SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.7
SECOND
AMENDMENT TO FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Second Amendment to Fourth Amended and Restated Registration
Rights Agreement (this “Amendment”) is entered this 23rd day of December 2008, by and among
BroadSoft, Inc., a Delaware corporation (the “Company”), the parties listed on Exhibit A
as “Series E Investors” (the “Series E Investors”), and the other parties listed on the signature
pages hereof (the “Investors”).
Recitals
Whereas, in connection with the Company’s Series D Preferred Stock financing, the
Company, the Investors, and certain other parties have previously entered into that certain Fourth
Amended and Restated Registration Rights Agreement, dated as of June 26, 2007 (as amended on
November 25, 2008, the “Agreement”). Capitalized terms used herein without definition shall have
the meanings given to such terms in the Agreement.
Whereas, the Company has entered into a certain Agreement and Plan of Merger and
Reorganization, dated as of December 8, 2008 (the “Merger Agreement”), with BroadSoft Sylantro,
Inc., a Delaware corporation and wholly-owned subsidiary of the Company and Sylantro Systems
Corporation, a Delaware corporation (“Sylantro”), pursuant to which the Company is issuing shares
of its Series E Convertible Preferred Stock (“Series E Preferred”) to the Series E Investors.
Whereas, it is a condition to the consummation of the transactions contemplated by
the Merger Agreement that each Series E Investor who will be receiving shares of Series E Preferred
become a party to the Agreement by executing this Amendment.
Whereas, Section 2.3 of the Agreement provides that such agreement may be amended if
the Company agrees thereto and obtains the written consent of persons holding or having the right
to acquire in the aggregate a majority of the Registrable Securities then outstanding.
Whereas, the Company, the Investors party hereto who hold or have the right to
acquire in the aggregate a majority of the Registrable Securities then outstanding, and the Series
E Investors desire to amend the Agreement as set forth herein to cause the Series E Investors to
become parties to the Agreement and to make the other amendments set forth herein.
Agreements
Now, Therefore, for and in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Amendment to Definition of “Investors”. Pursuant to this Amendment, (a) the definition of
“Investors” is hereby amended to include the Series E Investors, and (b) Exhibit A to the Agreement
is hereby supplemented to include the Series E Investors listed on Exhibit A to this Amendment.
2. Amendment to Section 1.1(h). Pursuant to this Amendment, the definition of “Registrable
Securities” in Section 1.1(h) of the Registration Rights Agreement is hereby deleted in its
entirety and replaced with the following:
(h) The term “Registrable Securities” means (i) the Investors’ Common Shares or any Common
Stock issued as a dividend or other distribution with respect to, in exchange for, or in
replacement of Investors’ Common Shares, (ii) shares of Common Stock issued upon conversion of the
Series B-1 Shares, Series C-1 Shares, Series D Shares, and Series E Shares, (iii) any other shares
of Common Stock acquired on or after the date hereof by any Investor, and (iv) for all purposes of
this Agreement other than Section 1.2, shares of Common Stock issued upon exercise of the ORIX
Warrant, and any Common stock issued as a dividend or other distribution with respect to, in
exchange for, or in replacement of, such shares of Common Stock; provided, however, that any shares
previously sold pursuant to a registered public offering or pursuant to an exemption from the
registration requirements of the 1933 Act under which the transferee does not receive “restricted
securities” shall cease to be Registrable Securities.
3. Addition of Sections 1.1(r) and 1.1(s). Pursuant to this Amendment, the following
definitions are hereby added to Section 1.1:
(r) The term “Series E Preferred Stock” means the Company’s Series E Convertible Preferred
Stock, $0.01 par value per share.
(s) The term “Series E Shares” means the shares of the Company’s Series E Preferred Stock
issued pursuant to the Agreement and Plan of Merger and Reorganization, dated as of December 8,
2008, by and among the Company, BroadSoft Sylantro, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company, and Sylantro Systems Corporation, a Delaware corporation.
4. Series E Investors Made Parties. By virtue of each Series E Investor’s execution and
delivery of this Amendment, each such Series E Investor is hereby made a party to the Agreement.
