Exhibit 4.3
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Third Amended and Restated Registration Rights Agreement, dated as of
December 21, 1999 (the "Agreement"), is by and among HAHT Software, Inc., a
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North Carolina corporation (the "Company"), and the several Investors named in
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the attached Schedule I (each individually an "Investor" and collectively, the
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"Investors").
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WITNESSETH:
WHEREAS, certain of the Investors (the "Existing Investors") hold shares of
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the Company's Series B Convertible Preferred Stock (the "Series B Preferred
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Stock") and/or the Company's Series C Convertible Preferred Stock (the "Series C
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Preferred Stock") and/or the Company's Series C-1 Convertible Preferred Stock
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(the "Series C-1 Preferred Stock") and/or the Company's Series D Convertible
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Preferred Stock (the "Series D Preferred Stock") and possess registration
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rights, information rights and other rights pursuant to that certain Second
Amended and Restated Registration Rights Agreement dated as of September 23,
1997 (as amended on December 11, 1997) (the "Prior Agreement");
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WHEREAS, the Existing Investors possess information rights, rights of
participation and other rights pursuant to Article V of the Securities Purchase
Agreement dated December 20, 1995 (the "B Agreement Covenants") and/or Article V
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of the Series C Convertible Preferred Stock Purchase Agreement dated April 24,
1996 (the "C Agreement Covenants") and/or Article VI of the Series D Convertible
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Preferred and Series C-1 Convertible Preferred Stock Agreement dated September
23, 1997 (as amended on December 11, 1997) (the "D Agreement Covenants,"
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collectively with the B Agreement Covenants and the C Agreement Covenants, the
"Prior Purchase Agreement Covenants");
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WHEREAS, the undersigned Existing Investors are holders of at least 66 2/3%
of the outstanding shares of "Restricted Stock" of the Company (as defined in
the Prior Agreement);
WHEREAS, the undersigned Existing Investors are holders of at least 66-2/3%
of the common stock issued or issuable upon the conversion of the Series B
Preferred Stock;
WHEREAS, the undersigned Existing Investors are holders of at least 66-2/3%
of the common stock issued or issuable upon the conversion of the Series C
Preferred Stock;
WHEREAS, the undersigned Existing Investors are holders of at least 50% of
the common stock issued or issuable upon the conversion of the Series C-1
Preferred Stock and Series D Preferred Stock;
WHEREAS, the undersigned Existing Investors desire to terminate the Prior
Agreement and Prior Purchase Agreement Covenants and to accept the rights
created pursuant hereto in lieu of the rights granted to them under the Prior
Agreement and Prior Purchase Agreement Covenants;
WHEREAS, pursuant to the terms of a Series E Convertible Preferred Stock
and Warrant Purchase Agreement, dated the date hereof (the "Purchase
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Agreement"), between the Company and the Purchasers named in Schedule I thereto
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(the "Series E Investors"), the Series E Investors are acquiring an aggregate of
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up to 17,389,163 shares of Series E Preferred Stock, no par value (the "Series E
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Preferred Stock"); and
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WHEREAS, it is a condition to the obligations of the Series E Investors
under the Purchase Agreement that this Agreement be executed by the parties
hereto, and the parties are willing to execute this Agreement and to be bound by
the provisions hereof.
NOW, THEREFORE, in consideration of the foregoing, the agreements set forth
below, and the parties' desire to provide for continuity of ownership of the
Company to further the interests of the Company and its present and future
stockholders, the parties hereby agree with each other to amend and restate the
Prior Agreement and Prior Purchase Agreement Covenants as set forth herein as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock, no par value, of the
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Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean (1) all shares of Common Stock issued
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or issuable upon conversion of the Series B Preferred Stock, (2) all shares of
Common Stock issued or issuable upon conversion of the Series C Preferred Stock,
(3) all shares of Common Stock issued or issuable upon conversion of the Series
C-1 Preferred Stock, (4) all shares of Common Stock issued or issuable upon
conversion of the Series D Preferred Stock, (5) all shares of Common Stock
issued or issuable upon the conversion of the Series E Preferred Stock,
including all shares of Series E Preferred Stock issued upon the exercise of
Series E Preferred Stock Warrants issued under the Purchase Agreement, (6) any
shares of capital stock or securities exercisable for or convertible into
capital stock received in respect of the shares referenced in (1) through (5)
above and (7) for the purposes of incidental rights granted under Section 5, all
shares of Common Stock issued or issuable upon the conversion of Series E
Preferred Stock issued upon the exercise of warrants dated August 31, 1999
issued to Silicon Valley Bank and Sand Hill Capital II, L.P. to purchase up to
350,000 shares of Series E Preferred Stock (the "Financing Warrants").
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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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.
"Holder" shall mean any Investor owning or having the right to acquire
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Restricted Stock or any transferee of rights under this Agreement under Section
14.
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"Initial Public Offering" shall mean the first underwritten public
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offering of Common Stock of the Company registered under the Securities Act with
the Commission on Form S-1, or its then equivalent.
"Registration Expenses" shall mean all expenses incurred in connection
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with a registration statement, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance, and
fees and disbursements of one counsel for the sellers of Restricted Stock, but
excluding any Selling Expenses.
"Restricted Stock" shall mean the Conversion Shares, excluding
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Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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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 and selling
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commissions applicable to the sale of Restricted Stock which are incurred in
connection with a registration statement.
