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EXHIBIT 4.3
SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
JUNE 16, 1999
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TABLE OF CONTENTS
Page
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1. Registration Rights....................................................2
1.1 Definitions................................................2
1.2 Request for Registration...................................2
1.3 Company Registration.......................................4
1.4 Obligations of the Company.................................4
1.5 Furnish Information........................................5
1.6 Expenses of Demand Registration............................5
1.7 Expenses of Company Registration...........................5
1.8 Underwriting Requirements..................................6
1.9 Delay of Registration......................................6
1.10 Indemnification...........................................6
1.11 Reports Under Securities Exchange Act of 1934.............8
1.12 Form S-3 Registration.....................................9
1.13 Assignment of Registration Rights........................10
1.14 "Market Stand-Off" Agreement.............................10
1.15 Termination of Registration Rights.......................11
1.16 Limitations on Subsequent Registration Rights............11
2. Covenants of the Company..............................................11
2.1 Delivery of Financial Statements..........................11
2.2 Termination of Covenants..................................12
2.3 Participation Right.......................................12
2.4 Employee Agreements.......................................13
2.5 Observer Right............................................13
2.6 Pro Rata Repurchase.......................................14
2.7 Most Favored Status.......................................14
3. Miscellaneous.........................................................14
3.1 Successors and Assigns....................................14
3.2 Governing Law.............................................14
3.3 Counterparts..............................................14
3.4 Titles and Subtitles......................................15
3.5 Notices...................................................15
3.6 Expenses..................................................15
3.7 Amendments and Waivers....................................15
3.8 Severability..............................................15
3.9 Aggregation of Stock......................................15
3.10 Entire Agreement.........................................15
SCHEDULE A - Schedule of Investors
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT is made as of the 16th day
of June, 1999, by and between Selectica, Inc., a California
corporation (the "Company") and the investors listed on the Schedule of
Investors attached as Schedule A hereto, each of which is herein referred to as
an "Investor."
RECITALS
WHEREAS, the Company and certain of the Investors are
parties to a certain Investor Rights Agreement dated June 17, 1998 (the "Prior
Rights Agreement"), pursuant to which such Investors received rights to cause
the Company to register shares of its Common Stock issuable to such Investors
and certain other matters as set forth therein;
WHEREAS, the Company and certain of the Investors are
parties to a certain Series B Preferred Stock Purchase Agreement dated January
29, 1997 (the "Series B Agreement"), pursuant to which the Company issued to
certain of the Investors shares of the Company's Series B Preferred Stock (the
"Series B Preferred Stock");
WHEREAS, the Company and certain of the Investors are
parties to a certain Series C Preferred Stock Purchase Agreement dated July 24,
1997 (the "Series C Agreement"), pursuant to which the Company issued to certain
of the Investors shares of the Company's Series C Preferred Stock (the "Series C
Preferred Stock");
WHEREAS, the Company and certain of the Investors are
parties to a certain Series D Preferred Stock Purchase Agreement of date June
17, 1998 (the "Series D Agreement"), pursuant to which the Company issued to
certain of the Investors shares of the Company's Series D Preferred Stock (the
"Series D Preferred Stock");
WHEREAS, the Company and certain of the Investors are
parties to a certain Series E Preferred Stock Purchase Agreement dated as of the
date hereof (the "Series E Agreement"), pursuant to which the Company is issuing
shares to certain of the Investors of the Company's Series E Preferred Stock
(the "Series E Preferred Stock");
WHEREAS, in order to induce the Company to enter into the
Series E Agreement and to induce certain of the Investors to invest funds in the
Company pursuant to the Series E Agreement, the Investors and the Company desire
to amend and restate the Prior Rights Agreement to include the Series E
Preferred Stock within the definition of "Registrable Securities" (as defined in
the Prior Rights Agreement);
WHEREAS, the Prior Rights Agreement may be amended with the
written consent of the Company, the holders of a majority of the outstanding
Registrable Securities and each investor holding at least 900,000 shares of
Series A, Series B, Series C; Series D or Series E Preferred Stock (the
"Preferred Stock"); and
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WHEREAS, the Company and the holders of a majority of the
outstanding Registrable Securities and each Investor holding at least 900,000
shares of Preferred Stock are parties hereto.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (1)
the Common Stock of the Company issuable or issued upon conversion of the
Preferred Stock issued pursuant to the Series B Agreement, Series C Agreement,
Series D Agreement or Series E Agreement, and (2) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right, or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E
Preferred Stock;
(c) The number of shares of "Registrable
Securities then outstanding" shall be determined by the number of shares of
Common Stock then outstanding, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities, that are Registrable
Securities;
(d) The term "Initial Public Offering" means the
initial sale of the Company's Common Stock in a firmly underwritten public
offering of Common Stock pursuant to a registration statement under the Act,
with aggregate proceeds to the Company of at least $25,000,000 and a per share
purchase price of at least $6.573 per share (as adjusted for stock splits,
combinations, stock dividends, recapitalizations and the like);
