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EXHIBIT 4.2
FORM OF
NET PERCEPTIONS, INC.
REGISTRATION RIGHTS AGREEMENT
FEBRUARY 14, 2000
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TABLE OF CONTENTS
1. Registration Rights...................................................... 1
1.1 Definitions....................................................... 1
1.2 Request for Registration.......................................... 3
1.3 Company Registration.............................................. 5
1.4 Obligations of the Company........................................ 5
1.5 Furnish Information............................................... 7
1.6 Expenses of Demand Registration................................... 7
1.7 Expenses of Company Registration.................................. 8
1.8 Underwriting Requirements......................................... 8
1.9 Delay of Registration............................................. 9
1.10 Indemnification................................................... 9
1.11 Reports Under Securities Exchange Act of 1934..................... 12
1.12 Assignment of Registration Rights................................. 12
1.13 Termination of Registration Rights................................ 13
2. Miscellaneous............................................................ 13
2.1 Successors and Assigns............................................ 13
2.2 Governing Law..................................................... 13
2.3 Counterparts...................................................... 14
2.4 Titles and Subtitles.............................................. 14
2.5 Notices........................................................... 14
2.6 Expenses.......................................................... 14
2.7 Amendments and Waivers............................................ 14
2.8 Severability...................................................... 14
2.9 Entire Agreement.................................................. 15
Schedule A Schedule of Holders
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 14, 2000
(this "Agreement") by and among Net Perceptions, Inc., a Delaware corpora tion
(the "Company"), and the stockholders of Knowledge Discovery One, Inc., a
Delaware corporation ("KD One"), immediately prior to the Effective Time, all of
whom or which are listed on Schedule A hereto (the "Holders").
The Company, Kentucky Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("Sub"), and KD One are
parties to an Agreement and Plan of Merger, dated as of January 15, 2000, as
amended February 3, 2000 (the "Merger Agreement"), providing for the merger of
Sub with and into KD One (the "Merger"), with KD One surviving the Merger as a
wholly owned subsidiary of the Company. Capitalized terms used and not defined
herein have the meanings ascribed to such terms in the Merger Agreement.
The Buyer and the Holders desire to provide for certain
registration rights with respect to the Buyer Common Stock received by the
Holders pursuant to the Merger Agreement (together with any other securities
issued in respect of or in exchange for such Buyer Common Stock by way of
distribution or in connection with a split or combination of, or
recapitalization or reclassification affecting, Buyer Common Stock, the
"Registrable Securities"), and it is a condition to the obligation of KD One to
consummate the Merger that this Agreement be executed and delivered by the
Company.
In consideration of the foregoing, and the respective covenants
and agreements set forth herein, the parties hereby agree as follows.
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
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(b) The term "Form S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" is defined on the first page hereof
and also includes any assignee thereof in accordance with Section 1.12 hereof.
(d) The term "1934 Act" shall mean the Securities Exchange
Act of 1934, as amended.
(e) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "Registrable Securities" is defined on the
first page hereof, provided that (i) such term shall not include any Registrable
Securities sold by a person in a transaction in which his rights under this
Section 1 are not assigned and (ii) as to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (A) a registration
statement with respect to the sale of such securities shall have become
effective under the Act and such securities shall have been disposed of under
such registration statement, (B) such securities shall have been transferred
pursuant to Rule 144 under the Act (or any successor provision thereto) or are
transferable in accordance with paragraph (k) of such Rule 144 (or any successor
provision thereto), (C) such securities shall have been otherwise transferred or
disposed of, and, in each of the cases (A) through (C), new certificates
therefor not bearing a legend restricting further transfer shall have been
delivered by the Company, and subsequent transfer or disposition of such
securities shall not require their registration or qualification under the Act
or any similar state law then in force, or (D) such securities shall have ceased
to be out standing.
(g) The term "SEC" shall mean the Securities and Exchange
Commission.
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1.2 Request for Registration.
