EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "AGREEMENT"), dated as of June 1,
1996, is entered into by and among Xxxxxxxx.xxx, Inc., a California corporation
(the "COMPANY"), and the shareholders of the Company listed on Exhibit A
attached hereto (hereinafter the "HOLDERS").
RECITALS
--------
A. The Company has entered into an Agreement and Plan of Merger dated May
17, 1996 (the "MERGER AGREEMENT"), by and between the Company, Accordance
Corporation, a Massachusetts corporation ("ACCORDANCE"), and Xxxxxxxx.xxx
Acquisition, Inc., a Massachusetts corporation and wholly owned subsidiary of
the Company ("MERGER SUB"), pursuant to which, among other things, Merger Sub
will merge with and into Accordance (the "MERGER") and Accordance shall continue
as a wholly owned subsidiary of the Company.
B. In connection with the transactions contemplated by the Merger
Agreement, the former shareholders of Accordance common and preferred stock will
receive a total of approximately 12,374,390 shares of common stock of the
Company, no par value ("COMPANY COMMON STOCK").
C. The Company has agreed, in connection with the transactions
contemplated by the Merger Agreement, to enter into this Agreement with all of
the shareholders of Company Common Stock, including the former holders of
Accordance common and preferred stock.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
I. Certain Definitions.
-------------------
As used in this Agreement, the following terms shall have the following
respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"COMPANY COMMON STOCK" shall mean the common stock, no par value, of the
Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean (i) shares of Company Common Stock
currently held by a Holder and (ii) any securities issued as a dividend or other
distribution with respect to, or in exchange or in replacement of, the
securities referred to in subsection (i).
"REGISTRATION EXPENSES" shall mean all expenses (except for "Selling
Expenses" as defined below) incurred by the Company in complying with Section 2
or 3 of this Agreement, including, without limitation, all registration and
filing fees, printing expenses, reasonable fees, and disbursements of counsel
for the Company and, subject to Section 6, the reasonable fees and disbursements
of one counsel for the selling shareholders.
"REGISTRATION STATEMENT" shall mean a registration statement on Form S-1 or
Form S-3 filed by the Company with the Commission for a public offering and sale
of securities of the Company.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Shares, except as provided in Section 6,
and all fees and disbursements of counsel for the selling shareholders not
included in the Registration Expenses.
II. Required Registrations.
----------------------
At such time as the Company shall have qualified for the use of Form S-3
(or any similar form or forms promulgated by the Commission), the Holders of in
the aggregate at least 51% of the Registrable Securities shall have the right to
request one registration on Form S-3 or such similar form, as the case may be
(collectively, "FORM S-3"). The Company shall give prompt written notice of
such proposed registration to all other record Holders of Registrable
Securities. Such Holders shall have the right, by giving written notice to the
Company within 30 days from receipt of the Company's notice, to elect to have
included in such registration such of their Registrable Securities as such
Holders may request in such notice of election. Thereupon, the Company shall,
as expeditiously as practicable, use its best efforts to effect the
registration, on Form S-3, of all shares of Registrable Securities which the
Company has been requested to register; provided, however, that the Company
shall not be obligated to file and cause to become effective (i) more than one
registration under this Section 2(a) or (ii) any Registration Statement on Form
S-3 where the proposed aggregate offering price of the Registrable Securities to
be sold thereunder is less than $500,000.
A. If at the time of any request to register Registrable Shares pursuant
to Section 2(a), the Company is engaged or has fixed plans to engage within
thirty (30) days of the time of the request in a registered public offering as
to which the Holders may include Registrable Shares pursuant to Section 3 or is
engaged in any other activity that, in the good faith determination of the
Company's Board of Directors, would be adversely affected by the requested
registration to the material detriment of the Company, the Company may at its
option direct that such request be delayed for a
2
period not in excess of six (6) months from the effective date of such offering
or the date of commencement of such other material activity, as the case may be.
III. Incidental Registrations.
------------------------
A. Whenever the Company proposes to file a Registration Statement (other
than pursuant to Section 2) at any time and from time to time, it will, prior to
such filing, give written notice to all Holders of its intention to do so, and,
upon written request of a Holder or Holders given within twenty (20) days after
the Company provides such notice (which request shall state the intended method
of disposition of such Registrable Shares), the Company shall use its best
efforts to cause all Registrable Shares that the Company has been requested by
such Holder or Holders to register to be registered under the Securities Act to
the extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such
Holder or Holders.
