
mean of the closing bid and asked prices for such day on such exchange; or (b)
if such shares are not so listed or admitted to unlisted trading privileges, the
mean of the last bid and asked prices reported for a share of Common Stock on
each of such days (i) by the National
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Association of Securities Dealers Automatic Quotation System or (ii) if reports
are unavailable under clause (i) above by the National Quotation Bureau
Incorporated.
"NASD" has the meaning set forth in Section 7(a)(xiv) of this
Agreement.
"ORIGINAL AGREEMENT" has the meaning assigned to such term in the
recital to this Agreement.
"OTHER SHAREHOLDERS" has the meaning set forth in Section 10(g) of this
Agreement.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"XXXXXX/XXXXXX" means Xxxxxx/Xxxxxx Associates Incorporated.
"XXXXXX/XXXXXX SHAREHOLDERS" means Xxxxxx/Xxxxxx and any Permitted
Transferee (as defined in the Shareholders Agreement) thereof to whom
Registrable Securities are transferred in accordance with Section 2.2 of the
Shareholders Agreement.
"XXXXXX/XXXXXX WARRANT" means the warrant, dated July 30, 1997, to
purchase 300,000 share of Common Stock issued by the Company to Xxxxxx/Xxxxxx.
"RECORDS" has the meaning set forth in Section 7(a)(viii) of this
Agreement.
"REGISTRABLE SECURITIES" means each of the following: (a) any and all
shares of Common Stock (i) owned or acquired by the Designated Holders, but
excluding any shares of Common Stock acquired by a Designated Holder in or after
the Company's initial public offering which were not Restricted Securities, as
defined in Rule 144 of the Securities Act, when purchased by such Designated
Holder, (ii) issued or issuable upon (A) conversion of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series F
Preferred Stock or Series G Preferred Stock, or (B) exercise of the Warrants or
exercise of the Series F Warrants, including, without limitation, any additional
shares of Common Stock issued or issuable upon conversion of any Series B
Preferred Stock or Series F Preferred Stock issued pursuant to the Warrants or
the Series F Warrants or (iii) issued or issuable upon conversion of warrants
exercisable for shares of Common Stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series F Preferred Stock or Series G
Preferred Stock acquired by any of the Designated Holders after the date hereof,
(b) any other shares of Common Stock acquired or owned by any of the Designated
Holders prior to the IPO Effectiveness Date, or acquired or owned by any of the
Designated Holders after the IPO Effectiveness Date if such Designated Holder is
an Affiliate of the Company and (c) any shares of Common Stock issued or
issuable to any of the Designated Holders with respect to shares of
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Common Stock or shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series F Preferred Stock or Series G Preferred Stock
by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise and shares of Common Stock issuable upon conversion, exercise or
exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 7(d) of
this Agreement.
"REGISTRATION STATEMENT" means a registration statement filed pursuant
to the Securities Act.
"RESTRICTED SECURITIES" shall have the meaning set forth in Rule 144 of
the Securities Act.
"S-3 APPROVED UNDERWRITER" has the meaning set forth in Section 4(f) of
this Agreement.
"S-3 INITIATING HOLDER" has the meaning set forth in Section 4(a) of
this Agreement.
"S-3 REGISTRATION" has the meaning set forth in Section 4(a) of this
Agreement.
"XXXXXX" means Xxx Xxxxxx.
"XXXXXX SHAREHOLDERS" means Xxxxxx and any Permitted Transferee (as
defined in the Shareholders Agreement) thereof to whom Registrable Securities
are transferred in accordance with Section 2.2 of the Shareholders Agreement.
"SEC" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"SECOND AMENDMENT" has the meaning assigned to such term in the recital
to this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SERIES A PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
"SERIES A STOCK PURCHASE AGREEMENT" has the meaning assigned to such
term in the recital to this Agreement.
"SERIES B PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
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"SERIES C PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
"SERIES C STOCK PURCHASE AGREEMENT" has the meaning assigned to such
term in the recital to this Agreement.
"SERIES E EXCHANGE AGREEMENT" has the meaning assigned to such term in
the recital to this Agreement.
"SERIES E PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
"SERIES E STOCK PURCHASE AGREEMENT" has the meaning assigned to such
term in the recital to this Agreement.
"SERIES F PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
"SERIES F PURCHASERS" has the meaning assigned to such term in the
recital to this Agreement.
"SERIES F SHAREHOLDERS" means GAP 52, GAP Coinvestment II, TCV, Xxxxxx
and their respective Affiliates and Permitted Transferees (as defined in the
Shareholders Agreement).
"SERIES F STOCK PURCHASE AGREEMENT" has the meaning assigned to such
term in the recital to this Agreement.
