DITECH CORPORATION
AMENDED AND RESTATED
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of March 19, 1999, by and among DITECH
CORPORATION, a California corporation (the "Company"), the parties listed as
Investors on the Schedule of Investors attached hereto (collectively, the
"Investors"), and TELINNOVATION, a California general partnership
("Telinnovation").
The parties to this Agreement, other than Telinnovation, are parties to
a (i) Stock and Note Purchase Agreement dated February 21, 1997 (the
"Purchase Agreement") and (ii) that certain Registration Rights Agreement,
dated March 11, 1997, by and among the Company (formerly Automated Call
Processing Corporation) and the Investors (the "Prior Registration Rights
Agreement"). In order to induce the Company to proceed forward with an
initial public offering, and to assist the Company on fulfilling its
obligations to Telinnovation, the Investors desire to amend the Prior
Registration Rights Agreement as set forth in this Agreement.
The parties hereto hereby agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. The holders of a majority of the
Registrable Securities may request registration under the Securities Act of
all or any portion of their Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registration"), and the holders of at
least 15% of the Registrable Securities may request registration under the
Securities Act of all or any portion of their Registrable Securities on Form
S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available. All registrations requested pursuant to this
Section 1(a) are referred to herein as "Demand Registrations". Each request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price
range for such offering. Within ten days after receipt of any such request,
the Company shall give written notice of such requested registration to all
other holders of Registrable Securities and, subject to Section 1(e) below,
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within
15 days after the receipt of the Company's notice.
(b) LONG-FORM REGISTRATION. The holders of Registrable
Securities shall be entitled to request one Long-Form Registration at any
time after August 31, 1997, PROVIDED THAT the aggregate offering value of the
Registrable Securities requested to be registered in any Long-Form
Registration must equal at least $5,000,000. A registration shall not be
considered one of the permitted Long-Form Registrations until the
registration statement has become effective, and a Long-Form Registration
shall not count as the permitted Long-Form Registration unless the holders of
Registrable Securities are able to register and sell at least 90% of the
Registrable Securities requested to be included in such registration.
1.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to paragraph l(b), the holders of Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations; PROVIDED THAT the aggregate offering value of the Registrable
Securities requested to be registered in any Short-Form Registration must
equal at least $1,000,000; and PROVIDED FURTHER that the holders of
Registrable Securities may not request more than two (2) Short-Form
Registrations within any twelve month period. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale
of Registrable Securities.
(d) DEMAND EXPENSES. All Registration Expenses of the holders of
Registrable Securities incurred in connection with a Demand Registration
shall be paid by the Company.
(e) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of
the Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and
other securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the
Registrable Securities initially requesting registration, the Company shall
include in such registration prior to the inclusion of any securities which
are not Registrable Securities the number of Registrable Securities requested
to be included which in the opinion of such underwriters can be sold in an
orderly manner within the price range of such offering, pro rata among the
respective holders thereof on the basis of the amount of Registrable
Securities owned by each such holder.
(f) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not
be obligated to effect any Demand Registration within 180 days after the
effective date of a previous Demand Registration or a previous registration
in which the holders of Registrable Securities were given the right to
include their Registrable Securities pursuant to Section 2 and in which there
was no reduction in the number of Registrable Securities requested to be
included. The Company may postpone for up to 90 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company or any of its
Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; PROVIDED THAT in such event, the
holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request
is withdrawn, such Demand Registration shall not count as a permitted Demand
Registration hereunder and the Company shall pay all Registration Expenses in
connection with such registration. The Company may delay a Demand
Registration pursuant to this Section 1(f) only once in any twelve-month
period.
2.
(g) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities initially requesting registration hereunder shall have
the right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval, which shall not be unreasonably
withheld.
(h) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to request
the Company to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such
securities, without the prior written consent of the holders of a majority of
the Registrable Securities.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than a
registration relating solely to employee benefit plans or relating solely to
a Rule 145 transaction) and the registration form to be used may be used for
the registration of Registrable Securities (a "Piggyback Registration"), the
Company shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration and, subject to
Sections 2(c) and 2(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the
Company's notice.
(b) PIGGYBACK EXPENSES. All Registration Expenses of the holders
of Registrable Securities incurred in connection with a Piggyback
Registration shall be paid by the Company.
