THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.8
THIRD
AMENDMENT TO FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Third Amendment to Fourth Amended and Restated Registration
Rights Agreement (this “Amendment”) is entered this 19th day of October 2009, by and among
BroadSoft, Inc., a Delaware corporation (the “Company”), the parties listed on Exhibit A
as “Series E-1 Investors” (the “Series E-1 Investors”), and the other parties listed on the
signature pages hereof (the “Investors”).
Recitals
Whereas, in connection with the Company’s Series D Preferred Stock financing, the
Company, the Investors, and certain other parties have previously entered into that certain Fourth
Amended and Restated Registration Rights Agreement, dated as of June 26, 2007 (as amended on
November 25, 2008 and on December 23, 2008, the “Agreement”). Capitalized terms used herein
without definition shall have the meanings given to such terms in the Agreement.
Whereas, the Company has entered into a certain Agreement and Plan of Merger and
Reorganization, dated as of October 6, 2009 (the “Merger Agreement”), with BroadSoft PacketSmart,
Inc., a Delaware corporation and wholly-owned subsidiary of the Company, Packet Island, Inc., a
Delaware corporation, the Series E-1 Investors and Xxx Xxxxxxxx as the Agent for the Series E-1
Investors, pursuant to which the Company is issuing shares of its Series E-1 Convertible Preferred
Stock (“Series E-1 Preferred”) to the Series E-1 Investors.
Whereas, it is a condition to the consummation of the transactions contemplated by
the Merger Agreement that each Series E-1 Investor who will be receiving shares of Series E-1
Preferred become a party to the Agreement by executing this Amendment.
Whereas, Section 2.3 of the Agreement provides that such agreement may be amended if
the Company agrees thereto and obtains the written consent of persons holding or having the right
to acquire in the aggregate a majority of the Registrable Securities then outstanding.
Whereas, the Company, the Investors party hereto who hold or have the right to
acquire in the aggregate a majority of the Registrable Securities then outstanding, and the Series
E-1 Investors desire to amend the Agreement as set forth herein to cause the Series E-1 Investors
to become parties to the Agreement and to make the other amendments set forth herein.
Agreements
Now, Therefore, for and in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Amendment to Definition of “Investors”. Pursuant to this Amendment, (a) the definition of
“Investors” is hereby amended to include the Series E-1 Investors, and (b) Exhibit A to the
Agreement is hereby supplemented to include the Series E-1 Investors listed on Exhibit A to this
Amendment.
2. Amendment to Section 1.1(h). Pursuant to this Amendment, the definition of “Registrable
Securities” in Section 1.1(h) of the Registration Rights Agreement is hereby deleted in its
entirety and replaced with the following:
(h) The term “Registrable Securities” means (i) the Investors’ Common Shares or any Common
Stock issued as a dividend or other distribution with respect to, in exchange for, or in
replacement of Investors’ Common Shares, (ii) shares of Common Stock issued upon conversion of the
Series B-1 Shares, Series C-1 Shares, Series D Shares, Series E Shares, and Series E-1 Shares,
(iii) any other shares of Common Stock acquired on or after the date hereof by any Investor, and
(iv) for all purposes of this Agreement other than Section 1.2, shares of Common Stock issued upon
exercise of the ORIX Warrant, and any Common stock issued as a dividend or other distribution with
respect to, in exchange for, or in replacement of, such shares of Common Stock; provided, however,
that any shares previously sold pursuant to a registered public offering or pursuant to an
exemption from the registration requirements of the 1933 Act under which the transferee does not
receive “restricted securities” shall cease to be Registrable Securities.
3. Addition of Sections 1.1(t) and 1.1(u). Pursuant to this Amendment, the following
definitions are hereby added to Section 1.1:
(t) The term “Series E-1 Preferred Stock” means the Company’s Series E-1 Convertible Preferred
Stock, $0.01 par value per share.
(u) The term “Series E-1 Shares” means the shares of the Company’s Series E-1 Preferred Stock
issued pursuant to the Agreement and Plan of Merger and Reorganization, dated as of October 6,
2009, by and among the Company, BroadSoft PacketSmart, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company, Packet Island, Inc., a Delaware corporation, the parties
listed on Exhibits A-1 and A-2 thereto (the “Series E-1 Investors”) and Xxx Xxxxxxxx as the Agent
for the Series E-1 Investors.
4. Series E-1 Investors Made Parties. By virtue of each Series E-1 Investor’s execution and
delivery of this Amendment, each such Series E-1 Investor is hereby made a party to the Agreement.