"SERIES F WARRANTS" has the meaning assigned such term in the recital
to this Agreement.
"SERIES G PREFERRED STOCK" has the meaning assigned such term in the
recital to this Agreement.
"SHAREHOLDERS AGREEMENT" means the Amended and Restated Shareholders
Agreement, dated the date hereof, among the Company, GAP 40, GAP 46, GAP 52, GAP
Coinvestment, GAP Coinvestment II, Xxxxxxx, Xxxxxxx Trust #1, Xxxxxxx Trust #2,
Xxxxxx/Beirne, Sasson, TCV and Xxxxxx, as amended from time to time.
"TCV III" has the meaning assigned to such term in the recital to this
Agreement.
"TCV III GP" has the meaning assigned to such term in the recital to
this Agreement.
"TCV III LP" has the meaning assigned to such term in the recital to
this Agreement.
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"TCV III Q" has the meaning assigned to such term in the recital to
this Agreement.
"TCV III SP" has the meaning assigned to such term in the recital to
this Agreement.
"TCV SHAREHOLDERS" means TCV III GP, TCV III LP, TCV III Q, TCV III SP
and any Permitted Transferee (as defined in the Shareholders Agreement) thereof
to which Registrable Securities are transferred in accordance with Section 2.2
of the Shareholders Agreement.
"WARRANT" has the meaning assigned to such term in the recital to this
Agreement.
2. GENERAL: SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants
registration rights to the FirePond Shareholders, the General Atlantic
Shareholders, the Xxxxxx/Xxxxxx Shareholders, the Xxxxxx Shareholders, the TCV
Shareholders and the Xxxxxx Shareholders upon the terms and conditions set forth
in this Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (ii) the entire amount of Registrable Securities proposed to be sold
by a Designated Holder in a single sale, in the opinion of counsel satisfactory
to the Company and the Designated Holder, each in their reasonable judgment, may
be distributed to the public without any limitation as to volume pursuant to
Rule 144 (or any successor provision then in effect) under the Securities Act
and such Registrable Securities held by any Designated Holder constitute less
than one percent (1 %) of the outstanding capital stock of the Company or (iii)
the Registrable Securities are proposed to be sold or distributed by a Person
not entitled to the registration rights granted by this Agreement.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected and
disregarding any legal restrictions upon the exercise of such rights. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
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3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. At any time after
the IPO Effectiveness Date, (i) one or more of the General Atlantic Shareholders
as a group, acting through GAP LLC or its written designee; (ii) the Major
Shareholders as a group, acting through Xxxxxxx; or (iii) the Series F
Shareholders holding Registrable Securities representing (after giving effect to
any adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the Series F Shareholders (other than GAP 52 or GAP
Coinvestment II) (each of (i), (ii) or (iii), the "Initiating Holder(s)") may
make a written request to the Company to register, under the Securities Act
(other than pursuant to a registration statement on Form S-4 or S-8 or any
successor thereto) and under the securities or "blue sky" laws of any
jurisdiction designated by such holder or holders (a "Demand Registration"), the
number of Registrable Securities stated in such request; PROVIDED, HOWEVER that
the Company shall not be obligated to effect more than two (2) Demand
Registrations for the General Atlantic Shareholders, two (2) Demand
Registrations for the Major Shareholders and one (1) Demand Registration for the
Series F Shareholders pursuant to this Section 3; PROVIDED, that in the event
that the rights granted to the holders of Registrable Securities pursuant to
Section 4 hereof shall cease to be available to such holders as a result of
changes in the federal securities laws, then the number of Demand Registrations
available to such Series F Shareholders hereunder shall be increased from one
(1) Demand Registration to two (2) Demand Registrations pursuant to this Section
3. If at the time of any request to register Registrable Securities pursuant to
this Section 3(a), the Company is engaged in, or has fixed plans to engage in
within thirty (30) days of the time of such request, a registered public
offering or is engaged in any other activity which, in the good faith
determination of the Board of Directors of the Company, would be adversely
affected by the requested registration to the material detriment of the Company,
then the Company may at its option direct that such request be delayed for a
reasonable period not in excess of three (3) months from the effective date of
such offering or the date of completion of such other material activity, as the
case may be, such right to delay request to be exercised by the Company not more
than once in any one-year period. In addition, the Company shall not be required
to effect any registration within ninety (90) days after the effective date of
any other Registration Statement of the Company. Each request for a Demand
Registration by the Initiating Holder(s) shall state the amount of the
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a request for a Demand Registration, the Company shall
promptly take such steps as are necessary or appropriate to prepare for the
registration of the Registrable Securities to be registered.