(a) If the Company shall receive at any time 180 days
after the date hereof a written request from the Holders of a majority of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of at least fifty percent
(50%) of the Registrable Securities then outstanding (or a lesser percent if the
anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $40,000,000, then the Company shall:
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Holders;
(ii) effect as soon as practicable, and in any event
within sixty (60) days of the receipt of such request, the regis tration
under the Act of all Registrable Securities that the Holders request to
be registered, subject to the limitations of subsection 1.2(b), within
twenty (20) days of the mailing of such notice by the Company in
accordance with Section 2.5; and
(iii)effect such registration, at the election of the
Holders, through either (A) an underwritten public offering or (B) a
shelf registration pursuant to Rule 415 under the Act (a "Shelf
Registration").
(b) If the Holders initiating the registration request
hereun der ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to subsection 1.2(a)
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). The under writer will be selected by a majority in
interest of the Initiating Holders and shall be reasonably acceptable to the
Company. In such event, the right of any Holder to include his Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this
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Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practica ble) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting, subject to the rights of stockholders under
Section 1 of the Company's Amended and Restated Investors' Rights Agreement,
dated as of December 18, 1997 (the "1997 Rights Agreement").
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this Section
1.2, a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimen tal to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
the receipt of the request of the Initiating Holders; provided, however, that
the Company may not utilize this right more than once in any twelve (12) month
period.
(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) After the Company has effected one (1)
registration pursuant to this Section 1.2 and such registration has been
declared or ordered effective; or
(ii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of
filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1.3 hereof;
provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become
effective.
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1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Act in connection with the public offering
of such securi ties solely for cash (other than a registration relating solely
to the sale of securities to participants in a Company stock plan, a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 2.5, the Company shall,
subject to the provisions of Section 1.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered. The Company shall be required to include Registrable Securities in
only one registration under this Section 1.3.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously and as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable efforts to
cause such registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered thereunder,
keep such registra tion statement effective for a period of up to one hundred
twenty (120) days, pro vided, however, that in the case of a Shelf Registration,
the Company will, subject to Section 1.4(b), keep the Shelf Registration
Statement continuously effective for a period of two years from the date of this
Agreement, or such shorter period that will terminate when there are no
Registrable Securities outstanding.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement and, with respect to a Shelf Registration,
subject to the further provisions of this Section 1.4(b), use reasonable efforts
to enable a Holder to use the prospectus forming a part thereof for offers and
resales of Registrable Securities, including
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without limitation, to identify such Holder as a selling security holder in the
registra tion statement for the Shelf Registration provided, however, if the
Company deter mines based upon the advice of counsel that it is advisable to
disclose in the Shelf Registration Statement a financing, acquisition or other
corporate transaction or other material event affecting the Company or its
securities, and the Board of Directors of the Company (or an executive officer
of the Company duly authorized for such purpose) shall have determined in good
faith that such disclosure would not be in the best interests of the Company and
its stockholders, the Company shall not be required to prepare and file such
amendment or supplement for such period as the Board of Directors of the Company
shall have determined in good faith is in the best interests of the Company and
its stockholders. Upon notification of the Holders whose Registrable Securities
are included in such registration of the occurrence of any event contemplated
above, such Holders shall suspend the use of the prospectus forming a part of
such registration statement until the requisite changes to such prospectus have
been made.
(c) Furnish to the Holders, without charge, such numbers
of copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an
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untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to
any registration requested pursuant to Section 1.2 if, due to the operation of
subsec tion 1.5(a), the number of shares or the anticipated aggregate offering
price of the Registrable Securities to be included in the registration does not
equal or exceed the number of shares or the anticipated aggregate offering price
required to originally trigger the Company's obligation to initiate such
registration as specified in subsec tion 1.2(a).
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disburse ments of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall
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bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to a demand registration pursuant to
Section 1.2 (which agreement shall bind all Holders of Registrable Securities,
even if a Holder has not signed such agreement); provided further, however, that
if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from that
known to the Holders at the time of their request and have withdrawn the request
with reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their right to a demand registration pursuant to
Section 1.2.