(c) PRIORITY ON PRIMARY REGISTRATION. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Registrable Securities requested to be included in
such registration, pro rata among the holders of such Registrable Securities
on the basis of the number of shares owned by each such holder, and (iii)
third, other securities requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders
of the Company's securities, and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the securities
requested to be included therein by the holders requesting such registration
and the Registrable Securities requested to be included in such registration,
pro rata among the holders of such securities on the basis of the number of
securities owned by each such holder, and (ii) second, other securities
requested to be included in such registration.
3.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
an underwritten offering, the selection of investment banker(s) and
manager(s) for the offering must be approved by the holders of a majority of
the Registrable Securities included in such Piggyback Registration. Such
approval shall not be unreasonably withheld.
(f) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to
be effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or Form S-4 or any
successor form), whether on its own behalf or at the request of any holder or
holders of such securities, until a period of at least 180 days has elapsed
from the effective date of such previous registration
3. HOLDBACK AGREEMENTS.
(a) In connection with any underwritten public offering of the
Company's Common Stock, each holder of Registrable Securities shall not,
unless the underwriters managing the registered public offering otherwise
agree, effect any public sale or distribution (including sales pursuant to
Rule 144) of equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for such securities (except as part of
such underwritten registration), during the seven days prior to and, in
connection with the Company's initial public offering, the 180 day period
beginning on the date of the offering or, in connection with subsequent
underwritten public offerings of the Company's Common Stock, the 90 day
period beginning on the date of the offering.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior
to and during the 180 day period beginning on the effective date of, any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) shall cause
each holder of at least 1% of its Common Stock, or any securities convertible
into or exchangeable or exercisable for Common Stock, purchased from the
Company at any time after the date of this Agreement (other than in a
registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
(except as part of such underwritten registration, if otherwise permitted)
during such 180 day period, in the case of the Company's initial public
offering, or 90 day period, in the case of subsequent offerings, unless the
underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company shall use its best efforts to effect
the registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
4.
(a) prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Registrable Securities and use
its best efforts to cause such registration statement to become effective;
PROVIDED THAT before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered
by such registration statement copies of all such documents proposed to be
filed;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange 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 a period of not less than 180 days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable Securities owned by
such seller; PROVIDED THAT the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction;
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company shall prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system, use
its best efforts to secure designation of all such Registrable Securities
covered by such registration statement as a Nasdaq "national market system
security" within the meaning of Rule 11Aa2-1 promulgated pursuant to the
Securities Exchange Act or, failing that, to secure Nasdaq authorization for
such Registrable Securities and, without limiting the
5.
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders
of a majority of the Registrable Securities being sold or the underwriters,
if any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Securities;
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained
by any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as, soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) permit any holder of Registrable Securities which holder, in
its reasonable judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable
judgment of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(m) obtain a comfort letter, addressed to the holders of the
Registrable Securities covered by the registration statement, from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters as the holders of
a majority of the Registrable Securities being sold reasonably request.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and
6.
expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, fees and disbursements of custodians, and
fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses
being herein called "Registration Expenses"), shall be borne as provided in
this Agreement; in addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are
then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of
Registrable Securities included in such registration for the reasonable fees
and disbursements (up to a maximum of $15,000) of one counsel chosen by the
holders of a majority of the Registrable Securities included in such
registration and for the reasonable fees and disbursements (up to a maximum
of $5,000 each) of each additional counsel retained by any holder of
Registrable Securities for the purpose of rendering a legal opinion on behalf
of such holder in connection with any underwritten Demand Registration or
Piggyback Registration.
(c) To the extent that Registration Expenses are not paid by the
Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities
to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers and directors and
each Person who controls such holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses caused by
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the Company by such
holder expressly for use therein or, in a registration not involving an
underwritten offering, are caused by such holder's failure to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder with a sufficient number
of copies of the same. In connection with an underwritten offering, the
Company shall indemnify such underwriters, their officers and directors and
each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with
7.
any such registration statement or prospectus and, to the extent permitted by
law, shall indemnify the Company, its directors and officers and each Person
who controls the Company (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so
furnished in writing by such holder; PROVIDED THAT the obligation to
indemnify shall be individual, not joint and several, for each holder and
shall be limited to the net amount of proceeds received by such holder from
the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (PROVIDED THAT the failure to give
prompt notice shall not impair any Person's right to indemnification
hereunder to the extent that such failure has not prejudiced the indemnifying
party) and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall
not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent shall not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties with respect
to such claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party
in the event the Company's indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements; PROVIDED THAT no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's
intended method of distribution) or to undertake any indemnification
obligations to the Company or the underwriters with respect thereto, except
as otherwise provided in Section 6 hereof.
