BROADSOFT, INC. FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.5
BROADSOFT, INC.
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Fourth Amended and Restated Registration Rights Agreement (the “Agreement”)
is made as of June 26, 2007 by and among BroadSoft, Inc. a Delaware corporation (the
“Company”), the investors listed on Exhibit A hereto (the “Investors”), and the other holders of
capital stock of the Company listed on Exhibit B hereto (the “Founders”). Reference is made to the
Third Amended and Restated Registration Rights Agreement dated as of December 19, 2003, as amended,
by and among the Company and the parties listed on Exhibit A thereto and the Founders (the “2003
Registration Rights Agreement”), which 2003 Registration Rights Agreement is hereby amended and
restated in its entirety.
Whereas, the Company, certain of the Investors and the Founders have previously
entered into the 2003 Registration Rights Agreement, which provides for, among other things,
certain rights related to the registration of shares of the Company’s capital stock;
Whereas, the Company and certain of the Investors are entering into a Series D
Preferred Stock Purchase Agreement dated as of the date hereof (as amended and in effect from time
to time, the “Purchase Agreement”) in connection with the issuance and sale by the Company to
certain Investors of shares of the Company’s Series D Convertible Preferred Stock, $0.01 par value
per share;
Whereas, the obligations in the Purchase Agreement are conditioned upon the execution
and delivery of this Agreement; and
Whereas, the parties to the 2003 Registration Rights Agreement desire to amend and
restate the 2003 Registration Rights Agreement and accept the rights, obligations and covenants
hereof in lieu of their rights, obligations and covenants under the 2003 Registration Rights
Agreement.
Now, Therefore, in consideration of the foregoing recitals and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
| 1. | Registration Rights. |
1.1 Definitions.
(a) The term “Common Stock” means the Company’s common stock, $0.01 par value per share.
(b) The terms “Form S-1”, “Form S-3”, “Form S-4” and “Form S-8” mean such respective forms
under the Securities Act of 1933, as amended (the “1933 Act”) as in effect on the date hereof or
any successor registration forms to Form ▇-▇, ▇▇▇▇ ▇-▇, Form S-4 and
Form S-8, respectively, under the 1933 Act subsequently adopted by the Securities and Exchange
Commission (the “SEC”).
(c) The term “Holder” means any person owning Registrable Securities (as defined below) or any
assignee thereof in accordance with Section 1.14 hereof.
(d) The term “Immediate Family” means, with respect to any natural person, each of such
person’s spouse, father, mother, brothers, sisters and lineal descendants and ancestors.
(e) The term “Investors’ Common Shares” means those shares of the Company’s Common Stock
issued (a) pursuant to the Series A Purchase Agreement and (b) to the Investors purchasing shares
of Series D Preferred Stock on the date hereof pursuant to the Common Stock Purchase Agreement
between such Investors and certain employees of the Company dated as of the date hereof, as amended
and in effect from time to time.
(f) The term “Purchase and Exchange Agreement” means the Company’s Preferred Stock Purchase
and Exchange Agreement, dated as of December 19, 2003, as amended and in effect from time to time.
(g) The terms “register”, “registered”, and “registration” refer to a registration effected by
preparing and filing a registration statement or similar document in compliance with the 1933 Act,
and the automatic effectiveness or the declaration or ordering of effectiveness of such
registration statement or document.
(h) The term “Registrable Securities” means (i) the Investors’ Common Shares or any Common
Stock issued as a dividend or other distribution with respect to, in exchange for, or in
replacement of Investors’ Common Shares, (ii) shares of Common Stock issued upon conversion of the
Series B-1 Shares, Series C-1 Shares and Series D Shares, and (iii) any other shares of Common
Stock acquired on or after the date hereof by any Investor; provided, however, that any shares
previously sold pursuant to a registered public offering or pursuant to an exemption from the
registration requirements of the 1933 Act under which the transferee does not receive “restricted
securities” shall cease to be Registrable Securities.
(i) The term “Series A Purchase Agreement” means the Company’s Common Stock and Series A
Preferred Stock Purchase Agreement, dated as of April 22, 1999, as amended and in effect from time
to time.
(j) The term “Series B-1 Preferred Stock” means the Company’s Series B-1 Convertible Preferred
Stock, $0.01 par value per share.
(k) The term “Series B-1 Shares” means the shares of the Company’s Series B-1 Preferred Stock
issued pursuant to the Purchase and Exchange Agreement.
(l) The term “Series C-1 Preferred Stock” means the Company’s Series C-1 Convertible Preferred
Stock, $0.01 par value per share.
(m) The term “Series C-1 Shares” means the shares of the Company’s Series C-1 Preferred Stock
issued pursuant to the Purchase and Exchange Agreement.
