EXHIBIT 10.14
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REGISTRATION RIGHTS AGREEMENT
March 15, 1996
AGREEMENT, made as of the 15th day of March, 1996, by and among
Peritus Software Services, Inc., a Massachusetts corporation (the "Company") and
the persons listed in the signature pages hereto (collectively, the
"Stockholders" and individually, a "Stockholder").
WHEREAS, the Company and Bull HN Information Systems Inc. ("Bull
NHHN") entered into a certain Agreement dated September 1, 1994 (the "1994
Agreement") ; and
WHEREAS, the Company and Massachusetts Capital Resource Company
("MCRC") entered into a Note and Warrant Purchase Agreement dated May 30, 1995
(the "1995 Note and Warrant Purchase Agreement"); and
WHEREAS, the Company proposes to enter into a certain Series A
Convertible Preferred Stock and Class A Common Stock Purchase Agreement of even
date herewith (the "Purchase Agreement") with the Purchasers listed on Schedule
I thereto under which Purchasers agree to purchase an aggregate of 1,903,525
shares (the "Preferred Shares") of Series A Convertible Preferred Stock, no par
value, of the Company (the "Preferred Stock") and 71,775 shares of Class A
Voting Common Stock, no par value, of the Company (collectively, the "Shares").
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration receipt of which is hereby acknowledged, and in
consideration of the premises and the mutual covenants and obligations contained
in this Agreement, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Class A Common Stock" shall mean the Class A Common Stock, no par value,
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of the Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Class A Common Stock issued upon
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conversion of the Preferred Shares.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in Section 8.
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"Restricted Stock" shall mean (i) the Conversion Shares, (ii) 1,087,500
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shares of Class A Common Stock held by Bull HN as of the date hereof (the
"Bull HN Shares"), (ii) any shares of Class A Common Stock sold to MCRC
pursuant to the Purchase Agreement; (iii) any shares of Class A Common Stock
sold to Matrix Partners IV, L.P., Matrix IV Entrepreneurs Fund, L.P.,
Greylock Equity Limited Partnership and other purchasers pursuant to that
certain Common Stock Purchase Agreement with Xxxxxxx X. Xxxx entered into on
even date herewith, and (v) those shares of Class A Common Stock issuable
upon the exercise of warrants held by MCRC as of the date hereof (the "MCRC
Shares"), excluding Conversion Shares, Bull HN Shares and MCRC Shares any
such shares which have been (a) registered under the Securities Act pursuant
to an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them, (b) publicly sold
pursuant to Rule 144 under the Securities Act or (c) saleable pursuant to
Rule 144(k) under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
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2. Restrictive Legend. Each certificate representing the Shares
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of Restricted Shares shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or other wise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH
ACT AND ALL SUCH APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION
IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx or
Xxxx and Xxxx shall be satisfactory) the securities represented thereby may be
publicly sold without registration under the Securities Act and any applicable
state securities laws.
3. Notice of Proposed Transfer. Prior to any proposed transfer of
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any shares of Restricted Stock (other than under the circumstances described in
Sections 4, 5 or 6), the holder thereof shall give written notice to the Company
of its intention to effect such transfer. Each such notice shall describe the
manner of the proposed transfer and, if requested by the
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Company, shall be accompanied by an opinion of counsel satisfactory to the
Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx or Xxxx and Xxxx shall
be satisfactory) to the effect that the proposed transfer may be effected
without registration under the Securities Act and any applicable state
securities laws, whereupon the holder of such stock shall be entitled to
transfer such stock in accordance with the terms of its notice; provided,
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however, that no such opinion of counsel shall be required for a transfer for no
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consideration (a) to one or more partners of the transferor (in the case of a
transferor that is a partnership) or (b) to an affiliated corporation (in the
case of a transferor that is a corporation). Each certificate for shares of
Restricted Stock transferred as above provided shall bear the legend set forth
in Section 2, except that such certificate shall not bear such legend if (i)
such transfer is in accordance with the provisions of Rule 144 (or any other
rule permitting public sale without registration under the Securities Act) or
(ii) the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the Securities Act. The restrictions provided for in this
Section 3 shall not apply to securities which are not required to bear the
legend prescribed by Section 2 in accordance with the provisions of that
Section.