(b) INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A
DEMAND REGISTRATION. Each of the Designated Holders (other than the Initiating
Holder(s) that have requested such registration) may offer its or his
Registrable Securities under any Demand Registration pursuant to this Section 3.
Within ten (10) days after the receipt from an Initiating Holder of a request
for a Demand Registration, the Company shall (i) give written notice thereof to
all of the Designated Holders (other than the Initiating Holder(s) that have
requested such registration) and (ii) subject to Section 3(e), include in such
registration all of the
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Registrable Securities held by such Designated Holders from whom the Company has
received a written request for inclusion therein within ten (10) days of the
receipt by such Designated Holders of such written notice referred to in clause
(i) above. Each such request by such Designated Holders shall specify the number
of Registrable Securities proposed to be registered and the intended method of
disposition thereof. The failure of any such Designated Holder to respond within
such 10-day period referred to in clause (ii) above shall be deemed to be a
waiver of such Designated Holder's rights under this Section 3, PROVIDED that
any Designated Holder may waive its rights under this Section 3 prior to the
expiration of such 10-day period by giving written notice to the Company, with a
copy to the Initiating Holder(s).
(c) EFFECTIVE DEMAND REGISTRATION. The Company shall use
its best efforts to expeditiously cause any such Demand Registration to become
and remain effective as soon as practicable, but in any event not later than 120
days after it receives a request under Section 3(a) hereof. A registration shall
not constitute a Demand Registration until it has become effective and remains
continuously effective for the lesser of (i) the period during which all
Registrable Securities registered in the Demand Registration are sold or (ii)
120 days; provided, HOWEVER, that a registration shall not constitute a Demand
Registration if (x) after such Demand Registration has become effective, such
registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the Initiating Holders and such interference is not
thereafter eliminated, (y) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such Demand
Registration are not satisfied or waived, other than by reason of a failure by
the Initiating Holders or (z) if the request for such Demand Registration is
withdrawn by the Initiating Holder and such Initiating Holder reimburses the
Company for any expenses incurred in relation thereto.
(d) EXPENSES. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions) in connection therewith, whether or not
such Demand Registration becomes effective.
(e) UNDERWRITING PROCEDURES. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders to which the requested Demand Registration relates so elect, the
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter (as hereinafter defined) selected in accordance with Section 3(f).
In connection with any Demand Registration under this Section 3 involving an
underwriting, none of the Registrable Securities held by any Designated Holder
making a request for inclusion of such Registrable Securities pursuant to
Section 3(b) hereof shall be included in such underwriting unless such
Designated Holder accepts the terms of the underwriting as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in
such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such
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offering by the Initiating Holders. If the Approved Underwriter advises the
Company in writing that in its opinion the aggregate amount of such Registrable
Securities requested to be included in such offering is sufficiently large to
have a material adverse effect on the success of such offering, then the Company
shall include in such registration only the aggregate amount of Registrable
Securities that in the opinion of the Approved Underwriter may be sold without
any such material adverse effect and shall reduce, FIRST as to the Designated
Holders (that are not Initiating Holders that requested such registration and
that requested to participate in such registration pursuant to Section 3(b)
hereof) as a group, if any; and SECOND as to the Initiating Holders as a group,
pro rata within each group based on the number of Registrable Securities
included in the request for Demand Registration, the amount of Registrable
Securities to be included in such registration.
(f) SELECTION OF UNDERWRITERS. If any Demand Registration
of Registrable Securities is in the form of an underwritten offering, the
Initiating Holders that requested such registration holding a majority of the
Registrable Securities held by all such Initiating Holders shall select and
obtain an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "Approved Underwriter"); PROVIDED, HOWEVER ,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
4. FORM S-3.
(a) REQUEST FOR S-3 REGISTRATION. After the first public
offering of its securities 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. The
holders of at least (i) ten percent (10%) of the Registrable Securities or (ii)
a majority in interest of the holders of Common Stock issuable or issued on
conversion of the Series F Preferred Stock or (iii) holders registering
Registrable Securities with an aggregate value of not less than $3,000,000 (the
"S-3 Initiating Holders") shall have the right to request any number of
registrations on Form S-3 (or any successor form) for the Registrable Securities
held by such requesting holders (an "S-3 Registration"). 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. Within ten (10) days after the receipt from an S-3 Initiating Holder
of a request for an S-3 Registration the Company shall give notice to all other
Designated Holders of the receipt of a request for registration pursuant to this
Section 4 and such Designated Holders shall then have ten (10) days to notify
the Company in writing of their desire to participate in such registration.