"Stockholders' Agreement" shall mean the Third Amended and Restated
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Stockholders' Agreement dated as of the date hereof, by and among HAHT Software,
Inc., the Investors and certain stockholders named therein.
2. Restrictive Legend. Each certificate representing Series B Preferred
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Stock, Series C Preferred Stock, Series C-1 Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock, Conversion Shares or other shares of capital
stock of the Company shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, OR THE
AVAILABILITY OF AN EXEMPTION FROM
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THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS.
A certificate shall not bear such legend if in the opinion of counsel reasonably
satisfactory to the Company the securities being sold thereby may be sold
without registration under the Securities Act.
3. Notice of Proposed Transfer. (a) Prior to any proposed transfer of
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any Series B Preferred Stock, Series C Preferred Stock, Series C-1 Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Conversion Shares or
other shares of capital stock of the Company (other than under the circumstances
described in Sections 4 or 5), the Holder thereof shall give written notice to
the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel reasonably satisfactory to the
Company to the effect that the proposed transfer may be effected without
registration under the Securities Act, whereupon the Holder of such stock shall
be entitled to transfer such stock in accordance with the terms of its notice;
provided, however, that no such opinion of counsel shall be required for a
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transfer to one or more partners of the transferor (in the case of a transferor
that is a partnership) or to a parent corporation, subsidiary corporation or to
a corporation which is under common control with a transferor (in the case of a
transferor that is a corporation).
(b) Each certificate for the Series B Preferred Stock, Series C
Preferred Stock, Series C-1 Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock, Conversion Shares or other shares of capital stock of the
Company transferred as provided in this Section 3 shall bear the legend set
forth in Section 2, except that such certificate shall not bear such legend if
(i) such transfer is in accordance with the provisions of Rule 144 or Rule 144A
under the Securities Act (or any other rule permitting public sale without
registration under the Securities Act) or (ii) the opinion of counsel referred
to above is to the further effect that the transferee and any subsequent
transferee (other than an affiliate of the Company) would be entitled to
transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of Section 2.
4. Required Registration. (a) At any time after the Company's Initial
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Public Offering, one or more Holders of Restricted Stock constituting at least
thirty percent (30%) of the total shares of Restricted Stock then outstanding
may request the Company to register under the Securities Act all or any portion
of the shares of Restricted Stock held by such requesting Holder or Holders
("Initiating Holders") for sale in the manner specified in such notice. For
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purposes of this Agreement, the term "Restricted Stock" shall be deemed to
include the number of shares of Restricted Stock which would be issuable to a
holder of Series B, Series C, Series C-1, Series D or Series E Preferred Stock
upon conversion of all shares of Series B, Series C, Series C-1, Series D or
Series E Preferred Stock held by such holder at such time; provided; however,
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that the only securities which the Company shall be required to register
pursuant hereto shall be shares of Common Stock; and provided further that, in
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any underwritten public offering contemplated by this Section 4 or Section 5,
the Holders of Series B, Series C, Series C-1,
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Series D and Series E Preferred Stock shall be entitled to sell such stock to
the underwriters for conversion and sale (in such public offering) of the shares
of Common Stock issued upon conversion thereof.
(b) Notwithstanding anything to the contrary contained in this
Section 4, no request may be made under this Section 4 within one hundred eighty
(180) days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering in which the
Holders of Restricted Stock shall have been entitled to join pursuant to Section
5 and in which there shall have been effectively registered all shares of
Restricted Stock as to which registration shall have been requested.
(c) If at the time of any request to register Restricted Stock
pursuant to this Section 4, (i) the Company is engaged or has fixed plans to
engage within sixty (60) days of the time of the request in a registered public
offering of its securities, (ii) the Company is in possession of material non-
public information the public disclosure of which, in the good faith
determination of the Company's Board of Directors, would materially and
adversely affect the Company, (iii) the Company shall have delivered to the
Holders of Restricted Stock that have requested a registration a certificate of
an officer of the Company to the effect that, on the advice of counsel, the
Company believes such delay is necessary to comply with Regulation M under the
Exchange Act, or (iv) the Company is engaged in any other activity which, in the
good faith determination of the Company's Board of Directors, would be adversely
affected by the requested registration to the material detriment of the Company,
then the Company may at its option direct that such request be delayed for a
reasonable period not in excess of one hundred twenty (120) days from the time
of such request to register Restricted Stock pursuant to this Section 4;
provided, however, that such right to delay a request may be exercised by the
Company not more than once in any twelve-month period. Such delay, however,
shall not in any way restrict the Holders from exercising piggyback registration
rights under Section 5 during such period.
