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Exhibit 10.15
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
this 23rd day of February, 2001 by and among ▇▇▇▇▇▇ Software, Inc., a Delaware
corporation (together with any successor thereto, the "Company"), certain
stockholders of the Company listed under the heading "Founders" on the signature
pages hereto (each, a "Founder" and collectively, the "Founders") and the
investors listed under the heading "Investors" on the signature pages hereto
(each, an "Investor" and collectively, the "Investors").
WHEREAS, the Company and the Investors are simultaneously entering into
a Stock Purchase and Exchange Agreement and a Senior Subordinated Convertible
Note Purchase Agreement, each dated as of the date hereof (the "Purchase
Agreements"), pursuant to which the Investors have agreed to purchase from the
Company in accordance with the terms and conditions contained therein (i) shares
of Series A Preferred Stock (as defined herein), which shares are convertible
into Common Stock (as defined herein), and (ii) Convertible Notes (as defined
herein), which Convertible Notes are convertible into (A) the Notes (as defined
herein), and (B) the Warrants (as defined herein); and
WHEREAS, the execution of this Agreement is a condition precedent to
the transactions contemplated by the Purchase Agreements.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"COMMON STOCK" means the Company's Common Stock, $0.01 par value per
share, as authorized on the date of this Agreement and any other common equity
securities now or hereafter issued by the Company, and any other shares of stock
issued or issuable with respect thereto (whether by way of a stock dividend or
stock split or in exchange for or in replacement of or upon conversion of such
shares or otherwise in connection with a combination of shares,
recapitalization, merger, consolidation or other corporate reorganization).
"CONVERTIBLE NOTES" means the 12% Senior Subordinated Convertible Notes
due February 20, 2006 issued on the date hereof in the initial principal amount
of $10,000,000.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any similar successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
"NOTES" means the 12% Senior Subordinated Notes due February 23, 2006
in the initial principal amount of $9,990,000 issuable upon conversion of the
Convertible Notes.
"PERSON" means an individual, a corporation, an association, a
partnership, a joint venture, a limited liability company, an unincorporated
organization, an estate, a trust, and any other entity or organization,
governmental or otherwise.
"REGISTRABLE SECURITIES" means (i) any shares of Common Stock held by
an Investor or Founder, (ii) any shares of Common Stock subject to acquisition
by an Investor upon conversion of the shares of Series A Preferred Stock, (iii)
any Warrant Shares and (iv) any other securities issued or issuable with respect
to any such shares described in clauses (i), (ii) and (iii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization (it being
understood that for purposes of this Agreement, an Investor or Founder will be
deemed to be a holder of Registrable Securities whenever such Investor or
Founder has the right to then acquire or obtain from the Company any Registrable
Securities, whether or not such acquisition has actually been effected);
provided, however, that notwithstanding anything to the contrary contained
herein, "Registrable Securities" shall not at any time include any securities
(i) registered and sold pursuant to the Securities Act, (ii) sold to the public
pursuant to Rule 144 promulgated under the Securities Act or (iii) which could
then be sold in their entirety pursuant to Rule 144(k) without limitation or
restriction.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, or any similar successor federal statute, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
"SERIES A PREFERRED STOCK" means the Company's Series A Convertible
Preferred Stock, par value $.01 per share.
"WARRANTS" means the warrants issuable upon conversion of the
Convertible Notes.
"WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the Warrants.
2. PIGGYBACK REGISTRATIONS. If at any time after the date of the
closing of the Company's initial public offering of Common Stock pursuant to an
effective registration statement under the Securities Act, the Company shall
seek to register any shares of its Common Stock under the Securities Act for
sale to the public for its own account or for the account of any other Person
(except with respect to registration statements on Form ▇-▇, ▇-▇ or another form
not available for registering the Registrable Securities for sale to the
public), the Company will promptly give written notice thereof to all holders of
Registrable Securities. If within twenty (20) days after their receipt of such
notice one or more holders of Registrable Securities request the inclusion of
some or all of the Registrable Securities owned by them in such registration,
the Company will use its reasonable best efforts to effect the registration
under the Securities Act of
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such Registrable Securities. In the case of the registration of shares of
capital stock by the Company in connection with any underwritten public
offering, if the underwriter(s) determines that marketing factors require a
limitation on the number of Registrable Securities to be offered, the Company
shall not be required to register Registrable Securities in excess of the
amount, if any, of shares of the capital stock which the principal underwriter
of such underwritten offering shall reasonably and in good faith agree to
include in such offering in addition to any amount to be registered for the
account of the Company; provided, that the shares to be excluded from such
underwritten public offering shall be determined in the following order of
priority: (i) first, securities sought to be included by any Persons not having
a contractual right to include such securities in the registration statement,
(ii) second, Registrable Securities sought to be included by the Founders, and
(iii) third, securities sought to be included by any Persons (other than the
holders of Registrable Securities) having a contractual right existing as of the
date hereof to include such securities in the registration statement and
Registrable Securities sought to be included by the Investors; provided,
however, that so long as the Investors, upon the sale of the Registrable
Securities held by the Investors included in such offering, would receive net
proceeds (after underwriting commissions and discounts) that, when added
together with the net proceeds received by the Investors pursuant to all other
sales of Registrable Securities under this Section 2 or Section 3 below, would
equal or exceed $10,000,000, the securities held by each Person described in
clauses (ii) and (iii) above sought to be included in such registration
statement in connection with such underwritten public offering shall be excluded
on a pro rata basis (based upon the aggregate holdings of securities of the
holders thereof requesting inclusion of such Registrable Securities in such
registration statement).
