EXHIBIT 10.20
PERSISTENCE SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
NOVEMBER 26, 2002
PERSISTENCE SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "AGREEMENT") is made as of the
26th day of November, 2002, by and among Persistence Software, Inc., a Delaware
corporation (the "COMPANY"), and the entities listed on the signature pages
hereto (each an "INVESTOR" and collectively the "INVESTORS").
RECITALS
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The Company and the Investors have entered into a Common Stock Purchase
Agreement (the "PURCHASE AGREEMENT") of even date herewith pursuant to which the
Company has agreed to sell to the Investors and the Investors have agreed to
purchase from the Company shares of the Company's Common Stock (the "PURCHASED
SHARES") and warrants (the "WARRANTS") to purchase shares of the Company's
Common Stock.
All capitalized terms not otherwise defined herein shall have the
meanings ascribed in the Purchase Agreement.
A condition to each Investor's obligations under the Purchase Agreement
is that the Company and the Investors enter into this Agreement in order to
provide the Investor with certain rights to register the Shares (as defined
below). The Company and the Investors each desire to induce the Investors to
purchase the Securities pursuant to the Purchase Agreement by agreeing to the
terms and conditions set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investors covenant and
agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1 (terms defined
in the singular shall apply to the plural form and vice-versa):
(a) 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 Securities Act
of 1933, as amended (the "ACT"), and the declaration or ordering of
effectiveness of such registration statement or document by the SEC;
(b) The term "REGISTRABLE SECURITIES" means (i) the
shares of Common Stock issued or sold in connection with the Purchase Agreement
and on exercise of the Warrants (such shares of Common Stock are collectively
referred to hereinafter as the "SHARES" or "STOCK"), and (ii) any other shares
of Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the Stock, PROVIDED, that the foregoing definition shall exclude in all cases
any Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned. Notwithstanding the foregoing, Common
Stock or other securities shall only be treated as Registrable Securities if and
so long as they have not (A) been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (B)
been sold in a transaction exempt from the registration and prospectus delivery
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale or (C) with regard to any individual Holder,
become eligible for sale in any three month period pursuant to Rule 144;
(c) The number of shares of "REGISTRABLE SECURITIES
THEN OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "HOLDER" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with this Agreement;
(e) The term "FORM S-3" means such form under the Act
as in effect on the date hereof or any successor form under the Act; and
(f) The term "SEC" means the Securities and Exchange
Commission.
1.2 FORM S-3 REGISTRATION.
(a) INITIAL REGISTRATION. Subject to the terms and
conditions of this Agreement, on or before the date that is the earlier of: (i)
30 days after the Company files its Annual Report on Form 10-K for the year
ended December 31, 2002 or (ii) April 30, 2003 (the "INITIAL S-3 FILING
DEADLINE"), the Company will file with the SEC a registration statement on Form
S-3 (the "INITIAL REGISTRATION") and will use its best efforts to effect such
registration and any related qualification or compliance with respect to all
Registrable Securities owned by the Holders as soon as practicable thereafter,
subject to the Company's ability to defer filing a registration statement on
Form S-3 pursuant to subsection 1.2(c)(ii)(1) or subsection 1.2(c)(ii)(2) below.
(b) SECOND REGISTRATION. Subject to the terms and
conditions of this Agreement and upon the written request of the Investors
holding a majority of the Registrable Securities held by all Investors (the
"SECOND REGISTRATION REQUEST"), on or before the date that is 30 days after the
filing by the Company of the first periodic report (on either Form 10-Q or Form
10-K) required to be filed by the Company under the Securities Exchange Act of
1934, as amended ("EXCHANGE ACT") (the "NEXT PERIODIC REPORT") after receipt of
the Second Registration Request, the Company will file with the SEC a
registration statement on Form S-3 and will use its best efforts to effect such
registration and any related qualification or compliance with respect to all
Registrable Securities owned by the Holders as soon as practicable thereafter,
subject to the Company's ability to defer filing a registration statement on
Form S-3 pursuant to subsection 1.2(c)(ii)(1) or subsection 1.2(c)(ii)(2) below.
