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EXHIBIT 4.6
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SAGENT TECHNOLOGY, INC.
▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COMMON STOCK RIGHTS AGREEMENT
JULY 23, 2001
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TABLE OF CONTENTS
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SECTION 1 Restrictions on Transferability of Securities; Compliance with Securities Act;
Registration Rights...................................................................... 1
1.1 Certain Definitions............................................................... 1
1.2 Restrictions on Transferability................................................... 2
1.3 Restrictive Legend................................................................ 2
1.4 Restrictions on Transfer; Notice of Proposed Transfers............................ 3
1.5 Mandatory Registration............................................................ 3
1.6 Liquidity Damages................................................................. 4
1.7 Exclusive Registration............................................................ 4
1.8 Expenses of Registration.......................................................... 4
1.9 Registration Procedures........................................................... 4
1.10 Suspension of Registration........................................................ 5
1.11 Indemnification................................................................... 5
1.12 Information by Holder............................................................. 7
1.13 Rule 144 Reporting................................................................ 7
1.14 Transfer of Registration Rights................................................... 7
1.15 Termination of Registration Rights................................................ 7
SECTION 2 Purchaser Rights of First Refusal for Company Stock Sales.............................. 8
2.1 Grant of Rights................................................................... 8
2.2 New Securities.................................................................... 8
2.3 Notice............................................................................ 8
2.4 Sale after Notice................................................................. 9
SECTION 3 Miscellaneous.......................................................................... 9
3.1 Governing Law..................................................................... 9
3.2 Survival.......................................................................... 9
3.3 Successors and Assigns............................................................ 9
3.4 Entire Agreement; Amendment....................................................... 9
3.5 Notices, etc...................................................................... 9
3.6 Delays or Omissions............................................................... 10
3.7 Counterparts...................................................................... 10
3.8 Severability...................................................................... 10
3.9 Titles and Subtitles.............................................................. 10
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SAGENT TECHNOLOGY, INC.
COMMON STOCK RIGHTS AGREEMENT
This Common Stock Rights Agreement (the "AGREEMENT") is made as of July
23, 2001, between Sagent Technology, Inc., a Delaware corporation (the
"COMPANY") and the Purchasers listed on EXHIBIT A (each a "PURCHASER" and
collectively, the "PURCHASERS").
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"CLOSING DATE" shall have the meaning set forth in Section 2.1 of the
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Company's Common Stock, $0.001 par value
per share.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"HOLDER" shall mean (i) each Purchaser and (ii) any Person holding
Registrable Securities to whom the rights under this Section 1 have been
transferred, in whole or in part, in accordance with Section 1.14 hereof.
"PERSON" shall mean a natural person, corporation, partnership, limited
liability company, trust or any other entity, other than a governmental entity,
recognized by statute in its jurisdiction of formation as having legal
existence.
"PURCHASE AGREEMENT" shall mean the Common Stock Purchase Agreement,
dated as of July 23, 2001, by and between the Company and the Purchasers.
"REGISTRABLE SECURITIES" shall mean the shares of Common Stock held by
the Holders; provided, however, that Registrable Securities shall not include
such securities that have been (a) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (b)
sold or are, in the opinion of counsel for the Company, available for sale in a
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single transaction exempt from the registration and prospectus delivery
requirements of the Securities Act so that all transfer restrictions and
restrictive legends with respect thereto are removed prior to the consummation
of such sale.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement with the
Commission in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 1.5 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company) and the reasonable fees and disbursements of one counsel for all
Holders up to $10,000 included in any registration statement hereunder.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
"SHARES" shall mean the shares of Common Stock issued to the Purchaser
pursuant to the Purchase Agreement and any other securities issued in respect of
such securities upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event.
1.2 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be sold,
assigned, transferred or pledged prior to the effective date of a registration
statement under the Securities Act covering the sale of such shares except upon
the conditions specified in this Section 1. Each Holder will cause any proposed
purchaser, assignee, transferee, or pledgee of any such shares held by such
Holder to agree to take and hold such securities subject to the provisions and
upon the conditions specified in this Section 1.
1.3 RESTRICTIVE LEGEND. Each certificate representing the Shares and any
other securities issued in respect thereof upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted by the provisions of Section 1.4 below) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
Each Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Common Stock in order to
implement the restrictions on transfer established in this Section 1.