1.7 Expenses of Company Registration. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualifica tion of Registrable Securities with respect to the registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as provided
in Section 1.12), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for all the selling
Holders selected by them, but excluding underwriting discounts and commissions
relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, that the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included to
be appor tioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders) but in no event shall (i) the amount of securities of the
selling Holders included in the offering be reduced below twenty-five percent
(25%) of the total amount of securities
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included in such offering or (ii) notwithstanding (i) above, any shares being
sold by a stockholder exercising a demand registration right similar to that
granted in Section 1.2 be excluded from such offering, including, without
limitation, rights granted in Section 1 of the 1997 Rights Agreement. For
purposes of the preceding parenthetical concerning apportionment, for any
selling stockholder that is a holder of Registrable Securities and that is a
partnership or corporation, the partners, retired partners and stockholders of
such holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling stockholder," and any pro-rata reduction with
respect to such "selling stockholder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "selling stockholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder, and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage,
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liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a Violation that occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person. (b) To the
extent permitted by law, each selling Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.10(b) in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, that, in no event shall any
indemnity under this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.10 of notice of the commencement of any action (including any
govern mental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
deliver to the indemni fying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however,
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that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.10, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this Section
1.10 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
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1.11 Reports Under Securities Exchange Act of 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration 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 the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(b) take such action, including the voluntary registration
of its Common Stock under Section 12 of the 1934 Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Com pany that it has complied with the reporting requirements of SEC Rule 144,
the Act and the 1934 Act, or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably re quested in availing any Holder of any rule or regulation
of the SEC that permits the selling of any such securities without registration
or pursuant to such form.
1.12 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 75,000 shares of Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations),
provided: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to
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which such registration rights are being assigned; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 1.14 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) or
otherwise associated with such partnership shall be aggregated together and with
the partner ship; provided that all assignees and transferees who would not
qualify individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking any action under this Section 1.
1.13 Termination. This Agreement shall terminate and be of no
further force or effect on the fifth anniversary of the date the Company's
initial public offering was consummated or, as to any Holder, such earlier time
at which all Registrable Securities held by such Holder can be sold in any three
(3) month period without registration in compliance with Rule 144 of the Act.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
trans ferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agree ment.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts) of
the State of Delaware.
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2.3 Counterparts. This 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.
2.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii)
upon deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties, or (iii) upon delivery by facsimile transmission to the party to
be notified at the facsimile number indicated for such party on the signature
page hereof, or at such other facsimile number as such party may designate by
ten (10) days' advance written notice to the other parties.
2.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
2.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
-14-
17
2.9 Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
-15-
18
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
NET PERCEPTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HOLDERS:
By: /s/ Xxxx Xxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxx
X00 0X0 Xxxxxx
Telephone:
By: /s/ Xxxxxx Xxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Telephone:
-16-
19
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Address: 108 Tallstar
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ X. Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Address: 0000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxx
-----------------------------------------------
Name: Xxx Xxxxxx
Address: 00000 Xxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Address: 0000 Xxxxxx Xxxxxx Xxxx. #000
Xxxxxx, Xxxxx 00000
Telephone:
-17-
20
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Address: 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Xxxx Xxxxx
Address: 00000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxx
-----------------------------------------------
Name: Xxx Xxxxxx
Address: 0000 Xxxxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Address: 0000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
-18-
21
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Address: 0000 Xxxxx Xxxxxx #0
Xxxxxxxxxx, Xxxx 00000
Telephone:
By: /s/ Xxx Xxx
-----------------------------------------------
Name: Xxx Xxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxx
Xxxxxx Xxxx, XX 00000
Telephone:
By: /s/ Xxxx X. Xxxx
-----------------------------------------------
Name: Xxxx X. Xxxx
Address: 00000 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Address: 0000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
-19-
22
By: /s/ Xxxx Xxxx
-----------------------------------------------
Name: Xxxx Xxxx
Address: 000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Address: 00000 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxxxx
-----------------------------------------------
Name: Xxx Xxxxxxxx
Address: 00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Address: 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Address: 0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Telephone:
-20-
23
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Address: 0000 Xxxxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxx
-----------------------------------------------
Name: Xxx Xxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Address: 0000 Xxxxxxxx #000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxx
-----------------------------------------------
Name: Xxx Xxxxxx
Address: X.X. Xxx 000000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone:
-21-
24
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------------------
Name: Xxxx X. XxXxxxxx
Address: 0000 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx XxXxxxxx
-----------------------------------------------
Name: Xxxx XxXxxxxx
Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
Address: 0000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Xxxx Xxxxx
Address: 00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxx
Address: 00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
-22-
25
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Address: 00000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone:
By: /s/ Xxx Xxxxxxx
-----------------------------------------------
Name: Xxx Xxxxxxx
Address: 0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxxx
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone:
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
-23-
26
By: /s/ Xxxxx Sunshine
-----------------------------------------------
Name: Xxxxx Sunshine
Address: 0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxx
Address: 000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Address: 0 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone:
By: /s/ Chien Tung
-----------------------------------------------
Name: Chien Tung
Address: 0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
-24-
27
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxx
Address: 00000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone:
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Phoenix Leasing Incorporated
Address: 0000 Xxxxxx Xxxx.