B. In connection with any offering under this Section 3 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such offering unless the Holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (provided that such terms must be consistent with this Agreement), and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If, in the opinion of
the managing underwriter, the registration of all, or part of, the Registrable
Shares that the Holders have requested to be included would materially and
adversely affect such public offering, the Company shall be required to include
in the underwriting only that number of Registrable Shares, if any, that the
managing underwriter believes may be sold without causing such adverse effect.
If the number of Registrable Shares to be included in the underwriting in
accordance with the foregoing is less than the total number of shares that the
Holders of Registrable Shares have requested to be included, then the Holders of
Registrable Shares who have requested registration and other holders of shares
of Company Common Stock entitled to include shares of Company Common Stock in
such registration shall participate in the underwriting pro rata based upon
their total ownership of shares of Company Common Stock (giving effect to the
conversion into Company Common Stock of all securities convertible thereinto).
If any Holder would thus be entitled to include more shares than such holder
requested to be registered, the excess shall be allocated among other requesting
Holders pro rata based upon their total ownership of Registrable Shares.
IV. Granting of Additional Registration Rights.
------------------------------------------
If at any time the Company grants registration rights to any shareholders
of the Company, the Holders shall become entitled to registration rights in
addition to those provided in this Agreement on the same terms granted to the
other shareholders.
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V. Registration Procedures.
-----------------------
If and whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect the registration of any of the Registrable
Shares under the Securities Act, the Company shall:
file with the Commission a Registration Statement with respect to such
Registrable Shares and use its best efforts to cause that Registration Statement
to become and remain effective;
B. as expeditiously as possible prepare and file with the Commission any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective, in the case of a firm commitment underwritten
public offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or one hundred
twenty (120) days after the effective date thereof;
C. as expeditiously as possible furnish to each selling Holder such
reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Holder; and
D. as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Holders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Holders to consummate the public
sale or other disposition in such states of the Registrable Shares owned by the
selling Holder; provided, however, that the Company shall not be required in
connection with this paragraph (d) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the selling Holders and, if requested, the selling Holders shall immediately
cease making offers of Registrable Shares and return all prospectuses to the
Company. The Company shall promptly provide the selling Holders with revised
prospectuses and, following receipt of the revised prospectuses, the selling
Holders shall be free to resume making offers of the Registrable Shares.
VI. Allocation of Expenses.
----------------------
The Company will pay all Registration Expenses of all registrations under
this Agreement; provided, however, that if a registration under Section 2 is
withdrawn at the request of the Holders requesting such registration (other than
as a result of information concerning the business or financial condition of the
Company that is made known to the Holders after the date on which such
4
registration was requested) and if the requesting Holders elect not to have such
registration counted as a registration requested under Section 2, the requesting
Holders shall pay the Registration Expenses of such registration pro rata in
accordance with the number of their Registrable Shares included in such
registration.
VII. Transfer of Shares.
------------------
In the event of an initial public offering or any subsequent public
offering of Company Common Stock (hereinafter referred to as an "OFFERING"), the
transfer of any shares of Company Common Stock held by a Holder that are not
included in such Offering will be restricted pursuant to a customary "lock-up"
arrangement for a period of time not to exceed six (6) months in the event of an
initial public offering or three (3) months in the event of a subsequent public
offering, unless the underwriters in any such Offering agree to a shorter lock-
up period.
VIII. Information by Holder.
---------------------
Each Holder holding securities included in any registration shall furnish
to the Company such information regarding such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this
Agreement.
IX. Governing Law.
-------------
This Agreement and the legal relations between the parties arising
hereunder shall be governed by and interpreted in accordance with the laws of
the State of California. The parties hereto agree to submit to the jurisdiction
of the federal and state courts of the State of California with respect to the
breach or interpretation of this Agreement or the enforcement of any and all
rights, duties, liabilities, obligations, powers, and other relations between
the parties arising under this Agreement.
X. Entire Agreement.
----------------
This Agreement constitutes the full and entire understanding and agreement
between the parties regarding rights to registration. Except as otherwise
expressly 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.