1.4 RESTRICTIONS ON TRANSFER; NOTICE OF PROPOSED TRANSFERS. The holder
of each certificate representing Restricted Securities by acceptance thereof
agrees to comply in all respects with the provisions of this Section 1.4. Unless
there is in effect a registration statement under the Securities Act covering
the proposed sale, assignment, transfer or pledge of any Restricted Securities,
prior to any such transfer (other than (i) a transfer not involving a change in
beneficial ownership, (ii) any transfer by any Holder to (A) any individual or
entity controlled by, controlling, or under common control with, such Holder or
(B) any entity with respect to which such Holder (or any Person controlled by,
controlling, or under common control with, such Holder) has the power to direct
investment decisions or (iii) in transactions in compliance with Rule 144), the
holder thereof shall give written notice to the Company of such holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and shall be accompanied, at such
holder's expense by either (i) a written opinion of legal counsel who shall be,
and whose legal opinion shall be, reasonably satisfactory to the Company
addressed to the Company, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the Commission to the effect that the
transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Company. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 1.3 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such holder and the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act. Notwithstanding the foregoing, so long as an executive
officer or director of the holder serves as an executive officer or director of
the Company, such holder agrees to not sell or transfer the Registrable
Securities during periods outside of the trading windows applicable to the
officers of the Company as set forth in the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Program
adopted by the Company's Board of Directors.
1.5 MANDATORY REGISTRATION. The Company shall prepare and file with the
Commission a registration statement (the "REGISTRATION STATEMENT") on Form S-1
(or, when eligible, Form S-3) covering the resale of the Registrable Securities
by the Holders on or prior to the earlier of (a) 45 days after the Closing Date,
or (b) the filing of another Registration Statement on Form S-1 by the
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Company that is filed not sooner than 15 days after the Closing Date (the
"REQUIRED FILING DATE") and shall maintain the effectiveness of such
registration statement during the period set forth in Section 1.9 but subject to
suspensions of registration in accordance with Section 1.10. The Company shall
use its commercially reasonable efforts to cause the Registration Statement to
be declared effective within 120 days after the Closing Date.
1.6 LIQUIDITY DAMAGES.
(a) In the event that the Registration Statement is filed after
the Required Filing Date but within 30 days thereafter (the number of days by
which the Required Filing Date is not met being a "DELAY PERIOD"), the Company
shall pay to the Holders a cash amount equal to (w) $0.01 per Share (as adjusted
for stock splits, stock dividends, recapitalizations and similar events), times
(x) the number of Shares held by the Holder, times (y) the number of days in the
Delay Period, divided by (z) 30.
(b) In the event that the Delay Period is more than 30 days, the
Company shall pay to the Holders a cash amount equal to the amount set forth in
Section 1.6(a), plus a cash amount equal to (w) $0.04 per Share, times (x) the
number of Shares held by the Holder, times (y) the number of days after the
Delay Period in excess of 30 days, divided by (z) 30.
1.7 EXCLUSIVE REGISTRATION. Subject to such registration rights
disclosed in Section 3.3 of the Company's disclosure letter delivered
concurrently with the Purchase Agreement, which rights the Company is seeking to
have waived, the Company agrees not to register any other shares in the
Registration Statement without the Purchasers' consent, which consent shall not
be unreasonably withheld.
1.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with the registration pursuant to Section 1.5 shall be borne by the
Company. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered except
the legal fees and disbursements of any counsel for any Holder not required to
be paid by the Company which shall be borne by such Holder.
1.9 REGISTRATION PROCEDURES. At its expense the Company will:
(a) Prepare and file with the Commission the Registration
Statement and use its commercially reasonable efforts to cause such Registration
Statement to become effective as soon as possible after the filing thereof, and
keep the Registration Statement effective pursuant to Rule 415 at all times,
subject to Section 1.10, until such date as is the earlier of (i) the date on
which all Registrable Securities have been sold by each Holder, and (ii) the
date on which the Registration Rights terminate as set forth in Section 1.15;
and
(b) Promptly furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus (and all required amendments and supplements to any thereof),
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final prospectus and such other documents as such Holders or such underwriters
may reasonably request in order to facilitate the public offering of such
securities.
1.10 SUSPENSION OF REGISTRATION. The Company shall promptly notify the
Holders of (i) the issuance by the Commission of a stop order suspending the
effectiveness of the Registration Statement, (ii) the happening of any event, of
which the Company has knowledge, as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and (iii) the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Registration Statement to comply with Commission rules. In
each case the Company shall use commercially reasonable efforts to promptly
prepare a supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and deliver such number of copies of such
supplement or amendment to each Holder as such Holder may reasonably request;
provided that, the Company may delay to the extent permitted by law the
disclosure of material non-public information concerning the Company the
disclosure of which at the time is not, in the good faith opinion of the
Company, in the best interests of the Company (an "ALLOWED DELAY"); provided,
further, that an Allowed Delay shall not exceed 60 consecutive days in any
365-day period, and there shall be no more than two such Allowed Delay periods.
The Company shall promptly notify the Holders in writing of the existence of an
Allowed Delay and shall advise the Holders in writing to cease all sales under
the Registration Statement until the end of the Allowed Delay.