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(c) MECHANICS. Pursuant to its obligations under
Section 1.2(a) or Section 1.2(b) above, the Company will:
(i) promptly give written notice of the
registration, and any related qualification or compliance, to the Investors and
any other holders of securities that have "piggyback" rights to register their
shares in connection herewith (the "OTHER HOLDERS");
(ii) use its best efforts to effect, within
90 days after filing the registration statement, such registration and all such
qualifications and compliances as may be necessary and as would permit or
facilitate the sale and distribution of all of the Investors' Registrable
Securities; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section 1.2
if (1) the Company shall furnish to the Investors a certificate signed by the
President of the Company stating that in the good faith reasonable judgment of
the Board of Directors of the Company (with the concurrence of the managing
underwriter, if any), the filing of a Form S-3 registration statement would
adversely affect, or require premature disclosure of, any filing, financing,
acquisition or reorganization involving the Company, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
for a reasonable period of time, which shall not exceed thirty (30) days after
either the Initial S-3 Filing Deadline or the Second S-3 Filing Deadline, as
applicable, under this Section 1.2 or (2) if Form S-3 is not available for such
offering by the Investors provided, however, that if Form S-3 is not available,
Company shall file the Form S-3 registration statement once it is available; and
(iii) any and all expenses incurred in
connection with a registration requested pursuant to this Section 1.2 shall be
borne by the Company, including all registration, filing, qualification,
printers' and accounting fees but excluding any underwriters' discounts or
commissions or fees and disbursements for counsel to the Investors and the Other
Holders, provided however that the Company shall reimburse the Holders for up to
$25,000 in fees and disbursements for a single counsel for the Investors and the
Other Holders.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective and to keep such
registration statement effective for the earlier of (i) in the event of a
registration statement filed pursuant to Section 1.2(a) or 1.2(b), 18 months
after the date on which the registration statement is declared effective; (ii)
the date when all of the Registrable Securities covered by the registration
statement are sold; or (iii) the date when Rule 144(k) is available with respect
to all of the securities covered by such registration statement.
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(b) Prepare and file with the SEC such amendments,
including post-effective 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.
(c) Furnish to the Holders 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.
(e) 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 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. In such circumstance, the Company will use reasonable commercial
efforts to promptly update such prospectus to correct such untrue statement or
disclose the necessary material facts within the period of time the Company may
delay sales under Section 1.4(a)(iii) below.
1.4 RESTRICTIONS ON AND PROCEDURE FOR SALES PURSUANT TO A
REGISTRATION STATEMENT.
(a) Each Holder agrees to the following:
(i) NOTICE TO COMPANY. If any Holder shall
propose to sell any Shares, the Holder shall notify the Company of its intent to
do so on or before one (1) business day prior to the date of such sale (the
"NOTICE OF SALE"), and the provision of the Notice of Sale to the Company shall
conclusively be deemed to establish an agreement by such Holder to comply with
the registration provisions herein described. The Notice of Sale shall be deemed
to constitute a representation that any information previously supplied by such
Holder is accurate as of the date of such Notice of Sale.
(ii) NOTICE OF SALE. The Notice of Sale in
substantially the form attached as EXHIBIT A shall be given in accordance with
the provisions of Section 3.5 hereof. However, the Holder may give the Notice of
Sale orally by telephoning the current Chief Financial Officer at the Company at
000-000-0000. An oral Notice of Sale shall be deemed to have been received only
at such time as the selling Holder speaks directly with the current Chief
Financial Officer. In addition, an oral Notice of Sale shall only be deemed
effective if it is followed by a written Notice of Sale received by the Company
by personal delivery or facsimile within twenty-four (24) hours after giving the
oral Notice of Sale.
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(iii) DELAY OF SALE. The Company may refuse
to permit the Holder to resell any Shares for a period of time not to exceed 30
days; provided, however, that in order to exercise this right, the Company must
deliver a certificate in writing to the Holder to the effect that the
registration statement in its then current form contains an untrue statement of
material fact or omits to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. During any suspension period as contemplated by this
Section 1.4 (a)(iii), of which there shall be no more than two (2) in any twelve
(12) month period, the Company will not allow any of its officers or directors
to buy or sell shares of the Company's securities.
