EXHIBIT 10.7
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ACTIVE SOFTWARE, INC.
AMENDED AND RESTATED
RIGHTS AGREEMENT
March 27, 1998
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TABLE OF CONTENTS
Section 1. Termination of Prior Rights............................2
Section 2. Registration Rights....................................2
2.1 Definitions............................................2
2.2 Requested Registration.................................3
2.3 Company Registration...................................4
2.4 Obligations of the Company.............................4
2.5 Furnish Information....................................6
2.6 Expenses of Demand Registration........................6
2.7 Expenses of Company Registration.......................6
2.8 Underwriting Requirements..............................6
2.9 Delay of RegistratioN..................................7
2.10 Indemnification.......................................7
2.11 Reports Under Securities Exchange Act of 1934.........8
2.12 Form S-3 Registration.................................9
2.13 Assignment of Registration Rights....................10
2.14 Limitations on Subsequent Registration Rights........10
2.15 'Market Stand-Off' Agreement.........................11
2.16 Termination of Registration Rights...................11
Section 3. Additional Rights.....................................11
3.1 Right of First Offer..................................11
3.2 Delivery of Financial Statements......................13
3.3 Inspection............................................14
3.4 Approval of Budget by Board...........................14
3.5 Approval of Titles by Board...........................14
3.6 Non-Employee Director Expenses........................14
3.7 Employee Stock Purchase and Option Agreements.........14
3.8 Restriction on Dividends..............................15
3.9 Termination of Information and Inspection Covenants...15
Section 4. Miscellaneous.........................................15
4.1 Assignment............................................15
4.2 Third Parties.........................................15
4.3 Governing Law.........................................15
4.4 Counterparts..........................................16
4.5 Notices.L.............................................16
4.6 Severability..........................................16
4.7 Amendment and Waiver..................................16
4.8 Effect of Amendment or Waiver.........................17
4.9 Rights of Holders.....................................17
4.10 Delays or Omissions..................................17
AMENDED AND RESTATED
RIGHTS AGREEMENT
THIS AMENDED AND RESTATED RIGHTS AGREEMENT (the "Agreement") is entered
into as of March 27, 1998, by and among Active Software, Inc., a California
corporation (the "Company"), those holders of the Company's Common Stock whose
names are set forth on Exhibit A attached hereto (the "Common Shareholders"),
Venture Lending & Leasing, Inc. ("Venture Lending"), those holders of the
Company's Series A Preferred Stock whose names are set forth on Exhibit A
attached hereto (the "Series A Shareholders"), those holders of the Company's
Series B Preferred Stock whose names are set forth on Exhibit A attached hereto
(the "Series B Shareholders"), and those holders of the Company's Series C
Preferred Stock whose names are set forth on Exhibit A attached hereto (the
"Series C Shareholders," and collectively with the Common Shareholders, Series A
Shareholders and Series B Shareholders, the "Shareholders").
RECITALS
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The Company and the Series A Shareholders have entered into a Series A
Preferred Stock Purchase Agreement dated February 1, 1996 (the "Series A
Purchase Agreement"), pursuant to which the Company issued and sold to the
Series A Shareholders shares of the Company's Series A Preferred Stock (the
"Series A Shares");
The Company and Venture Lending have entered into a Loan Agreement dated as
of September 27, 1996, pursuant to which the Company issued to Venture Lending a
warrant to purchase shares of the Company's Common Stock;
The Company and the Series B Shareholders have entered into a Series B
Preferred Stock Purchase Agreement dated April 1, 1997 (the "Series B Purchase
Agreement"), pursuant to which the Company issued and sold to the Series B
Shareholders shares of the Company's Series B Preferred Stock (the "Series B
Shares");
The Company and the Series C Shareholders are entering into a Series C
Preferred Stock Purchase Agreement of even date herewith (the "Series C Purchase
Agreement"), pursuant to which such Series C Shareholders will acquire shares of
the Company's Series C Preferred Stock (the "Series C Shares" and collectively
with the Series A Shares and Series B Shares, the "Shares");
Each of the parties hereto desires to set forth in a single document
certain covenants of the Company and certain of the pre-emptive rights,
registration rights and other rights of the Shareholders and Venture Lending;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and for other good and valuable consideration,
the parties hereto agree as follows:
AGREEMENT
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Section 1. Termination of Prior Rights. The parties hereto expressly
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agree that this Amended and Restated Rights Agreement shall supersede the Rights
Agreement dated April 1, 1997 (the "Prior Agreement"), by and among the Company,
Venture Lending and the Shareholders named therein. Effective upon execution of
this Agreement by the Company, the Series C Shareholders and the holders of a
majority of the Registrable Securities (as defined in the Prior Agreement)
outstanding immediately prior to such execution, the Prior Agreement shall be
terminated and restated in its entirety as set forth in this Agreement. Each of
the undersigned Shareholders, to the extent such Shareholder is a party to the
Prior Agreement and holds the right of first offer set forth in Section 4.1 of
the Prior Agreement, hereby waives, on behalf of itself and all other holders of
Registrable Securities, such right of first offer with respect to the sale of
the Series C Shares pursuant to the Series C Purchase Agreement.
Section 2. Registration Rights.
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2.1 Definitions. As used in this Agreement:
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(a) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Act") and the
subsequent declaration or ordering of the effectiveness of such registration
statement.
(b) The term "Registrable Securities" means:
(i) the shares of Common Stock held by the Common Shareholders and
the shares of Common Stock issuable or issued upon conversion of the Shares (the
shares of Common Stock referred to in this paragraph (i) are referred to
hereafter as the "Stock");
(ii) any other shares of Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Stock, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which his or her
rights under this Agreement are not assigned; provided, however, that Common
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Stock or other securities shall only be treated as Registrable Securities if and
so long as they have not been (A) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (B)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale; and
(iii) solely for the purposes of Sections 2.3, 2.4, 2.5, 2.7, 2.8,
2.9, 2.10, 2.11, 2.13, 2.14, 2.15, 2.16 and 4, any shares of Common Stock of the
Company issued or issuable upon exercise of the Venture Lending Warrant (as
defined below).
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(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
(d) The term "Holder" means any holder of outstanding Registrable
Securities who, subject to the limitations set forth in Section 2.13 below,
acquired such Registrable Securities in a transaction or series of transactions
not involving any registered public offering.
(e) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the Securities and Exchange Commission ("SEC") which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(f) The term "Venture Lending Warrant" means the Warrant dated as of
October 28, 1996, issued by the Company to Venture Lending.
2.2 Requested Registration.
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(a) If the Company shall receive at any time after the earlier of (i)
March 27, 2001, or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a Rule 145 transaction pursuant to Rule 145 promulgated by the SEC under
the Act), a written request from the Holders of at least a majority of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of at least twenty percent
(20%) of the Registrable Securities then outstanding (or a lesser percent if the
anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $5,000,000), then the Company shall, within ten (10)
days of the receipt thereof, give written notice of such request to all Holders
and shall, subject to the limitations of subsection 2.2(b), effect as soon as
practicable, and in any event within 90 days of the receipt of such request, the
registration under the Act of all Registrable Securities which the Holders
request to be registered within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 4.5.
