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EXHIBIT 4.2
THIRD AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT, AS AMENDED
This AGREEMENT is made as of this 1st day of March, 1999, by and among
SILVERSTREAM SOFTWARE, INC., a Delaware corporation (the "Company"), the
individuals and entities set forth in Attachment A hereto (the "Investors"), the
individuals set forth in Attachment B hereto (the "Management Stockholders") and
the individuals set forth in Attachment C hereto (the "Other Stockholders").
WHEREAS, certain of the parties hereto purchased an aggregate of
3,683,050 shares (the "Series A Shares") of the Company's Series A Convertible
Preferred Stock, $.001 par value per share (the "Series A Preferred Stock"),
pursuant to the Series A Preferred Stock Purchase Agreement, dated as of July 9,
1996, by and among the Company and certain of the parties hereto (the "Series A
Purchase Agreement");
WHEREAS, certain of the parties hereto purchased an aggregate of
1,500,938 shares (the "Series B Shares") of the Company's Series B Convertible
Preferred Stock, $.001 par value per share (the "Series B Preferred Stock"),
pursuant to the Series B Preferred Stock Purchase Agreement, dated as of June
16, 1997, by and among the Company and certain of the parties hereto (the
"Series B Purchase Agreement");
WHEREAS, certain of the parties hereto purchased an aggregate of
1,922,588 shares (the "Series C Shares") of the Company's Series C Convertible
Preferred Stock, $.001 par value per share (the "Series C Preferred Stock"),
pursuant to the Series C Preferred Stock Purchase Agreement, dated as of
November 6, 1997, by and among the Company and certain of the parties hereto
(the "Series C Purchase Agreement");
WHEREAS, certain of the parties hereto have agreed to purchase an
aggregate of 1,313,158 shares (the "Series D Shares") of the Company's Series D
Convertible Preferred Stock, $.001 par value per share (the "Series D Preferred
Stock"), pursuant to the Series D Preferred Stock Purchase Agreement of even
date herewith (the "Purchase Agreement") by and among the Company and certain of
the parties hereto;
WHEREAS, the Company and certain of the parties hereto deem it
desirable to amend and restate the Second Amended and Restated Investor Rights
Agreement, originally dated as of July 9, 1996 and as amended and restated as of
June 16, 1997 and as of November 6, 1997, by and among the Company and certain
of the parties hereto (the "Second Amended and Restated Investor Rights
Agreement"), in its entirety and to become bound by the terms of this Agreement
in order to induce certain of the Investors and certain of the Other
Stockholders to purchase the Series D Shares; and
WHEREAS, the Company, the Investors, the Management Stockholders and
the Other Stockholders desire to provide for (i) their continuing representation
on the Board of Directors of the Company, (ii) certain arrangements with respect
to the registration
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of shares of capital stock of the Company under the Securities Act, and (iii) a
right of first refusal with respect to the sale of any securities of the
Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the receipt and sufficiency of which are acknowledged, it is
hereby agreed that the Second Amended and Restated Investor Rights Agreement is
amended and restated in its entirety to read as follows:
ARTICLE I. DEFINITIONS
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" means the Common Stock, $.001 par value per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission issued under such Act, as they may, from time to time, be in effect.
"Initial Public Offering" means the initial public offering of
shares of Common Stock pursuant to a Registration Statement at a price to the
public of at least $10.00 per share (adjusted for stock splits, stock dividends
and similar events) resulting in gross proceeds of at least $20,000,000.
"Management Stockholders" means the individuals set forth in
Attachment B hereto, any persons or entities to whom the rights granted and
obligations assumed under this Agreement are transferred by a Management
Stockholder, and their successors or assigns pursuant to Section 2 of Article V
below.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares, (ii) with respect to Section 2 of
Article III, shares of Common Stock held by the Management Stockholders, (iii)
any shares of Common Stock, and any shares of Common Stock issued or issuable
upon the conversion or exercise of any other securities, acquired by the
Investors pursuant to Article IV of this Agreement, and (iv) any other shares of
Common Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
however, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares (a) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act, or (b) upon any sale in any manner to
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a person or entity which, by virtue of Section 2 of Article V of this Agreement,
is not entitled to the rights provided by this Agreement. Wherever reference is
made in this Agreement to a request or consent of holders of a certain
Percentage of Registrable Shares, the determination of such Percentage shall
include shares of Common Stock issuable upon conversion of the Shares even if
such conversion has not yet been effected.