(d) Following receipt of any notice under this Section 4, the Company
shall immediately notify all Holders of Restricted Stock from whom notice has
not been received, and such Holders shall be entitled within thirty (30) days
thereafter to request the Company to include in the requested registration all
or any portion of their shares of Restricted Stock. The Company shall use its
best efforts to register under the Securities Act, for public sale in accordance
with the method of disposition specified in the notice from requesting Holders,
the number of shares of Restricted Stock specified in such notice (and in all
notices received by the Company from other Holders within thirty (30) days after
the giving of such notice by the Company). If such method of disposition shall
be an underwritten public offering, the Holders of a majority of the shares of
Restricted Stock to be sold in such offering may designate the managing
underwriter of such offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld or delayed. Notwithstanding any
other provision of this Section 4, 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 Restricted Stock which would otherwise be underwritten pursuant
hereto, and the number of shares of Restricted Stock that may be included in the
underwriting
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shall be allocated among all Holders thereof, including the Initiating Holders,
in proportion (as nearly as practicable) to the amount of Restricted Stock of
the Company owned by each Holder; provided, however, that the number of shares
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of Restricted Stock to be included in such underwriting shall not be reduced
unless all other securities are first entirely excluded from the underwriting;
provided, further, that in the case of a registration that is requested by the
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holders of Restricted Stock pursuant to Section 3.1 of that certain Third
Amended and Restated Stockholders Agreement, the shares of Restricted Stock that
are issuable upon conversion of the Series E Preferred Stock shall not be
excluded from the underwriting.
(e) The Company shall be obligated to register Restricted Stock
pursuant to this Section 4, on only two (2) occasions; provided, however, that
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such obligation shall be deemed satisfied only when a registration statement
covering all shares of Restricted Stock specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting Holders shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto. The Company shall not be required to
effect a registration pursuant to this Section 4 unless the market value of any
offering and registration of Restricted Stock made pursuant this Section 4 is at
least $5,000,000, before calculation of underwriting discounts and commissions.
(f) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting Holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold.
(g) Except for registration statements on Form X-0, X-0 or any
successor forms thereto, and unless the Company (i) has previously given the
notice referred to in Section 5 or (ii) has exercised its rights to delay a
requested registration under Section 4(c)(i) and within the time period
prescribed in Section 4(c) files a registration statement with respect to a
registered public offering of its securities, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting Holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
5. Incidental Registration. (a) If the Company at any time (other than
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pursuant to Section 4 or Section 13) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or any successor forms thereto), each
such time it will give written notice to all Holders of outstanding Restricted
Stock of its intention so to do; provided however that no such notice shall be
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required after such time that the Company ceases to have registration
obligations under this Section 5. Upon the written request of any such Holder,
received by the Company within thirty (30) days after the giving of any such
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notice by the Company, to register any of its Restricted Stock (which request
shall state the intended method of disposition thereof), the Company will use
its best efforts to cause the Restricted Stock as to which registration shall
have been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
required to permit the sale or other disposition by the Holder (in accordance
with its written request) of such Restricted Stock so registered.
(b) If any registration pursuant to this Section 5 shall be, in whole
or in part, an underwritten public offering of Common Stock, the number of
shares of Restricted Stock to be included in such an underwriting may be reduced
pro rata among the requesting Holders based upon the number of shares of
Restricted Stock owned by such Holders if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein; provided,
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however, that: (1) if the Company registers any of its securities for its own
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account in such underwriting, such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting Holders of Restricted
Stock or (2) if the Company does not register any of its securities for its own
account in such underwriting, the number of shares of Restricted Stock to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting unless the Holders of more
than 50% of the Restricted Securities consent to the inclusion of such other
securities.
(c) Notwithstanding the foregoing provisions of this Section 5, the
Company may withdraw any registration statement referred to in this Section 5
without thereby incurring any liability to the Holders of Restricted Stock.
6. Obligations of the Company. If and whenever the Company is required
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by the provisions of Sections 4 or 5 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as provided in Section 4) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in Section 6(a) and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including
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each preliminary prospectus) as such persons reasonably may request in order to
facilitate the public sale or other disposition of the Restricted Stock covered
by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
provided, however, that the Company shall not for any such purpose be required
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to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained 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 light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five (5) business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request; and
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(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Sections 4(f), 6(a) and 6(b), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and sixty (60)
days after the effective date thereof.
7. Obligations of Selling Stockholders. In connection with each
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registration hereunder, the sellers of Restricted Stock will furnish to the
Company in writing such information with respect to themselves and the proposed
distribution by them as reasonably shall be necessary to assure compliance with
federal and applicable state securities laws.
8. Certain Underwriting Matters. In connection with each registration
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pursuant to Sections 4 or 5 covering an underwritten public offering, the
Company and each seller agree to enter into a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the Company's size and
investment stature.
9. Expenses. The Company will pay all Registration Expenses in connection
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with each registration statement under Sections 4 and 5.
10. Indemnification and Contribution. (a) In the event of a registration
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of any of the Restricted Stock under the Securities Act pursuant to Sections 4
or 5, the Company will and hereby does indemnify and hold harmless each seller
of such Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4 or 5, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon 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, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, provided,
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however, that the Company will not be liable in any such case if and to the
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extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such seller,
any such underwriter or any such controlling person in writing specifically for
use in such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4 or 5, each seller of such
Restricted Stock thereunder severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each other seller of
Restricted Stock, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
other seller, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Sections 4 or 5, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon 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, and will reimburse the Company and each such
officer, director, other seller, underwriter and controlling person for 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 such seller will be liable hereunder in any such case if
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and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
provided further that the liability of each seller hereunder shall not apply to
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amounts paid in settlement without such seller's prior written consent.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 10 and shall only
relieve it from any liability which it may have to such indemnified party under
this Section 10 if and to the extent the indemnifying party is prejudiced by
such omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 10 for any legal expenses subsequently
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incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected,
provided, however, that, if the defendants in any such action include both the
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indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder of
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 10 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 10 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
10; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Restricted Stock offered by the registration statement
bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, no person or entity guilty
-------- -------
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
(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 10
shall survive the completion of any offering of Restricted Stock in a
registration statement under Section 4, 5 or 13 of this Agreement, and
otherwise.