XI. Notices, Etc.
-------------
All notices and other communications required or permitted hereunder shall
be in writing and shall be mailed by first-class mail, postage prepaid, or
otherwise delivered by hand or by messenger, addressed (a) if to a Holder, at
the address set forth on Exhibit A attached hereto, or at such other address as
---------
the Holder shall have furnished to the other parties hereto in writing, or (b)
if to the
5
Company, at the address of its principal offices set forth on the signature page
of this Agreement, or at such other address as the Company shall have furnished
to the other parties hereto in writing.
XII. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
XIII. Amendments.
----------
Any term of this Agreement may be amended and the observance of any term
of this Agreement 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 Registrable Securities, and such
amendments shall affect all Holders of the Registrable Securities in
substantially the same manner. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each Holder of Registrable Securities
and the Company.
XIV. Indemnification.
---------------
The Company agrees to indemnify and hold harmless the Holder against any
and all liability or expense arising out of or based upon any misrepresentation
made by the Company in the Registration Rights Agreement. The Holder agrees to
indemnify and hold harmless the Company against any and all liability or expense
arising out of or based upon any misrepresentation made by the Holder.
6
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
XXXXXXXX.XXX, INC.
By: /s/ Valdur Koha
-----------------------------------
Name: Valdur Koha
Title: President
Xxxxxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
7
XXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
EXHIBIT A
Xxxxxx X. Xxxxxxxx 0 XxXxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx X.Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx,XX 00000
Orion X. Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx,XX 00000
Xxxxxx X. Xxxxxx Xx. 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
J. Xxxxx Xxxxxx 00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxx 00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx Xxxxxxx, Sachs & Company
0000 Xxxxxxxx, #000
Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxx 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxx 00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Valdur Koha 00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
8
Xxxxx X.Xxxxxxxx 00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxx X. XxxXxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxx XxXxxx 000 Xxxx Xxxxxxxx Xxxxxx, Xxx. #0
Xxxxx Xxxxxxx, XX 00000
Xxxxxxx X. X'Xxxxxxx 000 Xxxxxxxx Xxxxxx #000
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx 00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx 0000 xx xx Xxxx, Xxx. X
Xxxxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 00000 Xxxxx Xxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxx 000 X. Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Xxxxx Xxxxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxx Xxxxxx Xxxx 00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx X.Xxxx III 00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxx-Xxxx Xxx 0 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
9
XXXXXXXX.XXX, INC.
------------------
FIRST AMENDMENT TO
------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT (the "FIRST AMENDMENT")
is entered into as of the 27th day of June, 1996, by and among XXXXXXXX.XXX,
INC., a California corporation (the "COMPANY"), and Banyan Systems Incorporated,
a Massachusetts corporation (the "PURCHASER").
RECITALS:
WHEREAS the holders of the Company's Common Stock, possess certain
-------
registration rights pursuant to that certain Registration Rights Agreement dated
as of June 1, 1996, (the "REGISTRATION RIGHTS AGREEMENT"), by and among the
Company and the holders of the Company's Common Stock listed in Exhibit A
attached to the Registration Rights Agreement (the "SHAREHOLDERS");
WHEREAS the Company is issuing an additional 1,361,187 shares of its Common
-------
Stock (the "ADDITIONAL COMMON STOCK") pursuant to the Common Stock Purchase
Agreement (the "AGREEMENT") of June 17, 1996 between the Company and the
Purchaser.
WHEREAS pursuant to the terms of the Agreement, the Company has agreed to
-------
grant registration rights to the Purchaser with respect to the Additional Common
Stock; and
WHEREAS under Section 13 of the Registration Rights Agreement, the Company
-------
and the holders of a majority of the Registerable Securities (as defined in
Section 1 of the Registration Rights Agreement) may amend the Registration
Rights Agreement to extend the registration rights granted under the
Registration Rights Agreement to the Purchasers with respect to the Additional
Common Stock.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties hereby agree as follows:
XV. The Additional Common Stock will be considered "REGISTRABLE SECURITIES"
as defined in Section 1 of the Registration Rights Agreement and as that term is
used therein.
XVI. The Purchaser shall be considered a "HOLDER" as used in the Registration
Rights Agreement.
XVII. This First Amendment shall be effective upon its execution by (i) the
Company, (ii) holders of a majority of the Registerable Securities (as defined
in Section 1 of the Registration Rights Agreement), and (iii) the Purchaser.
XVIII. In all other respects the Registration Rights Agreement shall continue
in full force and effect without change.