"Registration Expenses" means the expenses described in Section 4
of Article III below.
"Registration Statement" means a registration statement filed by
the Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Securities Act" means 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.
"Shares" means collectively the Series A Shares, the Series B
Shares, the Series C Shares and the Series D Shares.
"Stockholders" means the Investors and the Other Stockholders and
any persons or entities to whom the rights granted under this Agreement are
transferred by the Investors and the Other Stockholders, and their successors or
assigns pursuant to Section 2 of Article V below.
ARTICLE II. VOTING RIGHTS
1. Voting of Shares. In any and all elections of directors of the
Company (whether at a meeting or by written consent in lieu of a meeting), each
Stockholder and Management Stockholder shall vote or cause to be voted all
Voting Shares (as defined in Section 2 of Article II below) owned by him or it,
or over which he or it has voting control, and otherwise use his or its
respective best efforts, so as to elect as directors (i) the Chief Executive
Officer of the Company, (ii) one representative designated by North Bridge
Venture Partners, L.P. ("North Bridge"), (iii) one representative designated by
Matrix Partners IV, L.P. ("Matrix"); (iv) one designee approved by North Bridge,
Matrix and the holders of a majority of the then outstanding shares of Common
Stock; and (v) Xxxxx X. Xxxx. Xxxxx X. Xxxx, for so long as he is willing to
serve, shall be Chairman of the Board of Directors of the Company.
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2. Voting Shares. "Voting Shares" shall mean and include any and all
shares of the Common Stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and/or shares of capital
stock of the Company, by whatever name called, which carry voting rights
(including voting rights which arise by reason of default) which are now owned
or subsequently acquired by a Stockholder or Management Stockholder, however
acquired, including without limitation stock splits and stock dividends.
3. Restrictive Legend. All certificates representing Voting Shares
owned or hereafter acquired by the Stockholders and Management Stockholders or
any transferee bound by this Agreement shall have affixed thereto a legend
substantially in the following form:
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in an Investor Rights
Agreement by and among the registered owner of this certificate,
the Company and certain other stockholders of the Company, a copy
of which is available for inspection at the offices of the
Secretary of the Company."
4. Transfers of Voting Rights. Any transferee to whom Voting Shares are
transferred by a Stockholder or Management Stockholder, whether voluntarily or
by operation of law, shall be bound by the voting obligations imposed upon the
transferor under this Agreement, and shall be entitled to the rights granted to
the transferor under this Agreement, to the same extent as if such transferee
were a Stockholder or Management Stockholder hereunder. Notwithstanding the
foregoing, the rights of North Bridge, Matrix and/or Xxxxx X. Xxxx under this
Article II shall terminate at such time as such party owns less than 25% of the
aggregate number of Shares acquired by it pursuant to the Series A Purchase
Agreement, the Series B Purchase Agreement, the Series C Purchase Agreement and
the Purchase Agreement.
ARTICLE III. REGISTRATION RIGHTS
1. Required Registrations.
(a) At any time after the closing of the Company's first
underwritten public offering of shares of Common Stock pursuant to a
Registration Statement, a Stockholder or Stockholders holding in the aggregate
at least 35% of the then outstanding Registrable Shares may request, in writing,
that the Company effect the registration on Form S-1 or Form S-2 (or any
successor form) of Registrable Shares owned by such Stockholders having an
aggregate offering price of at least $10,000,000 (based on the then current
market price or fair value). If the Stockholder or Stockholders
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initiating the registration intend(s) to distribute the Registrable Shares by
means of an underwriting, such Stockholder or Stockholders shall so advise the
Company in its request. In the event such registration is underwritten, the
right of other Stockholders to participate in such registration shall be
conditioned on such Stockholders' participation in such underwriting. Upon
receipt of any such request, the Company shall promptly give written notice of
such proposed registration to all other Stockholders. Such Stockholders shall
have the right, by giving written notice to the Company within 30 days after the
Company provides its notice, to elect to have included in such registration such
of their Registrable Shares as such Stockholders may request in such notice of
election; provided that if the underwriter (if any) managing the offering
determines that, because of marketing factors, all of the Registrable Shares
requested to be registered by all Stockholders may not be included in the
offering, then all Stockholders who have requested registration shall
participate in the registration pro rata based upon the number of Registrable
Shares which they have requested to be so registered. Thereupon, the Company
shall, as expeditiously as possible, use its reasonable best efforts to effect
the registration on Form S-1 or Form S-2 (or any successor form) of all
Registrable Shares which the Company has been requested to so register.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders holding in the aggregate at least
200,000 Registrable Shares may request the Company, in writing, to effect the
registration on Form S-3 (or such successor form), of Registrable Shares having
an aggregate offering price of at least $1,000,000 (based on the then current
public market price). Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all other
Stockholders. Such Stockholders shall have the right, by giving written notice
to the Company within 30 days after the Company provides its notice, to elect to
have included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election; provided that if the
underwriter (if any) managing the offering determines that, because of marketing
factors, all of the Registrable Shares requested to be registered by all
Stockholders may not be included in the offering, then all Stockholders who have
requested registration shall participate in the registration pro rata based upon
the number of Registrable Shares which they have requested to be so registered.