Xxx Xxxxxx, Xxxxxxxxxx 00000-0000
Telephone:
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Centerpoint Venture Partners, L.P.
Address: Two Galleria Tower
00000 Xxxx Xxxx #0000
Xxxxxx, Xxxxx 00000
Telephone:
-25-
28
By: /s/ W. Xxxxxxx Xxxxxx
-----------------------------------------------
Name: InterWest Partners VI, L.P.
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone:
By: /s/ W. Xxxxxxx Xxxxxx
-----------------------------------------------
Name: InterWest Investors VI, L.P.
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------------
Name: RHO Management Trust I
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Austin Ventures V, L.P.
Address: 000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Name: Austin Ventures V Affiliates Fund, L.P.
Address: 000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone:
-26-
29
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx-Xxxxx Specialty Retail Group III
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx 000X
Xxxxxxx, Xxxxx 00000
Telephone:
By: /s/ X.X. Xxxxx
-----------------------------------------------
Name: X.X. Xxxxx
Address: 00000 Xxxx Xxxx #0000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Address: 00 Xxxxxxxxxxx
XX-0000 Xxxxxxxxx
Xxxxxxxxxxx
Telephone:
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------------
Name: Xxx X. Xxxxxxx
Address: 00000 Xxxx Xxxx #0000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxxxxx X. Rock
-----------------------------------------------
Name: Xxxxxxxx X. Rock
Address: 0000 X. Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxx 00000
Telephone:
-27-
30
By: /s/ Xxxxx Xxxx Xxxxxxx
-----------------------------------------------
Name: Estate of XxXxx X. Xxxxxx
Address: 00 Xxxxxx'x Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone:
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
Address: 00000 Xxxx Xxxx #0000
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxx Xxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxx
Address: 0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone:
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Address: 0 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Telephone:
-28-
31
Schedule A
Schedule of Holders
Xxxx Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx Xxxx Xxxxxxx
Xxxxx Xxxxx Xxx Xxxxxxx
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxx Xxxxxx Xxxxx Sunshine
Xxxx Xxxxx Xxxx Xxxxxxxx
Xxxx Xxxxxxx Xxxxx Xxxxxx
Xxx Xxxxxx Chien Tung
Xxxxx Xxxxxxx Xxxxxx Xxxxxxx
Xxxxx Xxxxxx Xxxxx Xxxxxxxx
Xxx Xxx Xxxxx Xxxxxxx
Xxxx Xxxxxx Xxxx Xxxxxxx
Xxxx Xxxx Centerpoint Venture Partners X.X.
Xxxxx Xxxxxx InterWest Partners VI, L.P.
Xxxx Xxxx InterWest Investors VI, L.P.
Xxxx Xxxxxxxx RHO Management Trust I
Xxx Xxxxxxxx X.X. Xxxxx
Xxxxx Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx Xxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx Rock
Xxxxx Xxxxxx Estate of Xx Xxxxxx
Xxxx Xxxxxxx X. Xxxxx Cash
Xxx Xxxxxx Austin Ventures V, L.P.
Xxxxxxxx Xxxxxxx Austin Ventures Affiliates Funds V, L.P.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx XxXxxxxx Xxxxxxxx-Xxxxx Specialty Retail Group III
Xxxx XxXxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx
