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EXHIBIT 4.4
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SAGENT TECHNOLOGY, INC.
000 X. XX XXXXXX XXXX, XXXXX 000
XXXXXXXX XXXX, XX 00000
COMMON STOCK RIGHTS AGREEMENT
FEBRUARY 15, 2001
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SAGENT TECHNOLOGY, INC.
COMMON STOCK RIGHTS AGREEMENT
This Common Stock Rights Agreement (the "Agreement") is made as of
February 15, 2001, between Sagent Technology, Inc., a Delaware corporation (the
"Company") and the Purchasers listed on Exhibit A (each a "Purchaser" and
collectively, the "Purchasers").
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"Closing Date" shall have the meaning set forth in Section 2.1 of the
Purchase Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's Common Stock, $0.001 par value
per share.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean (i) each Purchaser and (ii) any Person holding
Registrable Securities to whom the rights under this Section 1 have been
transferred, in whole or in part, in accordance with Section 1.14 hereof.
"Person" shall mean a natural person, corporation, partnership, limited
liability company, trust or any other entity, other than a governmental entity,
recognized by statute in its jurisdiction of formation as having legal
existence.
"Purchase Agreement" shall mean the Common Stock Purchase Agreement,
dated as of February 15, 2001, by and between the Company and Purchasers.
"Registrable Securities" shall mean the shares of Common Stock held by
the Holders; provided, however, that Registrable Securities shall not include
such securities that have been (a) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (b)
sold or are, in the opinion of counsel for the Company, available for sale in a
single transaction exempt from the registration and prospectus delivery
requirements of the Securities Act so that all transfer restrictions and
restrictive legends with respect thereto are removed prior to the consummation
of such sale.
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The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement with the
Commission in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1.5 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and disbursements of one counsel for all
Holders up to $10,000 included in any registration statement hereunder.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"Shares" shall mean the shares of Common Stock issued to the Purchaser
pursuant to the Purchase Agreement and any other securities issued in respect of
such securities upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event.
1.2 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be
sold, assigned, transferred or pledged prior to the effective date of a
registration statement under the Securities Act covering the sale of such shares
except upon the conditions specified in this Section 1. Each Holder will cause
any proposed purchaser, assignee, transferee, or pledgee of any such shares held
by such Holder to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Section 1.
1.3 RESTRICTIVE LEGEND. Each certificate representing the Shares
and any other securities issued in respect thereof upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SAID ACT.
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Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Common Stock in
order to implement the restrictions on transfer established in this Section 1.
1.4 RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS. The
holder of each certificate representing Restricted Securities by acceptance
thereof agrees to comply in all respects with the provisions of this Section
1.4. Unless there is in effect a registration statement under the Securities Act
covering the proposed sale, assignment, transfer or pledge of any Restricted
Securities, prior to any such transfer (other than (i) a transfer not involving
a change in beneficial ownership, (ii) any transfer by any Holder to (A) any
individual or entity controlled by, controlling, or under common control with,
such Holder or (B) any entity with respect to which such Holder (or any Person
controlled by, controlling, or under common control with, such Holder) has the
power to direct investment decisions, (iii) any transfer to any member, or
investment advisory client of Xxxxxxx Capital Group LLC, or (iv) in transactions
in compliance with Rule 144), the holder thereof shall give written notice to
the Company of such holder's intention to effect such transfer, sale, assignment
or pledge. Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied, at such holder's expense by either (i) a written opinion of legal
counsel who shall be, and whose legal opinion shall be, reasonably satisfactory
to the Company addressed to the Company, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act, or (ii) a "no action" letter from the Commission to the
effect that the transfer of such securities without registration will not result
in a recommendation by the staff of the Commission that action be taken with
respect thereto, whereupon the holder of such Restricted Securities shall be
entitled to transfer such Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company. Each certificate evidencing
the Restricted Securities transferred as above provided shall bear, except if
such transfer is made pursuant to Rule 144, the appropriate restrictive legend
set forth in Section 1.3 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such holder and the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act. Notwithstanding the foregoing, so long as an executive
officer or director of the holder serves as an executive officer or director of
the Company, such holder agrees to not sell or transfer the Registrable
Securities during periods outside of the trading windows applicable to the
officers of the Company as set forth in the Company's Xxxxxxx Xxxxxxx Program
adopted by the Company's Board of Directors.