11. Changes in Common Stock or Preferred Stock. If, and as often as,
------------------------------------------
there is any change in the Common Stock or the Series B, Series C, Series C-1,
Series D or Series E Preferred Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges
-11-
granted hereby shall continue with respect to the Common Stock or the Series B,
Series C, Series C-1, Series D or Series E Preferred Stock, as applicable, as so
changed.
12. 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 Stock to the public without registration, at all times
after ninety (90) days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(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 Exchange Act; and
(c) furnish to each Holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any Restricted Stock without
registration.
13. Form S-3 Registration. In case the Company shall receive from any
---------------------
Holder or Holders of the Restricted Stock then outstanding a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Restricted
Stock owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Restricted Stock as are specified in such request, together with all or
such portion of the Restricted Stock of any other Holder or Holders joining in
such request as are specified in a written request given within 15 days after
receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 13: (1) if Form S-3 is not available for
such offering by the Holders; (2) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such registration,
propose to sell Restricted Stock and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $750,000; (3) if the Company shall furnish to the
Holders 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 detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer
-12-
the filing of the Form S-3 registration statement for a period of not more than
120 days after receipt of the request of the Holder or Holders under this
Section 13; provided, however, that the Company shall not utilize this right
more than once in any twelve month period; (4) if the Company has, within the
twelve (12) month period preceding the date of such request, already effected
two registrations on Form S-3 for the Holders pursuant to this Section 13; or
(5) in any particular jurisdiction in which the Company would be required to
qualify to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Restricted Stock and other securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holders. All expenses incurred in connection with the registrations
requested pursuant to Section 13, including (without limitation) all
registration, filing, qualification, printers' and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Restricted Stock, shall be borne by the Company.
Registrations effected pursuant to this Section 13 shall not be counted as
demands for registration or registrations effected pursuant to Sections 4 or 5,
respectively.
14. Transferability of Registration Rights. The rights conferred herein
--------------------------------------
on the holders of Conversion Shares shall only inure to the benefit of a
transferee of Series B, Series C, Series C-1, Series D, Series E Preferred Stock
or Conversion Shares, as applicable, (i) if the transfer was approved by the
Board of Directors of the Company (which approval shall not be unreasonably
withheld) and there is transferred to such transferee all of the Conversion
Shares then held by the transferor or (ii) if the transferee is a partner or
affiliate of the transferor (in the case of a transferor that is a partnership)
or such transferee is a stockholder, parent corporation, subsidiary corporation
or a corporation which is under common control with a transferor (in the case of
a transferor that is a corporation) or (iii) if the transferee acquires at least
100,000 shares of the Series B, Series C, Series C-1, Series D, Series E
Preferred Stock or Conversion Shares, as applicable; provided however that no
-------- -------
transferee shall receive rights pursuant to this Agreement unless it first
agrees in writing to abide by all restrictions on the Holders hereunder.
15. "Market Stand-off" Agreement. If requested in writing by the
---------------------------
underwriters for the Company's Initial Public Offering, each Holder of
Restricted Stock shall agree not to sell publicly any shares of Restricted Stock
or any other shares of Common Stock (other than shares of Restricted Stock or
other shares of Common Stock being registered in such offering), without the
consent of such underwriters, for a period of not more than one hundred eighty
(180) days following the effective date of the registration statement relating
to such offering; provided, however, that all persons selling shares of the
-------- -------
Common Stock in such offering and all executive officers and directors of the
Company shall also have agreed not to sell publicly their Common Stock under the
circumstances and pursuant to the terms set forth in this Section 15.
16. Delivery of Financial Statements. The Company shall deliver to each
--------------------------------
Investor (other than an Investor reasonably deemed by the Company to be a
competitor of the Company)
-13-
that holds least 250,000 Conversion Shares, as appropriately adjusted for
recapitalization, stock splits, stock dividends and the like (each a "Major
-----
Investor"):
--------
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
----
and certified by an independent public accounting firm of nationally recognized
standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company, an unaudited profit or loss statement, a statement of cash flows
for such fiscal quarter and an unaudited balance sheet as of the end of such
fiscal quarter;
(c) within thirty (30) days of the end of each month, an unaudited
income statement and a statement of cash flows and balance sheet for and as of
the end of such month, in reasonable detail; and
(d) as soon as practicable, but in any event sixty (60) days prior to
the end of each fiscal year, a budget and business plan for the next fiscal
year, prepared on a monthly basis and, as soon as prepared, any other budgets or
revised budgets prepared by the Company.
17. Board Observation Rights. So long as CIBC Capital Partners or its
------------------------
affiliates ("CIBC") holds any shares of the Company's Series E Preferred Stock,
----
the Company grants to CIBC the right to have a designee of CIBC attend meetings
of the Board of Directors ("observer rights"). As an observer, notice will be
---------------
given to the CIBC designee of any scheduled meeting of the Board of Directors at
the same time the Board of Directors is given notice, but no change of schedule
will be necessary if CIBC is unavailable. Such designee shall be entitled to
receive, prior to each meeting of the Board of Directors and at the same time as
directors of the Company receive such materials, all materials sent to members
of the Board of Directors (other than materials that would compromise the
attorney-client privilege or that relate to matters that may constitute a
conflict of interest for such designee). The designee of CIBC will be subject
to approval by the Company, but such approval will not be unreasonably withheld.