Thereupon, the Company shall, as expeditiously as possible, use its reasonable
best efforts to effect the registration on Form S-3 (or such successor form) of
all Registrable Shares which the Company has been requested to so register.
(c) The Company shall not be required to effect more than two
registrations pursuant to paragraph (a) above; provided, however, that such
obligation shall be deemed satisfied only when a registration statement covering
the applicable Registrable Shares shall have become effective and, if such
method of disposition is a
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firm commitment underwritten public offering, all such Registrable Shares have
been sold pursuant thereto. There shall be no limit on the number of
registrations which may be requested and obtained pursuant to paragraph (b)
above. In addition, the Company shall not be required to effect any registration
(other than on Form S-3 or any successor form relating to secondary offerings)
within six months after the effective date of any other Registration Statement
on Form S-1 of the Company.
(d) If at the time of any request to register Registrable Shares
pursuant to this Section 1, the Company is engaged or has plans to engage within
90 days of the time of the request in a registered public offering of securities
for its own account or is engaged in any other activity which, 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, then the
Company may at its option direct that such request be delayed for a period not
in excess of six months from the effective date of such offering or the date of
commencement of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any
12-month period.
2. Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
at any time and from time to time, it will, prior to such filing, give written
notice to all Stockholders and all Management Stockholders of its intention to
do so and, upon the written request of a Stockholder or Stockholders, and/or a
Management Stockholder or Management Stockholders, given within 30 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 reasonable
best efforts to cause all Registrable Shares which the Company has been
requested by such Stockholder or Stockholders, or Management Stockholder or
Management Stockholders, 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
Stockholder or Stockholders, or Management Stockholder or Management
Stockholders; provided, however, that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2
without obligation to any Stockholder or Management Stockholder.
(b) In connection with any registration under this Section 2
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such registration unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If in the opinion of the managing underwriter it is
desirable because of marketing factors to limit the number of Registrable Shares
to be included in the offering, then the Company shall be required to include in
the registration only that number of Registrable Shares, if any,
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which the managing underwriter believes should be included therein; provided,
however, that no persons or entities other than the Company, the Stockholders,
the Management Stockholders and other persons or entities holding registration
rights shall be permitted to include securities in the offering. If the number
of Registrable Shares to be included in the offering in accordance with the
foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such registration shall participate in
the registration pro rata based upon their total ownership of shares of Common
Stock (giving effect to the conversion into Common Stock of all securities
convertible thereinto), provided, however, that if the Registration Statement is
filed by the Company upon the exercise of demand registration rights held by
stockholders other than holders of Registrable Shares ("Other Holders") and does
not include shares to be sold for the account of the Company, then the Other
Holders shall be entitled to include all of the shares requested by them to be
included in such Registration Statement before holders of Registrable Shares
shall be entitled to include Registrable Shares therein. If any holder would
thus be entitled to include more securities than such holder requested to be
registered, the excess shall be allocated among other requesting holders pro
rata in the manner described in the preceding sentence.