2.
(n) The term “Series D Preferred Stock” means the Company’s Series D Convertible Preferred
Stock, $0.01 par value per share.
(o) The term “Series D Shares” means the shares of the Company’s Series D Preferred Stock
issued pursuant to the Purchase Agreement.
1.2 Request for Registration.
(a) At any time after the date that is the earlier of (i) the date that is two (2) years after
the date hereof and (ii) six months after the closing date of the first registered public offering
of securities of the Company, if the Company shall receive a written request from any Holder(s) of
Registrable Securities then outstanding and entitled to registration rights under this Section 1
(the “Initiating Holders”) that the Company effect the registration under the 1933 Act of
Registrable Securities, then the Company shall, within five days of the receipt thereof, give
written notice of such request to all Holders and shall, subject to the limitations of this Section
1.2, use its best efforts to effect such a registration as soon as practicable and in any event to
file within 75 days of the receipt of such request a registration statement under the 1933 Act
covering all the Registrable Securities which the Holders shall in writing request (within 20 days
of receipt of the notice given by the Company pursuant to this Section 1.2(a)) to be included in
such registration and to use its best efforts to have such registration statement become effective;
provided, however, that the Company will not be required to effect the registration of Registrable
Securities unless at least an aggregate of 1,000,000 shares of Registrable Securities (as adjusted
to reflect stock splits, stock combinations, stock dividends and recapitalizations) are offered or
the Registrable Securities are offered at an aggregate proposed offering price of not less than
$3,000,000.
(b) If the Initiating Holders intend to distribute the Registrable Securities covered by their
request by means of an underwriting, they shall so advise the Company as 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 Section 1.2(a). 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 Section 1.4(d)) enter into an
underwriting agreement in customary form with the underwriter or underwriters selected for such
underwriting by the Company and reasonably acceptable to a majority in interest of the Initiating
Holders; provided, however, that if the underwriter is not reasonably acceptable to a majority in
interest of the Initiating Holders, such Initiating Holders may select an underwriter or
underwriters which shall be reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 1.2, if, in the case of a registration requested pursuant to Section
1.2(a), 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
the Company and all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto, and all the
securities other than Registrable Securities sought to be included in the underwriting shall first
be excluded. To the extent that further limitation is required, the number of Registrable
Securities
3.
that may be included in the underwriting shall be allocated pro rata among all Holders
thereof desiring to participate in such underwriting (according to the number of Registrable
Securities then held by each such Holder). No Registrable Securities requested by any Holder to be
included in a registration pursuant to Section 1.2(a) shall be excluded from the underwriting
unless all securities other than Registrable Securities are first excluded.
(c) The Company is obligated to effect only three registrations pursuant to Section 1.2(a);
provided, however, that no registration pursuant to Section 1.2(a) shall be deemed to be a
registration for any purpose of this sentence if (i) the number of Registrable Securities included
in the underwriting does not equal or exceed 75% of the number of Registrable Securities proposed
by the Holders to be distributed through such underwriting and (ii) the Holders pay all expenses of
such registration, including those otherwise payable by the Company in accordance with Section 1.7;
and provided, further, that no registration of Registrable Securities which shall not have become
and remained effective in accordance with Section 1.4 shall be deemed to be a registration for any
purpose of this sentence unless such registration was withdrawn at the request of the Holders
except under the circumstances described in the second proviso in the penultimate sentence of
Section 1.7 hereof.
(d) Notwithstanding the foregoing provisions of this Section 1.2, in the event that the
Company is requested to file any registration statement pursuant to this Section 1.2, (i) the
Company shall not be obligated to effect the filing of such registration statement:
(A) during the 180 days following the effective date of any other registration statement
pertaining to an underwritten public offering of securities for the account of the Company or any
Holder;
(B) during the 12 months following the effective date of any other registration statement
which the Company has filed pursuant to the request under Section 1.2(a);
(C) if, in the case of the initial public offering of the Company’s securities, the Company
and the Initiating Holders are unable to obtain the commitment of the underwriter selected pursuant
to Section 1.2(b) to underwrite the offering on a firm commitment basis; or
(D) for a period of up to 90 days after the date of a request for registration pursuant to
this Section 1.2 if at the time of such request (1) the Company is engaged, or has fixed plans to
engage, within 90 days of the time of such request, in a firm commitment underwritten public
offering of Common Stock in which the holders of Registrable Securities include Registrable
Securities pursuant to Section 1.3; or (2) the Company is currently engaged in a self-tender or
exchange offer and the filing of a registration statement would cause a violation of the Securities
Exchange Act of 1934, as amended (the “1934 Act”);
or (ii) if the Company shall furnish to the Holders requesting such registration statement a
certificate signed by the Chief Executive Officer of the Company stating that, in the good faith
judgment of the Board of Directors, it would be materially harmful to the Company and its
stockholders generally for such registration statement to be filed, the Company shall have the
4.
right to defer such filing for a period of not more than 90 days after receipt of the request of
the relevant Initiating Holders; provided, however, that the Company may not utilize the right set
forth in this Section 1.2(d)(ii) more than once in any twelve-month period.
