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EXHIBIT 10.2
SEVENTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Seventh Amended and Restated Registration Rights Agreement (this
"AGREEMENT") is entered into as of the 13th day of January, 2000 between
Servicesoft Technologies, Inc., a Delaware corporation (the "COMPANY"), and the
holders of Eligible Shares (as defined below) listed on SCHEDULE I hereto.
WITNESSETH:
WHEREAS, the Company and certain holders of Eligible Shares (as defined
herein) are parties to a Sixth Amended and Restated Registration Rights
Agreement dated June 18, 1999 (the "SIXTH AMENDED AND RESTATED AGREEMENT") with
respect to the registration of Registrable Securities (as defined herein) under
the Securities Act (as defined herein);
WHEREAS, the Company and certain holders of Eligible Shares (the
"SERIES J HOLDERS") have entered into the Series J Convertible Preferred Stock
Purchase Agreement dated as of the date hereof (the "SERIES J PURCHASE
AGREEMENT");
WHEREAS, as a condition to closing under the Series J Purchase
Agreement and as an inducement to the Series J Holders to consummate the
transactions contemplated by the Series J Purchase Agreement, the Company and
the undersigned parties desire to amend and restate the Sixth Amended and
Restated Agreement and to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
to this Agreement agree to amend and restate the Sixth Amended and Restated
Agreement as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"BUSINESS DAY" means a day, other than a Saturday or Sunday,
on which the principal commercial banks located in New York and Toronto are open
for business during normal banking hours.
"COMMISSION" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"CONVERSION SHARES" means shares of Common Stock of the
Company issued upon conversion or exchange of the Eligible Shares.
"ELIGIBLE SHARES" means (i) shares of Series H Convertible
Preferred Stock of the Company held by the holders listed on SCHEDULE I, (ii)
the Series C Exchangeable Shares of
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Servicesoft Technologies (Canada), Inc. ("Servicesoft Canada") (or any Common
Stock issued in exchange thereof), (iii) the Series D Exchangeable Shares of
Servicesoft Canada (and any Series H Convertible Preferred Stock issued in
exchange therefor), (iv) shares of Series I Convertible Preferred Stock, par
value $.01 per share of the Company; and (v) shares of Series J Convertible
Preferred Stock, par value $.01 per share, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" means any holder of Eligible Shares or Conversion
Shares.
"INITIAL PUBLIC OFFERING" means the initial offering to the
public of the Company's securities pursuant to a firm commitment underwriting
pursuant to the Securities Act.
"INITIATING HOLDERS" means any Holders who in the aggregate
are Holders of 15% or more of the Registrable Securities (determined on an
as-exchanged and as-converted basis), PROVIDED, that with respect to any request
pursuant to Section 3(a) to initiate a registration that would constitute the
Initial Public Offering of the Company's Common Stock, such percentage shall be
increased to 30%.
"PERSON" includes any individual, legal or personal
representative, partnership, company, corporation, incorporated syndicate,
unincorporated or incorporated association, trust or governmental agency,
howsoever designated or constituted.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
"REGISTRABLE SECURITIES" means the Conversion Shares,
excluding Conversion Shares which (a) have been 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)
with respect to any particular Holder, can all be publicly sold within a
three-month period, without regard to volume limitation, pursuant to Rule 144
under the Securities Act.
"REGISTRATION EXPENSES" means all expenses relating to a
registration for which the Company is responsible hereunder, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
blue sky fees and expenses, fees of any exchange or market on which the
Company's Common Stock is to be listed or quoted, transfer taxes, fees of
transfer agents and registrars, reasonable fees and disbursements of one legal
counsel for all the selling Holders and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
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"RESTRICTED SECURITIES" means the securities of the Company
required to bear or bearing the legend set forth in Section 2 hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at this time.
"SELLING EXPENSES" means all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities.
2. RESTRICTIONS ON TRANSFER. Restricted Securities may not be
transferred except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act and, in the case of Section 16 hereof, to assist in an orderly
distribution. Each Holder of the Restricted Securities agrees that any
transferee of Restricted Securities held by that Holder shall take and hold
those securities subject to the provisions and upon the conditions specified in
this Agreement and each Holder shall cause any transferee to be bound by this
Agreement as a condition to completing any such transfer.
(a) STOCK CERTIFICATE LEGENDS. Each certificate delivered on
or after the date hereof evidencing the Eligible Shares and the Conversion
Shares, and each certificate for any such securities issued to subsequent
transferees of any such certificate shall be stamped or otherwise imprinted with
a legend in substantially the following form (in additional to any legend
required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND UNDER APPLICABLE STATE SECURITIES LAW, UNLESS THE
ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE LEGALLY SOLD OR DISTRIBUTED PURSUANT
TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND WITHOUT REGISTRATION UNDER THEN
APPLICABLE STATE AND FEDERAL LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO CERTAIN RESTRICTION ON TRANSFER CONTAINED IN AN
AGREEMENT BETWEEN THE ISSUER AND THE STOCKHOLDER, COPIES OF
WHICH MAY BE OBTAINED FROM THE ISSUER OR FROM THE HOLDER OF
THIS CERTIFICATE. NO TRANSFER OF SUCH SECURITIES SHALL BE MADE
ON THE BOOKS OF THE ISSUER UNLESS ACCOMPANIED BY EVIDENCE OF
COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT.
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Upon request of a Holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such Holder a new
certificate therefor free of any transfer legend, PROVIDED, that the Company
receives either the opinion referred to in Section 2(b)(i) or the "no-action"
letter referred to in Section 2(b)(ii) to the effect that any transfer by such
Holder of the securities evidenced by such certificate shall not violate the
Securities Act and applicable state securities laws, unless any such transfer
legend may be removed pursuant to Rule 144(k), in which case no such opinion or
"no-action" letter shall be required. Notwithstanding the foregoing, upon
request of a Holder of such a certificate, the Company shall remove the second
paragraph of the legend from the certificate or issue to such Holder a new
certificate therefor free of such second paragraph at any time after this
Agreement has terminated or the Holder of the certificate is no longer subject
to the provisions of this Agreement and the Second Amended and Restated
Shareholders Rights Agreement of even date herewith.