5. Counterparts. This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
6. Effectiveness. This Amendment shall become effective upon the execution hereof by the
Company, persons holding or having the right to acquire in the aggregate at least a majority of the
aggregate of the Registrable Securities then outstanding, and the Series E-1 Investors.
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7. Governing Law. This Amendment shall be deemed a contract made under the laws of the State
of Delaware and, together with the rights and obligations of the parties hereunder, shall be
construed under and governed by the laws of such State.
8. Continuing Effect. Other than as set forth in this Amendment, all of the terms and
conditions of the Registration Rights Agreement shall continue in full force and effect.
[Signature Pages Follow]
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In Witness Whereof, the parties have executed this Third Amendment to Fourth Amended
and Restated Registration Rights Agreement as of the day and year first above written.
COMPANY: | BROADSOFT, INC. |
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By: | /s/ Xxxx Xxxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxx Xxxxxxxxx | |||
Title: | Vice President, General Counsel, and Secretary | |||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxx Xxx | ||||
(Signature) | ||||
Xxxxxx Xxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxx Ping-Xxx Xxx | ||||
(Signature) | ||||
Xxxx Ping-Xxx Xxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxx Xxx Xxxxxx | ||||
(Signature) | ||||
Xxxx Xxx Xxxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxx Xxxxxxxx | ||||
(Signature) |
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Xxxxxx Venture Partners, L.P. By: Xxxxxx Venture Partners, LLC Its: General Partner Xxx Xxxxxxxx, Manager |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxx X. Xxxxxxxx, Trustee | ||||
(Signature) | ||||
Davidson Family Trust dated 7/9/87 | ||||
(Print Name of Investor) | ||||
Xxxx X. Xxxxxxxx, Trustee | ||||
(Name and Title of Authorized Representative) |
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxx Xxxx | ||||
(Signature) |
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Xxxxx Xxxx (Print Name of Investor) self (Name and Title of Authorized Representative) |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxxxx Xxxxxxxxxxxx | ||||
(Signature) |
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Xxxxxxxx Xxxxxxxxxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxx Helleboid | ||||
(Signature) |
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Xxxxxx Helleboid (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxxx Xxxxx Xxxxxxxxxxx | ||||
(Signature) |
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Xxxxxxx Xxxxx Xxxxxxxxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxx Xxxxxxxxxxxx | ||||
(Signature) |
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Softsmith Infotech (Print Name of Investor) Xxxx Xxxxxxxxxxxx, President (Name and Title of Authorized Representative) |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxx X. Xxxxx | ||||
(Signature) |
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Xxxxx X. Xxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxx Iyyavoo | ||||
(Signature) |
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Xxxx Iyyavoo (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxx Xxxxxxxxxx | ||||
(Signature) |
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Xxxxxx Xxxxxxxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
Garage Technology Ventures I, L.P. By: Garage Technology Ventures |
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/s/ Xxxxxxx X. Xxxxxxxx | ||||
(Signature) |
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Xxxxxxx X. Xxxxxxxx, Managing Director (Name and Title of Authorized Representative) |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
Garage California Entrepreneurs Fund, L.P. By: Garage Technology Ventures |
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/s/ Xxxxxxx X. Xxxxxxxx | ||||
(Signature) |
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Xxxxxxx X. Xxxxxxxx, Managing Director (Name and Title of Authorized Representative) |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
Startup Capital Ventures, L.P. By: Startup Capital Ventures, LLC, General Partner |
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/s/ Xxxxxxx Xxxx | ||||
(Signature) |
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Xxxxxxx Xxxx, General Partner (Name and Title of Authorized Representative) |
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[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
/s/ Xxxxxxx Xxxxx Xxxxxxxxxxx | ||||
(Signature) |
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Xxxxxxx Xxxxx Xxxxxxxxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
SERIES E-1 INVESTOR:
XXXXXX XXXXX |
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/s/ Xxxx Xxxxx | ||||