Notwithstanding the foregoing, the Company reserves the right to exclude such
designee from a portion of the Board meeting(s) if a majority of the Board of
Directors believes exclusion is reasonably necessary to protect the attorney-
client privilege or if a conflict of interest may exist.
18. Right of Participation. Prior to any issuance by the Company of any
----------------------
of its securities (other than debt securities with no equity features), the
Company shall offer to the Major Investors by written notice the right, for a
period of fifteen (15) business days, to purchase for cash at an amount equal to
the price or other consideration for which such securities are to be issued a
number of such securities so that, after giving effect to such issuance (and the
conversion, exercise and exchange into or for (whether directly or indirectly)
shares of Common Stock of all such securities that are so convertible,
exercisable or exchangeable), each Major
-14-
Investor will continue to maintain its same proportionate equity ownership in
the Company as of the date of such notice (treating a Major Investor, for the
purpose of such computation, as the holder of the number of shares of Common
Stock which would be issuable to such Major Investor upon conversion, exercise
and exchange of all securities (including but not limited to any Preferred
Shares) held by that Major Investor on the date such offer is made, that are
convertible, exercisable or exchangeable into or for (whether directly or
indirectly) shares of Common Stock and assuming the like conversion, exercise
and exchange of all such other securities held by other persons; provided,
--------
however, that the participation rights of the Major Investors pursuant to this
-------
Section 18 shall not apply to:
(A) securities issued upon conversion of any of any Preferred Stock,
(B) securities issued as a stock dividend or upon any subdivision of
shares of Common Stock, provided that the securities issued pursuant to such
stock dividend or subdivision are limited to additional shares of Common Stock,
(C) securities issued or issuable pursuant to subscriptions,
warrants, options, convertible securities, or other rights which are outstanding
on the date of this Agreement,
(D) Series E Preferred Stock issued or issuable pursuant to the
exercise of Series E Preferred Stock Warrants issued or issuable (i) pursuant to
the terms of the Purchase Agreement and (ii) to Xxxxxxxxx & Xxxxx LLC in
connection with the transactions contemplated under the Purchase Agreement,
(E) securities issued solely in consideration for the acquisition
(whether by merger or otherwise) by the Company of all or substantially all of
the stock or assets of any other entity,
(F) securities issued pursuant to a firm commitment underwritten
public offering,
(G) securities issued to financial institutions or lessors in
connection with commercial credit arrangements, equipment financings, or similar
transactions, which issuance has been approved by the Board of Directors,
(H) Common Stock (or options therefor) issued to directors, officers,
employees or consultants of the Company, not to exceed in the aggregate
10,000,000 shares, (appropriately adjusted to reflect stock splits, stock
dividends, combinations of shares, recapitalizations and the like with respect
to the Common Stock) plus such number of shares of Common Stock that are
repurchased (or options cancelled) by the Company from such persons after the
date of this Agreement pursuant to contractual rights held by the Company and at
a repurchase price not exceeding the respective original purchase price of paid
by such persons to the Corporation therefor (appropriately adjusted to reflect
stock splits, stock dividends, combinations of shares, recapitalizations and the
like with respect to the Common Stock) less the number of options (as so
adjusted) issued to such officers, directors, employees or consultants
-15-
outstanding on the date of this Agreement pursuant to clause (C) above (the
shares exempted by this clause (G) being hereinafter referred to as the
"Reserved Employee Shares"), and
------------------------
(I) upon the exercise of any right which was not itself issued in
violation of the terms of this Section 18.
The Company's written notice to each Major Investor shall describe the
securities proposed to be issued by the Company and specify the number, price
and payment terms, and number of shares (or other security) the Major Investor
is entitled to purchase pursuant to the terms of this Section 18. Each Major
Investor may accept the Company's offer as to the full number of securities
offered to it or any lesser number, by written notice thereof given by it to the
Company prior to the expiration of the aforesaid fifteen (15) business day
period, in which event the Company shall promptly sell and the Major Investor
shall buy, upon the terms specified, the number of securities agreed to be
purchased by the Major Investor. The Company shall be free at any time prior to
ninety (90) days after the date of its notice of offer to the Major Investors to
offer and sell to any third party or parties the number of such securities not
agreed to be purchased by the Major Investors, at a price and on payment terms
no less favorable to the Company than those specified in such notice of offer to
the Major Investors. If such third party sale or sales are not consummated
within such ninety (90) day period, however, the Company shall not sell such
securities as shall not have been purchased within such period without again
complying with this Section 18.
19. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to each Investor as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the certificate of incorporation or bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
other laws of general application affecting enforcement of creditors' rights
generally, as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, or (ii) to the
extent the indemnification provisions contained in this Agreement may be limited
by applicable federal or state securities laws.
20. Miscellaneous Covenants.
-----------------------
-16-
(a) Properties, Business, Insurance. The Company shall maintain, with
-------------------------------
financially sound and reputable insurers, insurance against such casualties and
contingencies and of such types and in such amounts as is customary for
companies similarly situated, which insurance shall be deemed by the Company to
be sufficient. The Company shall not be required to maintain any key-man life
insurance policies.