(b) NOTICE OF PROPOSED TRANSFERS. Prior to any proposed
transfer of any Restricted Securities (other than under circumstances described
in Sections 3, 4, 5 and 8 hereof), the Holder thereof shall give written notice
to the Company of such Holder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144), by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Registrable Securities may be effected
without registration under the Securities Act, or (ii) a "no action" letter from
the Commission to the effect that the distribution of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto; PROVIDED, HOWEVER, that no such
opinion of counsel or "no action" letter shall be required for transfers to (i)
transfers to a Related Person (as defined below), or (ii) a trust for the
benefit of any individual Holder, PROVIDED, that the trust instrument governing
said trust shall provide that such Holder, as trustee, shall retain sole and
exclusive control over the voting and disposition of said Restricted Securities
until the termination of this Agreement; PROVIDED, that such transferee is not a
competitor of the Company and that such transfer does not violate any applicable
federal or state securities laws (each, a "PERMITTED TRANSFEREE"). A "RELATED
PERSON" means with respect to any Holder (x) any Person which is controlled by,
controls or is under common control with such Holder, (y) any partner,
shareholder or similar equity holder of such Holder or such Person described in
clause (x) above which receives securities in connection with a windup,
liquidation or similar dissolution of such Holder or such Person, or (z) any
individual, charitable trust or similar organization which receives Restricted
Securities from a Holder as part of a testamentary transfer by such Holder. For
purposes hereof, "control" and its derivatives shall mean, with respect to any
Person, the power to direct and control the management or policies of such
Person, whether through the beneficial ownership of voting securities or
interests, by contract or agreement or otherwise. In the event of any such
transfer, other than pursuant to clause (ii) of this Section 2(b), such
Permitted Transferee of the Restricted Securities shall hold the Restricted
Securities so acquired with all the rights conferred by, and subject to all the
restrictions imposed by, this Agreement and shall be deemed a Holder for all
purposes hereof. Thereafter the Holder of such Registrable Securities shall be
entitled to transfer such Registrable Securities in accordance with the terms of
the notice delivered by the Holder to the Company.
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(c) TRANSFER PURSUANT TO RULE 144 OR RULE 144A. The
Company agrees to provide to the Holders or to any prospective purchasers
designated by the Holder, upon such a Holder's request the financial and other
information specified in Rule 144 or 144A under the Securities Act and to take
any other action or to execute any certificates necessary to permit a transfer
by any Holder to qualify for the exemption set forth in Rule 144 or 144A.
3. REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. If the Company receives
from Initiating Holders at any time after the earlier of 180 days following the
effective date of the Company's Initial Public Offering and February 17, 2002, a
written request that the Company effect any registration with respect to all or
a part of the Registrable Securities, the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its diligent
best efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issues under the Securities
Act) as may be so requested and would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
written request given within 30 days after receipt of such written notice from
the Company; PROVIDED, that, except to the extent the Company receives an
instruction to the contrary from a particular Holder within such 30 day period,
the Company shall include in such registration all Registrable Securities
beneficially owned by holders who are not signatories to this Agreement it being
understood that any such non-signatories who do not join in any underwriting
agreement related to such registration may be removed from such registration at
the election of the Company or the managing underwriter, and PROVIDED FURTHER,
that the Company shall not be obligated to effect, or take any action to effect,
any such registration pursuant to this Section 3:
(1) in any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act or applicable rules or regulations thereunder; or
(2) after the Company has effected three
such registrations pursuant to this Section 3(a) and such registrations have
been declared or ordered effective and the sales of such Registrable Securities
shall have closed.
Subject to the foregoing clauses (1) and (2), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Initiating Holders. Regardless of which Initiating Holders makes a
request for registration pursuant to this Section 3(a), each Holder will have
the right to participate ratably with the others.
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The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of Section 3(b) below,
include other securities of the Company which are held by persons who, by virtue
of agreements with the Company, are entitled to include their securities in any
such registration, but the Company shall have no right to include any of its
securities in any such registration; PROVIDED, HOWEVER, that, in any
underwritten public offering contemplated by Sections 3, 5 and 8, the Holders of
Eligible Shares shall be entitled to sell such Eligible Shares to the
underwriters for conversion and sale of the shares of Common Stock issued upon
conversion thereof, subject to agreement of the underwriters.
The Company shall be entitled to postpone for a reasonable
period of time not to exceed three months the filing of a registration statement
otherwise required to be filed by it pursuant to this Section 3(a) if the
Company determines, in its reasonable judgment, that such registration would
materially interfere with any financing, acquisition, corporate reorganization
or other material transaction involving the Company and the Company promptly
gives written notice to the Holders who have initiated or elected to participate
in such registration including an explanation thereof. The Company shall not
exercise its right to defer a registration more than once in any 12-month period
or in any event if the effect would be to permit a registration of securities
(other than a registration that was pending at the time of the initial demand or
a registration on Form X-0, Xxxx X-0 or any successor or similar form) to the
exclusion of such number of Registrable Securities as would otherwise have been
included in the registration statement the filing of which was deferred.
The Initiating Holders shall be entitled to withdraw any
registration request made pursuant to this Section 3(a), PROVIDED, that such
registration request shall nevertheless be counted toward the number of
registrations the Company is required to file pursuant to this Section 3(a)
unless the Holders reimburse the Company for all reasonable out-of-pocket costs
incurred by the Company prior to such withdrawal.
For purposes of provisions of Sections 3(a) and 7,
registrations relative to which less than 50% of the offered securities are in
fact sold shall not be included.
(b) UNDERWRITING.
If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 3
and the Company shall include such information in the written notice referred to
in Section 3(a) above. The right of any Holder to registration pursuant to
Section 3(a) shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting. A Holder may elect to include in such underwriting all or a part
of the Registrable Securities he holds.
The Company (together with all Holders proposing to distribute their
securities through such underwriting) shall enter into an underwriting agreement
in customary form with the representative of the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders. If any Holder of Registrable Securities who has requested inclusion in
such registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the underwriter
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and the Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, the Company may include its
securities for its own account in such registration if the underwriter so agrees
and if the number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited or adversely affected.