3. 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:
(a) File with the Commission a Registration Statement with respect
to such Registrable Shares and use its reasonable 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 120 days after the effective date thereof;
(c) As expeditiously as possible furnish to each selling
Stockholder or Management Stockholder 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
Stockholder or Management Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder or Management Stockholder; and
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(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 Stockholder or
Management Stockholder shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable the selling Stockholder
or Management Stockholder to consummate the public sale or other disposition in
such states of the Registrable Shares owned by the selling Stockholder;
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 Stockholder or Management Stockholder 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 Stockholders or Management
Stockholders and, if requested, the selling Stockholder or Management
Stockholders shall immediately cease making offers of Registrable Shares and
return all prospectuses then in their possession to the Company. The Company
shall promptly provide each selling Stockholder and Management Stockholder with
revised prospectuses and, following receipt of the revised prospectuses, the
selling Stockholder or Management Stockholder shall be free to resume making
offers of the Registrable Shares.
Notwithstanding the foregoing, each selling Stockholder and Management
Stockholder shall cease making offers or sales pursuant to a Registration
Statement during any period (not to exceed 90 days) in which the Company
determines, by notice to each Selling Stockholder and Management Stockholder,
that it is in possession of material non-public information.
4. Allocation of Expenses. The Company will pay all Registration
Expenses of all registrations under this Agreement; provided, however, that if a
registration under Section 1 of Article III is withdrawn at the request of the
Stockholders requesting such registration (other than as a result of information
concerning the business or financial condition of the Company which is made
known to the Stockholders after the date on which such registration was
requested) and if the requesting Stockholders elect not to have such
registration counted as a registration requested under Article III, Section 1,
the requesting Stockholders shall pay the Registration Expenses of such
registration pro rata in accordance with the number of their Registrable Shares
included in such registration. For purposes of this Section 4, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Article III, Section 1, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees and
expenses of counsel for the Company and the fees and expenses of counsel
selected by the selling Stockholder(s) to represent the selling Stockholder(s),
state Blue Sky fees and expenses, and the expense of any special audits incident
to or required by any such registration, but excluding underwriting discounts,
selling commissions and the fees and
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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expenses of selling Stockholders' and Management Stockholders' own counsel
(other than the counsel selected to represent all selling Stockholder(s)).
5. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or final prospectus, or any such
amendment or Supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus
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or final prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such seller furnished in writing to the Company by or on
behalf of such seller specifically for use in connection with the preparation of
such Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of such Stockholders hereunder shall be limited to
an amount equal to the proceeds to each Stockholder of Registrable Shares sold
in connection with such registration.
(c) Each party entitled to indemnification under this Article III,
Section 5 (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 be
unreasonably withheld); 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 Article III, Section 5. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. 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 of such
claim or litigation, and no indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Registrable Shares exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Article III, Section 5 but it is judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Article III, Section 5 provides for indemnification in such case, or
(ii) contribution under the Securities Act may be required on the part of any
such selling Stockholder or any such controlling person in circumstances for
which indemnification is provided
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under this Article III, Section 5; then, in each such case, the Company and such
Stockholder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportions so that such holder is responsible for the portion represented
by the percentage that the public offering price of its Registrable Shares
offered by the Registration Statement bears to the public offering price of all
securities offered by such Registration Statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) no such holder will be required to contribute any amount in excess of
the proceeds to it of all Registrable Shares sold by it pursuant to such
Registration Statement, and (B) no person or entity guilty of fraudulent
misrepresentation, within the meaning of Section 11(f) of the Securities Act,
shall be entitled to contribution from any person or entity who is not guilty of
such fraudulent misrepresentation
6. Indemnification with Respect to Underwritten Offering. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Article III, Section 1, the Company agrees to
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering.
7. Information by Holder. Each Stockholder and Management Stockholder
including Registrable Shares in any registration shall furnish to the Company
such information regarding such Stockholder or Management Stockholder and the
distribution proposed by such Stockholder or Management Stockholder as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
8. "Stand-Off" Agreement. Each Stockholder and Management Stockholder,
if requested by the Company and the managing underwriter of an offering by the
Company of Common Stock or other securities of the Company pursuant to a
Registration Statement, shall agree not to sell publicly or otherwise transfer
or dispose of any Registrable Shares or other securities of the Company held by
such Stockholder for a specified period of time (not to exceed 180 days)
following the effective date of such Registration Statement; provided, that:
(a) such agreement shall only apply to the first Registration
Statement covering Common Stock to be sold on its behalf to the public in an
underwritten offering; and
(b) all officers and directors of the Company enter into similar
agreements.