XIX. This First Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Valdur Koha
------------------------------------
Valdur Koha
President
XXXXXXXX.XXX, INC.
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
PURCHASER'S SIGNATURE PAGE
Banyan Systems Incorporated
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
XXXXXXXX.XXX, INC.
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
______________________________________
(Printed Name of Shareholder)
/s/ Shareholder
--------------------------------------
(Signature)
SECOND AMENDMENT TO
-------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (the "SECOND AMENDMENT") is
entered into as of the 27th day of September, 1996, by and among XXXXXXXX.XXX,
INC., a California corporation (the "COMPANY"), and the shareholders of the
Company signatory hereto (the "SHAREHOLDERS").
RECITALS:
WHEREAS, certain holders of the Company's common stock, no par value (the
-------
"COMMON STOCK") possess specified registration rights pursuant to a Registration
Rights Agreement dated as of June 1, 1996, as amended by First Amendment to
Registration Rights Agreement dated June 27, 1996 (the "REGISTRATION RIGHTS
AGREEMENT"), by and among the Company and the holders of the Company's Common
Stock listed in Exhibit A attached to the Registration Rights Agreement; and
WHEREAS, pursuant to the terms and conditions of that certain Series A
-------
Stock Purchase Agreement (the "PURCHASE AGREEMENT") by and between the Company
and AT&T Ventures ("PURCHASER"), the Company will, among other things, agree to
sell, and Purchaser will agree to purchase a total of 1,587,302 shares of Series
A Preferred Stock of the Company, no par value (the "PREFERRED STOCK"), at a
purchase price of $3.15 per share for an aggregate purchase price of $5,000,000
(the "FINANCING"); and
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has
-------
agreed to grant certain registration rights to Purchaser with respect to the
shares of Common Stock issuable upon conversion of the Preferred Stock; and
WHEREAS, under Section XIII of the Registration Rights Agreement, the
-------
Company and the holders of a majority of the Registrable Securities (as defined
in Section I of the Registration Rights Agreement) may amend the Registration
Rights Agreement to allow for the grant of additional registration rights to any
shareholder of the Company; and
WHEREAS, the Shareholders constitute a majority of the holders of the
-------
Registrable Securities;
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties hereby agree as follows:
I. The Shareholders, acting as authorized under Section XIII of the
Registration Rights Agreement, hereby consent to the grant of registration
rights to Purchaser as contemplated by the Purchase Agreement and waive the
restrictions imposed by Section IV of the Registration Rights Agreement with
respect to such grant.
II. Such waiver and consent shall be effective only with respect to the
immediate grant of registration rights to Purchaser as contemplated by the
Purchase Agreement, and the provisions of the Registration Rights Agreement,
including without limitation Section IV thereof, shall otherwise remain in full
force and effect with respect to any proposed future grant of registration
rights by the Company.
I The Second Amendment shall be effective upon its execution by the Company
and the Shareholders.
I. In all other respects the Registration Rights Agreement shall continue in
full force and effect without change.
I. This Second Amendment may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Second Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Secretary
XXXXXXXX.XXX, INC.
SECOND AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
______________________________________
(Printed Name of Shareholder)
/s/ Shareholder
--------------------------------------
(Signature)
______________________________________
(Number of Registrable Securities)
XXXXXXXX.XXX, INC.
------------------
THIRD AMENDMENT TO
------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS THIRD AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (the "THIRD
AMENDMENT") is entered into as of February 3, 1997, by and among XXXXXXXX.XXX,
INC., a California corporation (the "COMPANY"), and the shareholders of the
Company signatory hereto (the "SHAREHOLDERS").