1.11 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Holder
and, each of Holder's respective officers and directors, trustees, members,
employees and partners, and each Person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Section 1, and each underwriter, if any, and
each Person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the
Securities Act, the Exchange Act, state securities law or any rule or regulation
promulgated under such laws applicable to the Company in connection with any the
registration, and within a reasonable period the Company will reimburse each
such Holder, each of Holder's respective officers and directors, trustees,
members, employees and partners, and each Person controlling such Holder within
the meaning of Section 15 of the Securities Act, each such underwriter and each
Person who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing, defending or
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paying any such claim, loss, damage, liability or action; provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling Person or underwriter and
stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the Registration Statement, indemnify the Company, each
of its directors and officers, each underwriter, if any, of the Company's
securities covered by the Registration Statement, each Person who controls the
Company or such underwriter within the meaning of Section 15 of the Securities
Act and each other such Holder each of their respective officers and directors,
trustees, members, employees and partners, and each Person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and within a reasonable period will reimburse
the Company, such Holders, each of their respective officers and directors,
trustees, members, employees and partners, and each Person controlling such
Holder within the meaning of Section 15 of the Securities Act, for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in the Registration
Statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the gross proceeds before
expenses and commissions to such Holder received for the shares sold by such
Holder, unless such liability arises out of or is based on willful misconduct by
such Holder.
(c) Each party entitled to indemnification under this Section
1.11 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such Indemnified Party's expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 1 unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action and provided further, that the
Indemnifying Party shall not assume the defense for matters as to which there is
a conflict of interest or separate and different defenses. No Indemnifying
Party, in the defense of any such claim
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or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in the registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with the registration
referred to in this Section 1.
1.13 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to use its commercially reasonable efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
(b) Use its commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) So long as a Holder owns any Restricted Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144, and of
the Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such securities
without registration.
1.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Holders under Section 1 may be assigned in whole or
in part to a transferee or assignee permitted under Section 1.4 which acquires
at least 50,000 shares (as adjusted for stock splits, combinations,
consolidations, or similar events with respect to such shares) of Registrable
Securities, or if the Purchaser holds a lesser number of shares of Registrable
Securities, such lesser number of shares.
1.15 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to Section 1 shall terminate as to each Holder on the earlier of (i)
two years after the effective date of the Registration Statement, (ii) the date
on which all Registrable Securities held by such Holder may be resold without
registration or without regard to any volume limitations by reason of Rule
144(k) under the Securities Act or any other rule of similar effect or (iii) all
of the Registrable Securities held by such Holder have been sold pursuant to the
Registration Statement or Rule 144(k) under the Securities Act or any other rule
of similar effect.
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SECTION 2
PURCHASER RIGHTS OF FIRST REFUSAL FOR COMPANY STOCK SALES
2.1 GRANT OF RIGHTS. The Company hereby grants to each Purchaser the
right of first refusal to purchase all or any part of such Purchaser's Pro Rata
Share (as hereinafter defined) of New Securities (as defined in Section 2.2
below) which the Company may propose to sell and issue during the 6 months
following the Closing Date. Each Purchaser may purchase New Securities on the
same terms and at the same price at which the Company proposes to sell New
Securities. The "PRO RATA SHARE" of each Purchaser, for purposes of this right
of first refusal, shall be the ratio of the total number of shares of Common
Stock purchased by such Purchaser under any Common Stock Purchase Agreement to
which the Company is a party dated on or before the date hereof, to the total
number of shares of Common Stock outstanding immediately prior to the issuance
of New Securities (including any shares of Common Stock issuable on the exercise
of all exercisable outstanding securities). The rights provided in this Section
2.1 shall not be available to the extent the Purchasers' exercise of such rights
would require the Company to obtain stockholder approval pursuant to Nasdaq Rule
4350(i).
2.2 NEW SECURITIES. "NEW SECURITIES" shall mean any capital stock of the
Company, whether or not now authorized, and any rights, options or warrants to
purchase any capital stock of the Company, and all securities of any type that
are or may become convertible into capital stock of the Company; provided,
however, that "NEW SECURITIES" does not include (i) securities offered to the
public in an underwritten offering pursuant to a registration statement filed
under the Securities Act, (ii) securities issued pursuant to the acquisition of
another corporation by the Company by merger or by purchase of all or
substantially all of the assets, (iii) securities issued in connection with the
exercise of any options outstanding on the date hereof, (iv) all shares of
Common Stock (or options therefor) hereafter issued or issuable to officers,
directors, employees or consultants of the Company pursuant to any employee or
consultant stock option or stock purchase plan or arrangement approved by the
Board of Directors of the Company, (v) securities issued in connection with a
strategic or bank financing or an equipment lease or other similar transaction
which is approved by the Board of Directors of the Company, (vi) capital stock,
options, warrants or other convertible securities issued in connection with a
bridge financing which is approved by the Board of Directors of the Company, and
(vii) securities issued in connection with a private placement completed on
substantially similar terms or at substantially the same time as the Purchaser's
purchase of the Shares.