(b) REPRESENTATIONS OF HOLDERS. Each Holder hereby
represents to and covenants with the Company that, during the period in which
any registration statement effected pursuant to Section 1.2 remains effective,
such Holder will:
(i) not engage in any stabilization activity
in connection with any of the Company's securities;
(ii) cause to be furnished to any purchaser
of the Shares and to the broker-dealer, if any, through whom Shares may be
offered, a copy of the Prospectus; and
(iii) not bid for or purchase any securities
of the Company or any rights to acquire the Company's securities, or attempt to
induce any person to purchase any of the Company's securities or any rights to
acquire the Company's securities, in each case, other than as permitted under
the Exchange Act.
(c) INFORMATION FOR USE IN REGISTRATION STATEMENT.
Each Holder covenants to the Company that such Holder will complete the
information requested by the Selling Holder's Questionnaire attached as EXHIBIT
B hereto (the "QUESTIONNAIRE"), and further covenants to the Company that all
information provided by such Holder in the Questionnaire will be true, accurate
and complete as of the date provided. Each Holder understands that the written
information in the Questionnaire and all written representations made in this
Agreement are being provided to the Company specifically for use in, or in
connection with, the registration statement and the Prospectus, and has executed
this Agreement with such knowledge.
1.5 FURNISH INFORMATION. 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.
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1.6 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 dispute that might arise with respect to the
interpretation or implementation of this Section 1.
1.7 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, each Holder's affiliates, and their
respective officers, directors, employees, representatives and agents, 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
Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, the Exchange 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, in light of the circumstances in which they were made, not misleading,
or (iii) any violation or alleged violation by the Company of the Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Act, the Exchange 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, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(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 which
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 Exchange 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 1.7(b), 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 1.7(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
1.7(b) exceed the net proceeds from the offering received by such Holder, except
in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.7,
deliver to the indemnifying 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, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable 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
1.7, 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 1.7.
(d) If the indemnification provided for in this
Section 1.7 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; provided, that, in no event shall any contribution by a Holder
under this Subsection 1.7(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. 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) The obligations of the Company and Holders under
this Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1.
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1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Holders the benefits of Rule 144 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 Rule 144, so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of the Exchange
Act and the rules and regulations promulgated thereunder, or that it qualifies
as a registrant whose securities may be resold pursuant to Form S-3, (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 requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
1.9 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 at least 100,000 shares of such securities (subject to adjustment
for stock splits, stock dividends, reclassification or the like); PROVIDED that
the Company is furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and PROVIDED, FURTHER, that such
assignment shall be effective only if the transferee agrees to be bound by this
Agreement and 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) shall be aggregated together
and with the partnership; 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 Section 1.
2. ADJUSTMENT TO WARRANT EXERCISE PRICE; LIQUIDATED DAMAGES. The
Company and Investors agree that Investors will suffer damages if the Company
fails to fulfill its obligations pursuant to Section 1 hereof and that it would
not be possible to ascertain the extent of such damages with precision.
Accordingly, (A) if the registration statement in connection with the First
Registration is not declared effective by the SEC on or prior to 120 days after
the earlier of the date the Company files its Annual Report on Form 10-K for the
year ended December 31, 2002 or March 31, 2003, and/or (B) if the registration
statement in connection with the Second Registration Request is not declared
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effective by the SEC on or prior to 120 days after the filing of the Next
Periodic Report, the Company, in each event, agrees that the per share Exercise
Price of the Warrants shall be reduced by five percent (5%) from the Exercise
Price then in effect as liquidated damages in connection therewith, PROVIDED
HOWEVER that such 120 day periods shall be extended by any period in which the
filing of a Registration Statement is deferred pursuant to Section 1.2(c)(ii).
3. MISCELLANEOUS.
3.1 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.
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 Agreement.
3.2 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
3.3 COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
3.4 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.
3.5 NOTICES. Unless otherwise provided herein, any notice
required or permitted by this Agreement shall be in writing and shall be deemed
duly given upon delivery, when delivered personally or by overnight courier or
confirmed facsimile and addressed to a Holder to be notified at such party's
address as set forth on the signature page hereto or to the Company at its
address on its signature page hereto, or as subsequently modified by written
notice. In the event that any date provided for in this Agreement falls on a
Saturday, Sunday or legal holiday, such date shall be deemed extended to the
next business day. Notwithstanding the foregoing, any notice delivered pursuant
to Section 1.3(e) or Section 1.4 hereto must be made by personal delivery or
confirmed facsimile transmission.