(b) FORM S-3 UNDERWRITING PROCEDURES. If the S-3
Initiating Holders so request, the Company shall use its best efforts to cause
such S-3 Registration pursuant to this Section 4 to be in the form of a firm
commitment underwritten offering and the managing underwriter or underwriters
selected for such offering shall be the S-3 Approved Underwriter selected in
accordance with Section 4(f). In connection with any S-3 Registration under
Section 4(a) involving an underwritten offering, the Company shall not be
required to include
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any Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
between the Company, the S-3 Approved Underwriter and the S-3 Initiating
Holders, and then only in such quantity as such underwriter believes will not
jeopardize the success of such offering by the S-3 Initiating Holders. If the
S-3 Approved Underwriter believes that the registration of all or part of the
Registrable Securities which the S-3 Initiating Holders and the other Designated
Holders have requested to be included would materially adversely affect the
success of such public offering, then the Company shall be required to include
in the underwritten offering, to the extent of the amount that the S-3 Approved
Underwriter believes may be sold without causing such adverse effect, FIRST, all
of the Registrable Securities to be offered for the account of the S-3
Initiating Holders, pro rata based on the number of Registrable Securities owned
by such S-3 Initiating Holders; SECOND, the Registrable Securities to be offered
for the account of the other Designated Holders who requested inclusion of their
Registrable Securities pursuant to Section 4(a), pro rata based on the number of
Registrable Securities owned by such Designated Holders; and THIRD any other
securities requested to be included in such underwritten offering.
(c) LIMITATIONS ON FORM S-3 REGISTRATIONS. If at the time
of any request to register Registrable Securities pursuant to Section 4(a), the
Company is engaged in, or has fixed plans to engage in within thirty (30) days
of the time of such request, a registered public offering or is engaged or has
fixed plans to engage in any other activity which, in the good faith
determination of the Board of Directors of the Company, would be adversely
affected by the requested S-3 Registration to the material detriment of the
Company, then the Company may at its option direct that such request be delayed
for a reasonable period not in excess of three (3) months from the effective
date of such offering or the date of completion of such other material activity,
as the case may be, such right to delay a request to be exercised by the Company
not more than once in any twelve (12) month period. In addition, the Company
shall not be required to effect any registration pursuant to Section 4(a), (i)
within 90 days after the effective date of any other Registration Statement of
the Company, (ii) if within the 12-month period preceding the date of such
request, the Company has effected two registrations on Form S-3 pursuant to
Section 4(a), (iii) if Form S-3 is not available for such offering by the S-3
Initiating Holders or (iv) if the S-3 Initiating Holders, together with the
Designated Holders (other than S-3 Initiating Holders which have requested an
S-3 Registration under Section 4(a)) registering Registrable Securities in such
registration, propose to sell their Registrable Securities at an aggregate price
(calculated based upon the Market Price of the Registrable Securities on the
date of filing of the Form S-3 with respect to such Registrable Securities) to
the public of less than $3,000,000.
(d) NO DEMAND REGISTRATION. No registration requested by
any Designated Holder pursuant to this Section 4 shall be deemed a Demand
Registration pursuant to Section 3.
(e) EXPENSES. In any registration initiated as an S-3
Registration, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions) in connection therewith, whether or not
such S-3 Registration becomes effective.
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(f) SELECTION OF UNDERWRITERS. If any S-3 Registration of
Registrable Securities is in the form of an underwritten offering, the S-3
Initiating Holders that requested such registration holding a majority of the
Registrable Securities held by all such S-3 Initiating Holders shall select and
obtain an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "S-3 Approved Underwriter"); PROVIDED, HOWEVER,
that the S-3 Approved Underwriter shall, in any case, be acceptable to the
Company in its reasonable judgment. In connection with any S-3 Registration
under this Section 4 involving an underwriting, none of the Registrable
Securities held by any Designated Holder making a request for inclusion of such
Registrable Securities pursuant to Section 4(a) hereof shall be included in such
underwriting unless such Designated Holder accepts the terms of the underwriting
as agreed upon by the Company, the S-3 Initiating Holder and the S-3 Approved
Underwriter.