1.5 MANDATORY REGISTRATION. The Company shall prepare and file
with the Commission a registration statement (the "Registration Statement") on
Form S-3 covering the resale of the Registrable Securities by the Holders on or
prior to the earlier of (a) 30 days after the Closing Date, or (b) the filing of
another Registration Statement on Form S-3 by the Company that is filed not
sooner than 15 days after the Closing Date (the "Required Filing Date") and
shall maintain the effectiveness of such registration statement during the
period set forth in Section 1.9 but subject to suspensions of registration in
accordance with Section 1.10. The Company shall use its commercially reasonable
efforts to cause the Registration Statement to be declared effective no later
than 120 days after the Closing Date (the "Required Effective Date"); provided,
however, that if the Registration Statement is not declared effective by the
Commission on or prior to the Required Effective Date and the cause of the delay
is related to circumstances beyond the Company's control (such as the
determination of the Commission to conduct a full review of Registration
Statement
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and/or the failure of the Commission to review and act on the Registration
Statement in a timely manner) the Company may extend the Required Effective Date
to a date which is 150 days after the Closing Date, in which case such 150th day
after the Closing Date shall become the Required Effective Date.
1.6 LIQUIDITY DAMAGES.
(a) In the event that the Registration Statement is filed
after the Required Filing Date but within 30 days thereafter or is declared
effective by the Commission after the Required Effective Date but within 30 days
thereafter (the number of days by which the Required Filing Date or Required
Effective Date is not met being a "Delay Period"), the Company shall pay to the
Holders a cash amount equal to (w) $0.01 per Share (as adjusted for stock
splits, stock dividends, recapitalizations and similar events), times (x) the
number of Shares held by the Holder, times (y) the number of days in the Delay
Period, divided by (z) 30.
(b) In the event that the Delay Period is more than 30
days, the Company shall pay to the Holders a cash amount equal to the amount set
forth in Section 1.6(a), plus a cash amount equal to (w) $0.04 per Share, times
(x) the number of Shares held by the Holder, times (y) the number of days after
the Delay Period in excess of 30 days, divided by (z) 30.
1.7 EXCLUSIVE REGISTRATION. Subject to such registration rights
disclosed in Section 3.3 of the Company's disclosure letter delivered
concurrently with the Purchase Agreement, which rights the Company is seeking to
have waived, the Company agrees not to register any other shares in the
Registration Statement without the Purchasers' consent, which consent shall not
be unreasonably withheld.
1.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with the registration pursuant to Section 1.5 shall be borne by
the Company. Unless otherwise stated, all Selling Expenses relating to
securities registered on behalf of the Holders shall be borne by the Holders of
such securities pro rata on the basis of the number of shares so registered
except the legal fees and disbursements of any counsel for any Holder not
required to be paid by the Company which shall be borne by such Holder.
1.9 REGISTRATION PROCEDURES. At its expense the Company will:
(a) Prepare and file with the Commission the Registration
Statement and use its commercially reasonable efforts to cause such Registration
Statement to become effective as soon as possible after the filing thereof, and
keep the Registration Statement effective pursuant to Rule 415 at all times,
subject to Section 1.10, until such date as is the earlier of (i) the date on
which all Registrable Securities have been sold by each Holder, and (ii) the
date on which the Registration Rights terminate as set forth in Section 1.15;
and
(b) Promptly furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus (and all required amendments and supplements to any thereof), final
prospectus and such other documents as such Holders or such underwriters may
reasonably request in order to facilitate the public offering of such
securities.
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1.10 SUSPENSION OF REGISTRATION. The Company shall promptly
notify the Holders of (i) the issuance by the Commission of a stop order
suspending the effectiveness of the Registration Statement, (ii) the happening
of any event, of which the Company has knowledge, as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (iii) the occurrence or existence of any pending corporate
development that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of the Registration Statement to comply
with Commission rules. In each case the Company shall use commercially
reasonable efforts to promptly prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or omission, and deliver
such number of copies of such supplement or amendment to each Holder as such
Holder may reasonably request; provided that, the Company may delay to the
extent permitted by law the disclosure of material non-public information
concerning the Company the disclosure of which at the time is not, in the good
faith opinion of the Company, in the best interests of the Company (an "Allowed
Delay"); provided, further, that an Allowed Delay shall not exceed 90
consecutive days in any 365-day period, and there shall be no more than two such
Allowed Delay periods. The Company shall promptly notify the Holders in writing
of the existence of an Allowed Delay and shall advise the Holders in writing to
cease all sales under the Registration Statement until the end of the Allowed
Delay.