(b) Restrictive Agreements Prohibited. The Company shall not become a
---------------------------------
party to any agreement which by its terms restricts the Company's performance of
this Agreement, the Purchase Agreement, the Stockholders Agreement or the
Company's Fifth Amended and Restated Articles of Incorporation.
(c) Transactions with Affiliates. Except for transactions
----------------------------
contemplated by the Purchase Agreement or as otherwise approved by the Board of
Directors, the Company shall not enter into any transaction with any director,
officer, employee or holder of more than five percent (5%) of the outstanding
capital stock of any class or series of capital stock of the Company, member of
the family of any such person, or any corporation, partnership, trust or other
entity in which any such person, or member of the family of any such person, is
a director, officer, trustee, partner or holder of more than five percent (5%)
of the outstanding capital stock thereof, except for transactions on customary
terms related to such person's employment.
(d) Expenses of Directors. The Company shall promptly reimburse in
---------------------
full, each director of the Company who is not an employee of the Company and who
was elected as a director solely by the holders of Preferred Stock, for all of
his or her reasonable out-of-pocket expenses incurred in attending each meeting
of the Board of Directors of the Company or any committee thereof.
(e) Compensation. The Company shall not pay to its management
------------
compensation in excess of that compensation customarily paid to management in
companies of similar size, of similar maturity, and in similar businesses.
(f) Compliance with Laws. The Company shall comply with all
--------------------
applicable laws, rules, regulations and orders, noncompliance with which could
materially adversely affect its business or condition, financial or otherwise.
21. Termination.
-----------
(a) Termination of Sections 4, 5 and 13. The obligations of the
-----------------------------------
Company to register shares of Restricted Stock under Sections 4, 5 or 13 shall
terminate with respect to any Holder on the earlier of (i) the fifth anniversary
of the completion of an underwritten public offering of shares of Common Stock
in which the net proceeds to the Company shall be at least $30,000,000 or (ii)
such time as Rule 144 or another similar exemption under the Securities Act is
available for the sale of all such Holder's shares during a three (3) month
period without registration.
(b) Termination of Sections 16, 17, 18 and 20. The obligations set
-----------------------------------------
forth in Sections 16, 17, 18 and 20 shall terminate and be of no further force
or effect when the Company
-17-
has effected a firm commitment underwritten public offering of shares of Common
Stock pursuant to which all shares of the Company's Preferred Stock are
automatically converted into shares of Common Stock of the Company in accordance
with the Company's Fifth Amended and Restated Articles of Incorporation, as may
be amended from time to time.
(c) Termination of Section 16. The obligations of the Company set
-------------------------
forth in Section 16 shall terminate and be of no further force or effect upon
earlier of (i) the Company becoming subject to the periodic reporting
requirements of Sections 13 or 15(d) of the Exchange Act, or (ii) the events
described in Section 21(b) above.
22. Miscellaneous.
-------------
(a) Binding Effect. Except as otherwise provided in this Agreement,
--------------
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including without limitation
transferees of any Conversion Shares), whether so expressed or not.
(b) Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing and shall be sent by nationally recognized
overnight courier which obtains a signed receipt upon delivery, mailed by
certified or registered mail, return receipt requested, postage prepaid, or
telexed, in the case of non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of
such party set forth in the Purchase Agreement; if to any subsequent Holder of
any Series B, Series C, Series C-1, Series D, Series E Preferred Stock or
Restricted Stock, to it at such address as may have been furnished to the
Company in writing by such Holder; in any case, at such other address or
addresses as shall have furnished in writing to the Company (in the case of a
Holder of Series B, Series C, Series C-1, Series D, Series E Preferred Stock or
Restricted Stock) or to the Holders of Series B, Series C, Series C-1, Series D,
Series E Preferred Stock or Restricted Stock (in the case of the Company) in
accordance with the provisions of this paragraph.
(c) No Waiver: Cumulative Remedies. No failure or delay on the part
------------------------------
of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(d) Amendments, Waivers and Consents. This Agreement may not be
--------------------------------
amended or modified, and no provision hereof may be waived, without the written
consent of the Company and the Holders of at least 66 2/3% of the outstanding
shares of Restricted Stock.
(e) Limitation on Grant of Other Registration Rights. The Company
------------------------------------------------
shall not grant any registration rights more favorable than any of those
contained herein without the
-18-
written consent of the Holders of more than 50% of the outstanding shares of
Restricted Stock, so long as any of the registration rights under this Agreement
remains in effect.
(f) Severability. If any provision of this Agreement shall be held to
------------
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California, without giving effect to
the principles of the conflicts of laws thereof.
(h) Injunctive Relief. The Company recognizes that the rights of the
-----------------
Investors under this Agreement are unique and, accordingly, the Investors shall,
in addition to such other remedies as may be available to them at law or in
equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law. This
Agreement is not intended to limit or abridge any rights of the Investors which
may exist apart from this Agreement.
(i) Merger Provision. This Agreement, including all exhibits and
----------------
schedules thereto, constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersede all prior and
contemporaneous agreements and understandings, including the Prior Agreement and
the Prior Purchase Agreement Covenants, whether oral or written, of any of the
parties hereto concerning the subject matter hereof.
(j) 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.