5. INCIDENTAL OR "PIGGY-BACK" REGISTRATION.
(a) REQUEST FOR INCIDENTAL REGISTRATION. At any time
after the IPO Effectiveness Date, if the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the Company
for its own account (other than a registration statement on Form S-4 or S-8 or
any successor thereto), then the Company shall give written notice of such
proposed filing to each of the Designated Holders of Registrable Securities at
least thirty (30) days before the anticipated filing date, and such notice shall
describe the proposed registration and distribution and offer such Designated
Holders the opportunity to register the number of Registrable Securities as each
such holder may request (an "Incidental Registration"). The Company shall, and
shall use its best efforts (within ten (10) days of the notice provided for in
the preceding sentence) to cause the managing underwriter or underwriters of a
proposed underwritten offering (the "Company Underwriter") to, permit each of
the Designated Holders who have requested in writing to participate in the
Incidental Registration to include its or his Registrable Securities in such
offering on the same terms and conditions as the securities of the Company
included therein. In connection with any Incidental Registration under this
Section 5(a) involving an underwriting, the Company shall not be required to
include any Registrable Securities in such underwriting unless the holders
thereof accept the terms of the underwriting as agreed upon between the Company
and the Company Underwriter, and then only in such quantity as will not, in the
opinion of the Company Underwriter, jeopardize the success of the offering by
the Company. If in the written opinion of the Company Underwriter the
registration of all or part of the Registrable Securities which the Designated
Holders have requested to be included pursuant to this Section 5 would
materially adversely affect such offering, then the Company shall be required to
include in such Incidental Registration, to the extent of the amount that the
Company Underwriter believes may be sold without causing such adverse effect,
FIRST, all of the securities to be offered for the account of the Company;
SECOND , the Registrable Securities to be offered for the account of the
Designated Holders pursuant to this Section 5, pro rata based on the amount
recommended by the Company Underwriter; and THIRD, any other securities
requested to be included in such underwriting.
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(b) EXPENSES. The Company shall bear all Registration
Expenses (other than underwriting discounts and commissions) in connection with
any Incidental Registration pursuant to this Section 5, whether or not such
Incidental Registration becomes effective.
6. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. In
connection with the Company's initial underwritten public offering, the
Designated Holders, if requested in good faith by the Company and the managing
underwriter of the Company's securities, shall agree not to sell or otherwise
transfer or dispose of any Registrable Securities of the Company held by them
(except for any securities sold pursuant to such registration statement) for a
period following the effective date of such registration statement as agreed to
by the holders of not less than a majority of the Registrable Securities,
PROVIDED, HOWEVER that in no event shall such period exceed 180 days. In
connection with any other underwritten public offering by the Company, to the
extent holders of not less than a majority of the Registrable Securities have
agreed with the managing underwriter(s) not to sell or otherwise transfer or
dispose of any of the Registrable Securities held by each of them (except for
any securities sold pursuant to such registration statement) for a period of
time after the effective date of any such registration statement (such period
not to exceed ninety (90) days) in order to effect an orderly public
distribution thereof and each Designated Holder who either participates in such
offering or has been afforded the opportunity to participate in such offering on
a pro rata basis with the Initiating Holders and all other Designated Holders
participating in such offering shall, if requested in good faith by the Company
and the managing underwriter, enter into and execute such an agreement with such
managing underwriter(s) and the Company pertaining to a restriction on the
transfer of any Registrable Securities of the Company then held by them (and not
included in such registration) during such same time period and on the same
terms and conditions as the agreement made by said holders of a majority of the
Registrable Securities. The foregoing provisions of this Section 6(a) shall only
be applicable to the extent that, with respect to any applicable registration,
the five officers of the Company holding the greatest number of shares of
capital stock of the Company (assuming exercise or conversion of all exercisable
or convertible securities) and all directors of the Company enter into similar
agreements.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The
Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
registration statement in which the Designated Holders of Registrable Securities
are participating, other than pursuant to Section 5 hereof, and ending on the
earlier of (i) the date on which all Registrable Securities registered on such
registration statement are sold or (ii) 120 days after the effective date of
such registration statement.