3. FORM S-3 REGISTRATIONS.
(a) FORM S-3. After the Company's initial public offering of Common
Stock registered under the Securities Act, the Company shall use its reasonable
best efforts to qualify and remain qualified to register securities on Form S-3
(or any successor form) under the Securities Act. So long as the Company is
qualified to register securities on Form S-3 (or any successor form), the
Investors shall have the right to request registration on Form S-3 (or any
successor form) for the Registrable Securities held by such requesting
Investors, including registrations for the sale of such Registrable Securities
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act;
provided, that each such registration includes Registrable Securities having an
aggregate value of at least $2,500,000 (based on the then current market price).
Such requests shall be in writing and shall state the number of shares of
Registrable Securities to be registered of and the intended method of
disposition of such shares by such requesting holders. The Investors shall only
have the right to have Registrable Securities registered on Form S-3 pursuant to
this Section 3 two (2) times in any twelve (12) month period.
(b) REGISTRATION REQUIREMENTS. Following a request pursuant to Section
3(a) above, the Company will notify all of the other holders of Registrable
Securities and such holders shall then have twenty (20) days to notify the
Company of their desire to participate in the registration. Thereupon, the
Company will use its reasonable best efforts to cause such of the Registrable
Securities as may be requested by such holders to be registered under the
Securities Act in accordance with the terms of this Section 3.
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(c) POSTPONEMENT. The Company may postpone the filing of one or more
registration statements on Form S-3 requested to be filed under Section 3(a) for
a reasonable period of time, not to exceed one hundred twenty (120) days in the
aggregate during any twelve-month period, if such filing would (i) require a
special audit, (ii) require the disclosure of a material impending transaction
or other matter and the Company's Board of Directors determines in good faith
that such disclosure would have a material adverse effect on the Company or
(iii) conflict with any proposed and imminent firm commitment underwriting of
the Company. Notwithstanding anything to the contrary herein, no request may be
made under this Section 3 within sixty (60) days after the offering date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering.
4. FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is required
hereunder to register any Registrable Securities, it agrees that it shall also
do the following:
(a) Pay all expenses of such registrations and offerings (exclusive of
underwriting discounts and commissions) and the reasonable fees and expenses of
not more than one independent counsel for the holders of Registrable Securities
participating in such registration as a group (selected by a majority in
interest of the holders of Registrable Securities who participate in the
registration) in connection with any registrations hereunder;
(b) Use its reasonable best efforts diligently to prepare and file with
the Commission a registration statement and such amendments and supplements to
said registration statement and the prospectus used in connection therewith as
may be necessary to keep said registration statement effective until the holder
or holders have completed the distribution described in the registration
statement relating thereto and to comply with the provisions of the Securities
Act with respect to the sale of securities covered by said registration
statement for such period;
(c) Furnish to each selling holder such copies of each preliminary and
final prospectus and such other documents as such holder may reasonably request
to facilitate the public sale or other disposition of its Registrable
Securities;
(d) Enter into any reasonable underwriting agreement required by the
proposed underwriter, if any, in such form and containing such terms as are
customary; provided, however, that no holder of the Registrable Securities shall
be required to make any representations or warranties other than with respect to
its title to the Registrable Securities and with respect to any written
information provided by such holder to the Company, and if the underwriter
requires that representations or warranties be made and that indemnification be
provided, the Company shall make all such representations and warranties and
provide all such indemnities, including, without limitation, in respect of the
Company's business, operations and financial information and the disclosures
relating thereto in the prospectus;
(e) Use its reasonable best efforts to register or qualify the
securities covered by said registration statement under the securities or "blue
sky" laws of such jurisdictions as any selling holder may reasonably request;
provided, that the Company shall not be required to register or qualify the