-19-
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
COMPANY: HAHT SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: X. X. Xxxxxx
Title: CFO
Address: 0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: CIBC WMV INC.
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
------------------------------------
Title: Managing Director
------------------------------------
Address: 000 Xxxxxxxxx Xxxxxx, 0xx Floor
----------------------------------
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: HUMMER WINBLAD VENTURE PARTNERS II, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Member
------------------------------------
Address: 2 South Park, 2nd floor
----------------------------------
Xxx Xxxxxxxxx, XX. 00000
----------------------------------
HUMMER WINBLAD TECHNOLOGY FUND II, L.P.
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Member
------------------------------------
Address: 2 South Park, 2nd floor
----------------------------------
Xxx Xxxxxxxxx, XX. 00000
----------------------------------
HUMMER WINBLAD TECHNOLOGY FUND IIA, L.P.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Member
-------------------------------------
Address: 2 South Park, 2nd floor
----------------------------------
Xxx Xxxxxxxxx, XX. 00000
----------------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: JMI EQUITY FUND II, L.P.
By: JMI Partners II, L.P.
Its General Partner
By: /s/ Xxxxxxx X Xxxxx
------------------------------------
Name: Xxxxxxx X Xxxxx
------------------------------------
Title: General Partner
------------------------------------
Address: 00000 Xxxx Xxxxx Xx Xxxxx 000
----------------------------------
Xxx Xxxxx, XX 00000
----------------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: MENLO VENTURES VI, L.P.
By: MV Management VI, L.P. its
General Partner
By: /s/ Xxxxx X Xxxx
---------------------------
Name: Xxxxx X. Xxxx
---------------------------
Title: General Partner
---------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO ENTREPRENEURS FUND VI, L.P.
By: MV Management VI, L.P. its
General Partner
By: /s/ Xxxxx X Xxxx
---------------------------
Name: Xxxxx X. Xxxx
---------------------------
Title: General Partner
---------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
BA CAPITAL COMPANY, L.P.,
Formerly known as NationsBanc Capital Corporation
By: BA SBIC Management, LLC,
Its General Partner
By: BA Equity Management, L.P.,
Its sole Member
By: BA Equity Management GP, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Member
Address: 000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxx 00000
BANCAMERICA CAPITAL INVESTORS SBIC I, L.P.
By: BancAmerica Capital Management SBIC I, LLC,
its General Partner
By: BancAmerica Capital Management I, L.P.,
its sole Member
By: BACM I GP, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Member
Address: 000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxx 00000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: SIPPL XXXXXXXXX VENTURES II, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------
Title: General Partner
--------------------------
Address: 0000 Xxxxxxxx Xx. Xxx 000
-------------------------
Xxxxx Xxxx, XX 00000
-------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: SIPPL XXXXXXXXX VENTURES I, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------
Title: General Partner
------------------------------
Address: 0000 Xxxxxxxx Xxxxx, Xxx 000
----------------------------
Xxxxx Xxxx, XX 00000
----------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
INVESTORS: SOUTHEAST INTERACTIVE TECHNOLOGY FUND II
By: /s/ Xxxxx X Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Managing Director
------------------------------------
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000X
---------------------------------
Xxxxxx, XX 00000
---------------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: STANFORD UNIVERSITY
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
----------------------------
Title: Gift Administrator, Stanford
----------------------------
Management Co.
----------------------------
On Behalf of the Board of Trustees
Of the Xxxxxx Xxxxxxxx Junior
University
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: ADOBE VENTURES
By: /s/ Xxxxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
-------------------------------
Title: Attorney-in-Fact
-------------------------------
Address: H&Q, Xxx Xxxx Xx.
-----------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
INVESTORS: DAMAC TECHNOLOGY PARTNERS, L.T.
P.O. BOX, 309, XXXXXX HOUSE, SOUTH CHURCH
STREET XXXXXX TOWN, GRAND CAYMAN, CAYMAN
ISLANDS
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: XXXXXXX XXXXXXX
------------------------------
Title: DIRECTOR OF GENERAL PARTNER
------------------------------
Address: SEE ABOVE
---------------------------
---------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
INVESTORS:
/s/ Xxxxx Xxxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxx Xxxxxxx
Address: 00 Xxx Xxxxx
------------------
Xxxxxx, XX 00000
------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
INVESTORS:
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx,
Trustee for Xxxxx X. Xxxxxx Trust
Address: 0000 Xxxxx Xxxxxx Xxxxx
-------------------------------
Xxxxxxxx Xxxx, Xxxx 00000
-------------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: STRATHMORE GROUP LTD.
By: /s/ X x Xxxxxx /s/ X. Xxxxxx
--------------------------------
Name: XXXXX XXXXXX XXXX XXXXXX
------------------------------
Title: DIRECTOR DIRECTOR
-----------------------------
Address: XX XXX 00-000
---------------------------
MARKET ROAD
---------------------------
AUCKLAND
---------------------------
NEW ZEALAND
---------------------------
Tel: x000 000 0000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed effective as of the
date and year first above written.
INVESTORS:
By: /s/ Xxxxx Xxxxxxxxx /s/ Xxxxxx Xxxx-Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxx & XXXXXX XXXX-XXXXXXX
Title: _________________________________________
Address: 0000 Xxxx Xxxxxx Xxxxx Xxxx.