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9. Limitations on Subsequent Registration Rights. The Company shall
not, without the prior written consent of Stockholders holding at least 66 2/3%
of the Registrable Shares held by all Stockholders, enter into any agreement
(other than this Agreement) with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder
(a) to include securities of the Company in any Registration Statement, unless
under the terms of such agreement, such holder or prospective holder may include
such securities in any such registration only on terms substantially similar to
the terms on which holders of Registrable Shares may include shares in such
registration, or (b) to make a demand registration which could result in such
registration statement being declared effective prior to June 30, 2005.
10. Rule 144 Requirements. After the earliest of (a) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (b) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (c) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(i) Comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
(ii) Use its best 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 (at any time after it has become subject to
such reporting requirements); and
(iii) Furnish to any holder of Registrable Shares upon request (A)
a written statement by the Company as to its compliance with the requirements of
said Rule 144(c), and the reporting Requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (B) a copy of the most recent annual or quarterly report of the
Company, and (C) such other reports and documents of the Company as such holder
may reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
ARTICLE IV. RIGHT OF FIRST REFUSAL
1. Right of First Refusal
(a) The Company shall not issue, sell or exchange, agree to issue,
sell or exchange, or reserve or set aside for issuance, sale or exchange, (i)
any shares of its Common Stock, (ii) any other equity securities of the Company,
including, without limitation, shares of preferred stock, (iii) any option,
warrant or other right to subscribe
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
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for, purchase or otherwise acquire any equity securities of the Company, or (iv)
any debt securities convertible into capital stock of the Company (collectively,
the "Offered Securities"), unless in each such case the Company shall have first
complied with Article IV of this Agreement. The Company shall deliver to the
Investors a written notice of any proposed or intended issuance, sale or
exchange of Offered Securities (the "Offer"), which Offer shall (i) identify and
describe the Offered Securities, (ii) describe the price and other terms upon
which they are to be issued, sold or exchanged, and the number or amount of the
Offered Securities to be issued, sold or exchanged, (iii) identify the persons
or entities, if known, to which or with which the Offered Securities are to be
offered, issued, sold or exchanged, and (iv) offer to issue and sell to or
exchange with the Investors (A) such portion of the Offered Securities as the
aggregate number of Shares then held by the Investor bears to the total number
of shares of Common Stock then outstanding (including shares of Common Stock
issuable upon conversion of outstanding convertible securities without the
payment of additional consideration even if such conversion has not been
effected) (the "Basic Amount"), and (B) such additional portion of the Offered
Securities as the Investor indicates it will purchase or acquire should other
prospective investors acquire less than all of the Offered Securities not
initially offered to the Investors (the "Undersubscription Amount"). Each
Investor shall have the right, for a period of 30 days following delivery of the
Offer, to purchase or acquire, at the price and upon the other terms specified
in the Offer, the number or amount of Offered Securities described above. The
Offer by its term shall remain open and irrevocable for such 30-day period.
(b) To accept an Offer, in whole or in part, an Investor must
deliver a written notice to the Company prior to the end of the 30-day period of
the Offer, setting forth the portion of the Investor's Basic Amount that such
Investor elects to purchase and, if such Investor shall elect to purchase all of
its Basic Amount, the Undersubscription Amount (if any) that such Investor
elects to purchase (the "Notice of Acceptance"). If the Basic Amounts subscribed
for by all Investors are less than the total Offered Securities, then each
Investor who has set forth Undersubscription Amounts in its Notice of Acceptance
shall be entitled to purchase, in addition to the Basic Amounts subscribed for,
all Undersubscription Amounts it has subscribed for; provided, however, that
should the Undersubscription Amounts subscribed for exceed the difference
between the Offered Securities and the Basic Amounts subscribed for (the
"Available Undersubscription Amount"), each Investor who has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Undersubscription Amount subscribed
for by such Investor bears to the total Undersubscription Amounts subscribed for
by all Investors, subject to rounding by the Board of Directors to the extent it
reasonably deems necessary.