Notwithstanding the provisions of this Section 3(b), if the underwriter
determines that marketing factors require a limitation of the total number of
shares of Common Stock to be underwritten or a limitation of the total number of
shares of Common Stock to be sold by the Company, then the number of shares to
be included in the registration and the underwriting shall be allocated among
all Holders of such Registrable Securities on a pro rata basis based on the
number of Registrable Securities held by all such Holders (including Initiating
Holders), but excluding for such purpose the Reserved Portion (as hereinafter
defined); PROVIDED, that Registrable Securities held by holders who (i) are not
signatories to this Agreement, (ii) received, or have the right to receive,
Registrable Securities (A) in exchange for Exchangeable Common Shares or (B)
upon conversion of Series H Convertible Preferred Stock of the Company received,
or receivable, in exchange for Exchangeable Preferred Shares and (iii) who are
not entitled to sell all of their Registrable Securities within a three-month
period, without regard to volume limitation, pursuant to Rule 144 under the
Securities Act ("SPECIAL HOLDERS") shall not be subject to such "cut-back"
allocation, except to the extent that the Registrable Securities beneficially
owned by Special Holders that are to be included in the registration exceeds in
the aggregate 10% of the total number of Registrable Securities to be included
in such registration (the "RESERVED PORTION") (it being understood that
availability within the Reserved Portion shall be allocated among the Special
Holders on a pro-rata basis); and PROVIDED FURTHER, that the number of shares of
Registrable Securities to be included in such underwriting and registration
shall not be reduced unless all other securities of the Company are first
entirely excluded from the underwriting and registration. No stock excluded from
the underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If the Company determines not to participate in
any such underwriting, it may elect to withdraw therefrom by written notice to
the Holders of Registrable Securities and the underwriter. The securities so
withdrawn from such underwriting shall also be withdrawn from such registration.
4. RESALE SHELF REGISTRATION. As soon as practicable after the
first anniversary of the closing date of a Qualified Public Offering (as that
term is defined below), the Company will file a shelf registration statement
(the "Shelf Registration Statement") with the Commission and shall effect such
registrations, qualifications or compliances (including, without limitation, the
execution of any required undertaking to file post-effective amendments,
appropriate compliance with securities laws, requirements or regulations, and
subject to clauses (A) and (B) of the provisos to the first sentence of Section
3(a), appropriate qualifications under applicable blue sky or other state
securities laws) as are necessary in connection with the sale and distribution
of all Registrable Securities held by Holders who are not signatories to this
Agreement (and any other Holders who request inclusion in such registration
within 30 days of notice thereof by the Company, which notice shall be given to
all such other Holders not less than 30 days prior to the effectiveness of the
Shelf Registration Statement). The Company shall use its best efforts to
maintain the effectiveness of the Shelf Registration Statement (and such other
qualifications and compliances) for a period ending on the earlier of (i) three
years from the date of effectiveness of
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the Shelf Registration Statement, (ii) the date all Registrable Securities
beneficially owned by Holders who are not signatories to this Agreement have
been disposed of pursuant to the Shelf Registration Statement, another
registration effected pursuant to the provisions of this Agreement or Rule 144
under the Securities Act and (iii) the date all Holders may dispose of their
Registrable Securities pursuant to Rule 144 within a three-month period without
regard to volume limitation. Notwithstanding the foregoing, the Company shall be
permitted to suspend the effectiveness of the Shelf Registration Statement for
such periods as may be reasonably necessary to amend the Shelf Registration
Statement so that it will not contain a misstatement of a material fact required
to be stated therein or omit to state a material fact necessary to be stated
therein to make the statements contained therein, in light of the circumstances
under which they are made, not misleading. The Company will use its best efforts
to file the Shelf Registration Statement on Form S-3 (or any successor form then
in effect) or, if it is not initially eligible to use Form S-3, to amend the
Shelf Registration Statement on Form S-3 at the earliest practical time. The
Company will not be obligated to enter into any underwriting agreement with
respect to the Shelf Registration Statement. Any Holders including Registrable
Securities in the Shelf Registration Statement shall comply with any blackout
periods (not to exceed 60 days) reasonably required by the managing underwriter
of another registration of Common Stock that becomes effective while the Shelf
Registration Statement is effective (or would be effective but for the third
preceding sentence). For purposes of this Section 4, a "Qualified Public
Offering" means a firm commitment, underwritten public offering pursuant to an
effective registration statement under the Securities Act of the Company's
Common Stock to the public with aggregate gross proceeds to the Company of not
less than $30,000,000 and which places a value on the Company of not less than
$250,000,000.
5. COMPANY REGISTRATION.
(a) If the Company elects to register any of its
securities for purposes of a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary
offerings of securities of the Company), other than a registration relating
solely to employee benefit plans, a registration relating solely to a
transaction under Rule 145 of the Securities Act, or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(i) promptly give to each Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws) at least 30 days prior to the filing of any
registration statement; and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder within 30 days after receipt of
the written notice from the Company described in clause (i) above, except as set
forth in Section 5(b) below. Such written request may specify all or a part of a
Holder's Registrable Securities. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
shall, within 30 days after the above-described notice from
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the Company, so notify the Company in writing.
(b) UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 5(a)(i). In such event the right of any Holder
to registration pursuant to Section 5(a) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of the Registrable
Securities such Holder elects to register in such underwriting to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected by the
Company. Notwithstanding the provisions of Section 5, if the underwriter
determines that marketing factors require a limitation of the total number of
shares to be underwritten or a limitation of the total number of shares of
Registrable Securities to be underwritten, the number of shares that may be
included in the underwriting shall be allocated, first, to the Company; second,
on a pro rata basis to all Holders based on the total number of Registrable
Securities held by each Holder; and third, to any shareholder of the Company
(other than a Holder) on a pro rata basis. No such reduction shall reduce the
amount of securities of the selling Holders included in the registration below
25% of the total amount of securities included in such registration, unless such
offering is the Initial Public Offering of the Company's Common Stock under the
Securities Act and such registration does not include shares of any other
selling shareholders, in which event any or all of the Registrable Securities of
the Holders may be excluded in accordance with the immediately preceding
sentence. In the event of such a "cut back" allocation to the Holders,
Registrable Securities held by Special Holders shall be allocated in the
aggregate (i) 10% of the allocation to all Holders as a group and (ii) a portion
of the remaining 90% of such allocation equal to the ratio of the number of
Registrable Securities sought to be included in such registration by Special
Holders to the number of Registrable Securities sought to be included in such
registration by all Holders. In no event will shares of any other selling
shareholder be included in such registration which would reduce the number of
shares which may be included by Holders without the written consent of Holders
of not less than 80% of the Registrable Securities proposed to be sold in the
offering. No stock excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Holder of
Registrable Securities determines not to participate in any such underwriting,
such person may elect to withdraw therefrom by written notice to the Company and
the underwriter. The securities so withdrawn from such underwriting shall also
be withdrawn from such registration. Notwithstanding the foregoing provisions,
the Company may withdraw any registration statement referred to in this Section
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Securities.
6. EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Agreement shall be borne by the Company, and all Selling Expenses shall be
borne by the Holders of the securities so registered pro rata on the basis of
the number of their shares so registered. Fees of counsel retained by any
selling Holders shall, except to the extent they are Registration Expenses, be
borne by such Holder.
7. REGISTRATION ON FORM S-3. The Company shall use its best
efforts to qualify for registration on Form S-3 or any comparable or successor
form or forms. After the Company has
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qualified for the use of Form S-3 in addition to the rights contained in the
foregoing provisions of this Agreement, the Holders of Registrable Securities
shall have the right to request registrations on Form S-3 at the expense of the
Company (such requests shall be in writing and shall state the number of shares
of Registrable Securities to be disposed of and the intended methods of
disposition of such shares by such Holder or Holders). The Company shall not be
required to effect more than two registrations on Form S-3 in any 12 month
period and the Company shall not be obligated to effect registrations on Form
S-3 for Holders proposing to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public of less than $500,000.
The Company shall cause each registration on Form S-3 to remain effective for a
period of not less than four months at the expense of the Company.
8. REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense, the Company will:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 3, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for a period of up to 120 days;
(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 paragraph (a) above 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 Registrable Securities and
to each underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Registrable Securities 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 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 Registrable
Securities covered by such registration statement with any securities exchange
on which the Common Stock of the Company is then listed;
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(f) immediately notify each seller of Registrable
Securities 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
and the Company will prepare a supplement or amendment to such prospectus in
order that such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(g) if the offering is underwritten and at the request of
any seller of Registrable Securities, use its best efforts to furnish in the
date that Registrable Securities are 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 Business Days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(h) make available for inspection by each seller of
Registrable Securities, 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;
(i) cause all Registrable Securities covered by the
registration statement to be listed on each securities exchange on which the
Company's Common Stock is then listed, and unless the same already exists,
provide a transfer agent, registrar and CUSIP number for all such Registrable
Securities not later than the effective date of the registration statement; and
(j) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an
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earnings statement covering a period of 12 months, beginning within three months
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 8(f), such Holder
will, as soon as is practical, discontinue disposition of its Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus covering such Registrable Securities.
In connection with each registration hereunder, the sellers of
Registrable Securities will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 3, 5 or 7
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. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, and each person controlling such Holder, with
respect to which registration, qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter, against all claims, losses, damages and liabilities
(or action in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state thereto a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act, the Exchange Act, any rule or regulation thereunder, or any
other federal or state securities laws applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such Holder,
each of its officers, directors and partners, and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
including any of the foregoing incurred in settlement of any litigation
commenced or threatened as such expenses are incurred; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission based upon written information furnished to the
Company by such Holder or underwriter and stated to be specifically for use
therein; and PROVIDED FURTHER, HOWEVER, that the indemnity agreement contained
in this Section 9(a) will not apply to amounts paid in settlement if such
settlement is effected without the consent of the Company (which consent will
not be unreasonably withheld).
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(b) Each Holder will, if Registrable Securities held by
him are included in the securities as to which such registration, qualifications
or compliance is being effected, severally and not jointly, indemnify the
Company, each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the Securities
Act, the Exchange Act, any rule or regulation thereunder, or any other federal
or state securities laws, each such other Holder and each of their officers,
directors and partners, and each person controlling such Holder, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and such
Holder, directors, officers, partners, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
including any of the foregoing incurred in settlement of any litigation
commenced or threatened, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically for use
therein; PROVIDED, HOWEVER, that the obligations of such Holders hereunder
(together with any other amounts payable under Section 9(d)) shall be limited to
an amount equal to the net proceeds to each such Holder of securities sold as
contemplated herein; and PROVIDED FURTHER, HOWEVER, that the indemnity agreement
contained in this Section 9(b) will not apply to amounts paid in settlement if
such settlement is effected without the consent of the majority of the Holders
against whom indemnity is sought (which consent will not be unreasonably
withheld), provided that it shall in no event be unreasonable for a Holder to
withhold such consent if any judgment or settlement (i) does not include as an
unconditional term thereof, the giving by the plaintiff or claimant to such
Holder of a release from all liability in respect of such violation or (ii)
which includes an admission of guilt on behalf of such Holder.
(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 9 and shall only relieve it from any liability which it may have to such
indemnified party under this Section 9 if and to the extent the indemnifying
part 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 9 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected
as incurred; PROVIDED, HOWEVER, that, if the defendants in any such action
include both the indemnified party and the
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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 exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 9 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 9 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
9; 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 Registrable Securities 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, (A) no such Holder will be
required to contribute any amount in excess (together with any amounts payable
under Section 9(b)) of the price to the underwriters of all such Registrable
Securities offered by it pursuant to such registration statement; and (B) 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.
10. CHANGES IN ELIGIBLE SHARES. If, and as often as, there is any
change in the Eligible Shares 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 granted hereby shall continue with respect to the Eligible Shares as
so changed.
11. INFORMATION BY HOLDER. Each Holder of Registrable Securities
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
12. LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of Holders of two-thirds of the Registrable Securities then
outstanding held by Holders who are signatories to this Agreement, enter into
any agreement with any holder or prospective holder of any securities of the
Company giving such holder or prospective holder equity registration rights
which are superior to, or which in any manner limit, the rights of the Holder's
hereunder.