(e) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.13 hereof; and
(f) The term "Form S-3" means such form under the
Act as in effect on the date hereof or any registration form under the Act
subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
1.2 Request for Registration.
(a) If the Company shall receive at any time after
the earlier of (i) an Initial Public Offering or (ii) the second anniversary
after the date hereof, a written request
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from the Holders of at least thirty-five percent (35%) of the Registrable
Securities then outstanding, that the Company file a registration statement
under the Act for a public offering in which the aggregate proceeds from the
offering would exceed $7,500,000, then the Company shall, within twenty (20)
days of the receipt thereof, give written notice of such request to all Holders
and shall, subject to the limitations of subsection 1.2(b) hereof, effect as
soon as practicable, and in any event shall use its best efforts to effect
within one hundred twenty (120) days of the receipt of such request, the
registration under the Act of all Registrable Securities which the Holders
request to be registered within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 3.5 hereof.
(b) If the Holders initiating the registration
request hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 1.2
and the Company shall include such information in the written notice referred to
in subsection 1.2(a) hereof. The underwriter will be selected by a majority in
interest of the Initiating Holders and shall be reasonably acceptable to the
Company. In such event, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in subsection
1.4(e) hereof) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) The Company is obligated to effect only two
(2) such registrations pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders. This right shall not be
utilized more than once in any twelve month period.
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1.3 Company Registration. If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than the
Holders) any of its stock or other securities under the Act in connection with a
public offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan, or a registration on any form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 3.5 hereof, the Company
shall, subject to the provisions of Section 1.8 hereof, cause to be registered
under the Act all of the Registrable Securities that each such Holder has
requested to be registered ("Piggyback Rights"). No shareholder of the Company
shall be granted Piggyback Rights superior to the rights in this Section 1.3
without the prior consent of Holders holding at least a majority of the then
outstanding Registrable Securities.
1.4 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
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(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included 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 the light of the circumstances then
existing.
1.5 Furnish Information.
(a) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
(b) The Company shall have no obligation with
respect to any registration requested pursuant to Section 1.12 hereof if, due to
the operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.12(b)(2).
1.6 Expenses of Demand Registration. All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2 hereof,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 hereof if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 1.2 hereof; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition or business of the Company from that known to the Holders at the time
of their request, then the Holders shall not be required to pay any of such
expenses and shall retain their full rights pursuant to Section 1.2 hereof.
1.7 Expenses of Company Registration. The Company shall
bear and pay all expenses incurred in connection with any registration, filing,
or qualification of Registrable Securities with respect to the registrations
pursuant to Section 1.3 hereof for each Holder, including (without limitation)
all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of one counsel
for the selling Holders hereunder, but excluding underwriting discounts and
commissions relating to the Registrable Securities
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1.8 Underwriting Requirements. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 hereof to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling shareholders according to
the total amount of securities entitled to be included therein owned by each
selling shareholder or in such other proportions as shall mutually be agreed to
by such selling shareholders) but in no event shall the amount of securities of
the selling Holders included in the offering be reduced below twenty-five
percent (25%) of the total amount of securities requested by each such selling
Holders to be included in such offering, unless such offering is the Company's
Initial Public Offering in which case the selling shareholders may be excluded
if the underwriters make the determination described above. For purposes of the
preceding sentence concerning apportionment, for any selling shareholder which
is a holder of Registrable Securities and which is a partnership or corporation,
the partners, retired partners, and shareholders of such holder, or the estates
and family members of any such partners and retired partners and any trusts for
the benefit of any of the foregoing persons shall be deemed to be a single
"selling shareholder," and any pro-rata reduction with respect to such "selling
shareholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling shareholder," as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification. In the event any Registrable
Securities are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, any underwriter (as defined in the
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
or the 1934 Act, or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements
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thereto, (ii) 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, or (iii) any violation or alleged violation by the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, or the 1934 Act or any state securities law; and the
Company will pay to each such Holder, underwriter or controlling person, as
incurred, 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 indemnity agreement contained in this
subsection 1.10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, underwriter, or controlling person.
(b) To the extent permitted by law, each selling
Holder, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, or the 1934 Act, or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.10(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld. Each Selling Holder's
indemnity obligations under this Agreement shall be limited to an amount not to
exceed the amount of net proceeds received by such Selling Holder in such
offering.
(c) Promptly after receipt by an indemnified party
under this Section 1.10 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.10,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due
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to actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
1.10. The indemnifying party shall not be liable for any settlement of any
proceeding without its written consent or, in the alternative, without full
release of its liability.