2.3 NOTICE. In the event the Company proposes to undertake an issuance
of New Securities, it shall give to each Purchaser written notice (the "NOTICE")
of its intention, describing the type of New Securities, number of shares, the
price, the terms upon which the Company proposes to issue New Securities. Each
Purchaser shall have five (5) days from the date the Notice is received to agree
to purchase any or all of its Pro Rata Share of the New Securities for the price
and upon the terms specified in the Notice by giving written notice to the
Company and stating therein the quantity of New Securities to be purchased and
forwarding payment for the New Securities to the Company.
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2.4 SALE AFTER NOTICE. In the event the Purchasers fail to exercise in
full the right of first refusal within said five (5) day period, the Company
shall have one hundred and twenty (120) days thereafter to sell or enter into an
agreement to sell the New Securities respecting which the Purchasers rights were
not exercised, at a price and upon general terms no more favorable than
specified in the Notice. In the event the Company has not sold the New
Securities within said one hundred and twenty (120) day period, the Company
shall not thereafter issue or sell any New Securities without first offering
such securities to the Purchasers in the manner provided above.
SECTION 3
MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware.
3.2 SURVIVAL. The covenants and agreements made herein shall survive the
closing of the transactions contemplated hereby.
3.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Purchase
Agreement constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought; provided, however, that Holders of a
majority of the Registrable Securities may, with the Company's prior written
consent, waive, modify or amend on behalf of all Holders, any provisions hereof.
3.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, at the address for such Holder set forth on
Exhibit A to the Purchase Agreement or at such other address as such Holder
shall have furnished the Company in writing, or (b) if to the Company, one copy
should be sent to its address set forth on the cover page of this Agreement and
addressed to the attention of the President, or at such other address as the
Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid.
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3.6 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any party to this
Agreement upon any breach or default of any other party under this Agreement,
shall impair any such right, power or remedy of such nondefaulting party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, consent or approval of any kind or character on the part of any party of
any breach or default under this Agreement, or any waiver on the part of any
Holder of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
party to this Agreement, shall be cumulative and not alternative.
3.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.8 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
3.9 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
(Signature Page(s) Follow(s))
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The foregoing Agreement is hereby executed by each party as of the
date indicated below.
"COMPANY"
SAGENT TECHNOLOGY, INC.
a Delaware Corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
14
"PURCHASER"
CastleRock Partners, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member of the General
Partner
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
15
"PURCHASER"
CastleRock Partners II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Member of the General
Partner
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
16
"PURCHASER"
CastleRock Fund, Ltd.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal & Vice President of the
Investment Advisor
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
17
"PURCHASER"
Quantum Partners LDC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal & Vice President of
CastleRock Asset Management, Inc.,
Investment Advisor to
Quantum Partners LDC
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
18
"PURCHASER"
By: /s/ G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Partner, Arbor Group
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
19
"PURCHASER"
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Bear ▇▇▇▇▇▇▇ Securities Corp.,
Custodian
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
20
"PURCHASER"
One GT Associates
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing General Partner
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
21
"PURCHASER"
RS Diversified Growth
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
22
"PURCHASER"
RS Microcap Growth
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇ III
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
23
"PURCHASER"
Special Situations Fund III, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: MD
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
24
"PURCHASER"
Special Situations Cayman Fund, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: MD
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
25
"PURCHASER"
Special Situations Private Equity Fund,
L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: MD
Date: July 23, 2001
(Signature Page to Common Stock Rights Agreement)
26
"PURCHASER"
Perry Partners ▇▇
▇▇▇▇▇ Partners Int'l
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Managing Director
Date: July 24, 2001
(Signature Page to Common Stock Rights Agreement)
27
"PURCHASER"
CompassPoint Explorer Fund
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Partner
Date: July 25, 2001
(Signature Page to Common Stock Rights Agreement)
28
"PURCHASER"
Asphalt Green, Inc.
City of Stamford Firemen's Pension Fund
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ Capital Group LLC,
as agent and attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
Date: July 26, 2001
(Signature Page to Common Stock Rights Agreement)
▇▇
"▇▇▇▇▇▇▇▇▇"
▇▇▇▇▇ Foundation
▇▇▇▇▇▇ Foundation
▇▇▇▇▇▇ Trust Co. of the Bahamas Ltd. as
Trustee U/A/D 11/30/93
By: ▇▇▇▇▇▇▇ Capital Group LLC,
as agent and attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
Date: July 31, 2001
(Signature Page to Common Stock Rights Agreement)