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7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever the registration
of Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) use its best efforts to prepare and file
with the SEC a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate
and which form shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution
thereof, and use its best efforts to cause such registration statement
to become effective; PROVIDED, HOWEVER, that (x) before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company shall provide counsel selected by the Designated
Holders holding a majority of the Registrable Securities being
registered in such registration ("Holders' Counsel") and any other
Inspector (as hereinafter defined) with an adequate and appropriate
opportunity to participate in the preparation of such registration
statement and each prospectus included therein (and each amendment or
supplement thereto) to be filed with the SEC, which documents shall be
subject to the review of Holders' Counsel, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities
of any stop order issued or threatened by the SEC and take all
reasonable action required to prevent the entry of such stop order or
to remove it if entered;
(ii) prepare and file with the SEC such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective for the lesser of (x) 180 days or
(y) such shorter period which will terminate when all Registrable
Securities covered by such registration statement have been sold, and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) as soon as reasonably possible, furnish to
each seller of Registrable Securities, prior to filing a registration
statement copies of such registration statement as is proposed to be
filed, and thereafter such number of copies of such registration
statement, each amendment supplement thereto (in each case including
all exhibits thereto), the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
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(iv) use its best efforts to register or qualify
such Registrable Securities under such other securities or "blue sky"
laws of such jurisdictions as any seller of Registrable Securities may
reasonably request, and to continue such qualification in effect in
such jurisdiction for 120 days or for as long as any such seller
requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; PROVIDED, HOWEVER , that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 7(a)(iv), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause the
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers of
Registrable Securities to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of Registrable Securities
at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in
such registration statement contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, after
delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the
Approved Underwriter, S-3 Approved Underwriter or Company Underwriter,
if any, selected as provided in Section 3, Section 4 or Section 5, as
the case may be) and take such other actions as are prudent and
reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities;
(viii) make available for inspection by any seller
of Registrable Securities, any managing underwriter participating in
any disposition pursuant to such registration statement, Holders'
Counsel and any attorney, accountant or other agent retained by any
such seller or any managing underwriter (each, an "Inspector" and
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collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such
Inspector in connection with such registration statement. Records that
the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (x) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in the registration
statement, (y) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (z)
the information in such Records was known to the Inspectors on a
non-confidential basis prior to its disclosure by the Company or has
been made generally available to the public. Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(ix) if such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from
the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort"
letters as Holders' Counsel or the managing underwriter reasonably
request;
(x) use its best efforts to furnish at the
request of any seller of Registrable Securities on the date such
securities are delivered to the underwriters for sale pursuant to such
registration or, if such securities are not being sold through
underwriters, on the date the registration statement with respect to
such securities becomes effective, an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such
request, covering such legal matters with respect to the registration
in respect of which such opinion is being given as such seller may
reasonably request and are customarily included in such opinions and
are reasonably acceptable to counsel representing the Company;
(xi) otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable
but no later than fifteen (15) months after the effective date of the
registration statement, an earnings statement covering a period of
twelve (12) months beginning after the effective date of the
registration statement, in a manner which satisfies the provisions of
Section 11 (a) of the Securities Act and Rule 158 thereunder;
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(xii) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued
by the Company are then listed or approved for inclusion on Nasdaq, as
applicable, PROVIDED that the applicable listing requirements are
satisfied;
(xiii) keep Holders' Counsel advised in writing as
to the initiation and progress of any registration under Section 3,
Section 4 or Section 5 hereunder;
(xiv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of
such Registrable Securities and their respective counsel in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"); and
(xv) participate, to the extent reasonably
requested by the managing underwriter for the offering or the holders,
in efforts to sell the Registrable Securities under the offering
(including without limitation, participating in "roadshow" meetings
with prospective investors) that would be customary for underwritten
primary offerings of a comparable amount of equity securities by the
Company.
(xvi) provide a transfer agent and registrar for
all Registrable Securities registered pursuant hereunder and a CUSIP
number for all such Registrable Securities, in each case not later than
the effective date of such registration.
(xvii) use best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
contemplated hereby.
(b) SELLER INFORMATION. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 7(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 7(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such registration statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
7(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to
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Section 7(a)(vi) to and including the date when the Designated Holder shall have
received the copies of the supplemented or amended prospectus contemplated by
and meeting the requirements of Section 7(a)(vi).
(d) REGISTRATION EXPENSES. The Company shall pay all
expenses (other than as set forth in Sections 3(d), 4(e) and 5(b)) arising from
or incident to the performance of, or compliance with, this Agreement,
including, without limitation, (i) SEC, stock exchange and NASD registration and
filing fees, (ii) all fees and expenses incurred in complying with securities or
"blue sky' laws (including reasonable fees, charges and disbursements of counsel
in connection with "blue sky" qualifications of the Registrable Securities),
(iii) all printing, messenger and delivery expenses, (iv) the fees, charges and
expenses of counsel to the Company and of its independent public accountants and
any other accounting fees, charges and expenses incurred by the Company
(including, without limitation, any expenses arising from any special audits
incident to or required by any registration or qualification) and the reasonable
legal fees, charges and expenses of one counsel engaged by the Initiating
Holders to represent their interests in connection with a Demand Registration
and (v) any liability insurance or other premiums for insurance obtained by the
Company in connection with any Demand Registration or Incidental Registration
pursuant to the terms of this Agreement, regardless of whether such registration
statement is declared effective. All of the expenses described in this Section
7(d) are referred to herein as "Registration Expenses."
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, shareholders,
members, employees, advisors and agents and each Person who controls (within the
meaning of the Securities Act or the Exchange Act) such Designated Holder from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any
registration statement, prospectus or preliminary prospectus or notification or
offering circular (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or arising out of or based upon
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,
except insofar as the same are caused by or contained in any information
concerning such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use therein. The Company shall also provide
customary indemnities to any underwriters of the Registrable Securities, their
officers, directors and employees and each Person who controls such underwriters
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Designated
Holders of Registrable Securities.