(b) If the Holders initiating the registration request hereunder
("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 2.2 and the Company
shall include such information in the written notice referred to in subsection
2.2(a). In such event, the right of any Holder to include his Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such
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underwriting shall (together with the Company as provided in subsection 2.4(e))
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company (provided such
underwriter or underwriters are reasonably acceptable to a majority in interest
of the Initiating Holders). Notwithstanding any other provision of this Section
2.2, if the underwriter advises the Company in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) The Company is obligated to effect only two (2) such registrations
pursuant to this Section 2.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2.2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than 90 days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
2.3 Company Registration. If (but without any obligation to do so) the
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Company proposes to register (including for this purpose a registration effected
by the Company for shareholders other than the Holders) any of its Common Stock
or other securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating either to the
sale of securities to participants in a Company stock option, stock purchase or
similar plan or to an SEC Rule 145 transaction), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after the mailing
of such notice by the Company in accordance with Section 4.5, the Company shall,
subject to the provisions of Section 2.8, cause to be registered under the Act
all of the Registrable Securities that each such Holder has requested to be
registered.
2.4 Obligations of the Company. Whenever required under this Section 2
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to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days.
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(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 2, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 2, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
(h) In connection with any underwritten public offering involving the
sale of Registrable Securities pursuant to Section 2.2 above, (i) reasonably
cooperate with the selling Holders, the underwriters participating in such
offering and their respective counsel in any due diligence investigation in
connection therewith reasonably requested by the selling
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Holders or the underwriters, and (ii) cooperate, to the extent reasonably
requested by the selling Holders or the managing underwriter for such offering,
in efforts to sell the Registrable Securities under such offering (including,
without limitation, participating in a reasonable number of "roadshow" meetings
with prospective investors) that would be customary for a primary offering
involving a similar aggregate amount of equity securities by the Company.
2.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
2.6 Expenses of Demand Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 2.2, including
(without limitation), all registration, filing and qualification fees, printers
and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
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required to pay for any expenses of any registration proceeding begun pursuant
to Section 2.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 2.2; provided
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further, that if at the time of such withdrawal, the Holders have learned of a
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material adverse change in the condition, business, or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to Section 2.2.
2.7 Expenses of Company Registration. The Company shall bear and pay all
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expenses incurred in connection with the registrations, filings or
qualifications of Registrable Securities with respect to the registrations
pursuant to Section 2.3 for each Holder (which right may be assigned as provided
in Section 2.13), including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
2.8 Underwriting Requirements. In connection with any offering involving
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an underwriting of shares being issued by the Company, the Company shall not be
required under Section 2.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting in customary form
of the underwriters. If the total amount of securities, including Registrable
Securities, requested by shareholders to be included in such offering exceeds
the amount of securities sold other than by the Company that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
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securities, including Registrable Securities, which the underwriters believe
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling shareholders according to the total
amount of securities entitled to be included therein owned by each selling
shareholder or in such other proportions as shall mutually be agreed to by such
selling shareholders); but in no event shall (i) the amount of securities of the
selling Holders included in the offering be reduced below twenty percent (20%)
of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company's securities, in which
case the selling shareholders may be excluded if the underwriters make the
determination described above and no other shareholder's securities are included
or (ii) notwithstanding (i) above, any shares being sold by a shareholder
exercising a demand registration right similar to that granted in Section 2.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners, shareholders and entities which are "affiliates" (as such term
is defined in Rule 144(a) under the Act) of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
shareholder," and any pro rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
2.9 Delay of Registration. No Holder shall have any right to obtain or
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seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 2.
2.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 2:
(a) The Company will indemnify and hold harmless each Holder, any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934 Act
or any state securities law; and the Company will pay as incurred to each such
Holder, underwriter or controlling person, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 2.10(a) shall not apply to
amounts paid
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in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, underwriter or controlling person.
(b) Each selling Holder will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 2.10(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 2.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided that in no event shall any
indemnity under this subsection 2.10(b) exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
2.10.
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(d) The obligations of the Company and Holders under this Section 2.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 2, and otherwise.
2.11 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
2.12 Form S-3 Registration. In case the Company shall receive from any
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Holder or Holders owning in the aggregate at least 30% of the Registrable
Securities a written request or requests that the Company effect a registration
on Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, the Company
will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale
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and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within 20 days after receipt
of such written notice from the Company; provided, however, that the Company
shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 2.12, (i) if Form S-3 is not available for
such offering by the Holders; (ii) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $500,000; (iii) if the Company shall furnish to the
Holders a certificate signed by the president of the Company stating that in the
good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than 90 days after receipt of the request of the Holder or
Holders under this Section 2.12; provided, however, that the Company shall not
utilize this right more than once in any twelve month period; (iv) if the
Company has, within the twelve (12) month period preceding the date of such
request, already effected two registrations on Form S-3 for the Holders pursuant
to this Section 2.12; or (v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to this Section 2.12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, shall be borne pro rata by the Holder or Holders
participating in the Form S-3 Registration and, if it participates, the Company
(on a pro rata basis); provided, however, that the Company shall bear any
auditing expenses that shall be incurred in the normal course of business and
shall bear all regular salary expenses of its employees. Registrations effected
pursuant to this Section 2.12 shall not be counted as demands for registration
or registrations effected pursuant to Section 2.2 or 2.3.
2.13 Assignment of Registration Rights. The rights to cause the Company
---------------------------------
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee or assignee of at least the lesser of (a) all of such
Holder's Registrable Securities, or (b) 250,000 shares of such securities
provided the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; and provided, further, that such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act. The foregoing
250,000 share limitation shall not apply, however, to transfers by a Shareholder
to any wholly-owned subsidiary or constituent shareholders or general or limited
partners (or former general or limited partners) or
-10-
entities that are "affiliates" (as such term is defined in Rule 144(a) under the
Act), or contingent shareholders or partners of such affiliates, of the
Shareholder if all such transferees or assignees agree in writing to appoint a
single representative as their attorney in fact for the purpose of receiving any
notices and exercising their rights under this Section 2.
2.14 Limitations on Subsequent Registration Rights. From and after the
---------------------------------------------
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of at least a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would grant such holder or prospective holder any or all of
the registration rights contemplated herein; provided, however, that such
-------- -------
restriction shall not apply to registration rights granted in conjunction with
the issuance of up to an aggregate of 150,000 shares of Common Stock, including
rights to acquire Common Stock or securities convertible into Common Stock,
issued or issuable in connection with capital equipment leases, technology
acquisitions and other comparable transactions approved by the Board of
Directors.