(e) Each registration requested pursuant to Section 1.2(a) shall be effected by the filing of
a registration statement on Form S-1 (or if such form is not available, any other form which
includes substantially the same information (other than information which is incorporated by
reference) as would be required to be included in a registration statement on such form as
currently constituted), unless the use of a different form is consented to by Initiating Holders
holding a majority of the Registrable Securities held by all Initiating Holders or unless another
form would be equally effective, as determined by the Initiating Holders at their sole discretion.
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 stockholders other
than the Holders) any of its capital stock or other securities under the 1933 Act in connection
with the public offering of such securities solely for cash (other than a registration on Form S-8
relating solely to the sale of securities to participants in a Company stock plan or a registration
on Form S-4), the Company shall, at such time, promptly give each Holder and each Founder written
notice of such registration. Upon the written request of any Holder or any Founder given within 20
days after mailing of such notice by the Company, the Company shall, subject to the provisions of
Section 1.9, use its best efforts to cause a registration statement covering all of the Registrable
Securities that such Holder or all of the shares that such Founder has requested to be registered
(the “Founders’ Registrable Shares”) to become effective under the 1933 Act. The Company shall be
under no obligation to complete any offering of its securities it proposes to make and shall incur
no liability to any Holder or any Founder for its failure to do so.
1.4 Obligations of the Company. Whenever required under this Section 1 to use its best
efforts to effect the registration of any Registrable Securities or Founders’ Registrable Shares,
the Company shall, as expeditiously as reasonably possible, prepare and file with the SEC a
registration statement with respect to such Registrable Securities or Founders’ Registrable Shares,
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 or the holders of a majority of
the Founders’ Registrable Shares, as the case may be, registered thereunder, keep such registration
statement effective for up to 180 days or until such earlier time at which such Holders or such
Founders have informed the Company in writing that the distribution of their securities has been
completed (such 180-day or shorter period, the “Effectiveness Period”). In addition, the Company
shall:
(a) Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement, and use its best
efforts to cause each such amendment and supplement to become effective, as
may be necessary to comply with the provisions of the 1933 Act with respect to the disposition
of all securities covered by such registration statement during the Effectiveness Period.
(b) Furnish to the Holders or Founders, as the case may be, such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the requirements
5.
of the 1933
Act, and such other documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities or Founders’ Registrable Shares, owned by them.
(c) Use its best efforts to register or qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such states and jurisdictions as shall be
reasonably requested by the Holders or the Founders, except that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business, subject itself to
taxation or file a general consent to service of process in any such state or jurisdiction.
(d) 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 of such
offering. Each Holder or Founder participating in such underwriting shall also enter into and
perform its obligations under such an underwriting agreement, including furnishing any opinion of
counsel or entering into a lock-up agreement reasonably requested by the managing underwriter.
(e) Notify each Holder of Registrable Securities or holder of Founders’ Registrable Shares, as
the case may be, covered by such registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be delivered under the 1933 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 and promptly file such amendments and
supplements which may be required pursuant to Section 1.4(a) on account of such event and use its
best efforts to cause each such amendment and supplement to become effective.
(f) Furnish, at the request of any Holder requesting registration of Registrable Securities or
any Founder requesting registration of Founders’ Registrable Shares pursuant to this Section 1, on
the date that such Registrable Securities or Founders’ Registrable Shares are delivered to the
underwriters for sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such securities becomes
effective, (i) an opinion or opinions, dated such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is customarily given by company counsel
to the underwriters in an underwritten public offering, addressed to the underwriters, if any, and
to the Holders requesting registration of Registrable Securities or the Founders requesting
registration of Founders’ Registrable Shares, as the case may be, and (ii) a letter dated such
date, from the independent certified public accountant of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities or the Founders requesting
registration of Founders’ Registrable Shares, as the case may be.
(g) Apply for listing and use its best efforts to list the Registrable Securities or Founders’
Registrable Shares being registered on any national securities exchange on which a
6.
class of the
Company’s equity securities is listed or, if the Company does not have a class of equity securities
listed on a national securities exchange, apply for qualification and use its best efforts to
qualify the Registrable Securities or Founders’ Registrable Shares being registered for inclusion
on the automated quotation system of the National Association of Securities Dealers, Inc.