RECITALS:
WHEREAS, certain holders of the Company's common stock, no par value (the
-------
"COMMON STOCK") possess specified registration rights pursuant to a Registration
Rights Agreement dated as of June 1, 1996, as amended by First Amendment to
Registration Rights Agreement dated June 26, 1996 (the "FIRST AMENDMENT") and by
Second Amendment to Registration Rights Agreement dated September 27, 1996 (as
amended, the "REGISTRATION RIGHTS AGREEMENT"), by and among the Company and the
holders of the Common Stock listed in Exhibit A to the Registration Rights
Agreement and the signature page to the First Amendment;
WHEREAS, pursuant to the terms and conditions of that certain Series B
-------
Preferred Stock Purchase Agreement (the "PURCHASE AGREEMENT") by and between the
Company and Cisco Systems, Inc. ("CISCO"), the Company will, among other things,
agree to sell, and Purchaser will agree to purchase a total of 1,789,279 shares
of Series B Preferred Stock of the Company, no par value (the "SERIES B
PREFERRED"), at a purchase price of $4.15 per share for an aggregate purchase
price of $7,425,508 (the "FINANCING");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has
-------
agreed to grant certain registration rights to Cisco with respect to the shares
of Common Stock issuable upon conversion of the Series B Preferred;
WHEREAS, under Sections XIII and IV of the Registration Rights Agreement,
-------
the Company and the holders of a majority of the Registrable Securities (as
defined in Section I of the Registration Rights Agreement) may amend the
Registration Rights Agreement to allow for the grant of additional registration
rights to any shareholder of the Company; and
WHEREAS, the Shareholders constitute holders of a majority of the
-------
Registrable Securities;
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties hereby agree as follows:
I. The Shareholders, acting as authorized under Section XIII of the
Registration Rights Agreement, hereby consent to the grant of registration
rights to Cisco as contemplated by the Purchase Agreement and the Amended and
Restated Registration Rights Agreement attached as
Exhibit B thereto (the "PREFERRED REGISTRATION RIGHTS AGREEMENT") and waive the
restrictions imposed and entitlements granted by Section IV of the Registration
Rights Agreement with respect to such grant.
II. Such waiver and consent shall be effective only with respect to the
immediate grant of registration rights to Purchaser as contemplated by the
Purchase Agreement and the Preferred Registration Rights Agreement, and the
provisions of the Registration Rights Agreement, including without limitation
Section IV thereof, shall otherwise remain in full force and effect with respect
to any proposed future grant of registration rights by the Company.
III This Third Amendment shall be effective upon its execution by the
Company and the Shareholders.
IV. In all other respects the Registration Rights Agreement shall continue
in full force and effect without change.
V. This Third Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Third Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxx X. XxxXxxxxxx
----------------------------
Name: Xxxx X. XxxXxxxxxx
Title: Chief Executive Officer
XXXXXXXX.XXX, INC.
THIRD AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
__________________________________________
(Printed Name of Shareholder)
/s/ Shareholder
------------------------------------------
(Signature)
SOFTWARE. COM, INC.
FOURTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT (this "Fourth
Amendment") is entered into as of the __th day of August, 1997, by and among
XXXXXXXX.XXX, INC., a California corporation (the "Company"), Xxxxxxxx X. Xxxx
("Xxxx"), Xxxxxxx X. X'Xxxxxx ("X'Xxxxxx"), Xxxxxx X. Xxxx ("Xxxx," and with
Ives and X'Xxxxxx, the "Holders") and the shareholders of the Company signatory
hereto (the "Shareholders").
RECITALS:
WHEREAS in connection with the merger (the "Merger") of Accordance
Corporation, a Massachusetts corporation ("Accordance") with and into
Xxxxxxxx.xxx Acquisition, Inc., a Massachusetts corporation and wholly-owned
subsidiary of the Company ("Merger Sub") pursuant to an Agreement and Plan of
Merger dated as of May 17, 1996 by among the Company, Merger Sub and Accordance,
each holder of the Company's common stock ("Common Stock") was to become a party
to the Registration Rights Agreement dated as of June 1, 1996, as amended by
First Amendment to Registration Rights Agreement dated June 26, 1996, Second
Amendment to Registration Rights Agreement dated September 27, 1996 and Third
Amendment to Registration Rights Agreement dated February 3, 1997 (as amended,
the "Registration Rights Agreement"), by and among the Company and the holders
of Common Stock listed in Exhibit A to the Registration Rights Agreement and the
signature page to the First Amendment;
WHEREAS the Holders were holders of Common Stock at the time of the Merger;
WHEREAS the Holders have agreed to become parties to the Registration
Rights Agreement;
WHEREAS under Section XIII of the Registration Rights Agreement, the
Company and the holders of a majority of the Registerable Securities (as defined
in Section I of the Registration Rights Agreement) may amend the Registration
Rights Agreement to add the Holders as parties; and
WHEREAS the Shareholders constitute holders of a majority of the
Registrable Securities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties hereby agree as follows:
I. All shares of Common Stock held by the Holders shall be considered
"Registrable Securities" as defined in Section I of the Registration Rights
Agreement and as that term is used therein.