2.15 "Market Stand-Off" Agreement. Each Shareholder hereby agrees that
----------------------------
during the 180-day period following the effective date of a registration
statement of the Company filed under the Act related to its initial public
offering of securities, and during the 90-day period following the effective
date of the registration statement of the Company filed under the Act related to
an offering other than the Company's initial public offering, it shall not, to
the extent requested by the Company and such underwriter, sell or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any Common Stock of the Company held by it at any time during such period except
Common Stock included in such registration; provided, however, that in each case
-------- -------
each of the officers, directors and 5% or greater shareholders of the Company
agree to be similarly bound, and further provided that, none of such officers,
directors or principal shareholders shall be released in any way from such
restrictions unless each such Shareholder is also released from such
restrictions.
To enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of the Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.16 Termination of Registration Rights. No Holder shall be entitled to
----------------------------------
exercise any right provided for in this Section 2 (a) after five (5) years
following the consummation of the initial public offering of securities of the
Company (other than an offering relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or an SEC Rule 145 transaction) or (b) at such time following the Company's
initial public offering and for so long as such Holder holds one percent (1%) or
less of the total number of Registrable Securities outstanding as of the date of
this Agreement and may sell all of such Holder's Registrable Securities in any
one three month period pursuant to Rule 144 (or such successor rule as may be
adopted).
-11-
Section 3. Additional Rights.
-----------------
3.1 Right of First Offer. Subject to the terms and conditions specified
--------------------
in this Section 3.1, the Company hereby grants to each Shareholder, so long as
such Shareholder holds at least 250,000 Shares (the "Rightholder"), a right of
first offer with respect to future sales by the Company of its New Securities
(as hereinafter defined). For purposes of this Section 3.1, the term
Rightholder includes any limited or general partners, former limited or general
partners, shareholders or affiliates, and any limited or general partners,
former limited or general partners or shareholders of such affiliates, of the
Rightholder. The Rightholder shall be entitled to apportion the right of first
offer hereby granted among itself and its limited or general partners, former
limited or general partners, shareholders and affiliates in such proportions as
it deems appropriate.
(a) In the event the Company proposes to issue New Securities, it shall
give the Rightholder written notice in accordance with Section 4.5 (the
"Notice") of its intention stating (i) a description of the New Securities it
proposes to issue, (ii) the number of shares of New Securities it proposes to
offer, and (iii) the price per share at which, and other terms on which, it
proposes to offer such New Securities.
(b) Within 20 calendar days after receipt of the Notice, the Rightholder
may elect to purchase or obtain, at the price and on the terms specified in the
Notice, up to that portion of such New Securities which equals the proportion
that the number of shares of Common Stock issued and held, or issuable upon
conversion of the Preferred Stock then held, by such Rightholder bears to the
total number of shares of Common Stock of the Company then outstanding (assuming
full conversion of all Preferred Stock). The Company shall promptly, in writing,
inform each Rightholder which purchases all the shares available to it ("Fully-
Exercising Rightholder") of any other Rightholder's failure to do likewise.
During the ten-day period commencing after receipt of such information, each
Fully-Exercising Rightholder shall be entitled to obtain that portion of the New
Securities for which Rightholders were entitled to subscribe but which were not
subscribed for by the Rightholders or other holders of similar rights of first
offer, which is equal to the proportion that the number of shares of Common
Stock issued and held, or issuable upon conversion of Preferred Stock then held,
by such Fully-Exercising Rightholder bears to the total number of shares of
Common Stock issued and held, or issuable upon conversion of the Preferred Stock
then held, by all Fully-Exercising Rightholders who wish to purchase some of the
unsubscribed shares. The closing of the sale of New Securities by the Company to
each Rightholder upon exercise of its rights under this Section 3.1 shall take
place simultaneously with the closing of the sale of New Securities to third
parties pursuant to subsection 3.1(c).
(c) If all New Securities which Investors are entitled to obtain
pursuant to subsection 3.1(b) are not elected to be obtained as provided in
subsection 3.1(b) hereof, the Company may, during the 90-day period following
the expiration of the period provided in subsection 3.1(b) hereof, offer the
remaining unsubscribed portion of such New Securities to any person or persons
at a price not less than, and upon terms no more favorable to the offeree than
those specified in the Notice. If the Company does not enter into an agreement
for the sale of the New Securities within such period, or if such agreement is
not consummated
-12-
within 45 days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such New Securities shall not be offered unless first
reoffered to the Rightholders in accordance herewith.
(d) "New Securities" shall mean any shares of, or securities convertible
into or exercisable for any shares of, any class of the Company's capital stock;
provided that "New Securities" does not include: (A) the Shares or shares of the
--------
Company's Common Stock issuable upon conversion thereof; (B) securities issued
pursuant to the acquisition of another business entity by the Company by merger,
purchase of substantially all of the assets of such entity, or other
reorganization whereby the Company owns not less than a majority of the voting
power of such entity; (C) shares, or options to purchase shares, of the
Company's Common Stock and the shares of Common Stock issuable upon exercise of
such options, issued pursuant to any arrangement approved by the Board of
Directors to employees, officers and directors of, or consultants, advisors or
other persons performing services for, the Company; (D) shares of the Company's
Common Stock or Preferred Stock of any series issued in connection with any
stock split, stock dividend or recapitalization of the Company; (E) Common Stock
issued upon exercise of warrants, options or convertible securities if the
issuance of such warrants, options or convertible securities was a result of the
exercise of the right of first offer granted under this Section 3.1 or was
subject to the right of first offer granted under this Section 3.1; (F) capital
stock or warrants or options for the purchase of shares of capital stock issued
by the Company to a lender in connection with any bona fide arm's-length loan or
lease financing transaction that is unanimously approved by the Board of
Directors of the Company; (G) securities as to which the holders of at least a
majority of the outstanding shares of Registrable Securities consent in writing
that the right of first offer shall not apply; and (H) securities sold to the
public in an offering pursuant to a registration statement filed with the
Securities and Exchange Commission under the Act.
(e) The right of first offer granted under this Section 3.1 shall not
apply to and shall expire upon the consummation of the Company's sale of its
Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Act (or a successor form under the
Act).
(f) The right of first offer granted under this section may be assigned
by the Rightholder to a transferee or assignee of the Rightholder's shares of
the Company's stock acquiring the lesser of (i) at least 250,000 of the
Rightholder's shares of the Company's Common Stock, or 100,000 of the
Rightholder's shares of the Company's Common Stock if such transferee or
assignee is an entity that is an "affiliate" (as such term is defined in Rule
144(a) under the Act) of the Rightholder, (treating all shares of Preferred
Stock for this purpose as though converted into Common Stock) (equitably
adjusted for any stock splits, subdivisions, stock dividends, changes,
combinations or the like) or (ii) all of the Rightholder's remaining shares of
the Company's stock. In the event that the Rightholder shall assign its right of
first offer pursuant to this Section 3.1 in connection with the transfer of less
than all of its shares of the Company's stock, the Rightholder shall also retain
its right of first offer.
3.2 Delivery of Financial Statements. So long as any Series A
--------------------------------
Shareholder, Series B Shareholder or Series C Shareholder
-13-
(including, for the purposes of this Section 3.2, limited or general partners,
former limited or general partners, shareholders or affiliates, and limited or
general partners, former limited or general partners and shareholders of such
affiliates, of such Shareholder) holds at least 250,000 shares of Stock (or
Common Stock issuable upon conversion thereof), the Company shall deliver to
each such Shareholder:
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company as of the end of such year, and a
schedule as to the sources and applications of funds for such year, such year-
end financial reports to be in reasonable detail, prepared in accordance with
generally accepted accounting principles ("GAAP"), and audited and certified by
independent public accountants of nationally recognized standing selected by the
Company, if requested to be so audited by any Series A Shareholder, Series B
Shareholder or Series C Shareholder who holds at least 250,000 shares of Stock;
(b) within forty-five (45) days of the end of each fiscal quarter, an
unaudited income statement and schedule as to the sources and application of
funds and balance sheet for and as of the end of such quarter, in reasonable
detail;
(c) within thirty (30) days of the end of each month, an unaudited
income statement and schedule as to the sources and application of funds and
balance sheet and comparison to budget for and as of the end of such month, in
reasonable detail;
(c) as soon as practicable, but in any event thirty (30) days prior to
the beginning of each fiscal year, a budget of sales and expenses for the next
fiscal year;
(d) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the Shareholder or
any assignee thereof may from time to time request, provided, however, that the
Company shall not be obligated to provide information which it deems in good
faith to be proprietary.
3.3 Inspection. The Company shall permit each Series A Shareholder,
----------
Series B Shareholder or Series C Shareholder, at such Shareholder's expense, to
visit and inspect the Company's properties, to examine its books of account and
records and to discuss the Company's affairs, finances and accounts with its
officers, all at such reasonable times as may be requested by such Shareholder;
provided, however, that the Company shall not be obligated pursuant to this
Section 3.3 to provide access to any information which it reasonably considers
to be a trade secret or similar confidential information.
3.4 Approval of Budget by Board. The Company shall submit an annual
---------------------------
budget of sales and expenses for a given fiscal year to the Board of Directors
of the Company at least thirty (30) days prior to the beginning of each such
fiscal year, and such budgets shall be subject to the approval of the Board of
Directors prior to thirty (30) days following the start of such fiscal year to
which such budget relates.
-14-
3.5 Approval of Titles by Board. Titles of management of the Company
---------------------------
shall be subject to the unanimous approval of the Board of Directors prior to
their implementation.
3.6 Non-Employee Director Expenses. The Company will pay the reasonable
------------------------------
expenses incurred by non-employee directors in connection with participation in
the meetings of the Board of Directors of the Company, including, but not
limited to, reasonable transportation and accommodation expenses.
3.7 Employee Stock Purchase and Option Agreements. The Company agrees
---------------------------------------------
that it will utilize, in connection with any stock purchase or stock option
agreements entered into with officers, directors, employees and consultants
other than Xxxxx Xxxxx, Xxxxxx Xxxxxx and Xxxxx Xxxxxxxxx, vesting provisions
such that 1/4th of the original amount of stock issued pursuant to such stock
purchase or stock option agreement will vest on the date twelve (12) months
following the vesting commencement date, with 1/48th of the original number of
shares of stock subject to such agreement vesting on a monthly basis thereafter,
except as otherwise specifically approved by the Board of Directors. In
addition, each such stock purchase or stock option agreement shall contain a
"market stand-off" provision, pursuant to which the recipient of stock pursuant
to such agreement will agree not to sell or otherwise transfer any securities of
the Company during a period of up to 180 days following the effective date of
any registration statement pursuant to which the Company registers shares of its
Common Stock for sale to the public, provided that a majority of the Company's
officers and a majority of the Company's directors are similarly bound. The
stock purchase or stock option agreements entered into by and between the
Company and each of R. Xxxxx Xxxxx, Xxxxxx Xxxxxx and Xxxxx X. Xxxxxxxxx may not
be amended without the prior approval of Xxxxx Xxxxx and Xxxxx Xxxxxxx, if
members of the Board of Directors at such time, or other members of the Board of
Directors designated by the Series A Shareholders, Series B Shareholders and
Series C Shareholders, as the case may be.
3.8 Restriction on Dividends. The Company will not adopt a profit
------------------------
sharing plan and make any cash payments thereunder (other than performance
bonuses for management or employees approved by the Board of Directors) in any
year unless the Board of Directors has also declared and paid cash dividends in
such year at the preference rate set forth in the Company's Articles of
Incorporation in effect as of the date hereof. There shall be constituted a
compensation committee of the Board of Directors of the Company, which shall
include Xxxxx Xxxxx and Xxxxx Xxxxxxx, if members of the Board of Directors, or
other members of the Board of Directors designated by the Series A Shareholders,
Series B Shareholders and Series C Shareholders, as the case may be, and the
salaries and bonuses payable to executive officers of the Company, and any stock
options or warrants or similar rights to purchase shares of capital stock of the
Company, shall be subject to approval by such compensation committee.
3.9 Termination of Information and Inspection Covenants. The covenants
---------------------------------------------------
set forth in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 shall terminate
as to the Holders and be of no further force or effect immediately upon the
consummation of the Company's sale of its
-15-
Common Stock in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1 under the Act (or a successor form under the
Act).
Section 4. Miscellaneous.
-------------
4.1 Assignment. Subject to the provisions of Section 2.13 hereof, the
----------
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
4.2 Third Parties. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
4.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California in the United States of America.
4.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.5 Notices.
-------
(a) All notices, requests, demands and other communications under this
Agreement or in connection herewith shall be given to or made upon the
respective parties as follows:
To the Company: Active Software, Inc.
0000-0 Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: President
To a Shareholder: At such Shareholder's address as set forth on Exhibit A
attached hereto.
(b) All notices, requests, demands and other communications given or
made in accordance with the provisions of this Agreement shall be in writing,
and shall be sent by airmail, return receipt requested, reputable overnight
courier or by telex or telecopy (facsimile) with confirmation of receipt, and
shall be deemed to be given or made when receipt is so confirmed.
-16-
(c) Any party may, by written notice to the other, alter its address or
respondent, and such notice shall be considered to have been given ten (10) days
after the airmailing, telexing, telecopying or delivery thereof.
4.6 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
4.7 Amendment and Waiver. Any provision of this Agreement may be amended
--------------------
with the written consent of the Company and the Holders of at least a majority
of the outstanding shares of Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities, and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holders of
Registrable Securities, or agree to accept alternatives to such performance,
without obtaining the consent of any Holder of Registrable Securities. In the
event that an underwriting agreement is entered into between the Company and any
Holder, and such underwriting agreement contains terms differing from this
Agreement, as to any such Holder the terms of such underwriting agreement shall
govern.
4.8 Effect of Amendment or Waiver. Investor and its successors and
-----------------------------
assigns acknowledge that by the operation of Section 4.7 hereof the holders of a
majority of the outstanding Registrable Securities, acting in conjunction with
the Company, will have the right and power to diminish or eliminate all rights
pursuant to this Agreement.
4.9 Rights of Holders. Each Holder of Registrable Securities shall have
-----------------
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
4.10 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, or by law or otherwise afforded to any holder, shall be cumulative
and not alternative.
-17-
IN WITNESS WHEREOF, the parties have executed this Rights Agreement as of
the date first above written.
COMPANY:
ACTIVE SOFTWARE, INC.
By: /R. XXXXX XXXXX/
----------------------------------
Title: CEO
-------------------------
Address: 0000-0 Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
SHAREHOLDERS:
/R. XXXXX XXXXX/ /XXXXX X. XXXXXXXXX/
----------------------------------- --------------------------------
R. Xxxxx Xxxxx Xxxxx X. Xxxxxxxxx
Address: c/o Active Software, Inc. Address: 663 Xxxxxxxxx Dr.
0000-0 Xxxxx Xxxx., Xxx. 000 X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000 Xxxxxxx Xxxxxxx, XX 00000
/XXXXXX XXXXXX/ MACDONALD FAMILY TRUST,
----------------------------------- DATED 10/12/87, XXXXXXX AND
Xxxxxx Xxxxxx XXXXX XXXXXXXXX, TRUSTEES
Address: c/o Active Software, Inc. /XXXXXXX XXXXXXXXX/
0000-0 Xxxxx Xxxx., Xxx. 000 --------------------------------
Xxxxx Xxxxx, XX 00000 Xxxxxxx XxxXxxxxx, Trustee
Address: 00000 Xxxxxxxxxx
Xxx Xxxxx Xxxxx, XX 00000
CHARTER GROWTH CAPITAL SPRING CREEK VENTURES I, L.P.
By: Spring Creek Partners,
By: /XXXX X. XXXXXXXXX/ its general partner
--------------------------------
Title: GENERAL PARTNER By: /SPRING CREEK PARTNERS/
----------------------------- -------------------------------
Title: General Partner
----------------------------
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000 Address: 000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
CHARTER GROWTH CAPITAL BAYVIEW INVESTORS, LTD.
CO-INVESTMENT FUND
By: /BAYVIEW INVESTORS, LTD./
By: /XXXX X. XXXXXXXXX/ --------------------------------
------------------------------- Title: Chief Financial Officer
Title: GENERAL PARTNER -----------------------------
---------------------------- Address: Xxxxxxxxx, Xxxxxxxx &
Company
Address: 000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxx, XX 00000
CGC INVESTORS SIERRA VENTURES V, L.P.
By: SV Associates V, L.P.,
By: /XXXX X. XXXXXXXXX/ its general partner
------------------------------
Title: GENERAL PARTNER
--------------------------- By: /SV Associates V, L.P.'
-----------------------------
General Partner
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000 Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
ENTERPRISE PARTNERS III, L.P. OCEAN PARK VENTURES, L.P.
By: Enterprise Management Partners
III, L.P., its general partner By: /Xxx Xxxxx
-----------------------------
General Partner
/ENTERPRISE MANAGEMENT Address: 00000 Xxx Xxxxxxx Xxxx.
By: PARTNERS III/ Suite 330
------------------------------- Xxx Xxxxxxx, XX 00000
General Partner
Address: 00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
ENTERPRISE PARTNERS III XXXXXX BROTHERS HOLDINGS INC.
ASSOCIATES, L.P.
By: Enterprise Management Partners By:/XXXXXX BROTHERS HOLDINGS
III, L.P., its general partner INC./
--------------------------------
Title: Vice President
--------------------------
By:/ENTERPRISE MANAGEMENT
PARTNERS III, L.P./
------------------------------- Address: 3 World Financial Center
General Partner Xxx Xxxx, XX 00000
Address: 00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000 LB I GROUP INC.
Xxx Xxxxxxx, XX 00000
By:/LBI GROUP INC./
-----------------------------
Title: Senior Vice President
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXXX XXXXXXX XXXXXXXX KPCB VII FOUNDERS FUND, L.P.
& XXXXX VII, L.P.
By: KPCB VII Associates,
By: KPCB VII Associates, its general partner
its general partner
By: /KPCB VII ASSOCIATES/
By: /KPCB VII ASSOCIATES/ ---------------------
--------------------- General Partner
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Address: 0000 Xxxx Xxxx Xxxx Xxxxx Xxxx, XX 00000
Xxxxx Xxxx, XX 00000
KPCB INFORMATION SCIENCES KPCB JAVA FUND, L.P.
ZAIBATSU FUND II, L.P.
By: /KPCB VII Associates/
By: KPCB VII Associates, its general partner
its general partner
By: /KPCB VII ASSOCIATES/
By: /KPCB VII ASSOCIATES/ ---------------------
--------------------- General Partner
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Address: 0000 Xxxx Xxxx Xxxx Xxxxx Xxxx, XX 00000
Xxxxx Xxxx, XX 00000
NIPPON INVESTMENT & FINANCE CO.
LTD.
By: /NIPPON INVESTMENT & FINANCE
CO. LTD./
---------
Title: Director
--------------------------
Address: NIF Ventures USA, Inc.
First Market Tower
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
INVESTMENT ENTERPRISE INVESTMENT ENTERPRISE
PARTNERSHIP "NIF 8" PARTNERSHIP "NIF 9"
By:/INVESTMENT ENTERPRISE By:/INVESTMENT ENTERPRISE
PARTNERSHIP "NIF 8" PARTNERSHIP "NIF 9"
------------------------- -------------------------
Title: Director Title: Director
------------------- -------------------
Address: NIF Ventures USA, Inc. Address: NIF Ventures USA, Inc.
First Market Tower First Xxxxxx Xxxxx
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
INVESTMENT ENTERPRISE INVESTMENT ENTERPRISE
PARTNERSHIP "NIF 00-X" XXXXXXXXXXX "XXX 00-X"
------------------------- -----------------------
By:/INVESTMENT ENTERPRISE
PARTNERSHIP "NIF 10-A" By:/INVESTMENT ENTERPRISE
------------------------- PARTNERSHIP "NIF 10-B"
Title: Director --------------------------
------------------ Title: Director
Address: NIF Ventures USA, Inc. -------------------
First Market Tower Address: NIF Ventures USA, Inc.
000 Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxx
Xxxxx 0000 000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
VLG INVESTMENTS 1996
By:/XXXX X. XXXXXXXXX/ /XXXX X. XXXXXXXX/
--------------------------- ----------------------------
Xxxx X. Xxxxxxxx
Title: Partner
------------------------
Address: c/o Venture Law Group Address: 527 Tennyson
0000 Xxxx Xxxx Xxxx Xxxx Xxxx, XX 00000
Xxxxx Xxxx, XX 00000
VLG INVESTMENTS 1997 CAMBRIDGE TECHNOLOGY CAPITAL
FUND I L.P.
By:/XXXX X. XXXXXXXXX/ By: Cambridge Technology GPLP, L.P.
---------------------------
Title: Partner By: Cambridge Technology CGP, Inc.
-----------------------
By:/CAMBRIDGE
Address: c/o Venture Law Group TECHNOLOGY GLP, L.P./
0000 Xxxx Xxxx Xxxx ---------------------
Xxxxx Xxxx, XX 00000
Title: Managing Partner
----------------------
KPMG PEAT MARWICK LLP ASPECT TELECOMMUNICATIONS
CORPORATION
By:/XXXXXX X. XXXXXX/
--------------------------- By:/ASPECT
Title: Chief Financial Officer TELECOMMUNICATIONS
----------------------- CORPORATION/
----------------------------------
Title: Vice President
----------------------------
EXHIBIT A
SHAREHOLDERS
SERIES A SHAREHOLDERS:
----------------------
Enterprise Partners III, X.X. Xxxxxxx Xxxxxxx Xxxxxxxx
12011 San Xxxxxxx Blvd. & Xxxxx VII, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Enterprise Partners III Associates, L.P. KPCB VII Founders
00000 Xxx Xxxxxxx Xxxx. Fund, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Ocean Park Ventures, L.P. KPCB Information Sciences Zaibatsu
00000 Xxx Xxxxxxx Xxxx. Fund II, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Sierra Ventures V, L.P. VLG Investments 1996
0000 Xxxx Xxxx Xxxx c/o Venture Law Group
Xxxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxxx
000 Xxxxxxxx
Xxxx Xxxx, XX 00000
COMMON SHAREHOLDERS:
--------------------
R. Xxxxx Xxxxx Xxxxx X. Xxxxxxxxx
c/o Active Software, Inc. 663 Xxxxxxxxx Dr.
0000-0 Xxxxx Xxxxxxxxx X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000 Xxxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx Enterprise Partners III, L.P.
c/o Active Software, Inc. 00000 Xxx Xxxxxxx Xxxx.
0000-0 Xxxxx Xxxxxxxxx Xxxxx 000
Xxxxx Xxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Enterprise Partners III Associates, L.P.
00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
SERIES B SHAREHOLDERS:
----------------------
Xxxxxx Brothers Holdings Inc. Bayview Investors, Ltd.
3 World Financial Center Xxxxxxxxx, Xxxxxxxx & Company
Xxx Xxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Enterprise Partners III, X.X. Xxxxxxx Xxxxxxx Xxxxxxxx
12011 San Xxxxxxx Blvd. & Xxxxx VII, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Enterprise Partners III Associates, L.P. KPCB Java Fund, L.P.
00000 Xxx Xxxxxxx Xxxx. 0000 Xxxx Xxxx Xxxx
Xxxxx 000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxx, XX 00000
Ocean Park Ventures, L.P. KPCB Information Sciences Zaibatsu
Suite 330 Fund II, L.P.
Xxx Xxxxxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Sierra Ventures V, X.X. XxxXxxxxx Family Trust, dated
0000 Xxxx Xxxx Xxxx 10/12/87, Xxxxxxx and Xxxxx
Xxxxx Xxxx, XX 00000 MacDonald, trustees
c/o Active Software, Inc.
0000-0 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxx VLG Investments 1997
527 Tennyson c/o Venture Law Group
Xxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SERIES C SHAREHOLDERS:
----------------------
LB I Group Inc. Charter Growth Capital
3 World Financial Center 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxx 0000
Xxxx Xxxx, XX 00000
Charter Growth Capital Co-Investment Fund CGC Investors
000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Spring Creek Ventures I, L.P. Nippon Investment and Finance Co. Ltd.
000 Xxxxxx Xxxxx Xxxx c/o NIF Ventures USA, Inc.
Xxxxxxxx, XX 00000 First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Investment Enterprise Partnership "NIF 8" Investment Enterprise Xxxxxxxxxxx "XXX 0"
x/x XXX Ventures USA, Inc. x/x XXX Ventures USA, Inc.
First Market Tower First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Investment Enterprise Partnership "NIF 10-A" Investment Enterprise Partnership "NIF 00-X"
x/x XXX Ventures USA, Inc. x/x XXX Ventures USA, Inc.
First Market Tower First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Enterprise Partners III, L.P. Enterprise Partners III Associates, L.P.
12011 San Xxxxxxx Blvd. 00000 Xxx Xxxxxxx Xxxx.
Xxxxx 000 Xxxxx 000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Ocean Park Ventures, L.P. KPCB Java Fund, L.P.
00000 Xxx Xxxxxxx Xxxx. 0000 Xxxx Xxxx Xxxx
Xxxxx 000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxx, XX 00000
AMENDMENT TO
AMENDED AND RESTATED
RIGHTS AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT (the "Amendment"),
dated as of October 29, 1998, is entered into by and among Active Software,
Inc., a California corporation (the "Company"), the persons and entities listed
on Exhibit A attached hereto (each a "Shareholder" and collectively the
---------
"Shareholders") and Intel Corporation ("Intel"), with respect to the Amended and
Restated Rights Agreement, dated as of March 27, 1998, by and among the Company
and the other parties thereto (the "Agreement").
RECITALS
--------
A. The Company and the holders of the Company's Series C Preferred Stock
have amended that certain Series C Preferred Stock Purchase Agreement, dated as
of March 27, 1998, as amended on July 27, 1998 (the "Series C Purchase
Agreement"), to provide for the sale and issuance of 490,196 additional shares
of Series C Preferred Stock (the "Additional Series C Shares") to Intel.
B. The Company has proposed to issue a Warrant (the "Intel Warrant") to
Intel to acquire up to 24,509 shares of the Company's Common Stock (the shares
acquirable under the Intel Warrant being referred to herein as the "Intel
Warrant Shares").
C. Under the terms of the Series C Purchase Agreement and the Intel
Warrant, the Company must grant to Intel with respect to the Additional Series C
Shares and the Intel Warrant Shares the same registration rights, right of first
offer and other rights granted to the Shareholders pursuant to the Agreement.
D. Under Sections 2 and 5.7 of the Agreement, the Agreement may be amended
only with the written consent of the holders of at least a majority of the
voting power of the Registrable Securities (as defined in the Agreement).
E. In order to grant Intel the registration rights required under the
Intel Warrant, the parties hereto desire to enter into this Amendment in
accordance with Sections 2.14 and 4.7 of the Agreement.
IT IS THEREFORE AGREED THAT:
1. Definitions. All capitalized terms used herein without definition
-----------
shall have the meanings ascribed to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
----------
(a) Section 2.1(b) is hereby amended to read in its entirety as
follows:
"(b) The term "Registrable Securities" means:
(i) the shares of Common Stock held by the
Common Shareholders, the shares of Common Stock issuable or issued upon
conversion of the Shares, the shares of Common Stock issuable or issued
upon conversion of the Additional Series C Shares and the Intel Warrant
Shares (the shares of Common Stock referred to in this paragraph (i)
are referred to hereafter as the "Stock");
(ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in
replacement of, the Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his
or her rights under this Agreement are not assigned; provided, however,
-------- -------
that Common Stock or other securities shall only be treated as
Registrable Securities if and so long as they have not been (A) sold to
or through a broker or dealer or underwriter in a public distribution
or a public securities transaction, or (B) sold in a transaction exempt
from the registration and prospectus delivery requirements of the Act
under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale; and
(iii) solely for the purposes of Sections 2.3,
2.4, 2.5, 2.7, 2.8, 2.9, 2.10, 2.11, 2.13, 2.14, 2.15, 2.16 and 4, any
shares of Common Stock of the Company issued or issuable upon exercise
of the Venture Lending Warrant (as defined below)."
(b) Section 2.1 is hereby amended by adding the definitions of "Intel
Warrant" and "Intel Warrant Shares" as follows:
"(g) The term "Intel Warrant" means the Warrant dated as of
October ___, 1998, issued by the Company to Intel Corporation for the
purchase of up to 24,509 shares of Common Stock. The term "Intel
Warrant Shares" means the shares of Common Stock issuable upon exercise
of the Intel Warrant."
3. Waiver of Right of First Offer. Each of the Shareholders executing
------------------------------
this Amendment hereby waives, on behalf of itself and all other Shareholders,
the right of first offer and the notice provisions with respect to such right of
first offer set forth in Section 3.1 of the Agreement with respect to the
Additional Series C Shares, the Intel Warrant and the Intel Warrant Shares.
-2-
4. Upon the effectiveness of this Amendment, as provided in Section 5
hereof, Intel agrees to be bound by all of the terms and conditions of the
Agreement applicable to Shareholders, to the extent provided herein.
5. Effectiveness. This Amendment shall become effective upon the
-------------
execution by (a) the Company and (b) the holders of a majority of the
outstanding Registrable Securities.
6. Effective Amendment. Except as amended as set forth above, the
-------------------
Agreement shall continue in full force and effect.
7. Counterparts. This Amendment may be signed in one or more
------------
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed one and the same document.
[signature pages follow]
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: /X.X. XXXX/
-------------------------------
Title: CFO
----------------------------
SHAREHOLDERS:
----------------------------------
(print name of Shareholder)
----------------------------------
(signature)
----------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:______________________________
Title:___________________________
SHAREHOLDERS:
----------------------------------
(print name of Shareholder)
----------------------------------
(signature)
----------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: /XXXXXX XXXXXXX/
-------------------------------
Title: VICE PRESIDENT AND
----------------------------
TREASURER
---------
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:______________________________
Title:___________________________
SHAREHOLDERS:
ASPECT TELECOMMUNICATIONS CORPORATION
----------------------------------------
(print name of Shareholder)
/ASPECT TELECOMMUNICATIONS CORPORATION/
----------------------------------------
(signature)
VICE PRESIDENT
----------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:______________________________
Title:___________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:______________________________
Title:___________________________
SHAREHOLDERS:
XXXXXX XXXXXX
---------------------------------
(print name of Shareholder)
/XXXXXX XXXXXX/
---------------------------------
(signature)
CTO & FOUNDER
---------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:______________________________
Title:___________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:______________________________
Title:___________________________
SHAREHOLDERS:
CAMBRIDGE TECHNOLOGY CAPITAL FUND I, L.P.
-----------------------------------------
(print name of Shareholder)
/CAMBRIDGE TECHNOLOGY CAPITAL FUND I, L.P./
-------------------------------------------
(signature)
-------------------------------------------
(title, if Shareholder is an entity)
-------------------------------------------
INTEL CORPORATION
By:______________________________
Title:___________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:______________________________
Title:___________________________
SHAREHOLDERS:
CGC INVESTORS
------------------------------------
(print name of Shareholder)
/XXXX X. XXXXXXXXX/
------------------------------------
(signature)
GENERAL PARTNER
------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:______________________________
Title:___________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
CHARTER GROWTH CAPITAL
------------------------------------
(print name of Shareholder)
/XXXX X. XXXXXXXXX/
------------------------------------
(signature)
PARTNER
------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
CHARTER GROWTH CAPITAL CO-INVESTMENT FUND
-----------------------------------------
(print name of Shareholder)
/XXXX X. XXXXXXXXX/
-----------------------------------------
(signature)
GENERAL PARTNER
-----------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
Enterprise Partners III, L.P.
------------------------------------
(print name of Shareholder)
/XXXXXX SENJEI/
------------------------------------
(signature)
GENERAL PARTNER
------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
Enterprise Partners III Associates, L.P.
----------------------------------------
(print name of Shareholder)
/XXXXXX SENJEI/
----------------------------------------
(signature)
GENERAL PARTNER
----------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
R. XXXXX XXXXX
------------------------------------
(print name of Shareholder)
/R. XXXXX XXXXX/
------------------------------------
(signature)
CEO
------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By:_______________________________
Title:____________________________
SHAREHOLDERS:
KPCB Information Sciences Zaibatsu Fund, L.P.
-----------------------------------------------
(print name of Shareholder)
/KPCB INFORMATION SCIENCES ZAIBATSU FUND, L.P./
-----------------------------------------------
(signature)
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By:_______________________________
Title:____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title: ____________________________
SHAREHOLDERS:
KPCB Java Fund, L.P.
---------------------------------------------
(print name of Shareholder)
/KPCB JAVA FUND/
---------------------------------------------
(signature)
---------------------------------------------
(title, if Shareholder is an entity)
---------------------------------------------
INTEL CORPORATION
By: _______________________________
Title: ____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title: ____________________________
SHAREHOLDERS:
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VII
---------------------------------------------
(print name of Shareholder)
/XXXXXXX XXXXXXX XXXXXXXX & XXXXX VII/
---------------------------------------------
(signature)
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
KPMG PEAT MARWICK LLP
---------------------------------------------
(print name of Shareholder)
/KPMG PEAT MARWICK LLP/
---------------------------------------------
(signature)
CHIEF FINANCIAL OFFICER
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
LBI GROUP INC.
---------------------------------------------
(print name of Shareholder)
/LBI GROUP INC./
---------------------------------------------
(signature)
SENIOR VICE PRESIDENT
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Xxxxxx Brothers Holdings Inc.