5. Counterparts. This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
6. Effectiveness. This Amendment shall become effective upon the execution hereof by the
Company, persons holding or having the right to acquire in the aggregate at least a majority of the
aggregate of the Registrable Securities then outstanding, and the Series E Investors.
2
7. Governing Law. This Amendment shall be deemed a contract made under the laws of the State
of Delaware and, together with the rights and obligations of the parties hereunder, shall be
construed under and governed by the laws of such State.
8. Continuing Effect. Other than as set forth in this Amendment, all of the terms and
conditions of the Registration Rights Agreement shall continue in full force and effect.
[Signature Pages Follow]
3
In Witness Whereof, the parties have executed this Second Amendment to Fourth Amended
and Restated Registration Rights Agreement as of the day and year first above written.
| COMPANY: | BROADSOFT, INC. |
|||
| By: | /s/ Xxxx Xxxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxx Xxxxxxxxx | |||
| Title: | Vice President, General Counsel, and Secretary | |||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| INVESTORS: | Bessemer Venture Partners IV L.P. By: Deer IV & Co. LLC, General Partner |
|||
| By: | /s/ J. Xxxxxx Xxxxxxxx | |||
| Name: | J. Xxxxxx Xxxxxxxx | |||
| Title: | Chief Operating Officer | |||
| Bessec Ventures IV, L.P. By: Deer IV & Co. LLC, General Partner |
||||
| By: | /s/ J. Xxxxxx Xxxxxxxx | |||
| Name: | J. Xxxxxx Xxxxxxxx | |||
| Title: | Chief Operating Officer | |||
| Plum Xxxx, Inc. |
||||
| By: | /s/ J. Xxxxxx Xxxxxxxx | |||
| Name: | J. Xxxxxx Xxxxxxxx | |||
| Title: | Attorney-in-Fact | |||
| Cove Ventures, LLC By: Cove Road Associates, LLC, Its: Managing Member |
||||
| By: | /s/ J. Xxxxxx Xxxxxxxx | |||
| Name: | J. Xxxxxx Xxxxxxxx | |||
| Title: | Attorney-in-Fact | |||
| /s/ J. Xxxxxx Xxxxxxxx | ||||
| Xxxxxx Xxxxxxx | ||||
| (By J. Xxxxxx Xxxxxxxx, Attorney-in-Fact) | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| Xxxxxxx River Partnership IX, A Limited Partnership By: Xxxxxxx River IX GP Limited Partnership, General Partner |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Title: General Partner | ||||
| Xxxxxxx River Partnership IX-A, A Limited Partnership By: Xxxxxxx River IX GP Limited Partnership, General Partner |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Title: General Partner | ||||
| Xxxxxxx River IX-B LLC By: Xxxxxxx River Friends, Inc., Manager |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Title: Officer | ||||
| Xxxxxxx River IX-C LLC By: Xxxxxxx River Friends, Inc., Manager |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Title: Officer | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| Columbia BroadSoft Investors, LLC By: Columbia Capital, L.L.C. Its: Managing Partner |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President | |||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| RRE Ventures III-A, L.P. |
||||
| By: | ||||
| Xxxxxx Xxxxxxx | ||||
| General Partner | ||||
| RRE Ventures III, L.P. |
||||
| By: | ||||
| Xxxxxx Xxxxxxx | ||||
| General Partner | ||||
| RRE Ventures Fund III, L.P. |
||||
| By: | ||||
| Xxxxxx Xxxxxxx | ||||
| General Partner | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| Grotech Partners VI, L.P. By: Grotech Capital Group VI, LLC Its General Partner |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| General Partner | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| Meritech Capital Partners III, L.P. By: Meritech Capital Associates III, L.L.C., its General Partner By: Meritech Management Associates III, L.L.C., a managing member |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx, | ||||
| a Managing Member | ||||
| Meritech Capital Affiliates III, L.P. By: Meritech Capital Associates III, L.L.C., its General Partner By: Meritech Management Associates III, L.L.C., a managing member |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx, | ||||
| a Managing Member | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
ACCEL VII L.P. By: Accel VII Associates L.L.C. Its General Partner |