(Signature) |
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Xxxx Xxxxx (Print Name of Investor) |
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(Name and Title of Authorized Representative) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
INVESTORS: | Bessemer Venture Partners IV L.P. By: Deer IV & Co. LLC, General Partner |
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By: | /s/ J. Xxxxxx Xxxxxxxx | |||
Name: | J. Xxxxxx Xxxxxxxx | |||
Title: | Chief Operating Officer | |||
Bessec Ventures IV, L.P. By: Deer IV & Co. LLC, General Partner |
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By: | /s/ J. Xxxxxx Xxxxxxxx | |||
Name: | J. Xxxxxx Xxxxxxxx | |||
Title: | Chief Operating Officer | |||
Plum Xxxx, Inc. |
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By: | /s/ J. Xxxxxx Xxxxxxxx | |||
Name: | J. Xxxxxx Xxxxxxxx | |||
Title: | Attorney-in-Fact | |||
Cove Ventures, LLC | ||||
By: | Cove Road Associates, LLC, | |||
Its: | Managing Member | |||
By: | /s/ J. Xxxxxx Xxxxxxxx | |||
Name: | J. Xxxxxx Xxxxxxxx | |||
Title: | Attorney-in-Fact | |||
/s/ J. Xxxxxx Xxxxxxxx | ||||
Xxxxxx Xxxxxxx | ||||
(By J. Xxxxxx Xxxxxxxx, Attorney-in-Fact) | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
Xxxxxxx River Partnership IX, A Limited Partnership By: Xxxxxxx River IX GP Limited Partnership, General Partner |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Title: General Partner | ||||
Xxxxxxx River Partnership IX-A, A Limited Partnership By: Xxxxxxx River IX GP Limited Partnership, General Partner |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Title: General Partner | ||||
Xxxxxxx River IX-B LLC By: Xxxxxxx River Friends, Inc., Manager |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Title: Officer | ||||
Xxxxxxx River IX-C LLC By: Xxxxxxx River Friends, Inc., Manager |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Title: Officer | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
Columbia BroadSoft Investors, LLC By: Columbia Capital, L.L.C. Its: Managing Partner |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Executive Vice President | |||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
RRE Ventures III-A, L.P. |
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By: | /s/ Xxxxxx Xxxxxxx | |||
Xxxxxx Xxxxxxx | ||||
General Partner | ||||
RRE Ventures III, L.P. |
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By: | /s/ Xxxxxx Xxxxxxx | |||
Xxxxxx Xxxxxxx | ||||
General Partner | ||||
RRE Ventures Fund III, L.P. |
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By: | /s/ Xxxxxx Xxxxxxx | |||
Xxxxxx Xxxxxxx | ||||
General Partner | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
Grotech Partners VI, L.P. |
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By: | Grotech Capital Group VI, LLC | |||
Its General Partner | ||||
By: | /s/ Xxxxxx X. Xxxx | |||
Xxxxxx X. Xxxx | ||||
General Partner | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
Meritech Capital Partners III, L.P. |
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By: | Meritech Capital Associates III, L.L.C., | |||
its General Partner | ||||
By: | Meritech Management Associates III, | |||
L.L.C., a managing member | ||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Xxxxxxx Xxxxxx, | ||||
a Managing Member | ||||
Meritech Capital Affiliates III, L.P. |
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By: | Meritech Capital Associates III, L.L.C., | |||
its General Partner | ||||
By: | Meritech Management Associates III, | |||
L.L.C., a managing member | ||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Xxxxxxx Xxxxxx, | ||||
a Managing Member | ||||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
Comcast Interactive Capital, L.P. By: Comcast CICG GP, LLC Its: General Partner By: Comcast Capital Corporation Its: Manager |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Assistant Treasurer | |||
[Signature Page to Third Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
EXHIBIT A
SERIES E-1 INVESTORS
SERIES E-1 INVESTORS
Xxxxxx Xxx
Xxxx Xxx
Xxxx Xxx Xxxxxx
Xxxxxx Venture Partners, L.P.
Xxxx Xxxxxxxx
Xxxxx Xxxx
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxx Helleboid
Xxxxxxx Xxxxx
Softsmith Infotech
Xxxxx Xxxxx
Xxxx Iyavoo
Xxxxxxx Xxxxxxxxxx
Garage Technology Ventures I, L.P.
Garage California Entrepreneurs Fund, L.P.
Startup Capital Ventures, L.P.
Xxxx X. Xxxxxxxx, Trustee, Davidson Family Trust Dated 7/9/87
Xxxx Xxx
Xxxx Xxx Xxxxxx
Xxxxxx Venture Partners, L.P.
Xxxx Xxxxxxxx
Xxxxx Xxxx
Xxxxxxxx Xxxxxxxxxxxx
Xxxxxxx Helleboid
Xxxxxxx Xxxxx
Softsmith Infotech
Xxxxx Xxxxx
Xxxx Iyavoo
Xxxxxxx Xxxxxxxxxx
Garage Technology Ventures I, L.P.
Garage California Entrepreneurs Fund, L.P.
Startup Capital Ventures, L.P.
Xxxx X. Xxxxxxxx, Trustee, Davidson Family Trust Dated 7/9/87
Xxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxx Aczel
Xxxxxx Aczel
Exhibit A
Series E-1 Investors
Series E-1 Investors