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EXHIBIT 4.2
SAGENT TECHNOLOGY, INC.
SIXTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made
as of February 24, 1998(the "Agreement") by and among SAGENT TECHNOLOGY, INC., a
California corporation (the "Company"), the purchasers of Series E Preferred
Stock of the Company (the "Series E Investors"), who represent a majority of the
outstanding shares of Preferred Stock of the Company, and Xxxxxxx X. Xxxxxxx,
Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx (collectively,
the "Founders" and each individually a "Founder").
RECITALS
WHEREAS, the Company, the Founders, the purchasers of Series A
Preferred Stock pursuant to the Series A Preferred Stock Purchase Agreement,
dated May 26, 1995, the purchasers of Series B Preferred Stock pursuant to the
Series B Preferred Stock Purchase Agreement, dated November 15, 1995, the
purchasers of Series C Preferred Stock pursuant to the Series C Preferred Stock
Purchase Agreement, dated September 30, 1996, Xxxxxxx Xxxxxxxx, an individual
and investor of the Company's Series A Preferred Stock pursuant to a Series A
Preferred Stock Purchase Agreement, dated October 10, 1995, Xxxxxx Xxxxx and
Xxxxx Xxxxxxx, individuals and investors of the Company's Series C Preferred
Stock, pursuant to Series C Preferred Stock Purchase Agreements, dated March 17,
1997 and June 16, 1997 respectively, and the purchasers of Series D Preferred
Stock pursuant to the Series D Preferred Stock Purchase Agreement dated as of
August 4, 1997 and September 26, 1997 (collectively, the "Prior Investors") are
parties to a Fifth Amended and Restated Registration Rights Agreement dated as
of August 4, 1997 (together with all amendments, the "Prior Agreement"); and
WHEREAS, the Prior Agreement sets forth all the registration rights
(collectively the "Registration Rights") of the Prior Investors; and
WHEREAS, the Series E Investors, in connection with their proposal to
purchase up to 1,895,370 shares of the Company's Series E Preferred Stock
pursuant to the Series E Preferred Stock Purchase Agreement dated as of February
24, 1998 (the "Series E Agreement"), desire to obtain such Registration Rights;
and
WHEREAS, the Company and a majority of the Prior Investors, on behalf
of all Prior Investors, to induce the Series E Investors to purchase Series E
Preferred Stock pursuant to a Series E Preferred Stock Purchase Agreement (the
"Series E Agreement"), desire to grant the Series E Investors the Registration
Rights, all as detailed herein.
NOW, THEREFORE, the parties hereto agree that, subject to the closing
of the purchase of Series E Preferred Stock by the Series E Investors pursuant
to the Series E Agreement: (i) the Prior Agreement is terminated and of no
further force and effect; (ii) the Company and a majority of the Prior
Investors, on behalf of all Prior Investors, hereby grant to the Series E
Investors the rights set forth below; and (iii) the Company, a majority of the
Prior Investors, on behalf of all Prior Investors, and the Series E Investors
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as a condition of closing of the Series E Agreement, accept and agree to the
termination of all prior registration rights agreements and accept and agree to
be bound by the terms of this Agreement.
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. Hereafter, in this Agreement the following
terms shall have the following respective meanings:
"Purchaser" shall mean each of the Series A Investors, the
Series B Investors, the Series C Investors, the Series D Investors and the
Series E Investors referred to individually as listed in Exhibit A.
"Purchasers" shall mean all the Series A Investors, the Series
B Investors, the Series C Investors, the Series D Investors and the Series E
Investors referred to collectively as listed in Exhibit A.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Preferred" means the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, and
the Series E Preferred Stock of the Company.
"Conversion Stock" means the Common Stock issued or issuable
pursuant to conversion of the Preferred.
"Holder" shall mean (i) any Purchaser holding Registrable
Securities (including Preferred) and any person holding Registrable Securities
to whom the rights under this Agreement have been transferred in accordance
with Section 2.14 hereof and (ii) Lighthouse Capital Partners, L.P.
("Lighthouse").
"Initiating Holders" shall mean any Purchasers or transferees
of Purchasers under Sec tion 2.14 hereof who in the aggregate are Holders of
greater than 50% of the Registrable Securities.