(d) If the indemnification provided for in this
Section 1.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders
under this Section 1.10 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.11 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public;
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(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the 1934
Act; and
(d) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of SEC Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act, and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall
receive from any Holder or Holders of at least ten percent (10%) of the
Registrable Securities then outstanding a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within 15 days after receipt of such written notice from
the Company; provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
Section 1.12: (1) if Form S-3 is not available for such offering; (2) if the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$2,000,000; (3) if the Company shall furnish to the Holders a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such Form S-3 registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Form S-3 registration statement for a period of not more than sixty (60)
days after receipt of the request of the Holder or Holders under this Section
1.12; provided,
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however, that the Company shall not utilize this right more than once in any
twelve-month period; (4) if the Company has already effected two registrations
on Form S-3 for the Holders pursuant to this Section 1.12 within the prior
twelve-month period; or (5) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall
file a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders. All expenses incurred in connection with
a registration requested pursuant to this Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of counsel for the selling Holder
or Holders and counsel for the Company, but excluding any underwriters'
discounts or commissions associated with Registrable Securities, shall be borne
by the Company. Registrations effected pursuant to this Section 1.12 shall not
be counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.13 Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant to this Section 1
may be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities who, after such assignment or
transfer, (a) holds at least 100,000 shares of Registrable Securities (subject
to appropriate adjustment for stock splits, stock dividends, combinations, and
other recapitalizations) (or a lesser number if all such shares held by the
transferor or assignor are being transferred), (b) the transfer is to any
relative of the transferor or a trust for the benefit of the transferor, (c) the
transfer is in connection with a transfer of all of the securities of the
transferor, (d) the transfer involves an aggregate of at least 100,000 shares of
Registrable Securities or (e) the transferees are constituent partners or
shareholders who agree to act through a single representative, provided the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned. Such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. For the purposes of determining the number of shares
of Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants, and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will, or intestate succession) shall be aggregated together and with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices, or
taking any action under this Section 1.
1.14 "Market Stand-Off" Agreement. Each of the
Investors hereby agrees that, during the period of duration (not to exceed 180
days) specified by the Company and an underwriter of Common Stock or other
securities of the Company, following the effective date of the Initial Public
Offering of Company securities, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly, sell, offer to sell,
contract to sell
10
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(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that all
officers, directors, entities that are affiliates of any director and any
shareholder owning at least 5% of the outstanding shares of the Company enter
into similar agreements.
In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Registrable Securities
of Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
1.15 Termination of Registration Rights. No Holder
shall be entitled to exercise any rights provided for in this Section 1 after
the fifth (5th) anniversary of the closing of the Company's Initial Public
Offering or if such Holder's shares of Registrable Securities held or entitled
to be held upon conversion by such Holder may immediately be sold under Rule 144
during any 90-day period.
1.16 Limitations on Subsequent Registration Rights.
From and after the date of this Agreement, the Company shall not, without the
prior written consent of the Investors holding at least 75% of the outstanding
Registrable Securities held by the Investors, enter into any agreement with any
holder or prospective holder of any securities of the Company which would allow
such holder or prospective holder to include such securities in any registration
filed under Section 1.2 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of the Registrable Securities of the Holders which is
included.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall
furnish the following information to each Holder.
(a) as soon as practicable, but in any event
within ninety (90) days after the end of each fiscal year of the Company, an
income statement for such fiscal year, a balance sheet of the Company and
statement of shareholder's equity as of the end of such year, and a statement of
cash flows for such year, such year-end financial reports to be in reasonable
detail, prepared in accordance with generally accepted accounting principles
("GAAP") and audited by nationally recognized independent accountants;
(b) within forty-five (45) days of the end of each
quarter, an unaudited income statement and statement of cash flows and balance
sheet for and as of the end of such quarter, in reasonable detail; and
The information provided pursuant to this subsection 2.1
shall be used by each Holder or any permitted assignee of each Holder solely in
furtherance of its interests as an investor in the Company, and such Holder and
any permitted assignee of such Holder shall
11
14
maintain the confidentiality of all information of the Company obtained under
this subsection 2.1, unless such information (i) was known by such Holder or
permitted assignee prior to its disclosure to them by the Company, (ii) is
disclosed to such Holder or permitted assignee without restriction as a matter
of right by a third party not affiliated with or working for the Company, or
(iii) has become publicly available through no fault of such Investor or
permitted assignee. Notwithstanding the foregoing, a Holder may disclose, if
applicable, (i) to Holder's general and limited partners, or (ii) Holder's Board
of Directors or executive officers such information provided that such general
or limited partners, or such Board of Directors or executive officers agree to
be bound by the terms of this Section 2.1.
