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EXHIBIT 4.03
SERIES E RIGHTS AGREEMENT
This Series E Rights Agreement (this "Agreement") is made and entered into
as of June 30, 1999 by and among BroadBase Information Systems, Inc., a
California corporation (the "Company"), and the persons and entities listed on
Exhibit A attached hereto (each hereinafter individually referred to as an
"Investor" and collectively referred to as the "Investors").
R E C I T A L S
A. The Investors have agreed to purchase from the Company, and the
Company has agreed to sell to such Investors, shares of the Company's Series E
Preferred Stock ("Series E Stock") on the terms and conditions set forth in that
certain Series E Preferred Stock Purchase Agreement, dated of even date herewith
by and among the Company and such Investors (the "Series E Agreement").
B. The Series E Agreement provides that the Investors shall be
granted board observer rights and certain of the Investors shall be granted a
right of first offer in connection with the Company's initial public offering,
all as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereby agree as follows:
1. RIGHT OF FIRST OFFER.
1.1 Certain Definitions. For purposes of this Agreement, the
following definitions shall apply:
"Aggregate Proportionate Share" means seventy percent (70%) of
the quotient that results from dividing (i) the sum of the total number of
Series E Equivalent Shares that all Rights Holders hold on the Record Date (as
defined herein) by (ii) a number of shares of Common Stock of the Company equal
to the sum of (A) the total number of shares of Common Stock of the Company
outstanding on the Record Date, plus (B) the total number of shares of Common
Stock of the Company into which all then outstanding shares of the Preferred
Stock of the Company are then convertible, plus (C) the total number of shares
of capital stock of the Company (on an as-converted to Common Stock basis)
issuable upon exercise of all then outstanding options or warrants to purchase
shares of the Company's stock or upon conversion of all then outstanding
Debentures, plus (D) the number of shares of Common Stock of the Company then
reserved and available for issuance under stock purchase and stock option plans
of the Company; provided, however, that the foregoing seventy percent (70%) may
be cut back to such lower percentage as may be designated by the managing
underwriter in the IPO in a writing delivered by such managing underwriter to
those Rights Holders exercising their Right of First Offer hereunder (i) not
less than four (4) days prior to the effective date of the Registration
Statement to the extent deemed necessary to the success of such offering by such
managing underwriter in its reasonable opinion (provided that such percentage is
not reduced to less than
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fifty percent (50%) pursuant to this clause (i)) or (ii) prior to the Closing to
the extent necessary to comply with the applicable rules or regulations of the
SEC, the NASD, the Nasdaq Stock Market, Inc., or other regulatory body.
"Closing" means the closing of the IPO.
"Conversion Stock" means shares of Common Stock of the Company
issued upon conversion of shares of Series E Stock.
"Debentures" means those certain senior unsecured convertible
debentures of the Company issued and sold pursuant to that certain Series D
Preferred Stock Convertible Debenture Purchase Agreement dated December 9, 1998
by and among the Company and those "Investors" identified in Exhibit A thereto,
as amended on April 13, 1999.
"IPO" means the first public offering of the Company's Common
Stock pursuant to an effective registration statement filed under the Securities
Act of 1933, as amended, in which the aggregate public offering price (before
deduction of underwriters' discounts and commissions) equals or exceeds
$10,000,000 and the public offering price per share of which equals or exceeds
$11.08 per share before deduction of underwriters' discounts and commissions
(such price per share of Common Stock to be appropriately adjusted to reflect
"Common Stock Events" (as such term is defined in the Company's Articles of
Incorporation)).
"IPO Shares" means the shares of Common Stock of the Company
issued at the Closing (exclusive of any shares offered and sold pursuant to any
underwriter's over-allotment option).
"IPO Shares Number" means the total number of IPO Shares issued
and sold by the Company at the Closing (exclusive of any shares offered and sold
pursuant to any underwriter's over-allotment option).
"Maximum IPO Shares Number" means the number that results from
multiplying the IPO Shares Number by the Aggregate Proportionate Share.
"NASD" means the National Association of Securities Dealers, Inc.
"Offering Price" means the price per share at which IPO Shares
are offered to the public at the Closing (before deduction of underwriter's
discounts and commissions).
"Preferred Stock" means the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Series E Preferred Stock.
"Pro Rata Share" means, as to a Rights Holder, the quotient that
results from dividing (i) the total number of Series E Equivalent Shares that
such Rights Holder holds on the Record Date by (ii) the total number of Series E
Equivalent Shares that all Rights Holders hold on the Record Date.
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"Record Date" means 5:00 p.m. (PST) on date on which the Company
first circulates a prospectus in connection with the IPO.
"Registration Statement" means the registration statement filed
by the Company with the SEC covering the offering of IPO Shares.
"Rights Holder" means an Investor, or an assignee of an Investor
in accordance with the provisions of Section 3 hereof, who holds at least
110,000 Series E Equivalent Shares and who is not otherwise (A) prohibited from
(i) exercising any of the rights of a Rights Holder under Section 1 or (ii)
being bound by any of the provisions under Section 1, in either case, by any
applicable rules or regulations of the SEC, NASD, the Nasdaq Stock Market, Inc.
or other regulatory body, or (B) an affiliate of any entities in the IPO
underwriting syndicate. For purposes of this Agreement, a holder of Series E
Stock convertible into Series E Equivalent Shares shall be deemed to be a holder
of such Series E Equivalent Shares.
"SEC" means the Securities and Exchange Commission.
"Series E Equivalent Shares" means all the shares of Common Stock
of the Company issued or issuable upon conversion of any shares of Series E
Stock.
1.2 Right of First Offer. The Company hereby grants to the Rights
Holders a right of first offer to purchase a number of IPO Shares at the Closing
up to the Maximum IPO Shares Number at a price per share equal to the Offering
Price all on the terms and conditions set forth herein (the "Right of First
Offer"). Notwithstanding any other provisions of this Agreement, under no
circumstances shall the Rights Holders have a Right of First Offer under this
Agreement with respect to a number of IPO Shares that exceeds the Maximum IPO
Shares Number.
1.3 Procedures.
(a) Notice and Elections. The Company shall give written notice
(a "Notice") to each Rights Holder no more than five (5) days after the Record
Date stating (i) the estimated dollar range of the Offering Price set forth in
the prospectus circulated on the Record Date (the "Estimated Offering Price
Range") and (ii) the estimated total number of IPO Shares to be issued at the
Closing (exclusive of any shares offered and sold pursuant to any underwriter's
over-allotment option) set forth in such prospectus (the "Estimated IPO Shares
Number"). A Rights Holder shall have five (5) days from the date of delivery of
the Notice (the "Exercise Period") to deliver to the Company written notice of
such Rights Holder's election to exercise its Right of First Offer (an
"Election") for a specified number of IPO Shares up to a maximum equal to the
Maximum IPO Shares Number (the "Requested IPO Shares Number"), which Requested
IPO Shares Number shall be subject to reduction in accordance with the terms and
conditions of this Agreement. Each Election shall be deemed to be made in
anticipation of (I) the Offering Price being in a range, the lower end of which
is no lower than the lower end of the Offering Price Range and the upper end of
which is no higher than the product that results from multiplying the midpoint
of the Offering Price Range by 150% (the "Final Offering Price Range") and (II)
the IPO Shares Number being in a range, the lower end of which is no lower than
the product that results from multiplying the Estimated IPO Shares Number by 80%
and the
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upper end of which is no higher than the product that results from multiplying
the Estimated IPO Shares Number by 150% (the "Final IPO Shares Number Range").
In the Election, the Rights Holder shall also set forth the name, telephone
number, facsimile number and pager number for those person(s) authorized by it
to make a revocation decision in accordance with the terms of subsection (e),
below, and to make a confirmation decision in accordance with the terms of
subsection (f), below.
(b) Elections for Maximum IPO Shares Number or Less. If the sum
of all of the Requested IPO Shares Numbers of the Rights Holders is equal to or
less than the Maximum IPO Shares Number, then each Rights Holder will be deemed
have exercised its Right of First Offer for its respective Requested IPO Shares
Number.