Xxxxxx, XX 00000
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
INVESTORS:
/s/ Xxxxxxx XxXxxxx Xxxxx
------------------------------
Xxxxxxx XxXxxxx Xxxxx
Address: 0000 Xxxxxx Xxxx
----------------------
Xxxxxx, Xxxxx Xxxxxxxx
----------------------
U.S.A 27707
----------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS: HIGH STREET PARTNERS, L.P.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxxx
General Partner
Address: c/o TA Associates
---------------------------
000 Xxxx Xx., Xxx 0000
---------------------------
Xxxxxx, XX 00000
---------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
___________________________________
Xxxxx X. Xxxxxx
Address: __________________________
__________________________
/s/ Xxxxxx Xxxxxx, Trustee
-----------------------------------
Xxxxxx Xxxxxx, Ph.D.
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxx
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
___________________________________
Xxxxx X. Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxxx, Ph.D.
Address: __________________________
__________________________
/s/ Xxxxxx Xxxxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
Address: 0000 Xxxxx Xxxxx Xxx.
--------------------------
Suite 200
--------------------------
Xxxxx, XX 00000
--------------------------
___________________________________
Xxxxx Xxxxx
Address: __________________________
__________________________
Xxxxx Xxxxxxx
___________________________________
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxx
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
___________________________________
Xxxxx X. Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxxx, Ph.D.
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxx
Address: __________________________
__________________________
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Grief
Address: 0000 Xxxxxxxxxx Xxxxx
--------------------------
Xxx Xxxxxxx, XX 00000
--------------------------
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxx
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
___________________________________
Xxxxx X. Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxxx, Ph.D.
Address: __________________________
__________________________
___________________________________
Xxxxxx Xxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
INVESTORS:
/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xx. Xxxxx and Xxxxx Xxxxxxx
Address: [ILLEGIBLE]/\ /\
--------------------------
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
STOCKHOLDERS:
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxx
Address: __________________________
__________________________
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xx Xxxx
Address: __________________________
__________________________
___________________________________
Xxxxxx X. Xxxxx III.
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
STOCKHOLDERS:
___________________________________
Xxxxxxx Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxxxx
Address: __________________________
__________________________
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
Address: 000 Xxxxxxxxx Xx.
--------------------------
Xxxx XX 00000
--------------------------
___________________________________
Xx Xxxx
Address: __________________________
__________________________
___________________________________
Xxxxxx X. Xxxxx III.
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
STOCKHOLDERS:
___________________________________
Xxxxxxx Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
/s/ Xx Xxxx
-----------------------------------
Xx Xxxx
Address: 0000 Xxxxxx Xx
--------------------------
Xxxxxxx XX 00000
--------------------------
___________________________________
Xxxxxx X. Xxxxx III
Address: __________________________
__________________________
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
STOCKHOLDERS:
___________________________________
Xxxxxxx Xxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xxxxx Xxxxxxx
Address: __________________________
__________________________
___________________________________
Xx Xxxx
Address: __________________________
__________________________
/s/ Xxxxxx X. Xxxxx III
-----------------------------------
Xxxxxx X. Xxxxx III
Address: 0000 Xxxxxxx Xxxxx
--------------------------
Xxxx, XX 00000
--------------------------
SIGNATURE PAGE TO
THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SCHEDULE I
----------
I. Investors:
----------
New (Initial Closing):
----------------------
CIBC WMV Inc.
Xxxxxx X. Xxxxxxx
XXX-Tech Limited
Damac Technology Partners, L.T.
Xxxxxxx X. del Biaggio III and Xxxxxxx X. xxx Xxxxxxx, Xxxxxxxx xx xxx
0000 xxx Xxxxxxx Family Trust, u/d/t 10/14/99
Xxxxxx Xxxxx
Xxxx X. Xxxxxx, Trustee of The Xxxxxx Family Trust
FAC Equities
Page Mill Capital I, L.P.
BANCAMERICA Capital Investors SBIC I, L.P.
Xxxxx Xxxxxx Xxxxxxx
Xxxxx X. Xxxxxx, Trustee for Xxxxx X. Xxxxxx Trust
Adobe Ventures II, X.X.
Xxxxx Xxxxxxxxx Ventures II, L.P.
New (Pre-Amendment Subsequent Closings):
----------------------------------------
Xxxxx Xxxxxxxxx & Xxxxxx Xxxx-Xxxxxxx
DI Partners Fund, LLC
Strathmore Group LTD
Xxxxxxx XxXxxxx Xxxxx
Existing:
---------
Adobe Ventures
High Street Partners, L.P.
Hummer Winblad Venture Partners II, L. P.
Hummer Winblad Technology Fund II, L.P.
Hummer Winblad Technology Fund IIA, L.P.
JMI Equity Fund II, L.P.
Menlo Ventures VI, L.P.
Menlo Entrepreneurs Fund VI, L.P.
BA Capital Company, L.P. (formerly, NationsBanc Capital Corporation)
Sippl Xxxxxxxxx Ventures I, L.P.
Southeast Interactive Technology Fund II
Stanford University
Xxxxx X. Xxxxxx
Xxxxxx Xxxxxx, Ph.D.
Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xx. Xxxxx and Xxxxx Xxxxxxx
Xxxxx Xxxxxxx (No Signature Page)
II. Stockholders:
-------------
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xx Xxxx
Xxxxxx X. Xxxxx III
Xxxxx Xxxxxx (No Signature Page)