|||
| By: | /s/ Attorney-In-Fact | |||
| ATTORNEY-IN-FACT | ||||
| ACCEL INTERNET FUND III L.P. By: Accel Internet Fund III Associates L.L.C. Its General Partner |
||||
| By: | /s/ Attorney-In Fact | |||
| ATTORNEY-IN-FACT | ||||
| ACCEL INVESTORS’99 L.P. |
||||
| By: | /s/ Attorney-In- Fact | |||
| ATTORNEY-IN-FACT | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
ARGC VI Argo II — The Wireless Internet Fund L.P. |
|||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| CEO | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
XXXXXX INVESTMENTS, LLC | |||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxxx Investments, LLC | ||||
| Managing Member | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: BAVP, LP |
||||
| /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx, Managing Director | ||||
| By: Scale Management I, LLC Its General Partner |
||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
Xxxxxx X. XxXxxxxxx | |||
| /s/ Xxxxxx X. XxXxxxxxx | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
HOOK PARTNERS III, L.P. | |||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
HOOK COMMUNICATIONS PARTNERS L.P. | |||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
XXXXXXX XXXXXX | |||
| /s/ Xxxxxxx Xxxxxx | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
XXXXXXXX ASSOCIATES FUND IV A DELAWARE LIMITED PARTNERSHIP By: Xxxxxxxx IX Management, LLC A Delaware Limited Liability Company, Its General Partner |
|||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Managing Director | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
XXXXXXXX IX A DELAWARE LIMITED PARTNERSHIP By: Xxxxxxxx IX Management, LLC A Delaware Limited Liability Company, Its General Partner |
|||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Managing Director | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
REMBRANDT VENTURE PARTNERS II, L.P. |
|||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| General Partner | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
SUMMERHILL VENTURES I LP By: Summerhill Venture Partners LP Its General Partner By: Summerhill Venture Partners Inc., Its General Partner |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Chief Financial Officer | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
TELECOM TRUST II |
|||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx | ||||
| Managing Director | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
LOEWENSTERN FAMILY COMMUNITY PROPERTY TRUST |
|||
| /s/ Xxxxxx Xxxxxxxxxxx | ||||
| Xxxxxx Xxxxxxxxxxx, Trustee | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
VANGUARD VI, L.P.; VANGUARD VI AFFILIATES FUND, L.P. VANGUARD VI ANNEX FUND, L.P. |
|||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| Managing Member | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
| SERIES E INVESTORS: |
2008629 ONTARIO INC. |
|||
| /s/ Xxxx Xxxxxxxx | ||||
| Xxxx Xxxxxxxx | ||||
| President | ||||
[Signature Page to Second Amendment to
Fourth Amended and Restated Registration Rights Agreement]
Fourth Amended and Restated Registration Rights Agreement]
EXHIBIT A
SERIES E INVESTORS
SERIES E INVESTORS
Accel VII L.P.
Accel Internet Fund III L.P.
Accel Investors ‘99 X.X.
Xxxx XX
ARGC VI
BAVP, X.X.
Xxxxxxxxxx Ventures I, L.P.
Hook Partners III, L.P.
Hook Communications Partners XX
Xxxxxxxx IX
Xxxxxxxx Associates Fund IV
Telecom Trust II
Vanguard VI Annex
Xxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxxxxx
Rembrandt Venture Partners II, L.P.
Xxxx Xxxxxx
The Lowenstern Family Community Property Trust U/D/T dated Feb. 12, 1990
Xxxxxx Investments LLC
Xxxxxx X. XxXxxxxxx
Accel Internet Fund III L.P.
Accel Investors ‘99 X.X.
Xxxx XX
ARGC VI
BAVP, X.X.
Xxxxxxxxxx Ventures I, L.P.
Hook Partners III, L.P.
Hook Communications Partners XX
Xxxxxxxx IX
Xxxxxxxx Associates Fund IV
Telecom Trust II
Vanguard VI Annex
Xxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxxxxx
Rembrandt Venture Partners II, L.P.
Xxxx Xxxxxx
The Lowenstern Family Community Property Trust U/D/T dated Feb. 12, 1990
Xxxxxx Investments LLC
Xxxxxx X. XxXxxxxxx
Exhibit A
Series E Investors
Series E Investors