2.2 Termination of Covenants. The covenants set forth
in this Section 2 shall terminate and be of no further force or effect following
the Company's Initial Public Offering, when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
or upon any action which results in the sale conveyance or other disposition or
encumbrance of all or substantially all of the Company's property or business or
a merger transactions in which 50% or more of the voting power is disposed of
whichever event shall first occur.
2.3 Participation Right. Subject to the terms and
conditions specified in this Section 2.3, the Company hereby grants to each
Investor holding at least 200,000 shares of Registrable Securities (a "Major
Investor") a participation right with respect to future sales by the Company of
its Shares (as hereinafter defined). Each Major Investor shall be entitled to
the participation right based on its pro rata ownership of the Company's
securities determined by multiplying the number of shares of Common Stock issued
and issuable upon conversion of the Preferred Stock held by such Investor by a
fraction, the numerator of which is the number of shares of Common Stock issued
and issuable upon conversion of the Preferred Stock held by such Major Investor
and the denominator of which is the number of shares of Common Stock then
outstanding (including shares issuable upon conversion of the then issued and
outstanding shares of Preferred Stock). Each time the Company proposes to offer
any shares of, or securities convertible into or exercisable for any shares of,
any class of its capital stock ("Shares"), the Company shall first make an
offering of such Shares to each Major Investor in accordance with the following
provisions:
(a) The Company shall deliver a notice ("Notice")
to the Investor stating (i) its bona fide intention to offer such Shares, (ii)
the number of such Shares to be offered, and (iii) the price and terms, if any,
upon which it proposes to offer such Shares.
(b) Within 15 calendar days after receipt of the
Notice, each Major Investor may elect to purchase or obtain, at the price and on
the terms specified in the Notice, up to that portion of such Shares which
equals the proportion that the number of shares of Common Stock issued and held,
or issuable upon conversion of the Preferred Stock then held by such Major
Investor bears to the total number of shares of Common Stock of the Company then
outstanding (assuming full conversion and exercise of all outstanding
convertible and exercisable securities).
12
15
(c) If all Shares which a Major Investor is
entitled to obtain pursuant to subsection 2.3(b) hereof are not elected to be
obtained as provided in subsection 2.3(b) hereof, the Company may, during the
120-day period following the expiration of the period provided in subsection
2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any
person or persons at a price not less than, and upon terms no more favorable to
the offeree than those specified in the Notice. If the Company does not enter
into an agreement for the sale of the Shares within such period, or if such
agreement is not consummated within 30 days of the execution thereof, the right
provided hereunder shall be deemed to be revived and such Shares shall not be
offered unless first reoffered to the Major Investors in accordance herewith.
(d) The participation right in this paragraph 2.3
shall not be applicable (i) to the prior or future issuance or sale of shares of
Common Stock or options therefor at fair market value (not including shares of
Common Stock acquired by the Company pursuant to any forfeiture provision, right
of repurchase or right of first refusal) to Company employees, directors,
officers, agents or consultants for the primary purpose of soliciting or
retaining their employment or services, (ii) the issuance of up to 5,705,124
shares of Series E Preferred Stock pursuant to the Series E Agreement, (iii) the
issuance of securities in connection with or after consummation of the Company's
Initial Public Offering, (iv) the issuance of securities to investment bankers
or pursuant to corporate or strategic partnerships or alliances approved by a
two-thirds (2/3) vote of the Board of Directors, (v) the issuance of Common
Stock pursuant to the conversion of the Preferred Stock, (vi) the issuance of
securities in connection with a bona fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale or exchange of
stock, or otherwise alliances approved by a two-thirds (2/3) vote of the Board
of Directors, (vii) the issuance of securities to lenders or lessors in
connection with a bona fide loan or lease financing approved by two-thirds (2/3)
of the Board of Directors, and (viii) the issuance of securities pursuant to the
conversion or exercise of convertible or exercisable securities the original
issuance of which was subject to or exempt from this Section 2.3.
2.4 Employee Agreements. Unless otherwise approved by
the Board of Directors of the Company, all future employees of the Company who
shall purchase (other than by exercise of stock options), or receive options to
purchase, shares of the Company's Common Stock following the date hereof shall
be required to execute stock purchase or option agreements providing for (i)
vesting of shares over a four-year period with the first 25% of such shares
vesting following twelve (12) months of continued employment or services, and
the remaining shares vesting thereafter at the rate of 1/36 at the end of each
month until all of the shares are vested, and (ii) a Company right of
repurchase, at cost, to any unvested shares.