(c) Elections for More than Maximum IPO Shares Number. If the
sum of all of the Requested IPO Shares Numbers of the Rights Holders is greater
than the Maximum IPO Shares Number, then each Rights Holder will be deemed to
have exercised its Right of First Offer for a number of IPO Shares that is
determined as follows:
(1) Each Rights Holder shall be deemed to have exercised
its Right of First Offer for the lesser of (I) such Rights Holder's Requested
IPO Shares Number and (II) such Rights Holder's Pro Rata Share of the Maximum
IPO Shares Number.
(2) If the foregoing deemed exercises of the Rights of
First Offer of all of the Rights Holders pursuant to clause (c)(1) are for an
aggregate number of IPO Shares that is less than the Maximum IPO Shares Number,
then the remaining number of IPO Shares shall be deemed subject to further
exercises of the Right of First Offer by each Rights Holder whose Requested IPO
Shares Number was equal to or greater than its Pro Rata Share of the Maximum IPO
Shares Number (each a "Continuing Rights Holder") for an additional number of
IPO Shares equal to the lesser of (I) a number of IPO Shares equal to the number
that results from subtracting (x) the aggregate number of IPO Shares as to which
such Continuing Rights Holder was deemed to have exercised its Right of First
Offer in accordance with the preceding provisions of this subsection (c) from
(y) such Rights Holder's Requested IPO Shares Number and (II) such Continuing
Rights Holder's "Subsequent Pro Rata Share" of such remaining number of IPO
Shares. For purposes of this subsection (c)(2), a Continuing Rights Holder's
"Subsequent Pro Rata Share" means the quotient that results from dividing (aa)
the total number of Series E Equivalent Shares that such Continuing Rights
Holder held on the Record Date by (bb) the total number of Series E Equivalent
Shares that all Continuing Rights Holders held on the Record Date.
(3) If the deemed exercises of the Rights of First Offer of
all of the Rights Holders pursuant to each of the foregoing clauses of this
subsection (c) are, in the aggregate, for a total number of IPO Shares that is
less than the Maximum IPO Shares Number, then the number of IPO Shares that
still remains shall be deemed subject to yet further exercises of the Right of
First Offer by each Continuing Rights Holder who, as a result of its aggregate
deemed exercises in each of the foregoing clauses of this subsection (c), is not
yet deemed to have elected, in the aggregate, to be offered a number IPO Shares
equal to its Requested IPO Shares Number, for additional numbers of IPO Shares
determined in accordance with the same
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provisions as are set forth in subsection (c)(2) above, except that a
"Continuing Rights Holder" shall instead mean and refer to a Rights Holder who
is deemed to have a continuing Right of First Offer under this subsection
(c)(3), the remaining number of IPO Shares shall instead mean and refer to the
number of IPO Shares remaining from the Maximum IPO Shares Number after taking
into account all of the preceding deemed exercises of the Rights of First Offer,
and the "Subsequent Pro Rata Share" shall instead be calculated with reference a
denominator including shares owned only by those Continuing Rights Holders who
are deemed to have a continuing Right of First Offer under this subsection
(c)(3). The provisions of this subsection (c)(3) shall continue to be applied in
successive rounds until the first to occur of (A) the aggregate number of IPO
Shares as to which deemed exercises of the Rights of First Offer under this
subsection (c) have been made equals the Maximum IPO Shares Number or (B) each
of the Rights Holders has, by virtue of the deemed exercises of its Right of
First Offer under this subsection (c), exercised its Right of First Offer for a
number of IPO Shares equal to its Requested IPO Shares Number.
(d) Final Notice and Offer in IPO. A Rights Holder's exercise of
the Right of First Offer in accordance with subsection (b) or (c) hereof, as
applicable, shall be deemed an expression of interest in receiving an offer by
the Company to purchase that number of IPO Shares. The Company's offer to sell
such IPO Shares to the Rights Holders shall be deemed to occur automatically
upon the completion of the latest to occur of (i) the earliest to occur of (A)
the conclusion of any live, person-to-person communication (whether in-person or
by telephone) between a representative of the Company or the managing
underwriter and a representative of the Rights Holder designated by the Rights
Holder in its Election in which the Company or the managing underwriter notifies
the Rights Holder of the Offering Price and the IPO Shares Number; or (B) four
(4) hours after notice is given by the Company or the managing underwriter to a
representative of the Rights Holder designated by the Rights Holder in its
Election (with a contemporaneous copy to the Rights Holder's designated counsel
identified in Section 4.1(a) below) by actual delivery or facsimile transmission
of the Offering Price and the IPO Shares Number (such notice under either of
clauses (i)(A) or (i)(B) hereafter referred to as a "Final Notice"); and (ii)
the effectiveness of the Registration Statement (the completion of the later to
occur of the foregoing hereof, the "Offer Time"). In the event that the
Registration Statement becomes effective prior to the Company or the managing
underwriter giving a Final Notice to the representative of a Rights Holder as
provided for in clause (ii) of the immediately preceding sentence, the Company
or the managing underwriting shall give such Final Notice as promptly as
reasonably practicable and such Rights Holder's Right of First Offer shall not
be deemed to be inapplicable to the IPO by virtue of any failure to give such
Final Notice.
(e) IPO Within Ranges. Upon the giving of Final Notice by the
Company or the managing underwriter to the Rights Holder (with a contemporaneous
copy to the Rights Holder's designated counsel identified in Section 4.1(a)
below in the case of actual delivery or delivery by facsimile transmission) in
accordance with the provisions of subsection (d), if both (i) the Offering Price
described in the Final Notice is within the Final Offering Price Range and (ii)
the IPO Shares Number described in the Final Notice is within the Final IPO
Shares Number Range, then each Rights Holder who delivered an Election shall
have an unconditional right to terminate its Right of First Offer and revoke its
exercise thereof (x) by delivering oral notice thereof in any communication
described in clause (i)(A) of subsection (d), or (y) by delivering written
notice thereof by facsimile transmission, or by actual receipt, in each
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such case prior to or at the Offer Time. Once timely revoked by a Rights Holder,
the Right of First Offer as to such Rights Holder shall become null and void. A
Rights Holder's exercise of the Right of First Offer shall, unless so revoked by
such Rights Holder on or before the Offer Time, automatically be deemed,
immediately after the Offer Time, to be a binding commitment to purchase the
number of IPO Shares as to which such Rights Holder is deemed to have exercised
its Right of First Offer hereunder at the Offering Price for each such IPO
Share.
(f) IPO Outside of Ranges. Upon the giving of Final Notice by
the Company or the managing underwriter to the Rights Holder (with a
contemporaneous copy to the Rights Holder's designated counsel identified in
Section 4.1(a) below in the case of actual delivery or delivery by facsimile
transmission) in accordance with the provisions of subsection (d), if either (i)
the Offering Price described in the Final Notice is outside of the Final
Offering Price Range or (ii) the IPO Shares Number described in the Final Notice
is outside the Final IPO Shares Number Range, then each Rights Holder who
delivered an Election shall have until prior to or at the Offer Time to confirm
its Election hereunder (a "Confirmation") (notwithstanding the fact that the
Offering Price is not within the Final Offering Price Range or that the IPO
Shares Number is not within the Final IPO Shares Number Range) (x) by delivering
oral notice thereof in any communication described in clause (i)(A) of
subsection (d), or (y) by delivering written notice thereof by facsimile
transmission, or by actual receipt. Any Rights Holder who fails to so confirm
its Election in accordance with the foregoing shall be automatically deemed to
have revoked its Election and its Right of First Offer shall become null and
void. Each Rights Holder who delivered an Election shall have an unconditional
right to so revoke its Election and its Right of First Offer. A Rights Holder's
timely delivery of a Confirmation in accordance with the terms and conditions
hereof shall be a binding commitment to purchase the number of IPO Shares as to
which such Rights Holder is deemed to have exercised its Right of First Offer
hereunder at the Offering Price for each such IPO Share.
(g) Closing and Restrictions. The Rights Holders' purchases of
IPO Shares in accordance with this Section 1 shall occur simultaneously with the
Closing. The IPO Shares purchased by any Rights Holder pursuant to this Section
1 shall be subject to any restrictions on resale imposed by rules or regulations
of the SEC, the NASD, the Nasdaq Stock Market, Inc., or other regulatory body.
1.4 Termination of Right of First Refusal. Each Rights Holder's Right
of First Offer terminates immediately after the Closing.
1.5 This Agreement Not an Offer. This Agreement does not constitute
an offer to sell securities of the Company. Any offering of shares of the
Company's Common Stock in the IPO will only be made pursuant to a prospectus
filed with the SEC.
2. BOARD OBSERVER RIGHTS.
2.1 Observer Rights. The Company will permit one (1) representative
of the Investors (as designated in a writing delivered to the Company from time
to time that is executed by those Investors then holding a majority of the
Series E Equivalent Shares) (the "Representative") to attend all meetings of the
Company's Board of Directors in a non-voting observer capacity. The Company will
also provide the Representative with copies of all notices,
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minutes and other materials that it provides to its directors with respect to
such meetings ("Board Materials"). The initial Representative shall be Xxxxxx
Xxxxxxx.
2.2 Restrictions.
(a) Prior to attending any meeting or receiving any written
materials pursuant to Section 2.1, the Representative shall execute and deliver
to the Company an agreement providing that, except to the extent otherwise
required by law, the Representative shall hold in strict confidence, and not
disclose to any party other than to another Investor who has executed this
Agreement, all information and materials the Representative received pursuant to
Section 2.1; provided, however, that the Representative may disclose such
information and materials on a confidential basis to the professional advisors
or employees of an Investor who are under a duty to hold such information and
materials in confidence to the extent reasonably necessary for such Investor to
monitor its investment in the Company.
(b) Except to the extent otherwise required by law, each
Investor shall hold in strict confidence, and not disclose to any party, all
information and materials received from the Representative that the
Representative received pursuant to Section 2.1; provided, however, that the
Investor may disclose such information and materials on a confidential basis to
its professional advisors or employees who are under a duty to hold such
information and materials in confidence to the extent reasonably necessary for
such Investor to monitor its investment in the Company.
(c) The Representative may be excluded from certain confidential
"closed sessions" of the Board at any portions of a Board meeting if (i) the
presence of the Representative would jeopardize the Company's attorney-client
privilege or (ii) if the Board otherwise reasonably so requires; provided,
however, that the Board may not so exclude the Representative pursuant to clause
(ii) of this sentence with respect to matters of corporate governance. In
addition, the Company may withhold from the Representative any portions of any
Board Materials (i) if the disclosure of such portions of Board Materials would
jeopardize the Company's attorney-client privilege or (ii) if the Board
otherwise reasonably so requires; provided, however, that the Board may not so
exclude the Representative pursuant to clause (ii) of this sentence with respect
to matters of corporate governance.
2.3 Termination.
The rights of the Investors under Section 2 of this Agreement
shall terminate upon the first to occur of: (a) the date on which the Investors
hold, in the aggregate, fewer than 245,000 shares of any combination of Series E
Equivalent Shares, (b) the closing of an IPO; (c) the sale of all or
substantially all the Company's assets; or (d) upon the closing of any merger or
other acquisition involving the Company in which the Company is not the
surviving corporation or in which the shareholders of the Company immediately
prior to such merger or acquisition own less than fifty percent (50%) of the
voting equity securities of the surviving corporation or entity immediately
after such merger or acquisition.
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3. ASSIGNMENT AND AMENDMENT.
3.1 Assignment. The rights an Investor under Sections 1 and 2 hereof
may be assigned in connection with any transfer of shares of Series E Stock or
shares of Conversion Stock in accordance with the applicable provisions of
Section 4.7 of the Series E Agreement (i) by an Investor that is a partnership,
corporation or limited liability company to (A) a partner of such partnership, a
shareholder of such corporation or a member of such limited liability company,
(B) a retired partner of such partnership who retires after the date hereof, (C)
the estate of any such partner, shareholder or member, (ii) by any Investor by
way of transfer by gift, will or intestate succession by such Investor to his or
her spouse or lineal descendants or ancestors or any trust for any of the
foregoing, (iii) by an Investor to a transferee who acquires thereby a number of
shares of Series E Stock or shares of Conversion Stock equal to at least that
number of shares that results from dividing One Million Dollars ($1,000,000) by
the then current "Conversion Price" for the Series E Stock (as defined in the
Company's Articles of Incorporation), or (iv) by any Investor that is a
corporation, partnership or limited liability company to an affiliate.
Notwithstanding the foregoing (i) no party may be assigned any of the
foregoing rights unless the Company is given written notice by the assigning
party at the time of such assignment stating the name and address of the
assignee and identifying the securities of the Company as to which the rights in
question are being assigned and (ii) any such assignee agrees in a writing
delivered to the Company to receive such assigned rights subject to all the
terms and conditions of this Agreement, including without limitation the
provisions of this Section 3.
3.2 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the shares of
Series E Stock and Conversion Shares.
4. GENERAL PROVISIONS.
4.1 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given upon the earlier of (i) actual receipt, (ii) the day that is one business
day after transmission by facsimile (subject to receipt by the transmitting
party of automatic confirmation of successful transmission of such facsimile to
the number dialed), except with respect to the notice provided for in Section
1.3(d) as to which notice shall be deemed given upon completion of the facsimile
transmission (subject to receipt by the transmitting party of automatic
confirmation of successful transmission of such facsimile to the number dialed),
(iii) the date that is one business day after delivery to a nationally
recognized express overnight courier service for United States deliveries, or
(iv) the
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date that is three business days after delivery to an internationally recognized
express courier for deliveries outside the United States, fees prepaid, as
follows:
(a) if to an Investor, at such Investor's respective address as
set forth on Exhibit A hereto; with a copy to:
Xxxx Xxxxx, Esq.
Buchalter, Nemer, Fields & Younger
000 Xxxxx Xxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxx, XX 00000
Tel. (000) 000-0000
Fax. (000) 000-0000
and a copy to:
Xxx Xxxxxxxx, Esq.
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax. (000) 000-0000
(b) if to the Company, at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000.
Any party hereto (and such party's permitted assigns) may by notice so given
change its address for future notices hereunder.
4.2 Entire Agreement. This Agreement, together with all the Exhibits
hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
4.3 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of California as
applied to agreements among California residents entered into and to be
performed entirely within California, excluding that body of law relating to
conflict of laws and choice of law.
4.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
4.5 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
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4.6 Successors And Assigns. Subject to the provisions of Section 3.1,
the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of the parties hereto.
4.7 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
4.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.9 Costs And Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
4.10 Adjustments for Stock Splits, Etc. Wherever in this Agreement
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or Series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or Series of stock by such subdivision, combination or stock dividend.
4.11 Aggregation of Stock. All shares of the Series E Stock and
Conversion Shares, as applicable, held or acquired by affiliated entities or
persons, or entities or persons under common management, shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
THE COMPANY:
BROADBASE INFORMATION SYSTEMS, INC.
a California Corporation
By: /s/ XXXXX BAY
-----------------------------
Name:
---------------------------
Title:
--------------------------
INVESTORS:
ATTRACTOR OFFSHORE LTD.
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, President
Attractor Investment Management Inc.
its Investment Manager
ATTRACTOR INSTITUTIONAL LP
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Xxxxxx Xxxxxxx
Managing Member of its General Partner
Attractor Ventures LLC
ATTRACTOR VENTURES LLC
By: /s/ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx
Managing Member
ATTRACTOR LP
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Xxxxxx Xxxxxxx
Managing Member of its General Partner
Attractor Ventures LLC
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
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SPINNAKER CLIPPER FUND, L.P.
By: Xxxxxx Capital Management, LLC, its
General Partner
By: /s/ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Controller
--------------------------------
SPINNAKER FOUNDERS FUND, L.P.
By: Xxxxxx Capital Management, LLC, its
General Partner
By: /s/ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Controller
--------------------------------
SPINNAKER OFFSHORE FOUNDERS FUND
CAYMAN LIMITED
By: Xxxxxx Capital Management, LLC, its
Investment Adviser and
Attorney-in-Fact
By: /s/ XXXX XXXXX
-----------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Controller
--------------------------------
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
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AXA U.S. GROWTH FUND LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
DOUBLE BLACK DIAMOND II LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
45th PARALLEL LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
PARALLEL CAPITAL I LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
PARALLEL CAPITAL II LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
ALMANORI LIMITED
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
MULTINVEST LLC
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney in Fact
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
14
BENCHMARK CAPITAL PARTNERS, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: /s/ [illegible]
---------------------------------------------
Name:
-------------------------------------------
Title: Managing Member
BENCHMARK FOUNDERS' FUND, L.P.
By: Benchmark Capital Management Co., L.L.C.
Its General Partner
By: /s/ [illegible]
---------------------------------------------
Name:
-------------------------------------------
Title: Managing Member
ACCEL V L.P.
By: Accel V Associates L.L.C.
Its General Partner
By: /s/ X. XXXXXX SEDNAOUI
---------------------------------------------
Name: X. Xxxxxx Sednaoui
-------------------------------------------
Title: Managing Member
ACCEL INTERNET/STRATEGIC TECHNOLOGY
FUND L.P.
By: Accel Internet/Strategic Technology Fund
Associates L.L.C.
By: /s/ X. XXXXXX SEDNAOUI
---------------------------------------------
Name: X. Xxxxxx Sednaoui
-------------------------------------------
Title: Managing Member
ACCEL KEIRETSU V L.P.
By: Accel Keiretsu V Associates L.L.C.
its General Partner
By: /s/ X. XXXXXX SEDNAOUI
---------------------------------------------
Name: X. Xxxxxx Sednaoui
-------------------------------------------
Title: Managing Member
ACCEL INVESTORS '97 L.P.
By: /s/ X. XXXXXX SEDNAOUI
---------------------------------------------
Name: X. Xxxxxx Sednaoui
-------------------------------------------
Title: General Partner
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
15
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Partner
BT INVESTMENT PARTNERS, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
CHARTER GROWTH CAPITAL, L.P.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner of the General Partner
CGC Partners, L.P.
CHARTER GROWTH CAPITAL CO-
INVESTMENT FUND, L.P.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner of the General Partner
CGC Partners, L.P.
CGC INVESTORS, L.P.
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner of the General Partner
CGC Partners, X.X.
XXXXX FAMILY TRUST DATED 1/6/89
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: [Illegible]
LION INVESTMENTS LIMITED
By: /s/ XXXXXX XXXXX
------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
16
WESTPOOL INVESTMENT TRUST PLC
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: XXXXXX XXXX
-----------------------------------
Title: Director
----------------------------------
/s/ Dr. Xxxxxx Xxxx
-----------------------------------------
DR. XXXXXX XXXX for Chen Family Trust
/s/ Xxxx Xxxxxxx
-----------------------------------------
XXXX XXXXXXX
/s/ Xxx Xxxxxxxxx
-----------------------------------------
XXX XXXXXXXXX
/s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX
/s/ Xxx Xxxxxx
-----------------------------------------
XXX XXXXXX
/s/ Xxxxx Xxxxx by Xxxxx Xxxxxx
as attorney-in-fact
-----------------------------------------
XXXXX XXXXX
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
XXXXXX X. XXXXXXXXX
F & W INVESTMENTS 1989
By: /s/ Xxxxx X. Xxxxxx III
--------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Partner
/s/ Xxx Xxxxxxxx
-----------------------------------------
XXX XXXXXXXX
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
17
G&H PARTNERS
By: /s/ Xxxx X. Xxxx for G&H Partners
---------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: Partner
------------------------------
SIGNATURE PAGE TO BROADBASE INFORMATION SYSTEMS, INC.
SERIES E RIGHTS AGREEMENT
18
EXHIBIT A
SCHEDULE OF INVESTORS
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
Attractor Offshore Ltd. 73,925 $ 675,120.07
c/o Attractor Investment Management,
Inc.
0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Attractor Institutional LP 21,892 $ 199,928.69
c/o Attractor Investment Management,
Inc.
0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Attractor Ventures LLC 39,756 $ 363,071.67
c/o Attractor Investment Management,
Inc.
0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Attractor LP 302,424 $ 2,761,887.18
c/o Attractor Investment Management,
Inc.