1.11 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
Holder and Xxxxxxx Capital Group LLC ("ZCG"), each of their respective officers
and directors, trustees, members, employees and partners, and each Person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration has been effected pursuant to this Section 1,
and each underwriter, if any, and each Person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all expenses,
claims, losses, damages or liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act, the Exchange Act, state
securities law or any rule or regulation promulgated under such laws applicable
to the Company in connection with any the registration, and within a reasonable
period the Company will reimburse each such Holder and ZCG, each of their
respective officers and directors, trustees, members, employees and partners,
and each Person controlling such Holder within the meaning of Section 15 of the
Securities Act, each such underwriter and each Person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing, defending or paying any such claim,
loss, damage, liability or action; provided that the Company will not be liable
in any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
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written information furnished to the Company by an instrument duly executed by
such Holder, controlling Person or underwriter and stated to be specifically for
use therein.
(b) Each Holder will, if Registrable Securities held by
such Holder are included in the Registration Statement, indemnify the Company,
each of its directors and officers, each underwriter, if any, of the Company's
securities covered by the Registration Statement, each Person who controls the
Company or such underwriter within the meaning of Section 15 of the Securities
Act, ZCG and each other such Holder each of their respective officers and
directors, trustees, members, employees and partners, and each Person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in the Registration Statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and within a reasonable
period will reimburse the Company, ZCG, such Holders, each of their respective
officers and directors, trustees, members, employees and partners, and each
Person controlling such Holder within the meaning of Section 15 of the
Securities Act, for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in the Registration Statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing, the
liability of each Holder under this subsection (b) shall be limited in an amount
equal to the gross proceeds before expenses and commissions to such Holder
received for the shares sold by such Holder, unless such liability arises out of
or is based on willful misconduct by such Holder.
(c) Each party entitled to indemnification under this
Section 1.11 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such Indemnified Party's expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 1 unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action and provided further, that the
Indemnifying Party shall not assume the defense for matters as to which there is
a conflict of interest or separate and different defenses. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
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1.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in the registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with the registration
referred to in this Section 1.
1.13 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Securities to the public without
registration, the Company agrees to use its commercially reasonable efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times;
(b) Use its commercially reasonable efforts to file with
the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act; and
(c) So long as a Holder owns any Restricted Securities to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144, and of
the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
1.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted Holders under Section 1 may be assigned
in whole or in part to a transferee or assignee permitted under Section 1.4
which acquires at least 50,000 shares (as adjusted for stock splits,
combinations, consolidations, or similar events with respect to such shares) of
Registrable Securities, or if the Purchaser holds a lesser number of shares of
Registrable Securities, such lesser number of shares.
1.15 TERMINATION OF REGISTRATION RIGHTS. The registration rights
granted pursuant to Section 1 shall terminate as to each Holder on the earlier
of (i) two years after the effective date of the Registration Statement, (ii)
the date on which all Registrable Securities held by such Holder may be resold
without registration or without regard to any volume limitations by reason of
Rule 144(k) under the Securities Act or any other rule of similar effect or
(iii) all of the Registrable Securities held by such Holder have been sold
pursuant to the Registration Statement or Rule 144(k) under the Securities Act
or any other rule of similar effect.
SECTION 2
PURCHASER RIGHTS OF FIRST REFUSAL FOR COMPANY STOCK SALES
2.1 GRANT OF RIGHTS. The Company hereby grants to each Purchaser
the right of first refusal to purchase all or any part of such Purchaser's Pro
Rata Share (as hereinafter defined) of
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New Securities (as defined in Section 2.2 below) which the Company may propose
to sell and issue during the 6 months following the Closing Date; provided,
however, that the right of first refusal granted to Xxxxx Creek Investments LLC
("Xxxxx Creek") shall continue for so long as the Distribution Agreement (as
defined in the Purchase Agreement) continues to be in effect. Each Purchaser may
purchase New Securities on the same terms and at the same price at which the
Company proposes to sell New Securities. The "Pro Rata Share" of each Purchaser,
for purposes of this right of first refusal, shall be the ratio of the total
number of shares of Common Stock held by such Purchaser, to the total number of
shares of Common Stock outstanding immediately prior to the issuance of New
Securities (including any shares of Common Stock issuable on the exercise of all
exercisable outstanding securities). The rights provided in this Section 2.1
shall not be available to the extent the Purchasers' exercise of such rights
would require the Company to obtain stockholder approval pursuant to Nasdaq Rule
4450(i).