4. Required Registration. (a) At any time after the earliest of
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(i) six months after any registration statement covering a public offering of
securities of the Company under the Securities Act, other than on Form S-8,
shall have become effective, (ii) six months after the Company shall have become
a reporting company under Section 12 of the Exchange Act, and (iii) June 30,
1997, the holders of Restricted Stock constituting at least 40% of the total
shares of Restricted Stock then outstanding may request the Company to register
under the Securities Act all or any portion of the shares of Restricted Stock
held by such requesting holder or holders for sale in the manner specified in
such notice, provided that the shares of Restricted Stock for which registration
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has been requested shall constitute at least 20% of the total shares of
Restricted Stock originally issued if such holder or holders shall request the
registration of less than all shares of Restricted Stock then held by such
holder or holders (or any lesser percentage if the reasonably anticipated
aggregate price to the public of such public offering would exceed $5,000,000).
For purposes of this Section 4 and Sections 5, 6, 13(a) and 13(d), the term
"Restricted Stock" shall be deemed to include the number of shares of Restricted
Stock which would be issuable to a holder of Preferred Shares upon conversion of
all Preferred Shares held by such holder at such time, provided, however, that
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the only securities which the Company shall be required to register pursuant
hereto shall be shares of Class A Common Stock, and provided, further, however,
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that, in any underwritten public offering contemplated by this Section 4 or
Sections 5 and 6, the holders of Preferred Shares shall be entitled, subject to
the agreement of the underwriters, to sell such Preferred Shares to the
underwriters for conversion and sale of the shares of Class A Common Stock
issued upon conversion thereof. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 4 within 180 days
after the effective date of a registration statement filed by the Company
covering a firm commitment underwritten public offering in which the holders of
Restricted Stock shall have been entitled to join pursuant to Sections 5 or 6
and in which there shall have been effectively registered all shares of
Restricted Stock as to which registration shall have been requested.
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(b) Following receipt of any notice under this Section 4, the Company
shall immediately notify all holders of Restricted Stock from whom notice has
not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the Company may designate the managing underwriter of such offering,
subject to the approval of the holders of a majority of the shares of Restricted
Stock to be sold in such offering, which approval shall not be unreasonably
withheld or delayed. The Company shall be obligated to register Restricted
Stock pursuant to this Section 4 on one occasion only, provided, however, that
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such obligation shall be deemed satisfied only when a registration statement
covering all shares of Restricted Stock specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Class A Common
Stock to be sold by the Company for its own account, except as and to the extent
that, in the opinion of the managing underwriter (if such method of disposition
shall be an underwritten public offering), such inclusion would adversely affect
the marketing of the Restricted Stock to be sold. Except for registration
statements on Form X-0, X-0 or any successor thereto, the Company will not file
with the Commission any other registration statement with respect to its Class A
Common Stock, whether for its own account or that of other stockholders, until
the earlier of (a) 120 days from the date of receipt of a notice from requesting
holders pursuant to this Section 4 or (b) until the completion of the period of
distribution of the registration contemplated thereby.
5. Incidental Registration. If the Company at any time (other than
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pursuant to Section 4 or Section 6) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Restricted Stock for sale to the public), each such time it will
give written notice to all holders of outstanding Restricted Stock of its
intention so to do. Upon the written request of any such holder, received by
the Company within 30 days after the giving of any such notice by the Company,
to register any of its Restricted Stock, the Company will use its best efforts
to cause the Restricted Stock as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder of such Restricted Stock so
registered. In the event that any registration pursuant to this Section 5 shall
be, in whole or in part, an underwritten public offering of Class A Common
Stock, the number of shares of Restricted Stock to be included in such an
underwriting may be reduced (pro rata among the requesting holders based upon
the number of shares of Restricted Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
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therein, provided, however, that such number of shares of Restricted Stock shall
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not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting holders of Restricted
Stock. Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 5 without thereby incurring
any liability to the holders of Restricted Stock.
6. Registration on Form S-3. If at any time (i) a holder or holders
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of Preferred Shares or Restricted Stock request that the Company file a
registration statement on Form S-3 or any successor thereto for a public
offering of all or any portion of the shares of Restricted Stock held by such
requesting holder or holders, the reasonably anticipated aggregate price to the
public of which would exceed $1,000,000, and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, then
the Company shall use its best efforts to register under the Securities Act on
Form S-3 or any successor thereto, for public sale in accordance with the method
of disposition specified in such notice, the number of shares of Restricted
Stock specified in such notice. Whenever the Company is required by this
Section 6 to use its best efforts to effect the registration of Restricted
Stock, each of the procedures and requirements of Section 4 (including but not
limited to the requirement that the Company notify all holders of Restricted
Stock from whom notice has not been received and provide them with the
opportunity to participate in the offering) shall apply to such registration,
provided, however, that there shall be no limitation on the number of
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registrations on Form S-3 which may be requested and obtained under this Section
6, and provided, further, however, that the requirements contained in the first
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sentence of Section 4(a) shall not apply to any registration on Form S-3 which
may be requested and obtained under this Section 6.