(c) In the event that Notices of Acceptance are not given by the
Investors in respect of all the Offered Securities, the Company shall have 90
days from
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-13-
14
the expiration of the period set forth in Section 1(a) of Article IV to issue,
sell or exchange all or any part of such Offered Securities as to which a Notice
of Acceptance has not been given by the Investors (the "Refused Securities"),
but only to the offerees or purchasers described in the Offer and only upon
terms and conditions (including, without limitation, unit prices and interest
rates) which are not more favorable, in the aggregate, to the acquiring person
or persons or less favorable to the Company than those set forth in the Offer.
(d) In the event the Company shall propose to sell less than all
the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 1(c) of Article IV), then each Investor may, at its sole
option and in its sole discretion, reduce the number or amount of the Offered
Securities specified in its Notice of Acceptance to an amount that shall be not
less than the number or amount of the Offered Securities that the Investor
elected to purchase pursuant to Section 1(b) of Article IV, multiplied by a
fraction, (i) the numerator of which shall be the number or amount of Offered
Securities the Company actually proposes to issue, sell or exchange (including
Offered Securities to be issued or sold to Investors pursuant to Section 1(b) of
Article IV prior to such reduction) and (ii) the denominator of which shall be
the amount of all Offered Securities. In the event that any Investor so elects
to reduce the number or amount of Offered Securities specified in its Notice of
Acceptance, the Company may not issue, sell or exchange more than the reduced
number or amount of the Offered Securities unless and until such securities have
again been offered to the Investors in accordance with Section 1(a) of Article
IV.
(e) Upon the closing of the issuance, sale or exchange of all or
less than all the Refused Securities, the Investors shall acquire from the
Company, and the Company shall issue to the Investors, the number or amount of
Offered Securities specified in the Notices of Acceptance, as reduced pursuant
to Section 1(d) of Article IV if the Investors have so elected, upon the terms
and conditions specified in the Offer. The purchase by the Investors of any
Offered Securities is subject in all cases to the preparation, execution and
delivery by the Company and the Investors of a purchase agreement relating to
such Offered Securities reasonably satisfactory in form and substance to the
Investors and their respective counsel.
(f) Any Offered Securities not acquired by the Investors or other
persons in accordance with Section 1(c) of Article IV may not be issued, sold or
exchanged until they are offered to the Investors under the procedures specified
in this Article.
2. Excluded Issuances. The rights of the Investors under this Article
IV shall not apply to:
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
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(a) Common Stock issued as a stock dividend to holders of Common
Stock or upon any subdivision or combination of shares of Common Stock;
(b) The issuance of any shares of Common Stock upon conversion of
outstanding shares of convertible preferred stock;
(c) Up to 1,955,719 shares of Common Stock, or options exercisable
therefor (such number to be proportionately adjusted in the event of any stock
splits, stock dividends, recapitalizations or similar events occurring on or
after the date of this Agreement) issuable to officers, directors, consultants
and employees of the Company or any subsidiary pursuant to any plan, agreement
or arrangement approved by a vote of not less than a majority of the Board of
Directors of the Company;
(d) Securities issued solely in consideration for the acquisition
(whether by merger or otherwise) by the Company or any of its subsidiaries of
all or substantially all of the stock or assets of any other entity;
(e) Shares of Common Stock sold by the Company in an underwritten
public offering pursuant to an effective registration statement under the
Securities Act;
(f) Shares of Common Stock issued by the Company, with the approval
of a majority of the Board of Directors, in connection with strategic alliances
and similar arrangements;
(g) Shares of Series A Preferred Stock issued by the Company
pursuant to the Series A Purchase Agreement;
(h) Shares of Series B Preferred Stock issued by the Company
pursuant to the Series B Purchase Agreement;
(i) Shares of Series C Preferred Stock issued by the Company
pursuant to the Series C Purchase Agreement; or
(j) Shares of Series D Preferred Stock issued by the Company
pursuant to the Purchase Agreement.
ARTICLE V. GENERAL
1. Termination. Article II of this Agreement shall terminate on the
closing of an Initial Public Offering. All of the Company's obligations to
register Registrable Shares
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-15-
16
under Article III of this Agreement shall terminate in their entirety on the
tenth anniversary of the Initial Public Offering. Article IV of this Agreement
shall terminate in its entirety upon the earlier of (i) the sale of all or
substantially all of the assets or business of the Company, by merger, sale of
assets or otherwise, and (ii) the closing of an Initial Public Offering.