0000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Spinnaker Clipper Fund, L.P. 10,948 $ 99,982.61
c/x Xxxxxx Capital Management
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
19
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
Spinnaker Founders Fund, L.P. 272,083 $ 2,484,798.00
c/x Xxxxxx Capital Management
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Spinnaker Offshore Founders Fund 154,966 $ 1,415,227.00
Cayman Limited
c/x Xxxxxx Capital Management
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Axa U.S. Growth Fund LLC 153,299 $ 1,400,003.12
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Double Black Diamond II LLC 16,425 $ 150,001.32
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
45th Parallel LLC 5,475 $ 50,000.44
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Parallel Capital I LLC 197,098 $ 1,799,997.49
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
20
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
Parallel Capital II LLC 273,748 $ 2,500,003.61
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Almanori Limited 6,570 $ 60,000.53
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Multinvest LLC 4,380 $ 40,000.35
c/o Partech International
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Benchmark Capital Partners, L.P. 96,072 $ 877,377.54
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx XxXxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Benchmark Founders' Fund, L.P. 13,428 $ 122,631.21
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx XxXxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Accel V L.P. 21,490 $ 196,257.43
c/o Accel Partners
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
21
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
Accel Internet/Strategic Technology 2,847 $ 26,000.23
Fund L.P.
c/o Accel Partners
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Accel Keiretsu V L.P 1,122 $ 10,246.67
c/o Accel Partners.
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Accel Investors '97 L.P. 1,314 $ 12,000.11
c/o Accel Partners
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxxxxxx X. Xxxxxxxxx Partners 602 $ 5,497.77
c/o Accel Partners
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
BT Investment Partners, Inc. 109,263 $ 997,844.35
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn. Xxxxxxxx Xxxxxxx, V.P.
(000) 000-0000 Phone
(000) 000-0000 Fax
Charter Growth Capital, L.P. 54,750 $ 500,004.38
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Charter Growth Capital Co-Investment 160,827 $ 1,468,752.58
Fund, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
22
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
CGC Investors, L.P. 3,422 $ 31,251.42
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxxxx Family Trust dated 1/6/89 1,643 $ 15,004.70
c/o Bluewater Capital Management, Inc.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
(000) 000-0000 Phone
(000) 000-0000 Fax
Lion Investments Limited 109,500 $ 1,000,008.75
c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XxX 0XX
ATT: Xxxxxx Xxxxx
000-00-000-000 3555 Phone
000-00-000-000-0000 Fax
Westpool Investment Trust plc 27,375 $ 250,002.19
c/o London Merchant Securities plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XxX 0XX
ATT: Xxxxxx Xxxxx
000-00-000-000 3555 Phone
000-00-000-000-0000 Fax
Chen Family Trust 21,900 $ 200,001.75
c/o Dr. Xxxxxx Xxxx
President & CEO
BroadVision
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxxx Xxxxxxx 1,643 $ 15,004.70
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 Phone
(000) 000-0000 Fax
23
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
Xxx Xxxxxxxxx 2,737 $ 24,995.66
c/o Xxxx Xxxxxxx
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxxxx Xxxxxxx 2,190 $ 20,000.18
c/o Xxxx Xxxxxxx
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxx Xxxxxx 2,737 $ 24,995.66
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxxxx Xxxxx 3,639 $ 33,233.17
x/x Xxxxx Xxxxxxxxxx
000-00 Apt. 00X Xxxxxx Xxxx.
Xxxxxx Xxxxx, X.X. 00000-0000
(000) 000-0000 Home Fax
(000) 000-0000 Office Fax
Xxxxxx and Xxxxxxxx Xxxxxxxxx 621 $ 5,671.29
Xxxxx Xxxxxx Cosmetics
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
(000) 000-0000
F&W Investments 1999 4,626 $ 42,246.96
c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx III
(000) 000-0000 Phone
(000) 000-0000 Fax
Xxx Xxxxxxxx 3,750 $ 34,246.88
00 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
(000) 000-0000 Office Phone
(000) 000-0000 Office Fax
24
SHARES OF SERIES E STOCK
INVESTOR PURCHASED PURCHASE PRICE
-------- ------------------------ --------------
G&H Partners 8,325 $ 76,028.07
x/x Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx/Xxxx Xxxx
TOTALS 2,188,812 $19,989,325.73