II. Each of the Holders shall be considered a "Holder" as used in the
Registration Rights Agreement.
III. This Fourth Amendment shall be effective upon its execution by (i) the
Company, (ii) holders of a majority of the Registerable Securities (as defined
in Section I of the Registration Rights Agreement), and (iii) the Holders.
IV. In all other respects the Registration Rights Agreement shall continue
in full force and effect without change.
V. This Fourth Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Fourth Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxx X. XxxXxxxxxx
------------------------------
Name: Xxxx X. XxxXxxxxxx
Title: Chief Executive Officer
XXXXXXXX X. XXXX
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
XXXXXXX X. X'XXXXXX
By: /s/ Xxxxxxx X. X'Xxxxxx
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Xxxxxxx X. X'Xxxxxx
XXXXXX X. XXXX
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
XXXXXXXX.XXX, INC.
FOURTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
________________________________________
(Printed Name of Shareholder)
/s/ Shareholder
----------------------------------------
(Signature)
XXXXXXXX.XXX, INC.
------------------
FIFTH AMENDMENT TO
------------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS FIFTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "FIFTH
AMENDMENT") is entered into as of August 4, 1998, by and among XXXXXXXX.XXX,
INC., a California corporation (the "COMPANY"), and the shareholders of the
Company signatory hereto (the "SHAREHOLDERS").
RECITALS:
WHEREAS, certain holders of the Company's common stock, no par value (the
"COMMON STOCK") possess specified registration rights pursuant to a Registration
Rights Agreement dated as of June 1, 1996, as amended by (i) First Amendment to
Registration Rights Agreement dated June 26, 1996 (the "FIRST AMENDMENT"), (ii)
Second Amendment to Registration Rights Agreement dated September 27, 1996,
(iii) Third Amendment to Registration Rights Agreement dated February 3, 1997
(the "THIRD AMENDMENT") and (iv) Fourth Amendment to Registration Rights
Agreement dated September 12, 1997 (the "FOURTH AMENDMENT") (as amended, the
"REGISTRATION RIGHTS AGREEMENT") by and among the Company and the holders of
Common Stock listed in Exhibit A to the Registration Rights Agreement and the
signature pages to the First Amendment, the Third Amendment and the Fourth
Amendment;
WHEREAS, pursuant to the Series B Preferred Stock Purchase Agreement dated
August ___, 1998 (the "PURCHASE AGREEMENT") by and between the Company and Cisco
Systems, Inc. ("CISCO"), the Company will, among other things, agree to sell,
and Cisco will agree to purchase a total of 1,329,781 shares of Series B
Preferred Stock of the Company, no par value (the "SERIES B PREFERRED"), at a
purchase price of $5.15 per share for an aggregate purchase price of $6,848,370
(the "FINANCING");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has
agreed to grant certain registration rights to Cisco with respect to the shares
of Common Stock issuable upon conversion of the Series B Preferred;
WHEREAS, under Sections XIII and IV of the Registration Rights Agreement,
the Company and the holders of a majority of the Registrable Securities (as
defined in Section I of the Registration Rights Agreement) may amend the
Registration Rights Agreement to allow for the grant of additional registration
rights to any shareholder of the Company; and
WHEREAS, the Shareholders constitute holders of a majority of the
Registrable Securities;
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties hereby agree as follows:
1
I. The Shareholders, acting as authorized under Section XIII of the
Registration Rights Agreement, hereby consent to the grant of additional
registration rights to Cisco as contemplated by the Purchase Agreement and the
First Amendment to Amended and Restated Registration Rights Agreement attached
as Exhibit B thereto (the "PREFERRED REGISTRATION RIGHTS AMENDMENT"), and waive
the restrictions imposed and entitlements granted by Section IV of the
Registration Rights Agreement with respect to such grant.
II. Such waiver and consent shall be effective only with respect to the
immediate grant of registration rights to Cisco as contemplated by the Purchase
Agreement and the Preferred Registration Rights Amendment, and the provisions of
the Registration Rights Agreement, including without limitation Section IV
thereof, shall otherwise remain in full force and effect with respect to any
proposed future grant of registration rights by the Company.