2.5 Observer Rights. The Company grants to Chatterjee
Group and its affiliated entities ("Chatterjee") and to JK&B Capital III,
L.P.and its affiliated entities ("JK&B"), provided that JK&B owns between twenty
five percent (25%) and seventy five percent (75%) of the Series E Preferred
Stock purchased pursuant to the Series E Preferred Stock Purchase Agreement of
even date herewith, the right to each designate one designee (each an "Invited
Attendee") to attend regular meetings of the Company's Board of Directors. Such
Invited Attendees shall receive notice of meetings of the Board of Directors.
JK&B and Chatterjee shall
13
16
inform the Company of the identity of their respective Invited Attendee no later
than three (3) days prior to a Board meeting, and each shall use its best
efforts not to substitute a different Invited Attendee. Any Invited Attendee,
JK&B and Chatterjee agree to hold in confidence and trust and to act in a
fiduciary manner with respect to all information received from the Company by
any Invited Attendee. Further, the Company reserves the right to withhold any
information and to exclude any such Invited Attendee from any meeting or portion
thereof if access to such information or attendance at such meeting could
adversely affect the attorney-client privilege between the Company and its
counsel or would result in disclosure of trade secrets to such Invited Attendee,
JK&B or Chatterjee is in direct competition with the Company.
2.6 Pro Rata Repurchase. In the event that the Company
desires to repurchase shares of Preferred Stock from a Major Investor, the
Company shall first notify each Major Investor of such intent to repurchase
Preferred Stock and offer each such Major Investor an opportunity to participate
in such repurchase and sell shares of Preferred Stock to the Company in an
amount equal to its pro rata ownership of the Company's securities determined by
multiplying the number of shares of Preferred Stock held by such Major Investor
by a fraction, the numerator of which is the number of shares of Preferred Stock
held by such Major Investor and the denominator of which is the number of shares
of Preferred Stock held by all Major Investors.
2.7 Most Favored Status. The Company shall not in the
future grant any rights that are, in the good faith judgment of the Company's
Board of Directors, more favorable than those granted to the Major Investors
under this Agreement, unless (i) the Company has obtained the prior written
consent of a majority in interest of the Investors, or (ii) such superior rights
are also granted to the each of the Major Investors.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties (including transferees of any shares of Registrable Securities). Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 Counterparts. 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.
14
17
3.4 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon (i) personal delivery to the party to be
notified, (ii) five (5) days following deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to the
party to be notified at the address indicated for such party on the signature
page hereof, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties, or (iii) facsimile with
confirmed receipt.
3.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which such party may be
entitled.
3.7 Amendments and Waivers. Except as provided in
Section 2.7 of this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with (i)
the written consent of the Company, (ii) the holders of a majority of the
Registrable Securities then outstanding and held by the Investors, and (iii)
each Investor (together with its affiliated Investors) holding either at least
900,000 shares of Preferred Stock or at least 400,000 shares of Series E
Preferred Stock. Each Investor acknowledges and agrees that any amendment or
waiver effected in accordance with this paragraph shall be binding upon all
holders of any Registrable Securities, each future holder of all such
Registrable Securities, and the Company, whether or not such holder in fact
consented to such amendment or waiver.
3.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement. The term Investor shall include any general
partners or affiliates of the Investor.
3.10 Entire Agreement. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof.
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IN WITNESS WHEREOF, the parties have executed this Investor
Rights Agreement as of the date first above written.
SELECTICA, INC.
By: /s/ βββ βββββ
-------------------------------------
βββ βββββ
President and Chief Executive Officer
Address: ββββ ββββββ ββββ, βββββ βββ
βββ ββββ, ββ βββββ
SERIES B HOLDERS:
βββ βββββ
By: /s/ βββ βββββ
--------------------------------------
βββ βββββ
Address: ββββ ββββββ ββββ, βββββ βββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
19
JK&B CAPITAL III, LP
By: JK&B Capital L.L.C.
Its: General Partner
By: /s/ ββββββ β. βββββββββββ
-------------------------------------
Member ββββββ β. βββββββββββ
Address: βββ βββββ ββββββββ ββββββ
βββββ βββ
βββββββ, ββββββββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
20
INVESTORS
Name of Investor ___________________________
By: /s/ βββββββ β. ββββ
-------------------------------------
βββββββ β. ββββ
(signature)
Title: ATTORNEY-IN-FACT
----------------------------------
(if applicable)
Address: [ILLEGIBLE]
-----------------------------------------
-----------------------------------------
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
21
SERIES C INVESTORS:
ββββββ ββββββ ASSOCIATES FUND IV
By: /s/ ββββ ββββββ
-------------------------------------
ββββ ββββββ
Managing Director
Address: βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
ββββββ ββββββ PARTNERS FUND IV
By: /s/ ββββ ββββββ
------------------------------------
Name: ββββ ββββββ
----------------------------------
Title:
---------------------------------
Address: βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
22
INTERCONTINENTAL VENTURES LLC
By: /s/ βββββββ βββ
------------------------------------
βββββββ βββ
Address: βββ βββββββ βββββ, βββββ βββ
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
23
WINSTON PARTNERS II LLC
By: CHATTERJEE ADVISORS LLC
Its Manager
Address:
------------------------------------
------------------------------------
WINSTON PARTNERS L.P.