---------------------------------------------
(print name of Shareholder)
/Xxxxxx Brothers Holdings Inc./
---------------------------------------------
(signature)
Vice President
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
MacDonald Family Trust
---------------------------------------------
(print name of Shareholder)
/MacDonald Family Trust/
---------------------------------------------
(signature)
Trustee for MacDonald Family Trust
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Nippon Investment and Finance Co. Ltd.
---------------------------------------------
(print name of Shareholder)
/Nippon Investment and Finance Co. Ltd./
---------------------------------------------
(signature)
Director
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Investment Enterprise Partnership "NIF 8"
---------------------------------------------
(print name of Shareholder)
/Investment Enterprise Partnership "NIF 8"/
---------------------------------------------
(signature)
Director
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Investment Enterprise Partnership "NIF 9"
---------------------------------------------
(print name of Shareholder)
/Investment Enterprise Partnership "NIF 9"
---------------------------------------------
(signature)
Director
---------------------------------------------
(title, if Shareholder is an entity)
---------------------------------------------
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Investment Enterprise Partnership "NIF 10-A"
----------------------------------------------
(print name of Shareholder)
/Investment Enterprise Partnership "NIF 10-A"/
----------------------------------------------
(signature)
Director
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Investment Enterprise Partnership "NIF 10-B"
---------------------------------------------
(print name of Shareholder)
/Investment Enterprise Partnership "NIF
10-B"/
---------------------------------------------
(signature)
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Ocean Park Ventures L.P.
---------------------------------------------
(print name of Shareholder)
/Ocean Park Ventures L.P./
---------------------------------------------
(signature)
GP
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Sierra Ventures V, L.P.
---------------------------------------------
(print name of Shareholder)
/Sierra Ventures V, L.P./
---------------------------------------------
(signature)
GP
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COMPANY:
ACTIVE SOFTWARE, INC.
By: _______________________________
Title:_____________________________
SHAREHOLDERS:
Spring Creek Ventures I, LP
---------------------------------------------
(print name of Shareholder)
/SPRING CREEK VENTURES I, LP/
---------------------------------------------
(signature)
---------------------------------------------
(title, if Shareholder is an entity)
INTEL CORPORATION
By: _______________________________
Title:_____________________________
EXHIBIT A
SHAREHOLDERS
SERIES A SHAREHOLDERS:
----------------------
Enterprise Partners III, X.X. Xxxxxxx Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000 & Xxxxx VII, L.P.
Xxxxxxx Xxxxx, XX 00000-0000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Enterprise Partners III Associates, L.P. KPCB VII Founders
0000 Xxxxx Xxxxxx, Xxxxx 0000 Fund, L.P.
Xxxxxxx Xxxxx, XX 00000-0000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Ocean Park Ventures, L.P. KPCB Information Sciences
00000 Xxx Xxxxxxx Xxxx. Zaibatsu Fund II, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Sierra Ventures V, L.P. VLG Investments 1996
0000 Xxxx Xxxx Xxxx c/o Venture Law Group
Xxxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxxxxx
000 Xxxxxxxx
Xxxx Xxxx, XX 00000
COMMON SHAREHOLDERS:
--------------------
R. Xxxxx Xxxxx Xxxxx X. Xxxxxxxxx
c/o Active Software, Inc. 663 Xxxxxxxxx Dr.
0000-0 Xxxxx Xxxxxxxxx X.X. Xxx 0000
Xxxxx Xxxxx, XX 00000 Xxxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx Enterprise Partners III, L.P.
c/o Active Software, Inc. 0000 Xxxxx Xxxxxx, Xxxxx 0000
0000-0 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxx, XX 00000-0000
Xxxxx Xxxxx, XX 00000
Enterprise Partners III Associates, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
SERIES B SHAREHOLDERS:
----------------------
Xxxxxx Brothers Holdings Inc. Bayview Investors, Ltd.
3 World Financial Center Xxxxxxxxx, Xxxxxxxx & Company
Xxx Xxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Enterprise Partners III, X.X. Xxxxxxx Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000 & Xxxxx VII, L.P.
Xxxxxxx Xxxxx, XX 00000-0000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Enterprise Partners III Associates, L.P. KPCB Java Fund, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000 0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000-0000 Xxxxx Xxxx, XX 00000
Ocean Park Ventures, L.P. KPCB Information Sciences
00000 Xxx Xxxxxxx Xxxx. Zaibatsu Fund II, L.P.
Suite 330 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Sierra Ventures V, X.X. XxxXxxxxx Family Trust, dated
0000 Xxxx Xxxx Xxxx 10/12/87, Xxxxxxx and Xxxxx
Xxxxx Xxxx, XX 00000 MacDonald, trustees
c/o Active Software, Inc.
0000-0 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxxx VLG Investments 1997
527 Tennyson c/o Venture Law Group
Xxxx Xxxx, XX 00000 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
SERIES C SHAREHOLDERS:
----------------------
LB I Group Inc. Charter Growth Capital
3 World Financial Center 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxx 0000
Xxxx Xxxx, XX 00000
Charter Growth Capital Co-Investment Fund CGC Investors
000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Spring Creek Ventures I, L.P. Nippon Investment and Finance Co. Ltd.
000 Xxxxxx Xxxxx Xxxx c/o NIF Ventures USA, Inc.
Xxxxxxxx, XX 00000 First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Investment Enterprise Partnership "NIF 8" Investment Enterprise Xxxxxxxxxxx "XXX 0"
x/x XXX Ventures USA, Inc. x/x XXX Ventures USA, Inc.
First Market Tower First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Investment Enterprise Partnership "NIF 10-A" Investment Enterprise Partnership "NIF 00-X"
x/x XXX Ventures USA, Inc. x/x XXX Ventures USA, Inc.
First Market Tower First Market Tower
000 Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Enterprise Partners III, L.P. Enterprise Partners III Associates, L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000 0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000-0000 Xxxxxxx Xxxxx, XX 00000-0000
Ocean Park Ventures, L.P. KPCB Java Fund, L.P.
00000 Xxx Xxxxxxx Xxxx. 0000 Xxxx Xxxx Xxxx
Xxxxx 000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxx Xxxxxxxx KPCB Information Sciences Zaibatsu Fund II,
& Xxxxx VII, L.P. L.P.
0000 Xxxx Xxxx Xxxx 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Sierra Ventures V, X.X. XxxXxxxxx Family Trust, dated 10/12/87,
0000 Xxxx Xxxx Xxxx Xxxxxxx and Xxxxx XxxXxxxxx, trustees
Xxxxxxxx 0, Xxxxx 000 00000 Xxxxxxxxxx
Xxxxx Xxxx, XX 00000 Xxx Xxxxx Xxxxx, XX 00000
KPMG Peat Marwick LLP Aspect Telecommunications Corporation
0 Xxxxxxxx Xxxxx Xxxx 0000 Xxx Xxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Cambridge Technology Capital Fund I L.P.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