3.6 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.
3.7 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
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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 any
such Registrable Securities, and the Company.
3.8 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
3.9 ENTIRE AGREEMENT. This Agreement, and the Warrant, the
Voting Agreement, and the Purchase Agreement all dated as of the date hereof,
and the other documents delivered pursuant hereto or contemplated hereby
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and thereof and supersede all prior
agreements and understandings among the parties relating to the subject matter
hereof.
[SIGNATURE PAGES FOLLOW]
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The parties have executed this Registration Rights Agreement as of the
date first written above.
COMPANY:
PERSISTENCE SOFTWARE, INC.
By: /S/ XXXXXXXXX XXXXXXX
------------------------------
Name: XXXXXXXXX XXXXXXX
Title: CHIEF FINANCIAL OFFICER
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
The parties have executed this Registration Rights Agreement as of the
date first written above.
XXXXXXX CAPITAL PARTNERS III, L.P.
By: /S/ XXXXXX X. XXXXXXXX
------------------------
Name: XXXXXX X. XXXXXXXX
Title: GENERAL PARTNER
XXXXXXX CAPITAL PARTNERS IIIA, L.P.
By: /S/ XXXXXX X. XXXXXXXX
------------------------
Name: XXXXXX X. XXXXXXXX
Title: GENERAL PARTNER
XXXXXXX CAPITAL PARTNERS III (BERMUDA), L.P.
By: /S/ XXXXXX X. XXXXXXXX
------------------------
Name: XXXXXX X. XXXXXXXX
Title: GENERAL PARTNER
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
EXHIBIT A
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PERSISTENCE SOFTWARE, INC.
NOTICE OF SALE
Pursuant to the Registration Rights Agreement dated as of November 26,
2002 by and between Persistence Software, Inc. (the "COMPANY") and the
undersigned and other entities, the undersigned hereby gives notice to the
Company of the undersigned's intent to sell _______ shares of the Company's
Common Stock registered pursuant to the registration statement on (File
No._____).
Dated: ____________, 200__ By:_______________________________________
(signature)
Name:_____________________________________
(print)
Title:____________________________________
(if applicable)
[NOTE: THIS NOTICE OF SALE MUST BE COMPLETED AND DELIVERED (VIA
PERSONAL DELIVERY OR FACSIMILE) TO THE CHIEF FINANCIAL OFFICER OF THE
COMPANY ON OR BEFORE ONE (1) BUSINESS DAY BEFORE THE DATE OF SALE OF
THE SHARES OF THE COMPANY'S COMMON STOCK REGISTERED PURSUANT TO THE
REGISTRATION STATEMENT.]
EXHIBIT B
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PERSISTENCE SOFTWARE, INC.
SELLING STOCKHOLDER'S QUESTIONNAIRE
In connection with the Persistence Software, Inc. (the "COMPANY")
Registration Statement registering certain shares of the Company's Common Stock,
the undersigned represents and warrants that the information set forth below is
true, accurate and complete:
1. As of the date hereof, the undersigned beneficially owns ______
shares of the Company's Common Stock.
2. Except as described below, the undersigned has not had a material
relationship with the Company or any of its predecessors or affiliates within
the last three years.
The term "material relationship" has not been defined by the Securities
and Exchange Commission (the "SEC"). However, the SEC has indicated that it will
probably construe as a "material relationship" any relationship which tends to
prevent arms length bargaining in dealings with a company, whether arising from
a close business connection or family relationship, a relationship of control or
otherwise. It seems prudent, therefore, to consider that the undersigned would
have such a relationship, for example, with any organization of which the
undersigned is an officer, director, trustee or partner or in which the
undersigned owns, directly or indirectly, ten percent (10%) or more of the
outstanding voting stock, or in which the undersigned has some other substantial
interest, and with any person or organization with whom the undersigned has, or
with whom any relative or spouse (or any other person or organization as to
which the undersigned has any of the foregoing other relationships) has, a
contractual relationship.
If applicable, please describe the material relationship with the
Company:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Holder
______________________________________
Name:_________________________________
Title:________________________________