(b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection
with any registration statement in which a Designated Holder is participating
pursuant to Section 3,
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Section 4 or Section 5 hereof, each such Designated Holder shall furnish to the
Company in writing such information with respect to such Designated Holder as
the Company may reasonably request or as may be required by law for use in
connection with any such registration statement or prospectus and each
Designated Holder agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, any underwriter retained by the Company and their
respective directors, officers, employees and each Person who controls the
Company or such underwriter (within the meaning of the Securities Act and the
Exchange Act) to the same extent as the foregoing indemnity from the Company to
the Designated Holders, but only with respect to any such information with
respect to such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use therein; PROVIDED, HOWEVER, that the total
amount to be indemnified by such Designated Holder pursuant to this Section 8(b)
shall be limited to the net proceeds received by such Designated Holder in the
offering to which the registration statement or prospectus relates.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; PROVIDED, HOWEVER , that the failure so
to notify the Indemnifying Party, shall not relieve the Indemnifying Party of
any liability that it may have to the Indemnified Party hereunder. If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel (other than reasonable costs of investigation) shall be paid by the
Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii)
the Indemnifying Party fails to assume the defense of such action with counsel
reasonably satisfactory to the Indemnified Party in its reasonable judgment or
(iii) the named parties to any such action (including any impleaded parties)
have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to it which are different from or
additional to those available to the Indemnifying Party. In either of such
cases, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 8 from the Indemnifying Party is 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
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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 Party 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
faults of such Indemnifying Party and Indemnified Party 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 Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(a), 8(b)
and 8(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; PROVIDED that the
total amount to be contributed by such Designated Holder shall be limited to the
net proceeds received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person.
9. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Designated Holders the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit a Designated Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the Initial Public Offering;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Designated Holder, so long as the
Designated Holder owns any Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company), the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
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Company, and (iii) such other information as may be reasonably requested in
availing any Designated Holder of any rule or regulation of the SEC that permits
the selling of any such securities without registration or pursuant to such
form.
10. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of
this Agreement shall apply, to the full extent set forth herein with respect to
(i) the shares of Common Stock and (ii) any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof. The Company shall cause any successor or assign (whether by merger,
consolidation or otherwise) to enter into a new registration rights agreement
with the Designated Holders on terms substantially similar to this Agreement as
a condition of any such transaction.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
(c) REMEDIES. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company, (ii) the
FirePond Shareholders holding Registrable Securities representing (after giving
effect to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the FirePond Shareholders, (iii) the holders of
Registrable Securities representing (after giving effect to any adjustments) at
least 75 % of (x) the aggregate number of Registrable Securities owned by all of
the General Atlantic Shareholders plus (y) the aggregate number of Registrable
Securities owned by the Xxxxxx/Xxxxxx Shareholders and the Xxxxxx Shareholders,
as a group, and (iv) the Series F Shareholders (other than the General Atlantic
Shareholders) holding Registrable Securities representing (after giving effect
to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the Series F Shareholders. Any such written consent
shall be binding upon the Company and all of the Designated Holders.
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(e) NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be made by registered or certified first-class mail, return receipt
requested, telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company:
FirePond, Inc.
00 Xxxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: President
cc: Xxxx XxXxxxxxx
with copies to:
FirePond, Inc.
1000 Riverview Office Tower
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
and;
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxx III, P.C.
(ii) if to the Major Shareholders:
c/o FirePond, Inc.
1000 Riverview Office Tower
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Kunard, Barnett, Kakeldey & Gates, Ltd.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
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(iii) if to the General Atlantic Shareholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: J. Xxxxxxx Xxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(iv) if to any other Designated Holder, at its
address as it appears on the record books of
the Company.
(v) if to the TCV Shareholders:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(vi) if to the Xxxxxx Shareholders:
Xxxxxx Brothers VC Partners L.P.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by courier
or overnight mail, if delivered by commercial courier service or overnight mail;
five (5) Business Days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is mechanically acknowledged, if telecopied.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of each
of the parties hereto. The Demand Registration rights of the General Atlantic
Shareholders, the Major Shareholders, and the Series F Shareholders contained in
Section 3 hereof and the other rights of each of the General Atlantic
Shareholders, the Major Shareholders, and the Series F Shareholders with respect
thereto shall be, with respect to any Registrable Security, (i) automatically
transferred among the General Atlantic Shareholders, (ii) automatically
transferred among the Major Shareholders and (iii) automatically transferred
among the Series F Shareholders, as the case may be, and in all other cases,
transferred only with the consent of the Company. The incidental or "piggyback"
registration rights of the Designated Holders contained in Sections 3(b), 4 and
5 hereof and the other rights of each of the Designated Holders with respect
thereto shall be, with respect to any Registrable Security, automatically
transferred by such Designated Holder to any Person who is the transferee of
such Registrable Security; PROVIDED, HOWEVER, that the "piggyback" registration
rights of the Other Shareholders (as set forth in subsection (g) below) may be
transferred only with the consent of the Company. All of the obligations of the
Company hereunder shall survive any such transfer.