14
15
13. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit the
sale of the Restricted Securities to the public without registration, 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, at all
times from and after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(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 at any time after it has become subject to
such reporting requirements;
(c) So long as a purchaser of Eligible Shares owns any
Restricted Securities, furnish to the purchaser of Eligible Shares forthwith
upon request a written statement by the Company as to its compliance with
reporting requirements of Rule 144 (at any time from and after 90 days following
the effective date of the first registration statement filed by the Company for
an offering of its securities to the general public), and of the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a purchaser of
Eligible Shares may reasonably request in availing itself of any rule or
regulation of the Commission allowing a purchaser of Eligible Shares to sell any
such securities without registration.
14. REPRESENTATION AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the undersigned holders of Eligible Shares 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 Charter or By-laws of the Company or any
provision of any material indenture, agreement or other instrument to which it
or any of 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 (subject to equitable
principles and to applicable bankruptcy, reorganization, insolvency, moratorium
and other similar laws affecting the enforceability of creditors' rights
generally and to applicable laws affecting the enforceability of indemnification
and contribution).
15. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register a Holder's securities granted to each Holder by
the Company under Sections 3, 4, 5 and 7 may be transferred or assigned by a
Holder (in compliance with Section 2) to a transferee or assignee of any of such
Holder's Restricted Securities if (i) there is transferred to such
15
16
transferee at least 40% of the total shares of Restricted Securities originally
issued to the direct or indirect transferor of such transferee (as adjusted for
stock splits and combinations) or (ii) such transferee or assignee is a
Permitted Transferee; PROVIDED, that the Company is given written notice by such
Holder at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being transferred or assigned; and PROVIDED FURTHER, that the transferee or
assignee of such rights assumes the obligations of such Holder under this
Agreement.
16. "MARKET STAND-OFF" AGREEMENT. Each Holder agrees, if requested
by the Company and an underwriter of Common Stock (or other securities) of the
Company, not to directly or indirectly sell, offer to sell, contract to sell
(including without limitation, short sell), grant any option to purchase or
otherwise transfer or dispose of any Common Stock (or other securities) of the
Company held by such Holder during the 180 day period following the effective
date of a registration statement (other than a Shelf Registration Statement) of
the Company filed under the Securities Act, PROVIDED, that:
(a) such agreement only applies to the first such
registration statement of the Company including securities to be sold on its
behalf to the public in an underwritten offering; and
(b) all officers and directors of the Company enter into
similar agreements.
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of said 180 day period.
17. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. 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
Company and each of the Holders (including without limitation transferees of any
Eligible Shares or Restricted Stock), whether so expressed or not.
(b) NOTICES. Any notice or other writing required or
permitted to be given under this Agreement or for the purposes of this Agreement
(referred to in this Section as a "NOTICE") to any party shall be sufficiently
given if delivered personally, or if sent by prepaid registered mail or if
transmitted by fax or other form of recorded communication tested prior to
transmission to such party:
(i) in the case of a notice to the Holders at
the address listed below each Holder's name on SCHEDULE I,
(ii) in the case of a notice to the Company at:
Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
00
00
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000)-000-0000
with a copy to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx III, P.C.
Fax: (000) 000-0000
or at such other address as the party to whom such writing is to be given shall
have last notified to the party giving the same in the manner provided in this
Section. Any notice personally delivered to the party to whom it is addressed as
provided in this Section shall be deemed to have been given and received on the
day it is so delivered at such address, PROVIDED, that if such day is not a
Business Day then the notice shall be deemed to have been given and received on
the Business Day next following such day. Any notice mailed to the address and
in the manner provided for in this Section shall be deemed to have been given
and received on the fifth Business Day next following the date of its mailing.
Any notice transmitted by fax or other form of recorded communication shall be
deemed given and received on the first Business Day after its transmission.
(c) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the internal laws of the State of Delaware without
regard to conflicts of law principles thereof.
(d) AMENDMENT. 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 two-thirds of the outstanding shares of
Restricted Securities held by Holders who are signatories to this Agreement;
PROVIDED, HOWEVER, that any subsequent purchaser of the Series J Preferred may
become party to this Agreement by executing a signature page hereto and shall be
a Holder for purposes of this Agreement. The Company shall amend SCHEDULE I to
reflect such subsequent purchasers and shall deliver a copy thereof to the other
parties to this Agreement.
(e) 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 where not contained herein.
(f) ENTIRE AGREEMENT. This Agreement, as restated herein,
and the other instruments referred to herein contain the entire agreement among
the parties with respect to the registration rights of holders of Eligible
Shares and supersede all prior and contemporaneous arrangements or
understandings with respect thereto, including the Sixth Amended and Restated
Agreement. Each Holder who is not a signatory to this Agreement shall be deemed
to be an
17
18
intended third party beneficiary hereof and shall be entitled to enforce all
rights, preferences and privileges afforded to such Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile counterpart
signatures to this Agreement shall be acceptable and binding.
[SIGNATURE PAGE FOLLOWS]
19
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
"COMPANY" SERVICESOFT TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
President and Chief Executive Officer
"HOLDERS"
/s/ Xxx Xxxxxxx
--------------------------------------------
XXX XXXXXXX
/s/ Illegible Designated Signatory Pursuant
to Power of Attorney
--------------------------------------------
XXXXXXXXX X. XXXXX
--------------------------------------------
XXXXX X. XXXXX
AMERICAN FARM INVESTMENT CORPORATION
By: ________________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
20
BANQUE EDOUARD CONSTANT
For Delrina Holdings SA
By: ______________________________________
Name:
Its:
/s/ Xxxxxxx X. Bogoroch
------------------------------------------
XXXXXXX X. BOGOROCH
CIBC WMV INC.
By: /s/ X. Xxxxxxxxx
------------------------------------------
Name: X. Xxxxxxxxx
Its: Managing Director
COMPAGNIE FINANCIERE CODELIS SA
By: ______________________________________
Name:
Its:
------------------------------------------
XXXXXXX X. X'XXXXXXXX
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
21
DR CAPITAL I L.P.
By: ______________________________________
Name:
Its:
DR CAPITAL II ATHENA
By: ______________________________________
Name:
Its:
EDN EQUITIES
By: Xxxxxxx Equities, General Partner
By: ______________________________________
Name: Xxxxx Xxxxxxx, General Partner
------------------------------------------
XXXXXX X. ELKYS
ELRON ELECTRONICS INDUSTRIES LTD.