"Registrable Securities" means (i) the Conversion Stock; (ii)
all the shares of common stock issued or issuable upon the conversion of the
shares of Series A Preferred Stock or Series B Preferred Stock now or hereafter
held by Lighthouse (including the Series A Preferred Stock and Series B
Preferred Stock issuable upon exercise of the warrants to purchase Series A
Preferred Stock and Series B Preferred Stock held by Lighthouse) (collectively
the "Lighthouse Stock"), and (iii) any Common Stock of the Company issued or
issuable in respect of the Conversion Stock, the Lighthouse Stock or other
securities issued or issuable pursuant to the conversion of the Preferred upon
any stock split, stock dividend, recapitalization, or similar event, or any
Common Stock otherwise issued or issuable with respect to the Preferred;
provided,
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however, that shares of Common Stock or other securities shall only be treated
as Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, whether in a registered offering, Rule 144 transaction
or otherwise, or (B) sold or are available for sale in the opinion of counsel to
the Company in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale; provided, however, that the Company's stock is then publicly
traded.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 2.4,
2.5 and 2.6 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of one exercise of a requested
registration provided for in Section 2.4 hereof, in the event of two Company
registrations pursuant to Section 2.5 hereof, and for all Company registrations
on Form S-3 pursuant to Section 2.6 hereof.
"Restricted Securities" shall mean the securities of the
Company required to bear the legend set forth in Section 2.2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and, except as set forth above, all reasonable fees
and disbursements of counsel for any Holder.
SECTION 2
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
2.1 RESTRICTIONS ON TRANSFERABILITY. The Preferred and the Conversion
Stock shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 2, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Each Purchaser will cause
any
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proposed purchaser, assignee, transferee, or pledgee of the Preferred or such
Common Stock held by a Purchaser to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 2.
2.2 RESTRICTIVE LEGEND. Each certificate representing (i) the
Preferred, (ii) the Conversion Stock, and (iii) any other securities issued in
respect of the Preferred or the Conversion Stock upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 2.3 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID
ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE
SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
Each Purchaser and Holder consents to the Company making a
notation on its records and giving instructions to any transfer agent of the
Preferred or the Common Stock in order to implement the restrictions on transfer
established in this Section 2.
2.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership or (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
of the Purchasers to any of its partners, or retired partners, or to the estate
of any of its partners or retired partners), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the holder thereof shall give written notice to the Company of such holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and shall be accompanied, at such
holder's expense by either (i) an unqualified written opinion of legal counsel,
who shall be and whose legal opinion shall be reasonably satisfactory to the
Company, addressed to the Company, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the effect
that the transfer of such securities without registration will not result in a
recommendation
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by the staff of the Commission that action be taken with respect thereto,
whereupon the holder of such Restricted Securities shall be entitled to transfer
such Restricted Securities in accordance with the terms of the notice delivered
by the holder to the Company. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 2.2 above, except that such certificate shall not bear such restrictive
legend if in the opinion of counsel for such holder and the Company such legend
is not required in order to establish compliance with any provision of the
Securities Act.
2.4 REQUESTED REGISTRATION.
(a) Request for Registration. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than ten
percent (10%) of the shares (appropriately adjusted for Recapitalizations) of
Registrable Securities, or any lesser number of shares if the anticipated
aggregate offering price, net of underwriting discounts and commissions, would
exceed $10 million, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts
to effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within 20 days after receipt of such
written notice from the Company; provided, however, that the Company shall not
be obligated to take any action to effect any such registration, qualification
or compliance pursuant to this Section 2.4:
(A) In any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
(B) Prior to December 31, 1999;
(C) During the period starting with the
date sixty (60) days prior to the Company's estimated date of filing of, and
ending on the date six (6) months immediately following the effective date of,
any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided
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that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(D) After the Company has effected two such
registrations pursuant to this subparagraph 2.4(a), and such registrations have
been declared or ordered effective;
(E) If the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company or its shareholders for a registration statement to be filed in
the near future, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 2.4 shall be deferred for a
period not to exceed 120 days from the date of receipt of written request from
the Initiating Holders.
Subject to the foregoing clauses (A) through (E), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
Section 2.4 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 2.4(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.4 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 2.4, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 2.4, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all holders of Registrable
Securities and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to
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90 days after the effective date of such registration, or such other shorter
period of time as the underwriters may require.