By: CHATTERJEE FUND MANAGEMENT, L.P.
Its General Partner
By: /s/ βββββ βββββββ, Manager
-----------------------------------
βββββ βββββββ
Attorney in Fact
Address: βββ βββββββ ββββββ, βββββ ββββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
24
ββββββ INTERNATIONAL INDIA, L.P.
By: ββββββ INTERNATIONAL MANAGEMENT L.P.,
as General Partner
By: ββββββ INTERNATIONAL MANAGEMENT L.P.,
as General Partner
By: /s/ βββββββ β. ββββββ III
-----------------------------------
βββββββ β. ββββββ III
Manager
Address: ββ ββββββββββ ββββββ, βββββ ββββ
βββ βββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
25
ββββ ββββββ
By: /s/ ββββ ββββββ
-----------------------------------
ββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
26
βββββββ ββββββ LIVING TRUST
By: /s/ βββββββ ββββββ
-----------------------------------
βββββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
βββββββ ββββββ FAMILY TRUST
By:
-----------------------------------
βββββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
27
TRICAP INTERNATIONAL, LLC.
By: /s/ ββββββ βββ
-----------------------------------
ββββββ βββ
Address: Lexam Capital LLC.
βββ βββ ββββββ, βββββ ββββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
28
5S VENTURES, LLC.
By: /s/ K.B. βββββββββββββ
-----------------------------------
K.B. βββββββββββββ
Address: βββββ βββββββ ββββ
βββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
29
INVESTORS
Name of Investor MEDICAL-TECHNICAL GASSES
-------------------------
By: [ILLEGIBLE]
--------------------------------------
(signature)
Title: PRESIDENT
-----------------------------------
(if applicable)
Address: ββ ββββ ββ.
------------------------------------------
βββββββ, ββ βββββ
------------------------------------------
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
30
By: /s/ βββββ ββββββ
------------------------------------
βββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
By: /s/ βββββ ββββββ-βββββββ
------------------------------------
βββββ ββββββ-βββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
By: /s/ ββββββ JURVETSON
------------------------------------
ββββββ Jurvetson
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
By: /s/ ANDREAS STAUROPOULOS
-----------------------------------
Andreas Stauropoulos
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
31
βββββ β. ββββββ
By: /s/ βββββ β. ββββββ
-----------------------------------
βββββ β. ββββββ
Address: ββββ βββββββ βββββ
βββββ ββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
32
By: /s/ ββββββ βββββ
-----------------------------------
ββββββ βββββ
By: /s/ βββββ βββββ
-----------------------------------
βββββ βββββ
Address: ββββ ββββββ βββββ
ββββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
33
By: /s/ RAM ββββ βββββ
----------------------------------
Ram ββββ βββββ
Address: βββββ ββββ βββ βββββ
ββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
34
ββββ ββββββ
By: /s/ ββββ ββββββ
----------------------------------
ββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
35
By: /s/ βββββ β. βββββββ
----------------------------------
βββββ β. βββββββ
Address: ββββ βββββ βββββββββ ββββ
ββββββββββ βββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
36
By: /s/ ββββββ β. βββββββββββ
---------------------------------
ββββββ β. βββββββββββ
Address: ββ βββββββββ ββββ
βββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
37
INVESTORS
Name of Investor ββββ ββββ
------------------------
By: /s/ ββββ ββββ
-------------------------------------
(signature)
Title:
----------------------------------
(if applicable)
Address: βββ ββββββββ ββ.