securities in any jurisdictions in which such registration or qualification
would require it to qualify to do business therein;
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(f) Immediately notify each selling holder, at any time when a
prospectus relating to his, her or its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading, and,
at the request of any such selling holder, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(g) Use reasonable efforts to cause all such Registrable Securities to
be listed on each securities exchange or quotation system on which similar
securities issued by the Company are then listed or quoted;
(h) Otherwise use its reasonable best efforts to comply with the
securities laws of the United States and other applicable jurisdictions and all
applicable rules and regulations of the Commission and comparable governmental
agencies in other applicable jurisdictions and make generally available to its
holders, in each case as soon as practicable, but not later than 30 days after
the close of the period covered thereby, an earnings statement of the Company
which will satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(i) If the offering is underwritten, obtain and furnish to each selling
Holder, immediately prior to the effectiveness of the registration statement
and, at the time of delivery of any Registrable Securities sold pursuant
thereto, a cold comfort letter from the Company's independent public accountants
in customary form and covering such matters of the type customarily covered by
cold comfort letters; and
(j) Otherwise cooperate with the selling holders, the underwriter or
underwriters, the Commission and other regulatory agencies and take all actions
and execute and deliver or cause to be executed and delivered all documents
necessary to effect the registration of any Registrable Securities hereunder.
5. INDEMNIFICATION; CONTRIBUTION.
(a) Incident to any registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will indemnify and
hold harmless each underwriter and each holder of Registrable Securities who
offers or sells any such Registrable Securities in connection with such
registration statement (including such holder's partners (including partners of
partners and stockholders of any such partners), and directors, officers,
employees, representatives and agents of any of them (a "Selling Holder"), and
each person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (a "Controlling Person")) from
and against any and all losses, claims, damages, expenses and liabilities, joint
or several (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, as the same are incurred), to which they, or
any of them, may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities
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arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement (including
any related preliminary or definitive prospectus, or any amendment or supplement
to such registration statement or prospectus), (ii) any omission or alleged
omission to state in such document a material fact required to be stated in it
or necessary to make the statements in it not misleading, or (iii) any violation
by the Company of the Securities Act, any state securities or "blue sky" laws or
any rule or regulation thereunder in connection with such registration;
provided, however, that the Company will not be liable to the extent that such
loss, claim, damage, expense or liability arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information furnished in writing to the Company by any
underwriter, Selling Holder or Controlling Person expressly for use in such
registration statement. With respect to such untrue statement or omission or
alleged untrue statement or omission in the information furnished in writing to
the Company by such Selling Holder expressly for use in such registration
statement, such Selling Holder will indemnify and hold harmless each
underwriter, the Company (including its directors, officers, employees,
representatives and agents) and each other selling holder (including such
holder's partners (including partners of partners and stockholders of such
partners) and directors, officers, employees, representatives and agents of any
of them, and each person who controls any of them within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act), from and against
any and all losses, claims, damages, expenses and liabilities, joint or several,
to which they, or any of them, may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise to the same extent provided in the immediately preceding
sentence. In no event, however, shall the liability of a Selling Holder for
indemnification under this Section 5(a) exceed the lesser of (A) that proportion
of the losses, claims, damages, expenses and liabilities indemnified against
which is equal to such Selling Holder's proportion of the total securities sold
under such registration statement, and (B) the net proceeds received by such
Selling Holder from its sale of Registrable Securities under such registration
statement.