7. Registration Procedures. If and whenever the Company is required
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by the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 4,
shall be on Form S-1 or other form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each prelimi-
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nary prospectus) as such persons reasonably may request in order to facilitate
the public sale or other disposition of the Restricted Stock covered by such
registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request,
provided, however, that the Company shall not for any such purpose be required
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(i) to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction or (ii) to subject itself to taxation in any
jurisdiction in which it is not already subject to taxation;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Class A Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the under writers for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters, stating that such
registration statement has become effective under the Securities Act and that
(A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the underwriters or by such seller or
its counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters, stating that
they are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request; and
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(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period
of distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 120 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying with
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Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance and fees and
disbursements of one counsel for the sellers of Restricted Stock, but excluding
any Selling Expenses, are called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Restricted Stock are
called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution. (a) In the event of a
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registration of any of the Restricted Stock under the Securities Act pursuant to
Sections 4, 5 or 6, the Company will indemnify and hold harmless each seller of
such Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or under-
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writer within the meaning of the Securities 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 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 Restricted Stock was registered under the Securities Act pursuant to
Sections 4, 5 or 6, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such seller, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
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any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Sections 4, 5 or 6, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act 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 the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder in any such case if
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and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
provided, further, however, that the liability of each seller hereunder shall be
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limited to the pro portion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the proceeds received by such seller from the sale of Restricted Stock covered
by such registration statement.
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(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
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however, that, if the defendants in any such action include both the indemnified
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party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(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
Restricted Stock exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 9 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 Section 9 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
9; then, and in each such case, the Company and such holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Restricted Stock 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
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required to contribute any amount in excess of the public offering price of all
such Restricted Stock offered 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) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
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10. Changes in Class A Common Stock or Preferred Stock. If, and as
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often as, there is any change in the Class A Common Stock or the Preferred Stock
by way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Class A Common Stock or the Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits
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of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Stock to the public without registration, at all
times after 90 days after any registration statement covering a public offering
of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) 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; and
(c) furnish to each holder of Restricted Stock forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
12. Representations and Warranties of the Company. The Company
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represents and warrants to the Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
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13. Representation and Warranties of the Stockholders. Each
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Stockholder represents and warrants to the Company as follows:
(a) The execution, delivery and performance of this Agreement by such
Stockholder have been duly authorized and will not violate any provision of law,
any order of any court or other agency of government, the Charter, By-laws or
any other governing document, if applicable, or any provision of any indenture,
agreement or other instrument to which such Stockholder or any or its assets is
bound, conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
such Stockholder.
(b) This Agreement has been duly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable in accordance with its terms.
14. Termination of Prior Agreements.
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(a) The Company and Bull HN agree that this Agreement shall supersede
and replace any existing registration rights previously granted to Bull HN
including, but not limited to, those registration rights granted pursuant to
numbered paragraph 5 in the 1994 Agreement.
(b) The Company and MCRC agree that this Agreement shall supersede
and replace any existing registration rights previously granted to MCRC,
including but not limited to those registration rights granted to MCRC under
Article V of the 1995 Note and Warrant Purchase Agreement. The Company and MCRC
further agree to terminate Article V-A of the 1995 Note and Warrant Purchase
Agreement.