2.2 NEW SECURITIES. "New Securities" shall mean any capital stock
of the Company, whether or not now authorized, and any rights, options or
warrants to purchase any capital stock of the Company, and all securities of any
type that are or may become convertible into capital stock of the Company;
provided, however, that "New Securities" does not include (i) securities offered
to the public in an underwritten offering pursuant to a registration statement
filed under the Securities Act, (ii) securities issued pursuant to the
acquisition of another corporation by the Company by merger or by purchase of
all or substantially all of the assets, (iii) securities issued in connection
with the exercise of any options outstanding on the date hereof, (iv) all shares
of Common Stock (or options therefor) hereafter issued or issuable to officers,
directors, employees or consultants of the Company pursuant to any employee or
consultant stock option or stock purchase plan or arrangement approved by the
Board of Directors of the Company, (v) securities issued in connection with a
strategic or bank financing or an equipment lease or other similar transaction
which is approved by the Board of Directors of the Company, (vi) capital stock,
options, warrants or other convertible securities issued in connection with a
bridge financing which is approved by the Board of Directors of the Company, and
(vii) securities issued in connection with a private placement completed on
substantially similar terms or at substantially the same time as the Purchaser's
purchase of the Shares.
2.3 NOTICE. In the event the Company proposes to undertake an
issuance of New Securities, it shall give to each Purchaser written notice (the
"Notice") of its intention, describing the type of New Securities, number of
shares, the price, the terms upon which the Company proposes to issue New
Securities. Each Purchaser shall have five (5) days from the date the Notice is
received to agree to purchase any or all of its Pro Rata Share of the New
Securities for the price and upon the terms specified in the Notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased and forwarding payment for the New Securities to the Company.
2.4 SALE AFTER NOTICE. In the event the Purchasers fail to
exercise in full the right of first refusal within said five (5) day period, the
Company shall have one hundred and twenty (120) days thereafter to sell or enter
into an agreement to sell the New Securities respecting which the Purchasers
rights were not exercised, at a price and upon general terms no more favorable
than specified in the Notice. In the event the Company has not sold the New
Securities within said one
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hundred and twenty (120) day period, the Company shall not thereafter issue or
sell any New Securities without first offering such securities to the Purchasers
in the manner provided above.
SECTION 3
MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of Delaware.
3.2 SURVIVAL. The covenants and agreements made herein shall
survive the closing of the transactions contemplated hereby.
3.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Purchase
Agreement constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought; provided, however, that Holders of
an 80% majority of the Registrable Securities may, with the Company's prior
written consent, waive, modify or amend on behalf of all Holders, any provisions
hereof.
3.5 NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, at the address for such Holder set forth on
Exhibit A to the Purchase Agreement or at such other address as such Holder
shall have furnished the Company in writing, or (b) if to the Company, one copy
should be sent to its address set forth on the cover page of this Agreement and
addressed to the attention of the President, or at such other address as the
Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid.
3.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such nondefaulting
party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in 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
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theretofore or thereafter occurring. Any waiver, 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 Holder of any provisions or
conditions of this Agreement, must be 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 party to this Agreement,
shall be cumulative and not alternative.
3.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.8 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
3.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
[SIGNATURE PAGE(S) FOLLOW(S)]
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The foregoing Agreement is hereby executed as of the date first above
written.
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"COMPANY"
SAGENT TECHNOLOGY, INC.
a Delaware Corporation
By: /s/ Xxx X. Xxxxxx
--------------------------------------------
Xxx X. Xxxxxx
President and Chief Executive Officer
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[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
PURCHASERS MARKED WITH AN ASTERISK AND LISTED
ON EXHIBIT A TO THE PURCHASE AGREEMENT
By: Xxxxxxx Capital Group LLC,
a New York limited liability
company, as agent and
attorney-in-fact
Name: /s/ Xxxxx Xxxxxx
------------------------------------------
Title: Managing Director
-----------------------------------------
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[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
XXXXX CREEK INVESTMENTS LLC
By: /s/ X.X. Xxxxxxxxx
--------------------------------------------
Name: X.X. Xxxxxxxxx
------------------------------------------
Title: Member
-----------------------------------------
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[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
BARUCH AND XXXXXXXX XXXXXXX
(as husband and wife)
/s/ Xxxxxx Xxxxxxx
---------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxxxx Xxxxxxx
---------------------------------------
XXXXXXXX XXXXXXX
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[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
21ST CENTURY DIGITAL INDUSTRIES
FUND, L.P.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: Managing Partner
-----------------------------------------
17
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
SPECIAL SITUATIONS FUND III, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------------
Title: MD
-----------------------------------------
18
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------------
Title: MD
-----------------------------------------
19
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
SPECIAL SITUATIONS PRIVATE EQUITY
EQUITY FUND, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------------
Title: MD
-----------------------------------------
20
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
SPECIAL SITUATIONS TECHNOLOGY
FUND, L.P.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------------
Title: MD
-----------------------------------------
21
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
CRCK LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
------------------------------------------
Title: Managing Member
-----------------------------------------
22
[SIGNATURE PAGE TO COMMON STOCK RIGHTS AGREEMENT]
"PURCHASER"
/s/ Xxxx Xxxxxxx
---------------------------------
XXXX XXXXXXX