(b) If the indemnification provided for in Section 5(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
5, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the other
Selling Holders and the underwriters from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the other Selling Holders and the underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations; provided, however, that in the event of a registration
statement filed under Section 3(a) and in which the Company does not register
any shares of capital stock, the proportion of contribution by the Company, the
other Selling Holders and the underwriters shall in all cases be governed by
clause (ii) above. The relative benefits received by the Company, the Selling
Holders and the underwriters shall be deemed to be in the same respective
proportions that the net proceeds from the offering (before deducting expenses)
received by the Company
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and the Selling Holders and the underwriting discount received by the
underwriters, in each case as set forth in the table on the cover page of the
applicable prospectus, bear to the aggregate public offering price of the
Registrable Securities. The relative fault of the Company, the Selling Holders
and the underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Holders or the underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Selling Holders, and the underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 5(b)
were determined by pro rata or per capita allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. In no event, however, shall a Selling
Holder be required to contribute any amount under this Section 5(b) in excess of
the lesser of (A) that proportion of the losses, claims, damages, expenses and
liabilities indemnified against which is equal to such Selling Holder's
proportion of the total securities sold under such registration statement, and
(B) the net proceeds received by such Selling Holder from its sale of
Registrable Securities under such registration statement. No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages, expenses and
liabilities referred to in this Section 5 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5 will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified parties
or any officer, director, employee, agent or Controlling Person of the
indemnified parties. No indemnifying party, in the defense of any such claim or
litigation, shall enter into a consent of entry of any judgment or enter into a
settlement without the consent of the indemnified party, which consent will not
be unreasonably withheld.
6. RULE 144 AND RULE 144A REQUIREMENTS. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use its reasonable best efforts to take all action as may be required as a
condition to the availability of Rule 144 or Rule 144A under the Securities Act
(or any successor or similar exemptive rules hereafter in effect). The Company
shall furnish to any holder, within fifteen (15) days of a written request, a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirement of Rule 144 or Rule 144A or such
successor rules. After the occurrence of the first underwritten public offering
of Common Stock of the Company pursuant to an offering registered under the
Securities Act on Form S-1 or Form SB-2 (or any comparable successor forms), the
Company shall use its reasonable best efforts to facilitate and expedite
transfers of Registrable Securities pursuant to Rule 144 under the Securities
Act, which efforts shall include timely notice to its transfer agent to expedite
such transfers of Registrable Securities.
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7. TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights set
forth in this Agreement are transferable to each transferee of Registrable
Securities who receives any shares of Registrable Securities. Each subsequent
holder of Registrable Securities must consent in writing to be bound by the
terms and conditions of this Agreement in order to acquire the rights granted
pursuant to this Agreement.
8. RIGHTS WHICH MAY BE GRANTED TO SUBSEQUENT INVESTORS. Other than
permitted transferees of Registrable Securities under Section 7 hereof, the
Company shall not, without the prior written consent of the holders of not less
than a majority of the outstanding Registrable Securities held by the Investors,
grant any other registration rights to any third parties upon terms on a parity
with, or more favorable than, the registration rights granted to the Investors
hereunder.
9. MISCELLANEOUS.
(a) AMENDMENTS. For the purposes of this Agreement and all agreements
executed pursuant hereto, no course of dealing between or among any of the
parties hereto and no delay on the part of any party hereto in exercising any
rights hereunder shall operate as a waiver of the rights hereof. This Agreement
may not be amended or modified or any provision hereof waived without the
written consent of the Company, the holders of not less than a majority of the
outstanding Registrable Securities held by the Founders (with respect to Section
2 only), and the holders of not less than a majority of the outstanding
Registrable Securities held by the Investors; provided, that any party may waive
any provision hereof intended for its benefit by written consent.
(b) NOTICES AND DEMANDS. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given or served and received for all purposes when delivered by
hand, telecopy, telex or other method of facsimile transmission with receipt
acknowledged, or five (5) days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two (2) days after
being sent by overnight delivery providing receipt of delivery, in each case
with oral confirmation to the notice recipient, to the following addresses: if
to the Company, at its address as shown on the signature pages hereto, or at any
other address designated by the Company to the Investors and the other parties
hereto in writing; and if to a Founder or an Investor, at his, her or its
mailing address as shown on the signature pages hereto, or at any other address
designated by such Founder or Investor to the Company and the other parties
hereto in writing.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, the laws of the State of
Minnesota without giving effect to the conflict of laws principles thereof.
(d) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
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(e) EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
(f) INTEGRATION. This Agreement, including the exhibits, documents and
instruments referred to herein, constitutes the entire agreement, and supersedes
all other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, including, without
limitation, the Term Sheet dated December 22, 2000 between the Company and the
Investors in respect of the transactions contemplated herein.
(g) DISPUTE RESOLUTION.
(i) All disputes, claims, or controversies arising out of or
relating to this Agreement, or the negotiation, breach, termination,
validity or performance hereof or the transactions contemplated hereby
and thereby, that are not resolved by mutual agreement shall be
resolved solely and exclusively by binding arbitration to be conducted
before J.A.M.S./Endispute, Inc. or its successor. The arbitration shall
be held in Chicago, Illinois before a single arbitrator and shall be
conducted in accordance with the rules and regulations promulgated by
J.A.M.S./Endispute, Inc. unless specifically modified herein.