III. This Fifth Amendment shall be effective upon its execution by the
Company and the Shareholders.
IV. In all other respects the Registration Rights Agreement shall continue
in full force and effect without change.
V. This Fifth Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxx X. XxxXxxxxxx
------------------------------
Name: Xxxx X. XxxXxxxxxx
Title: Chief Executive Officer
2
XXXXXXXX.XXX, INC.
FIFTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
________________________________________
(Printed Name of Shareholder)
/s/ Shareholder
----------------------------------------
(Signature)
3
XXXXXXXX.XXX, INC.
SIXTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS SIXTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "SIXTH
AMENDMENT") is entered into as of March 29, 1999, by and among XXXXXXXX.XXX,
INC., a California corporation (the "COMPANY"), and the shareholders of the
Company signatory hereto (the "SHAREHOLDERS").
RECITALS:
WHEREAS, certain holders of the Company's common stock, no par value (the
"COMMON STOCK") possess specified registration rights pursuant to a Registration
Rights Agreement dated as of June 1, 1996, as amended by (i) First Amendment to
Registration Rights Agreement dated June 26, 1996 (the "FIRST AMENDMENT"), (ii)
Second Amendment to Registration Rights Agreement dated September 27, 1996,
(iii) Third Amendment to Registration Rights Agreement dated February 3, 1997
(the "THIRD AMENDMENT"), (iv) Fourth Amendment to Registration Rights Agreement
dated September 12, 1997 (the "FOURTH AMENDMENT") and (v) Fifth Amendment to
Registration Rights Agreement dated August 4, 1998 (the "FIFTH AMENDMENT") (as
amended, the "REGISTRATION RIGHTS AGREEMENT"), by and among the Company and the
holders of the Common Stock listed in Exhibit A to the Registration Rights
Agreement and the signature pages to the First Amendment, the Third Amendment,
the Fourth Amendment and the Fifth Amendment;
WHEREAS, pursuant to the terms and conditions of the Series D Preferred
Stock Purchase Agreement (the "PURCHASE AGREEMENT") by and between the Company
and Hewlett-Packard Company ("HP"), the Company will, among other things, agree
to sell, and HP will agree to purchase a total of 1,626,016 shares of Series D
Preferred Stock of the Company, no par value (the "SERIES D PREFERRED"), at a
purchase price of $6.15 per share for an aggregate purchase price of
$9,999,998.40 (the "FINANCING");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has
agreed to grant certain registration rights to HP with respect to the shares of
Common Stock issuable upon conversion of the Series D Preferred;
WHEREAS, under Sections XIII and IV of the Registration Rights Agreement,
the Company and the holders of a majority of the Registrable Securities (as
defined in Section I of the Registration Rights Agreement) may amend the
Registration Rights Agreement to allow for the grant of additional registration
rights to any shareholder of the Company; and
WHEREAS, the Shareholders hold of a majority of the Registrable Securities;
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants contained herein, the parties hereby agree as follows:
I. The Shareholders, acting as authorized under Section XIII of the
Registration Rights Agreement, hereby consent to the grant of registration
rights to HP as contemplated by the Purchase Agreement and the Second Amendment
to Amended and Restated Registration Rights Agreement attached as Exhibit B
thereto (the "PREFERRED REGISTRATION RIGHTS AGREEMENT"), and waive the
restrictions imposed and entitlements granted by Section IV of the Registration
Rights Agreement with respect to such grant.
II. Such waiver and consent shall be effective only with respect to the
immediate grant of registration rights to Purchaser as contemplated by the
Purchase Agreement and the Preferred Registration Rights Agreement, and the
provisions of the Registration Rights Agreement, including without limitation
Section IV thereof, shall otherwise remain in full force and effect with respect
to any proposed future grant of registration rights by the Company.
III This Sixth Amendment shall be effective upon its execution by the
Company and the Shareholders.
IV. In all other respects the Registration Rights Agreement shall continue
in full force and effect without change.
V. This Sixth Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Sixth Amendment as
of the date set forth above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxx X. XxxXxxxxxx
--------------------------------
Name: Xxxx X. XxxXxxxxxx
Title: Chief Executive Officer
XXXXXXXX.XXX, INC.
SIXTH AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDERS' SIGNATURE PAGE
________________________________________
(Printed Name of Shareholder)
/s/ Shareholder
----------------------------------------
(Signature)