8.
8. DEFINITIONS.
(a) "REGISTRABLE SECURITIES" means (i) Common Stock issuable upon
conversion of the Convertible Stock and the 250,000 shares of Common Stock
issued to Telinnovation pursuant to the Invention Purchase Agreement dated
November 15, 1998 between the Company and Telinnovation, (ii) any Common
Stock issued or issuable with respect to the securities referred to in clause
(i) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common Stock held by Persons
holding securities described in clauses (i) or (ii) above. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant
to an offering registered under the Securities Act or sold to the public
through a broker, dealer or market maker in compliance with Rule 144 under
the Securities Act (or any similar rule then in force) or repurchased by the
Company or any Subsidiary.
(b) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Purchase Agreement.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities
in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially
and adversely affect the marketability of such Registrable Securities in any
such registration (including, without limitation, effecting a stock split or
a combination of shares).
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in
its sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements 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
whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which
9.
are for the benefit of purchasers or holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent holder of
Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together shall
constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(i) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of California, without giving effect
to any choice of law or conflict of law rules or provisions (whether of the
State of California or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
California.
(j) NOTICES. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (i)
five (5) days after deposit with the U.S. Postal Service or other applicable
postal service, if delivered by first class mail, postage prepaid, (ii) upon
delivery, if delivered by hand, (iii) one business day after the business day
of deposit with Federal Express or similar overnight courier, freight prepaid
or (iv) one business day after the business day of facsimile transmission, if
delivered by facsimile transmission with copy by first class mail, postage
prepaid, and shall be addressed as follows, or at such other address as a
party may designate by ten (10) days' advance written notice to the other
parties to this Agreement pursuant to the provisions of this Section 9(j):
(x) if to an Investor, to such Investor's address set forth
on the Schedule of Investors, with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
10.
(y) if to the Company, to:
Ditech Corporation
000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(y) if to Telinnovation, to:
Telinnovation
000 Xxxxx Xxxxxx #000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (650) [ ]
(k) NON-APPLICABILITY TO IPO. Notwithstanding anything to the
contrary set forth herein, no party hereto shall have any rights to register
any shares of the Company's Common Stock in connection with the Company's
underwritten initial public offering of its Common Stock pursuant to a
registration statement on Form S-1 to occur in calendar 1999.
(l) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof,
and supercedes all prior agreements with respect to the subject matter
hereof, including the Prior Registration Rights Agreement.
11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
DITECH CORPORATION,
a California corporation
By /s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
Chief Financial Officer
[REGISTRATION STATEMENT]
12.
SUMMIT VENTURES IV, L.P.
By: Summit Partners IV, L.P.
Its General Partner
By: Stamps, Xxxxxxx & Co. IV
Its General Partner
By: /s/ Stamps, Xxxxxxx & Co.
---------------------------
Its: General Partner
---------------------------
SUMMIT INVESTORS III, L.P.
By: /s/ Summit Investors III, L.P.
------------------------------
Its: General Partner
------------------------------
SUMMIT SUBORDINATED DEBT FUND, L.P.
By: Summit Partners III, L.P.
Its General Partner
By: Stamps, Xxxxxxx & Co. III
Its General Partner
By: /s/ Stamps, Xxxxxxx & Co. III
-----------------------------
Its: General Partner
---------------------------
TELINNOVATION
By: /s/ Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
Its: General Partner
[REGISTRATION STATEMENT]
13.
SCHEDULE OF INVESTORS
Name and Address
-----------------
Summit Ventures IV, L.P.
Summit Ventures III, L.P.
Summit Subordinated Debt Fund, L.P.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxx
Xxxxxxx Xxxxxx
c/o XXX Associates
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxx
Xxxxxxx & Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxx Xxxx, Manager Empire Fund
c/o BEA Associates
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx XxxXxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx
C.I. Mutual Funds
000 Xxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxxxx
XXX 0X0
Xxx Xxxxxxx
Midland Xxxxxx Inc.
000 Xxxxxx Xx., Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx
X0X 0X0
[REGISTRATION STATEMENT]
14.