(g) THIRD PARTY BENEFICIARIES. The parties to this
Agreement agree that the shareholders of the Company listed on Schedule 2 (the
"Other Shareholders") shall be entitled to certain "piggyback' registration
rights under Sections 3(b), 4 and 5(a) of this Agreement. The rights granted
pursuant to the preceding sentence are expressly conditioned on the agreement of
each such Other Shareholder to abide by the obligations set forth herein as if
each Other Shareholder was an original signatory to this Agreement including,
without limitation, the obligations set forth in Sections 3(b), 4, 5(a), 6(a),
7(a) and 8(b). The Company shall provide notice to the Other Shareholders of an
event that triggers the Other Shareholders' "piggyback" registration rights.
Other than as set forth in this Section 10(g), no Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of any of the rights granted hereunder.
(h) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so
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executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning, hereof.
(j) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to the principles of conflicts of law thereof.
(k) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(l) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the Stock Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the Original Agreement, the First
Amendment and the Second Amendment.
(m) FURTHER ASSURANCES. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement including
without limitation the Original Agreement, as amended by the First Amendment and
the Second Amendment.
(n) AGGREGATION OF STOCK. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Amended and Restated Registration Rights Agreement on the date
first written above.
FIREPOND, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
GENERAL ATLANTIC PARTNERS 40, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
GENERAL ATLANTIC PARTNERS 46, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
GENERAL ATLANTIC PARTNERS 52, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
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GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxx
XXXXXX XXX XXXXXXX TRUST
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trustee of the Xxxxxx Xxx Xxxxxxx
Irrevocable Trust
XXXX XXXXX XXXXXXX TRUST
By:
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trustee of the Xxxxxx Xxx Xxxxxxx
Irrevocable Trust
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XXXXXX/XXXXXX ASSOCIATES INCORPORATED
By:
---------------------------------------------
Name:
Title:
---------------------------------------------
Xxx Xxxxxx
TCV III (GP)
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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TCV III, L.P.
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III (Q), L.P.
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III Strategic Partners, L.P.
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Xxxxxx Brothers VC Partners L.P.
By: LB I Group Inc.
Its: General Partner
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
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SCHEDULE 1
MAJOR SHAREHOLDERS
Xxxxxx Xxx Xxxxxxx Trust
Xxxx Xxxxx Xxxxxxx Trust
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Schedule 2
Other Shareholders
-Xxxxxxxxxxx X. Xxxxxxxxx as Co-trustee of the Xxxxxxxxxxx Xxxxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxxxxxx X. Xxxxxxxxx as Co-trustee of the Xxxx Xxxxxxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxxxxxx X. Xxxxxxxxx as Co-trustee of the Xxxx Xxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxxxxxx X. Xxxxxxxxx as Co-Trustee of the Xxxxx Xxxxx Xxxxxxxxx Irrevocable Trust
-Xxxx X. Xxxxxxxxx
-Xxxx X. Xxxxxxx
-Xxxx Xxx Xxxxxx
-Xxxxxxx X. Bouquet
-Xxxxx X. Xxxxxxx
-Xxxxxx X. Xxxx
-Xxxxx X. Xxxxxxxx
-Xxxxxxx X. Xxxxxxxx
-Xxxxxxx X. Xxxxxxxx
-Xxxxxxx X. Xxxxxxxx as Co-trustee of the Xxxxxxxxxxx Xxxxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxx X. Xxxxxxxx as Co-trustee of the Xxxx Xxxxxxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxx X. Xxxxxxxx as Co-trustee of the Xxxx Xxx Xxxxxxxxx Irrevocable Trust
-Xxxxxxx X. Xxxxxxxx as Trustee of the Xxxxx Xxxxx Xxxxxxxxx Irrevocable Trust
-Xxxxxx X. Xxxxxx
-Xxxxxxx X. Xxxxxxx
-Xxxxxxx X. Xxxxxxx, Xx.
-Xxxxxx X. Xxxxx
-Xxxxxxxx X. Xxxxxx
33