By: /s/ Illegibile and /s/ Illegible
--------------------------------------
Name:
Its: CEO and CFO
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
22
------------------------------------------
XXXXX XXXXXX
------------------------------------------
K. XXXX XXXXXXXXX
------------------------------------------
XXXXXXX XXXXXXX
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
XXXXXX X. XXXXXX
FINANCIAL TECHNOLOGIES VENTURES LIMITED
PARTNERS
By: /s/ Xxxxx Xx
------------------------------------------
Name: Xxxxx Xx
Its: Managing Member
FINANCIAL TECHNOLOGIES VENTURES
(Q) LIMITED PARTNERS
By: /s/ Xxxxx Xx
------------------------------------------
Name: Xxxxx Xx
Its: Managing Member
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
23
GEISCO INTERNATIONAL S.A.
By: ______________________________________
Name:
Its:
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
24
GEMINI XXXXXX XX L.P.
By: /s/ Illegible
-------------------------------------
Name:
Its:
GEMINI XXXXXX XX PARALLEL FUND L.P.
By: /s/ Illegible
-------------------------------------
Name:
Its:
ADVENT PGGM GEMINI L.P.
By: /s/ Illegible
-------------------------------------
Name:
Its:
GEMINI PARTNER INVESTORS L.P.
By: /s/ Illegible
-------------------------------------
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
25
GENERAL MOTORS HOURLY-RATE EMPLOYEES
PENSION TRUST
By: The Chase Manhattan Bank, Trustee
By: ______________________________________
Name:
Its:
GENERAL MOTORS SALARIED EMPLOYEES PENSION
TRUST
By: The Chase Manhattan Bank, Trustee
By: ______________________________________
Name:
Its:
/s/ Illegible
------------------------------------------
XXXX XXXXX, IN TRUST
XXXXXXX X. XXXXXXXXX LIVING TRUST
By: ______________________________________
Name: Xxxxxxx X. Xxxxxxxxx, Trustee
------------------------------------------
XXXXXXX XXXXXXXXX
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
26
/s/ Xxxxxxxxxxx X. Xxxxxxxxx
------------------------------------------
XXXXXXXXXXX X. XXXXXXXXX
GREY ADVERTISING LTD.
By: /s/ Illegible
-------------------------------------
Name:
Its:
------------------------------------------
HO SIM GUAN
------------------------------------------
YAACOB XXXXXX
XXXXX 4
By: Soma 3 L.P., as Partnership Manager
By: Xxxxxxxxx Capital Associates, Inc.,
as its General Partner
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
27
INTERNET CAPITAL GROUP, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Its: Managing Director
INTEL CORPORATION
By: ______________________________________
Name:
Its:
X.X. XXXXXXXX XX VENTURE FUND
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Its:
XXXXX LIVING TRUST
By: ______________________________________
Name: Xxxxxx Xxxxx, Co-trustee
/s/ Xxxxxx X. Xxxxx
------------------------------------------
XXXXXX X. XXXXX
------------------------------------------
XXXXXXX XXXXXX
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
28
------------------------------------------
XXXXX W. XXXXXXX
XXXX-XXXXXX XXXXXX, TRUSTEE UNDER
DECLARATION DATED 12/1/83
By: ______________________________________
Name:
Its:
LANDMARK EQUITY PARTNERS II, L.P.
By: Landmark Partners II, L.P.
Its: General Partner
By: Landmark Advisors Inc.
Its: Managing General Partner
By: ______________________________________
Name:
Its:
------------------------------------------
X. XXXXXX XXXXX
XXXXXX & XXXXX XXXXXXXXX, REVOCABLE
TRUST U/T 10/9/80
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
29
LRJ TECHNOLOGIES INC.
By: /s/ Illegible
--------------------------------------
Name:
Its:
LUBAR NOMINEES
By: ______________________________________
Name:
Its:
XXXX X. XXXXXX TRUST U/W XXXXXX XXXXXXX
XXXXXX
By: ______________________________________
Xxxxx X. Xxxxxxxx, Trustee
By: ______________________________________
Xxxx X. Xxxxxx, Trustee
By: ______________________________________
Xxxx X. Xxxxxxxxxx, Xx., Trustee
------------------------------------------
XXXXXXXX X. XXXXXX
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
30
W. XXXX XXXXXXXXXX REVOCABLE TRUST
By: ______________________________________
Name:
Its:
------------------------------------------
XXXX X. XXXXXX
------------------------------------------
XXXXXXXX X. XXXXX
------------------------------------------
NETMANAGE INC.
By: /s/ Xxx Xxxx
--------------------------------------
Name: Xxx Xxxx
Its: Chairman & CEO
NORTHEAST VENTURES, INC.
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
31
XXXXX XX, L.P.
By: Xxxxx XX Partners, L.P.
Its: General Partner
By: Orien Ventures Partners, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx, Managing General
Partner
------------------------------------------
XXX XXXXXXXX
------------------------------------------
XXXXXX X. XXXXXXX
PHILIPS VENTURE PARTNERS, I
By: Vista Ventures Partners, II
Its: General Partner
By: ______________________________________
Name:
Its:
------------------------------------------
XXXX RENAULT
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
32
------------------------------------------
XXXXX X. XXXXXXX
------------------------------------------
XXXXXXX XXXXXXXXX
SAMJANK INC.
By: /s/ Xxxxxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Its:
/s/ F. Xxxx X'Xxxxxxx
------------------------------------------
XXXXXXXXX XXXX X'XXXXXXX
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
33
SIGMA PARTNERS IV, L.P.
By: Sigma Management, IV, L.L.C.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Its: Managing Director
SIGMA ASSOCIATES IV, L.P.
By: Sigma Management IV, L.L.C.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Its: Managing Director
SIGMA INVESTORS IV, L.L.C.
By: Sigma Management IV, L.L.C.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Its: Managing Director
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
34
------------------------------------------
XXXXX XXXXX
------------------------------------------
XXXXX X. XXXXX
------------------------------------------
XXXXXX XXXXX
------------------------------------------
XXX X. XXXXXXX, XX.
SOFINOV, SOCIETE FINANCIERE
D'INNOVATION INC., FILIALE DE XX XXXXXX
DE DEPOT ET PLACEMENTS DU QUEBEC
By: /s/ Denis Pionne and /s/ Sophie Forest
--------------------------------------
Name: Denis Pionne and Sophie Forest
Its: President and Director
SOUTH FERRY #2 L.P.