2.5 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i)
in connection with the Company's initial public offering, or (ii) a registration
relating solely to employee benefit plans, or (iii) a registration relating
solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from the
Company, by any Holder.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.5(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 2.5, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the Registrable
Securities to be included in such registration. The Company shall so advise all
Holders and other holders distributing their securities through such
underwriting and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders and such other holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders and such other
holders at the time of filing the registration statement. To facilitate the
allocation of shares in accordance with the above provisions, the Company may
round the number of shares allocated to any Holder or holder to the nearest 100
shares. If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 90 days after the effective date
of the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
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(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.5 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
2.6 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders holding in the aggregate not less
than 5% of the then-outstanding Registrable Securities request that the Company
file a registration statement on Form S-3 (or any successor form to Form S-3)
for a public offering of shares of the Registrable Securities the reasonably
anticipated aggregate offering price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form and to
cause such Registrable Securities to be qualified in such jurisdictions as the
Holder or Holders may reasonably request; provided, however, that the Company
shall not be required to effect more than one registration pursuant to this
Section 2.6 in any six (6) month period or in excess of two registrations under
this Section 2.6. The substantive provisions of Section 2.4(b) shall be
applicable to each registration initiated under this Section 2.6.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.6: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) if the Company, within
ten (10) days of the receipt of the request of the initiating Holders, gives
notice of its bona fide intention to effect the filing of a registration
statement with the Commission within ninety (90) days of receipt of such request
(other than with respect to a registration statement relating to a Rule 145
transaction, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (iii) during
the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or (iv) if the Company shall furnish
to such Holder a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its shareholders for registration statements to be
filed in the near future, then the Company's obligation to use its best efforts
to file a registration statement shall be deferred for a period not to exceed
120 days from the receipt of the request to file such registration by such
Holder.
2.7 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
Closing Date, the Company shall not enter into any agreement granting any holder
or prospective holder of any securities of the Company registration rights with
respect to such securities unless (i) such new registration rights, including
standoff obligations, are on a pari passu basis with those rights of the Holders
hereunder; or
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(ii) such new registration rights, including standoff obligations, are
subordinate to the registration rights granted Holders hereunder. Any such
additional parties may execute a counterpart of this Agreement, and upon
execution by such additional parties and by the Company, shall be considered a
Holder for all purposes of this Agreement.
2.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with (i) one registration pursuant to Section 2.4, (ii) two
registrations pursuant to Section 2.5, and (iii) all registrations pursuant to
Section 2.6 shall be borne by the Company. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders and all
other Registration Expenses shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered.
2.9 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the Registration
Statement has been completed;
(b) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably request
in order to facilitate the public offering of such securities.
2.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers and directors and partners, and each person controlling such Holder
within the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Section 2, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of the Securities Act or any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Holder, each of its officers and
directors, and each person control-
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ling such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing, the
liability of each Holder under this subsection (b) shall be limited in an amount
equal to the initial public offering price of the shares sold by such Holder,
unless such liability arises out of or is based on willful conduct by such
Holder.
(c) Each party entitled to indemnification under this Section
2.10 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement
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which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
2.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant to
this Agreement shall terminate as to any Holder five (5) years after the closing
of an underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of common stock for the account of the Company to the public.
2.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held
by them and the distribution proposed by such Holder or Holders as the Company
may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 2.
2.13 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended.
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (at any time
after it has become subject to such reporting requirements);
(c) So long as a Purchaser owns any Restricted Securities to
furnish to the Purchaser forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Securities Exchange Act of 1934 (at
any time after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company and other information in the possession of
or reasonably obtainable by the Company as a Purchaser may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Purchaser
to sell any such securities without registration.
2.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Purchasers under Sections 2.4, 2.5 and 2.6 may be
assigned to a transferee or assignee reasonably acceptable to the Company in
connection with any transfer or assignment of Registrable Securities by a
Purchaser provided that: (i) such transfer may otherwise be effected in
accordance with applicable
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securities laws, and (ii) such assignee or transferee acquires at least 100,000
shares of Preferred and/or Common Stock issued upon conversion thereof
(appropriately adjusted for Recapitalizations). Notwithstanding the foregoing,
the rights to cause the Company to register securities may be assigned to any
constituent partner of a Purchaser, without compliance with item (ii) above,
provided written notice thereof is promptly given to the Company.
2.15 STANDOFF AGREEMENT. Each Holder agrees in connection with the
Company's initial public offering of the Company's securities that, upon request
of the Company or the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed one hundred eighty (180) days) from the effective date of
such registration as may be requested by the underwriters; provided, that the
officers and directors of the Company who own stock of the Company also agree to
such restrictions.
SECTION 3
EFFECT OF THIS AGREEMENT
3.1 TERMINATION OF OTHER RIGHTS. The Company and the Purchasers
acknowledge and agree that this Agreement supersedes the Prior Agreement, and
hence such agreement is terminated in its entirety. All parties hereto
acknowledge and agree that this Agreement supersedes any and all prior
registration rights granted by the Company to them, and that such rights are
terminated in their entirety.
SECTION 4
MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed and construed in
all respects in accordance with the laws of the State of California as applied
to agreements made and performed in California by residents of the State of
California.
4.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except or specifically
set forth herein. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought; provided, however, that
holders of a majority of the Common Stock issued or issuable upon conversion of
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the Preferred may, with the Company's prior written consent, waive, modify or
amend on behalf of all holders, any provisions hereof.