-----------------------------------------
βββββββ, ββ βββββ
-----------------------------------------
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
38
By: /s/ KAILASH β. βββββ
-------------------------------------
Kailash β. βββββ
Address: ββββ ββββββ βββββ βββββ
ββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
39
By: /s/ βββ ββββββ
-------------------------------------
βββ ββββββ
Address: βββ ββββ ββββ ββ. # βββ
βββ ββββ, ββ βββββ
βββ-βββ-ββββ
By: /s/ ββββ βββββ
-------------------------------------
ββββ βββββ
Address: βββ ββββ ββββ ββ. βββ. ββ
βββ ββββ, ββ βββββ
By: /s/ βββββ ββββββ
-------------------------------------
βββββ ββββββ
Address: βββ ββββ ββββ ββ. βββ. βββ
βββ ββββ, ββ βββββ
By: /s/ βββββ βββββββ
-------------------------------------
βββββ βββββββ
Address: ββ ββββ ββββ ββββ
-----------------------------------------
βββββββββ, ββ βββββ
-----------------------------------------
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
40
By: /s/ βββββββ β. βββββ
------------------------------------
βββββββ β. βββββ
By: /s/ ββββββ β. βββββ
-----------------------------------
ββββββ β. βββββ
Address: ββββ-β ββββββ ββββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
41
SERIES E INVESTORS:
By: /s/ ββββββ βββββ
------------------------------------
ββββββ βββββ
By: /s/ βββββ βββββ
------------------------------------
βββββ βββββ
Address: βββ ββββββ βββββ
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
42
By: /s/ ββββββ β. βββββ
------------------------------------
ββββββ β. βββββ
Address: βββββ βββββ βββ βββ
βββββββ, ββ βββββ
By: /s/ KUMAR βββββ
------------------------------------
Kumar βββββ
Address: βββββ βββββ ββ.
ββββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
43
By: /s/ ββββββ β. βββββ
------------------------------------
ββββββ β. βββββ
Address: βββββ βββββ βββ βββ
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
44
By: /s/ ββββββ βββββ
------------------------------------
ββββββ βββββ
Address: βββββ βββββ ββββ
βββ βββββ βββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
45
β.β. βββββ
By: /s/ β.β. βββββ
------------------------------------
(signature)
Title:
---------------------------------
(if applicable)
Address: ββββ ββββββββ ββββββ
βββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
46
By: /s/ βββ ββββ
------------------------------------
βββ ββββ
Address: βββββ ββββ βββββββ ββββ.
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
47
By: /s/ W. βββββββ βββββ, ββ.
------------------------------------
W. βββββββ βββββ, ββ.
Address: βββ ββββββββ βββββ
ββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
48
INVESTORS
Name of Investor ββββ-ββββ AK LLC
------------------------
By: [illegible]
-------------------------------------
(signature)
Title:
----------------------------------
(if applicable)
Address: β.β. βββ ββββ
-----------------------------------------
6 FORTHILL LANE
-----------------------------------------
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
49
By: /s/ βββββββ ββββββββββ
------------------------------------
βββββββ ββββββββββ
Address: βββββ ββββ βββββββ ββββ.
βββββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
50
THE FONSLAD LIVING TRUST
By: /s/ ββββββββ FONSLAD
-----------------------------------
ββββββββ Fonslad
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
51
By:
-----------------------------------
ββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
By:
-----------------------------------
ββββ ββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
By: /s/ ββββββ βββββββ
-----------------------------------
ββββββ βββββββ
Address: ββββββ ββββββ Jurvetson
βββ βββββββ βββββ, βββββ βββ
βββββββ ββββ, ββ βββββ
SIGNATURE PAGE TO SELECTICA, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
52
SCHEDULE A
SCHEDULE OF INVESTORS
SERIES B HOLDERS
----------------
NUMBER OF SHARES OF
NAME SERIES B PREFERRED STOCK
---- ------------------------
ββββββ International India, L.P. 2,812,500
βββββββ βββββ 375,000
βββ βββββ 281,250
βββββ β. ββββββ 93,750
βββββββββ βββββ 93,750
ββββββ βββββββ 56,250
ββββ βββββ 18,750
ββββ βββββ 18,750
---------