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
35
------------------------------------------
XXXX XXXXX
SWIG INVESTMENT COMPANY
By: ______________________________________
Name:
Its:
------------------------------------------
XXXXX XXXX
------------------------------------------
XXXX X. XXXXXX
------------------------------------------
GIDEON TOLKOWSKY
------------------------------------------
XXXXX X. XXXXX
XXXXXX INVESTMENT CO.
By: ______________________________________
Name:
Its:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
36
------------------------------------------
XXXXX XXXXXX
XXXXXX XXXXX XXXXXX AND XXXXXXX XXXXXX,
AS TRUSTEES U/A/O 3/31/93 BETWEEN XXXXXX
XXXXX XXXXXX, AS GRANTOR, AND XXXXXX XXXXX
XXXXXX AND XXXXXXX XXXXXX, AS TRUSTEES
By: ______________________________________
Name: Xxxxxx X. Xxxxxx, Trustee
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
37
/s/ Xxxxxx Xxxxx
-----------------------------------------
XXXXXX XXXXX
38
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Illegible
--------------------------------------
Name:
Its:
STONE STREET FUND 2000, LLC
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Its: Vice President
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
39
Xxxxxxxxxxx Xxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxxxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
40
Xx Xxxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xx Xxxxxxxx
--------------------------------------
Name: Xx Xxxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
41
Xxxxxx Xxxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
42
Xxxxxxx Xxxxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
43
Xxxx Xxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxxxxx Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx Xxxxxxx, Xx.
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
44
Xxxx Xxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
45
Xxxx Xxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
46
Xxx Xxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: SVP, Strategic Alliances
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
47
Xxxx Xxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
48
ITOCHU Techno-Science Corporation
------------------------------------------
(Print name of Holder)
By: /s/ X. Xxxxxx
--------------------------------------
Name: X. Xxxxxx
Title: President
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
49
ITOCHU Technology, Inc.
------------------------------------------
(Print name of Holder)
By: /s/ Takahiro Susaki
--------------------------------------
Name: Takahiro Susaki
Title: President
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
50
ITOCHU Corporation
------------------------------------------
(Print name of Holder)
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Operating Officer,
Information Technology & Telecommunication
Division
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
51
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity
Funding, Inc.
------------------------------------------
(Print name of Holder)
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
52
Xxx Xxxxxxx
------------------------------------------
(Print name of Holder)
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: MD Servicesoft EMEA
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
53
The Reez Trust
------------------------------------------
(Print name of Holder)
By: /s/ Illegible
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO SEVENTH AMENDED REGISTRATION RIGHTS AGREEMENT]
54
Schedule 1
HOLDERS OF ELIGIBLE SHARES
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx X. Xxxxx 528,426 30,488 103,211
c/o Xxx Xxxxxx
Venad Administrative Services, Inc.
000 Xxxxxxx Xxxxxx, #000
Xxx Xxxx, XX 00000
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx 2,496
------------------------------------------------------------------------------------------------------------------------------------
American Farm Investment Corporation 98,518
BCE Place, 000 Xxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Banque Edouard Constant
(formerly Banque Scandinave en
Suisse, Geneva) 69
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Bogoroch 17,315 9,756 4,651
00 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxx, X0X 0X0
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
CIBC WMV Inc. 1,219,512 350,831
000 Xxx Xxxxxx, 0xx Xxxxx
BCE Place
Toronto, Ontario M5J 2F8
Attn: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Compagnie Financiere Codelis S.A. 443
44, chemin Xxxxx Xxxxxx
1211 Xxxxxx 00 Xxxxxx,
Xxxxxxxxxxx
Attn: Xxxxxx Mizahi
------------------------------------------------------------------------------------------------------------------------------------
i
55
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. X'Xxxxxxxx 000
Xxxxxxxxxx Xxxx
Xxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
DR Capital I L.P. 694
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
DR Capital II L.P. 2,780
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
EDN Equities 000
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Elron Electronic Industries Ltd. 804,653
Xxxxx Xxxxx Advance Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxx 00000 Xxxxxx
Attn: Xxxxx Xxxxxx
Fax: 000-0-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 1,404
00 Xxxxxxxxxxx Xxxxx, Xxx. 0000
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
K. Xxxx Xxxxxxxxx 21
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 209
00 Xxxxxxxxxxx Xxxx
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Financial Technologies Ventures, L.P. 33,659 280,731
Financial Technologies Ventures (Q), L.P. 941,951 (aggregate)
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 163,048 16,611
00 Xxxxxxxxx Xxxxx #0X
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
ii
56
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Geisco International S.A. 213
XX Xxx XX 0000
Xxxxxx, Xxxxxxxxxxx
Attn: Beat Brechbuhler
------------------------------------------------------------------------------------------------------------------------------------
Gemini Xxxxxx XX L.P. 226,820 193,804 121,703
Advent PGGM Gemini L.P. 306,207* 29,071 18,256
Gemini Xxxxxx XX Parallel Fund L.P. 34,023* 261,637 164,299
Gemini Partner Investors L.P. 3,293 2,165
c/o Gemini Capital Fund
Management Ltd.
00 Xxxxxxxx Xxxxxxx Xxxxxx
P.O. Box 12548
Industrial Xxxx
Xxxxxxxx 00000 Xxxxxx
Attn: Xxxx Xxxx
Fax: 000-000-0-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx, in trust 24,390
c/x Xxxxx & Associates
000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0XX
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx Living Trust 355
0000 Xxxxx Xxxxx Xxxx. Xxx. 000
Xxxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 87
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx 52,521
00 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Grey Advertising Ltd. 141,759 20,889
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxx Xxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
--------------------
*Represents options exerciseable for Exhchangeable Preferred Shares of Balisoft
Ltd. which are exchangeable for Exchangeable Preferred.