15. Miscellaneous.
-------------
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Restricted Stock), whether so
expressed or not, provided, however, that registration rights conferred herein
-------- -------
on the holders of the Preferred Shares or Restricted Stock shall only inure to
the benefit of a transferee of Preferred Shares or Restricted Stock if (i) there
is transferred to such transferee at least 125,000 (subject to appropriate
adjustment to reflect stock splits, stock dividends and other similar actions
affecting the number of issued and outstanding shares of Restricted Stock)
shares of Restricted Stock, or (ii) such transferee is a partner, shareholder or
affiliate of a party hereto, and (iii) such transferee is not a direct
---
competitor of the Company.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
-12-
if to the Company, or any other party hereto, other than Bull HN, at the
address of such party set forth in the Purchase Agreement; or
if to Bull HN, at the address set forth in paragraph 9 of the Stock
Restriction Agreement signed on even date herewith; or
if to any holder or subsequent holder of Shares or Restricted Stock, to it
at such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Shares or Restricted
Stock) or to the holders of Shares or Restricted Stock (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of at least two-thirds of the outstanding shares of Restricted Stock.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) The obligations of the Company to register shares of Restricted
Stock under Sections 4, 5 or 6 shall terminate on the tenth anniversary of the
date of this Agreement.
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Restricted Stock who is a party to this Agreement shall agree not to sell any
shares of Restricted Stock or any other shares of Class A Common Stock (other
than shares of Restricted Stock or other shares of Class A Common Stock being
registered in such offering), without the consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering; provided, however, that all
-------- -------
executive officers and directors of the Company shall also have agreed not to
sell publicly their Class A Common Stock under the circumstances and pursuant to
the terms set forth in this Section 13(g).
(h) Notwithstanding the provisions of Section 7(a), the Company's
obligation to file a registration statement, or cause such registration
statement to become and remain effective, shall be suspended for a period not to
exceed 90 days in any 12-month period if there exists at the time material non-
public information relating to the Company which, in the reasonable opinion of
the Company, should not be disclosed.
-13-
(i) The Company shall not grant to any third party any registration
rights more favorable than or inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remains in
effect.
(j) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
PERITUS SOFTWARE SERVICES, INC.
By: /s/Xxxxxxx X. Xxxx
-----------------------------
Title:
-----------------------------
STOCKHOLDERS:
BULL HN INFORMATION SYSTEMS INC.
By: illegible
-----------------------------
Title:
-----------------------------
MATRIX PARTNERS IV, L.P.
By: /s/W. Xxxxxxx Xxxxxxxxx
-----------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV Management Co.,
L.P., the General Partner of Matrix Partners IV,
L.P.
MATRIX IV ENTREPRENEURS FUND, L.P.
By: /s/W. Xxxxxxx Xxxxxxxxx
-----------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV Management Co.,
L.P., the General Partner of Matrix IV
Entrepreneurs Fund, L.P.
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited Partnership
By: /s/Xxxxx XxXxxxx
------------------------------
General Partner
MASSACHUSETTS CAPITAL RESOURCE COMPANY
By: /s/Xxx Xxxxxx III
------------------------------
Title:
------------------------------
XX. XXXXX XXXXXX
/s/Xxxxx Xxxxxx
-------------------------------------
Name: Xx. Xxxxx Xxxxxx
Address: X.X. Xxx 000
Xxxxxxxx, XX 00000
XX. XXXXXX XXXXX and
XX. XXXXXXX XXXXX
/s/Xxxxxx Xxxxx
-------------------------------------
Name: Xx. Xxxxxx Xxxxx
/s/Xxxxxxx Xxxxx
-------------------------------------
Name: Xx. Xxxxxxx Xxxxx
Address: 000 Xxxxx Xxxxxxx #000X
Xxxxx Xxxxxx, XX 00000
MR. XXXXX XXXXXXX and
MS. XXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Mr. Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
-------------------------------------
Name: Ms. Xxxx Xxxxxxx
Address: 00 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
XX. XXXXXX XXXX
/s/ Xxxxxx Xxxx
-------------------------------------
Name: Xx. Xxxxxx Xxxx
Address: 00 Xxxxxxx Xxxxx
Xxxxx, XX 00000
XX. XXXXXXX XXXXX and
XX. XXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xx. Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxx
-------------------------------------
Name: Xx. Xxxxx Xxxxx
Address: 00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
October 28, 1996
To each of the Purchasers named in
Schedule I to the Series B Convertible
----------
Preferred Stock Purchase Agreement
dated October 28, 1996 (the "Purchasers")
Ladies and Gentlemen:
On March 15, 1996 Peritus Software Services, Inc., a Massachusetts
corporation (the "Company"), and the purchasers listed on Schedule I to a Series
----------
A Convertible Preferred Stock and Class A Common Stock Purchase Agreement of
even date therewith entered into a Registration Rights Agreement (the
"Agreement") of even date therewith. The parties to the Agreement now wish to
amend the Agreement to extend the rights and benefits thereof to holders of
Series B Convertible Preferred Stock, no par value, of the Company (the "Series
B Stock") issued pursuant to a Series B Convertible Preferred Stock Purchase
Agreement of even date herewith (the "Series B Agreement") by and among the
Company and the Purchasers and to make certain other changes as hereinafter set
forth. In consideration of and pursuant to the foregoing, the Company covenants
and agrees with each of you that the Agreement is hereby amended as follows:
All of the shares of Series B Stock purchased pursuant to
the Series B Agreement shall be "Preferred Shares" for all
purposes and to the same extent as if they were originally
included as "Preferred Shares" under the Agreement, and all
references in the Agreement to the "Preferred Stock" and the
"Purchase Agreement" shall include such Series B Stock and
the Series B Agreement, respectively.