2. Transfer of Rights. This Agreement, and the rights and obligations
of the Investors, Stockholders and Management Stockholders hereunder, may be
assigned by the Investors, Stockholders and Management Stockholders to any
person or entity to which Registrable Shares are transferred by the Investors,
Stockholders or Management Stockholders, and such transferee shall be deemed an
"Investor," "Stockholder" or "Management Stockholder," as the case may be, for
purposes of this Agreement; provided that (i) the transferee provides written
notice of such assignment to the Company and (ii) no assignee shall be a
customer or competitor of the Company unless the Board of Directors of the
Company otherwise agrees.
3. Severability. The provisions of this Agreement are severable, so
that the invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other term or provision of this
Agreement, which shall remain in full force and effect.
4. Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, the
Investors and the Stockholders shall be entitled to specific performance of the
agreements and obligations of the Company and the Investors and the Stockholders
hereunder and to such other injunctive or other equitable relief as may be
granted by a court of competent jurisdiction.
5. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of Massachusetts
(without reference to the conflicts of law provisions thereof).
6. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered by hand or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid:
If to the Company, at SilverStream Software, Inc., Xxx Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000, Attention: President, or at such other address or
addresses as may
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-16-
17
have been furnished in writing by the Company to the Investors, with a copy to
Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx
X. Xxxxx, Esq.;
If to an Investor, at his address as set forth on Attachment A, or at
such other address or addresses as may have been furnished to the Company in
writing by such Investor;
If to a Management Stockholder, at his address as set forth on
Attachment B, or at such other address or addresses as may have been furnished
to the Company in writing by such Management Stockholder; or
If to an Other Stockholder, at his address as set forth on Attachment
C, or at such other address or addresses as may have been furnished to the
Company in writing by such Other Stockholder.
Notices provided in accordance with this Section 6 shall be deemed
delivered upon personal delivery or five business days after deposit in the
mail.
7. Complete Agreement; Amendments. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the subject matter
hereof. This Agreement may be amended at any time by a written instrument signed
by the Company, Stockholders holding at least a majority of the Registrable
Shares then held by all Stockholders and at least one of North Bridge or Matrix;
provided that additional persons or entities who become "Purchasers" pursuant to
Section 2 of the Purchase Agreement may become "Other Stockholders" hereunder
and shall be added to Attachment C upon their execution of a counterpart
signature page hereto. No waivers of, or exceptions to, any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
8. Pronouns. Whenever the content may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one Agreement binding on all the parties hereto.
10. Captions. Captions of sections have been added only for convenience
and shall not be deemed to be a part of this Agreement.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-17-
18
11. Confidential Information. Confidential or proprietary information
disclosed by any party under this Agreement or the Purchase Agreement shall be
considered confidential information (the "Confidential Information") and shall
not be disclosed by the Company or any other party to this Agreement to any
third party. Each party shall immediately notify the other parties of any
information that comes to its attention which might indicate that there has been
a loss of confidentiality with respect to the Confidential Information. In the
event that the Company or any other party is requested or becomes legally
compelled (by statute or regulation or by oral questions, interrogatories,
request for information or documents, subpoena, criminal or civil investigative
demand or similar process, including without limitation, in connection with any
public or private offering of the Company's capital stock) to disclose any of
the Confidential Information, such party (the "Disclosing Party") shall provide
to other parties (the "Non-Disclosing Parties") with prompt written notice of
the fact and shall seek (with the cooperation and reasonable efforts of the
Non-Disclosing Parties) a protective order, confidential treatment or other
appropriate remedy. In such event, the Disclosing Parties shall furnish only
that portion of the Confidential Information which is legally required and shall
exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information to the extent reasonably
requested by the Non-Disclosing Parties. The provisions of this Section 11 shall
be in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto with respect to the
transactions contemplated hereby.
12. [Intentionally Omitted]
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
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[SIGNATURE PAGES TO FOLLOW]
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-19-
20
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
COMPANY:
SILVERSTREAM SOFTWARE, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: President and CEO
------------------------------------
INVESTORS:
ESSEX PERFORMANCE FUND, L.P.