iii
57
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Ho Sim Guan 69
00 Xxxxxxx Xxxxx Xxxx 00-00XXX.
Xxxxxxxxx 0104
Attn: Xxxxxx Xx Xxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 94
000 Xxx Xxxxxx Xxxxxx
Xxxxx 00000 Israel
------------------------------------------------------------------------------------------------------------------------------------
Indra 4 L.P. 2,716
PO Box 000 Xxxxxxxx Xxxxx Xx. XX0
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Intel Corporation 840,329
0000 Xxxxxxx Xxxxxxx Xxxx. 63,025**
#SC4-210
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Internet Capital Group, Inc. 630,247 92,868 208,084
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxxxx XX Venture Fund, L.P. 708,808 104,445 147,287
Canada Trust Tower
BCE Place, Suite 440
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx,
XXXXXX X0X 0X0
Attn: Xxxx Xxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. and Xxxxxxx X. Xxxxx 878
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 12,238 9,976
Xxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx & Company 6,796
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 878
00000 Xxxxxxxx Xxx #000
Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
---------------------
** Represents warrants to purchase Series H Preferred Stock.
iv
58
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 42
------------------------------------------------------------------------------------------------------------------------------------
Xxxx-Xxxxxx Xxxxxx, Trustee Under Declaration 841
Dated 12/1/83
000 Xxxxx Xxxxxx, Xxx. 0000
Xxx Xxxx, XX 00000
Attn: Xxxx-Xxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Landmark Equity Partners II, L.P. 8,781
000 Xxxxxxxxx Xxxxxx, XX Xxx 000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
J. Xxxxxx Xxxxx 660
c/o Land & Xxxxx
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Elliot & Xxxxx Xxxxxxxxx Revocable Trust U/T 790
dated 10/9/80
00 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Elliot & Xxxxx Xxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
LRJ Technologies Inc. 1,206,753*** 56,710
c/o Brightspark
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Attn: Xxxx Xxxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Lubar Nominees 878
700 North Water Street, Ste. 1200
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
The Trust Created Under the Will of Xxxxxx 2,081
Xxxxxxx Xxxxxx F/B/O Xxxx X. Xxxxxx and Issue
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxx, Esq. 878
------------------------------------------------------------------------------------------------------------------------------------
W. Xxxx Xxxxxxxxx Revocable Trust 53
000 Xxx Xxxxxx, Xxx. 00
Xxxxxxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
---------------------
***Exchanged into Common Stock of the Company.
v
59
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxx 105
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxx 00
0000 Xxxxxx of the Stars Xxx. 0000
Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
NetManage, Inc. 269,038
00000 X. Xx Xxxx Xxxx.
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
NorthEast Venture, Inc. 4,303
Xxx Xxxxx Xxxxxx Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx XX, L.P. 778,640
c/o Orien Ventures, Inc.
Xxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxxxx 878
000 Xxxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 18
00-00 00xx Xxxxxx
Xxxxxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Philips Venture Fund I, L.P. 24,834
XX Xxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Renault 14
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 1,114
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxxx 97,319 16,833
XX Xxx 000
Xxxxxx Xxxx
0000 Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Samjank Inc. 97,319 16,833
------------------------------------------------------------------------------------------------------------------------------------
vi
60
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 2,439
c/x Xxxxxxxxx Xxxxxxxx Evergreen Ltd.
00 Xxxxxxxxxx Xxxx.
Xxx-Xxxx 00000 Xxxxxx
Fax: 000-000-0-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 878
00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Sigma Partners V, L.P. 385,271
Sigma Partners IV, L.P. 649,555 85,666
Sigma Associates IV, L.P. 169,697 34,732
Sigma Investors IV, L.P. 21,078 3,427
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
00 Xxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 2,165
00 Xxxxxxxxx Xxxxx Xxx. 00XX
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx 2,165
00 Xxxx Xxxx Xxxx
Xxxxxxxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 000
Xx-Xx Xxxx. 00xx Xxxxx
Xxx-Xxxx 00000 Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxx X. Xxxxxxx, Xx. 31
000 Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Sofinov, Societe Financiere D'Innovation Inc., 708,808 853,659 442,967
Xxxxxxx xx xx Xxxxxx xx Xxxxx xx Xxxxxxxxxx xx
Xxxxxx
0000 avenue, XxXxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Sophie Forest
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
vii
61
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx #0, L.P. 000
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 439
000 Xxxxxx Xxxx Xxx. 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
The Swig Investment Company 878
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxx 878
00 XxXxxxxx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
THC Inc. 204
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx Xxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxx 355
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Gideon Tolkowsky 6,585
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx 2,813
0000 Xxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Investment Co. 70
XX Xxx 0000 XX
Xxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 440
El-Al Xxxx. 00xx Xxxxx
Xxx-Xxxx 00000 Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx Xxxxxx and Xxxxxxx Xxxxxx as 1,041
Trustees U/A/O 3/31/93 between Xxxxxx Xxxxx
Xxxxxx, as Grantor, and Xxxxxx Xxxxx Xxxxxx and
Xxxxxxx Xxxxxx, as Trustees
000 00xx Xxxxxx Xxxxx 0X
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
viii
62
------------------------------------------------------------------------------------------------------------------------------------
HOLDER EXCHANGEABLE EXCHANGEABLE SERIES H SERIES I SERIES J
COMMON PREFERRED PREFERRED PREFERRED PREFERRED
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx 27,685
c/o Brightspark
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 110,742
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx X'Xxxxxxx 11,074
00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
The Xxxxxxx Xxxxx Group, Inc. 664,452
Stone Street Fund 2000, LLC 110,742
Xxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
FAX: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxx 16,661
00 Xxxxxxxxx Xxxxx #0X
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Washington Mall Partners 7,420
c/o Xxxx Xxxx
000 Xxxxxx Xx., 0X
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
ITOCHU Techno-Science Corporation 44,297
ITOCHU Corporation 44,297
ITOCHU Technology, Inc. 22,148
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Fax: 000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 55,371
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xx Xxxxxxxx 5,537
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
ix
63
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 16,611
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 22,148
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx 2,769
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxxx 9,967
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx 5,537
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx 5,537
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
x
64
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxx 9,967
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx 5,537
c/o Servicesoft Technologies, Inc.
Xxx Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
The Reez Trust 9,967
c/o Kaplan Talkins
0000 Xxxx Xxxxxx
Xxxxx 0X
Xxxxxxx, Xxxxxxx X0X 0X0
XXXXXX
------------------------------------------------------------------------------------------------------------------------------------
3,481,478
TOTAL
------------------------------------------------------------------------------------------------------------------------------------
xi