This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
-2-
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between the Company and you.
Very truly yours,
PERITUS SOFTWARE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Title: President and CEO
-------------------------------------
AGREED TO AND ACCEPTED as of the date first above written.
PURCHASERS:
Y2K Partners, Ltd.
By: JPW Partners, Ltd.
By: Cross Matrix Corp.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Essex Special Growth Opportunities Fund L.P.
By: illegible
-----------------------------------------
Title: CEO
--------------------------------------
Essex High Technology Fund L.P.
By: illegible
-----------------------------------------
Title: CEO
--------------------------------------
-3-
One & Co.
By: illegible
-----------------------------------------
Title: illegible
--------------------------------------
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xx. Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xx. Xxxxxx X. Xxxxx
X.X. Xxxxx Trust Under Indenture F/B/O/
Xxxxxx X. Xxxxx
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Trustee
--------------------------------------
The Xxxx Xxxxx Fund
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Title: Trustee
--------------------------------------
The GBC North American Growth Fund Inc.
By: illegible
-----------------------------------------
Title:
--------------------------------------
The Xxxxxx Organization III L.P.
By: Xxxxxx Partners L.P., its general
partner
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Title:
-----------------------------------
-4-
Saturn & Co.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Title:
--------------------------------------
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx
Doctor Xxxxxxx & Nessa Profit Sharing Plan
u/a Trust dtd 10-1-85 FBO Doctor
Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Trustee
--------------------------------------
/s/ Xxxxx XxXxxxx
--------------------------------------------
Xxxxx XxXxxxx
/s/ Xxxxxx X. Close, Jr.
--------------------------------------------
Xxxxxx X. Close, Jr.
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
Xxxxxxxx Family Partnership
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Title:
--------------------------------------
-5-
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxx. Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Xx. Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Xxx. Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxx
---------------------------------------
Xxxxxx Xxxx
/s/ Xxxxxxxx X. Xxxx
---------------------------------------
Xxxxxxxx X. Xxxx
First Xxxxxxxxx Charitable Remainder
Unitrust
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Trustee
/s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx
Parties to Registration Rights Agreement of
3/15/96 who are not Purchasers:
BULL HN INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Title: Executive Vice President
---------------------------------
MATRIX PARTNERS IV, L.P.
By: /s/ W. Xxxxxxx Xxxxxxxxx
------------------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV
Management Co., L.P., the General
Partner of Matrix Partners IV, L.P.
-6-
MATRIX IV ENTREPRENEURS FUND, L.P.
By: /s/ W. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: W. Xxxxxxx Xxxxxxxxx
Title: General Partner of Matrix IV
Management Co., L.P., the General
Partner of Matrix IV Entrepreneurs
Fund, L.P.
GREYLOCK EQUITY LIMITED PARTNERSHIP
By: Greylock Equity GP Limited Partnership
By: /s/ Xxxxx XxXxxxx
----------------------------------
General Partner
MASSACHUSETTS CAPITAL RESOURCE COMPANY
By: /s/ Xxx Xxxxxx III
-------------------------------------
Title:
----------------------------------
/s/ Xxxxx Xxxxxx
----------------------------------------
Xx. Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
----------------------------------------
Xx. Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xx. Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------------
Mr. Xxxxx Xxxxxxx
-7-
/s/ Ms. Xxxx Xxxxxxx
---------------------------------------
Ms. Xxxx Xxxxxxx
/s/ Xx. Xxxxxxx Xxxxx
---------------------------------------
Xx. Xxxxxxx Xxxxx
/s/ Xx. Xxxxx Xxxxx
---------------------------------------
Xx. Xxxxx Xxxxx