4.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid or otherwise delivered by hand or by messenger,
addressed (a) if to a Purchaser (including Lighthouse) at such Purchaser's
address set forth in Exhibit A, or at such other address as such Purchaser shall
have furnished to the Company in writing or (b) if to any other holder of any
shares of Company Stock, at such address as such holder shall have furnished the
Company in writing, or until any such holder so furnishes an address to the
Company, then to and at the address of the last holder of such shares who has so
furnished an address to the Company, or (c) if to the Company, one copy should
be sent to its address set forth in Exhibit B and addressed to the attention of
the Corporate Secretary or at such other address as the Company shall have
furnished to the Purchasers.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or
seventy-two (72) hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
4.4 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
4.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
4.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Purchasers,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SAGENT TECHNOLOGY, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Title:
----------------------------------
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FOUNDERS
-------------------------------- -------------------------------------------
Xxxxxxx X. Xxxxxxx Xxxx Xxxxxx
-------------------------------- -------------------------------------------
Xxxxx Xxxxx Xxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
SERIES E INVESTORS
EL DORADO VENTURES IV, L.P.
By: El Dorado Venture Partners IV, LLC
Its: General Partner
/s/ XXXXXX XXXXXX
-------------------------------------------
By: Xxxxxx Xxxxxx
Managing Member
EL DORADO TECHNOLOGY '98, L.P.
By: El Dorado Venture Partners IV, LLC.
Its: General Partner
/s/ XXXXXX XXXXXX
-------------------------------------------
By: Xxxxxx Xxxxxx
Managing Member
/s/ XXXXX X. XXXXX
-------------------------------------------
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited Partnership
Its: General Partner
Xxxxx X. Xxxxx
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/s/ XXXX XXXXXXX
-------------------------------------------
CROSSPOINT VENTURE PARTNERS 1997
By: Xxxx Xxxxxxx
Its: General Partner
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
RBW INVESTMENTS, LLC
By: Xxxxxxx X. Xxxxxx
Its: Managing Director
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
THE ENTREPRENEURS' FUND, L.P.
By: BW Management, LLC
Its: General Partner
By: Xxxxxxx X. Xxxxxx, Managing Director
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EXHIBIT A
SCHEDULE OF INVESTORS
Crosspoint Venture Partners 1993
Crosspoint 1993 Entrepreneurs Fund
Xxxx Xxxxxxx
Xxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
El Dorado Ventures III, L.P.
El Dorado Technology IV, L.P.
c/o Xxxxxx Xxxxxx
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Delaware Charter Guarantee & Trust Co.,
Trustee FBO Xxxxxxx X. Xxxxxxx, XXX
000 Xxxxxxx Xxx
Xxxxx Xxxx, XX 00000
Delaware Charter Guarantee & Trust Co.,
Trustee FBO Xxxx X. Xxxxxx, XXX
000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Xxxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxx
000 0xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxx
0000 Xxxx Xxxxx Xxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Meriken Nominees Ltd.
Attn: Xxxx Xxxxxxxxx
c/o Aall Trust & Banking Corporation Ltd.
The Aall Building
P.O. Box 1166
Grand Cayman, Cayman Islands
British West Indies
Xxxxxxx X. Xxxxxx
c/o X.X. Xxxxxx & Co.
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
(000)000-0000
Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
18
WS Investments
Attn: Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Xxxxxx Xxxxxx Xxxxxx
c/o Jordan Sparkling Wine
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx,
Trustees of the Xxxxxxxx Family Trust
dated 8/23/90
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx, Trustee of the Xxxxxx Family
Trust dated 1/6/89
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
X.X. Xxxxxxxx, Inc.
000 X. Xxxxxxxxx Xxx
Xxxxxxx Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx, III
00 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, XX
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Jordan Consulting Group
Attn: Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Xxxxxxx Xxxxxx
c/o Xxxxxxx Xxxxxxx ET AL
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxxxx
0000 Xxx Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
S-1 Trust c/o Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
00000 Xxxxxxxx Xxxxxx
Xxx Xxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Greylock Equity Limited Partnership
c/o Xxxxx X. Xxxxxx
755 Page Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000-0000
Xxx Xxxxxxx
00000 00xx Xxx. Xxxxx
Xxxxxx, XX 00000
U.S. Venture Partners IV, L.P.
Second Ventures II, L.P.
USVP Entrepreneur Partners II, L.P.
2180 Associates Fund
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
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Lighthouse Capital Partners, L.P.
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Contract Administration
Xxxxxx Xxxxx
Federal Express Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
U.S. Mail: X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx Associates, Inc.
00000 Xxxxxxx 0
Xxxxxxx Xxxxx, XX 00000
Xxx Xxxxxxxx
[ADDRESS]
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EXHIBIT B
COMPANY ADDRESS
Sagent Technology, Inc.
0000 X. Xxxxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