By: /s/ Xxxxxx XxXxx
------------------------------------
General Partner
ESSEX HIGH TECHNOLOGY FUND, L.P.
By: /s/ Xxxxx XxXxx
------------------------------------
General Partner
THE NEW DISCOVERY FUND LIMITED LTD.
By: /s/ Xxxxxx XxXxx
------------------------------------
Name:
Title:
XXXXXXXXX FOUNDATION
By:
------------------------------------
Name:
Title:
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-20-
21
ESSEX PRIVATE PLACEMENT FUND,
LIMITED PARTNERSHIP
By: /s/ Xxxxx XxXxx
------------------------------------
General Partner
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-20A-
22
INTEL CORPORATION
By: /s/ Xxxx Xxxx
------------------------------------
Name:
Title:
NORTH BRIDGE VENTURE PARTNERS, L.P.
By: North Bridge Venture Management, L.P.,
its General Partner
By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------
General Partner
MATRIX PARTNERS IV, L.P.
By: Matrix IV Management Co., L.P.,
------------------------------------
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
General Partner
MATRIX IV ENTREPRENEURS FUND, L.P.
By: Matrix IV Management Co., L.P.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
General Partner
/s/ Xxxxx X. Xxxx
------------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-21-
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/s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
THE XXXXXX X. XXXXX TRUST - 1992
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Trustee
THE XXXXXX X. XXXXX TRUST - 1992
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Trustee
MANAGEMENT STOCKHOLDERS:
/s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
OTHER STOCKHOLDERS:
JK&B CAPITAL, L.P.
By: JK&B Management, L.L.C.,
its General Partner
By:
--------------------------------------
Member
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-22-
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JK&B CAPITAL II, L.P.
By: JK&B Management, L.L.C.,
its General Partner
By:
--------------------------------------
Member
FAIROAKS PARTNERS II, L.P.
By: Fairoaks Asset Management, Inc.,
its Administrative Agent
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
General Partner
WENONAH DEVELOPMENT COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name:
Title:
NORTHEASTER INVESTMENT CO.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name:
Title:
ARDENT RESEARCH PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
General Partner
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
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25
XXXXX X. XXXXXXXX TRUST DATED
JULY 14, 1988
By:
--------------------------------------
Trustee
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx XXX
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx
/s/ Xxx Xxxxxxxxx
-------------------------------------------
Xxx Xxxxxxxxx
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-24-
26
XXXXX XXXXXXX TRUST DATED
SEPTEMBER 5, 1990
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Trustee
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
Trustee
XXXXXX XXXXXXX TRUST DATED
SEPTEMBER 5, 1990
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Trustee
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
Trustee
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx,
XX TEN
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-25-
27
/s/ Xxx Xxxxxxxxx
-------------------------------------
Xxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxxx
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
/s/ Xxx Xxxxxxxx
-------------------------------------
Xxx Xxxxxxxx
-------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-26-
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/s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
-------------------------------------
Weslyeh Mohriak
/s/ L. Xxxxx Xxxxxx
-------------------------------------
L. Xxxxx Xxxxxx
DOVREGRUPPEN ASA
-------------------------------------
Name:
Title:
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-27-
29
IFFS SUPERANNUATION FUND
-------------------------------------
Name:
Title:
NICHIMEN CORPORATION
-------------------------------------
Name:
Title:
NICHIMEN DATA SYSTEMS CORPORATION
-------------------------------------
Name:
Title:
IONA TECHNOLOGIES FINANCE
/s/ Xxxxxx Xxxxxx
-------------------------------------
Name:
Title:
PEQUOT CAPITAL
-------------------------------------
Name:
Title:
-------------------------------------
Xxx XxXxxx
/s/ Xxxxxxxx Art
-------------------------------------
Xxxxxxxx Art
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-28-
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/s/ Xxx Xxxxxxxx
-------------------------------------
Xxx Xxxxxxxx
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-29-
31
TECHNOLOGY VENTURES, LLC
By: /s/ Xxx XxXxxx
-------------------------------------
Member
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-30-
32
PEQUOT PRIVATE EQUITY FUND, L.P.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name:
Title:
PEQUOT OFFSHORE PRIVATE EQUITY FUND,
INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name:
Title:
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SILVERSTREAM SOFTWARE, INC.
-31-