TOTALS 3,750,000
=========
SERIES C HOLDERS
----------------
NUMBER OF SHARES OF
NAME SERIES C PREFERRED STOCK
---- ------------------------
ββββββ ββββββ Associates IV 2,269,055
ββββββ ββββββ Partners 170,789
ββββββ International 542,188
βββββ β. ββββββ 81,328
ββββββ βββββ 10,844
Atri Chatterjee 10,844
βββββββ βββββ 10,844
R. βββββ ββββββ 13,544
ββββ βββββ 10,844
ββββ βββββββ 27,109
Dhunn-ββββ LLC 27,109
ββββββ β. ββββββ, Trustee and βββββββ βββ ββββββ, Trustee,
ββββββ Living Trust DTD (8/10/88) 10,844
ββββββ βββββ 10,844
ββββ ββββββ 5,422
ββββββ βββββββ and βββββββ βββββ, Trustees FBO ββββββ βββββββ
and βββββββ βββββ Trust DTD 12/1/90 27,109
βββββ βββββ 10,844
βββββββ β. βββββββββ 8,133
βββββββ β. ββββββ 5,422
---------
TOTALS 3,253,116
=========
S-1
53
SERIES D HOLDERS
----------------
NUMBER OF SHARES OF
NAME SERIES D PREFERRED STOCK
---- ------------------------
Selectica, L.P. 2,448,979
ββββββ ββββββ Associates Fund IV, L.P. 664,285
ββββββ ββββββ Partners IV LLC 50,000
ββββββ International India, L.P. 510,204
ββββ β. βββββββ 17,006
Winston Partners II LLC 408,163
Winston Partners LP 612,244
βββββββ β. and ββββββ β. βββββ Trust
Agreement dated Jan. 23, 1986 17,006
β. β. βββββ 17,006
ββββ βββββ 17,006
Sunil and Veen Suri 17,006
βββββββ Family Rev. Trust 17,006
ββββββ βββββ 17,006
Naagesh β. ββββββ, Trustee & βββββββ βββ ββββββ,
Trustee, ββββββ Living Trust DTD 8/10/88 17,006
βββββ β. βββββ 17,006
---------
TOTALS 4,846,929
=========
S-2
54
SERIES E HOLDERS
FIRST CLOSING INVESTORS
NUMBER OF SHARES OF
INVESTOR SERIES E PREFERRED STOCK
-------- ------------------------
JK&B Capital II L.P. 1,141,030
Quantum Industrial Partners 684,618
ββββββ ββββββ Associates Fund IV, L.P. 318,347
Intercontinental Venture LLC 228,206
βββββββ ββ LLC 216,796
Winston Partners L.P. 216,796
ββββββ International India L.P. 114,103
ββββ β.β. ββββββ 114,103
βββββββ ββββββ Living Trust 114,103
TriCap International LLC 60,000
5S Ventures L.L.C. 57,051
Medical Technical Gasses 46,783
βββββ ββββββ 45,641
βββββ β. ββββββ 34,460
ββββββ βββββ 34,230
Ram ββββ βββββ 25,000
ββββββ ββββββ Partners IV, LLC 23,961
ββββββ Jurvetson 22,821
ββββ ββββββ 22,820
βββββ β. βββββββ 22,820
ββββββ M Neusteatter 22,820
ββββ ββββ 22,820
Kailash β. βββββ 20,000
βββ ββββββ 15,500
βββββββ β. and ββββββ β. βββββ Trust Agreement 11,500
Rajesh and βββββ βββββ 11,410
Kumar βββββ 11,410
ββββββ β. βββββ 11,410
ββββββ βββββ 11,410
βββββββ β. βββββ 10,000
βββ ββββ 10,000
W. βββββββ βββββ, ββ. 5,705
ββββ ββββ A.K. 4,564
βββββββ ββββββββββ 3,500
βββββ βββββββ 3,000
ββββ βββββ 2,320
βββββ ββββββ 2,000
The Fonstad Living Trust dated 1,141
March 26, 1999
Andreas Stauropoulos 570
βββββ ββββββ-βββββββ 570
ββββββ βββββββ 570
---------
TOTALS 3,725,730
=========
β-β
ββ
ββββββ βββββββ INVESTORS
NUMBER OF SHARES OF
INVESTOR SERIES D PREFERRED STOCK
-------- ------------------------
Itochu Corporation 114,102
Itochu Technology 45,641
ββββββ ββββββββ 23,048
Rhubard Investment Club 22,820
Pyare Khanna 22,820
Mohan & ββββββ ββββββ 12,500
ββββββ βββββ 12,000
Bhandari Foundation 11,410
ββββββββ βββββ 11,410
ββββββ βββββ 3,423
ββββ βββββ 1,711
-------
TOTALS 280,885
=======
THIRD CLOSING INVESTORS
NUMBER OF SHARES OF
INVESTOR SERIES D PREFERRED STOCK
-------- ------------------------
βββββ Venture Partners 228,206
βββββ βββββ 22,820
-------
TOTAL 251,026
=======
S-4
56
FOURTH CLOSING INVESTORS
SHARES OF SERIES E PREFERRED
INVESTOR STOCK PURCHASED
-------- ----------------------------
Galleon Group 285,257
ββββββββ ββββ Family Partners 45,641
Puna ββββββ 12,000
βββββ ββββββββ 11,410
ββββ ββββββββ 6,846
βββββββ ββββββ 5,705
βββββββββ ββββββ 4,564
βββββββ βββββββββββ 4,564
βββββ βββββ 2,282
βββββ β'βββββ 2,282
-------
TOTALS 380,551
=======
FIFTH CLOSING INVESTORS
SHARES OF SERIES E PREFERRED
INVESTOR STOCK PURCHASED
-------- ----------------------------
Intel 64 Fund Operations, LLC 1,141,030
Goel Family Partnership 228,206
ββββββ βββββββ and βββββ βββββββ, as Trustees
of the βββββββ Family Revocable Trust of April 13, 1998 22,820
βββββββ βββββββ 22,820
ββββββββββ ββββββ 22,820
βββββ ββββββ 5,705
---------
TOTALS 1,443,401
=========
S-5