(ii) The parties covenant and agree that the arbitration shall
commence within ninety (90) days of the date on which a written demand
for arbitration is filed by any party hereto. In connection with the
arbitration proceeding, the arbitrator shall have the power to order
the production of documents by each party and any third-party
witnesses. In addition, each party may take up to three depositions as
of right, and the arbitrator may in his or her discretion allow
additional depositions upon good cause shown by the moving party.
However, the arbitrator shall not have the power to order the answering
of interrogatories or the response to requests for admission. In
connection with any arbitration, each party shall provide to the other,
no later than seven (7) business days before the date of the
arbitration, the identity of all persons that may testify at the
arbitration and a copy of all documents that may be introduced at the
arbitration or considered or used by a party's witness or expert, and a
summary of the expert's opinions and the basis for said opinions. The
arbitrator's decision and award shall be made and delivered within six
(6) months of the selection of the arbitrator. The arbitrator's
decision shall set forth a reasoned basis for any award of damages or
finding of liability. The arbitrator shall not have power to award
damages in excess of actual compensatory damages and shall not multiply
actual damages or award punitive damages or any other damages that are
specifically excluded under this Agreement, and each party hereby
irrevocably waives any claim to such damages in connection with such
arbitration.
(iii) The parties covenant and agree that they will
participate in the arbitration in good faith and that they will, except
as provided below, (i) bear their own attorneys' fees, costs and
expenses in connection with the arbitration, and (ii) share equally in
the fees and expenses charged by J.A.M.S./Endispute, Inc. The
arbitrator may in his or her discretion assess costs and expenses
(including the reasonable legal fees, costs and expenses of the
prevailing party) against any party to a proceeding. Any party
unsuccessfully refusing to comply with an order of the arbitrators
shall be liable for costs and expenses, including attorneys' fees,
incurred by the other party in enforcing the
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award. In the case of temporary or preliminary injunctive relief, any
party may proceed in court prior to, during or after arbitration for
the limited purpose of avoiding immediate and irreparable harm,
provided, that the right to equitable relief by a court is not intended
to derogate from this arbitration procedure.
(iv) Each of the parties hereto irrevocably and
unconditionally consents to the exclusive jurisdiction of
J.A.M.S./Endispute, Inc. to resolve all disputes, claims or
controversies arising out of or relating to this Agreement or the
negotiation, breach, termination ,validity or performance hereof or the
transactions contemplated hereby and further consents to the sole and
exclusive jurisdiction of any United States District Court of competent
jurisdiction for the purposes of enforcing the arbitration provisions
of this Section 9(g) and the award or decision in any such proceeding.
Each party further irrevocably waives any objection to proceeding
before J.A.M.S./Endispute, Inc. based upon lack of personal
jurisdiction or to the laying of venue and further irrevocably and
unconditionally waives and agrees not to make a claim in any court that
arbitration before J.A.M.S./Endispute, Inc. has been brought in an
inconvenient forum. Each of the parties hereto hereby consents to
service of process by registered mail at the address to which notices
are to be given. Each of the parties hereto agrees that its or his
submission to jurisdiction and its or his consent to service of process
by mail is made for the express benefit of the other parties hereto.
(h) REMEDIES; SEVERABILITY. Notwithstanding Section 9(g), it is
specifically understood and agreed that any breach of the provisions of this
Agreement by any Person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other remedies which they may
have, such other parties may enforce their respective rights by actions for
specific performance (to the extent permitted by law). Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be deemed prohibited or invalid under such applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first set forth above.
COMPANY: ▇▇▇▇▇▇ SOFTWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name:
Title:
FOUNDERS: ▇▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title:
▇▇▇▇▇▇ FAMILY INVESTMENT COMPANY, LTD.
By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
Signature page to Registration Rights Agreement
12
INVESTORS: TA IX, L.P.
By: TA Associates IX LLC, its General
Partner
By: TA Associates, Inc., its Manager
By: ***
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Name:
Title:
TA/ATLANTIC AND PACIFIC IV L.P.
By: TA Associates AP IV L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: ***
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Name:
Title:
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: ***
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Name:
Title:
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By: ***
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Name:
Title:
*** /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇
Title: Authorized Signatory
Signature page to Registration Rights Agreement
13
INVESTORS: ST. ▇▇▇▇ VENTURE CAPITAL VI, LLC
By: SPVC Management VI, LLC, its Managing
Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
Signature page to Registration Rights Agreement