(h) Without in any way limiting the types of registrations to which this Section 1 shall
apply, in the event that the Company shall effect a “shelf registration” under Rule 415 promulgated
under the 1933 Act, the Company shall take all necessary action, including, without limitation, the
filing of post-effective amendments, to permit the Investors to include their Registrable
Securities and the Founders to include their Founders’ Registrable Shares in such registration in
accordance with the terms of this Section 1.
1.5 Postponement. The Holders and the Founders understand that there may be periods during
which the Company’s Board of Directors may determine, in good faith, that it is materially harmful
to the Company and its securityholders to defer disclosure of non-public information until such
information has reached a more advanced stage and that during such periods sales of Registrable
Securities or Founders’ Registrable Shares and the effectiveness of any registration statement
covering Registrable Securities or Founders’ Registrable Shares may be suspended or delayed as
provided in this Section 1.5. Notwithstanding the provisions of Section 1.4, if the Company shall
furnish to the Holders of Registrable Securities and the Founders owning Founders’ Registrable
Shares covered (i) by a registration statement that is filed but not effective, a certificate
signed by the Chief Executive Officer of the Company stating that, in the good faith judgment of
the Board of Directors, due to the development of material non-public information it would be
materially harmful to the Company and its stockholders generally for such registration statement to
be filed, the Company shall have the right to defer such registration statement’s effectiveness for
a period of not more than 60 days after the date of the Board of Directors’ determination, or (ii)
by an effective registration statement, a certificate signed by the Chief Executive Officer of the
Company stating that, in the good faith judgment of the Board of Directors, due to the development
of material non-public information it would be materially harmful to the Company and its
stockholders generally for the disposition of Registrable Securities or Founders’ Registrable
Shares pursuant to such registration statement to continue, the Company shall have the right to
cause the Holders and Founders to discontinue their disposition of Registrable Securities and
Founders’ Registrable Shares for a period (the “Black-out Period”) of not more than 60 days after
the date of the Board of Directors’ determination. In the event that the Company sends a notice
pursuant to clause (ii) of the preceding sentence, the Company shall use its best efforts to
prepare an appropriately supplemented or amended prospectus ten (10) days before the expiration of
the Black-out Period, if so directed by the Company, the Holders and Founders will use their best
efforts to deliver to the Company (at the Company’s expense) all copies, other than permanent file
copies then in such Holders’ and Founders’ possession, of the prospectus relating to such
Registrable Securities or Founders’ Registrable Shares current at the time of receipt of such
notice, and the applicable time period during which such registration statement is to remain effective shall be extended
by the number of days during the Black-out Period.
1.6 Furnish Information. It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Section 1 in respect of the Registrable Securities of
7.
any
selling Holder or the Founders’ Registrable Shares of any selling Founder that such selling Holder
or selling Founder shall furnish to the Company such information regarding itself, the Registrable
Securities or Founders’ Registrable Shares held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of its Registrable Securities or
Founders’ Registrable Shares.
1.7 Expenses of Demand Registration. All expenses other than underwriting discounts and
commissions relating to Registrable Securities incurred in connection with each registration,
filing or qualification pursuant to Section 1.2(a) and each registration, filing or qualification
pursuant to Section 1.12, including (without limitation) all registration, filing and qualification
fees, printing and accounting fees, fees and disbursements of counsel for the Company, and up to
$35,000 of 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 begun pursuant to Section 1.2(a) if the registration request is
subsequently withdrawn at any time 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(a); and provided, further, that if at the time of any
withdrawal described in the foregoing clause the Holders have learned of a material adverse change
in the condition, business, or prospects of the Company (other than a change in market demand for
its securities or in the market price thereof) from that known to the Holders of a majority of the
Registrable Securities then outstanding at the time of their request (or of which the Company
advised them in writing within 20 days thereafter) that makes the proposed offering unreasonable in
the good faith judgment of a majority in interest of the Holders of the Registrable Securities,
then the Holders shall not be required to pay any of such expenses and the right to one demand
registration pursuant to Section 1.2(a) shall not be forfeited. Subject to Section 1.12, all
underwriting discounts and commissions relating to Registrable Securities included in any
registration effected pursuant to Section 1.2(a) or 1.12 will be borne and paid ratably by the
Holders of such Registrable Securities.
1.8 Expenses of Company Registration. The Company shall bear and pay all expenses incurred in
connection with any registration, filing or qualification of Registrable Securities or Founders’
Registrable Shares with respect to any registration pursuant to Section 1.3 for each Holder or
Founder, including, without limitation, all registration, filing and qualification fees, printing
and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders. Underwriting discounts and commissions
relating to Registrable Securities or Founders’ Registrable Shares included in any registration
effected pursuant to Section 1.3 will be borne and paid ratably by the Holders of such Registrable
Securities or the holders of such Founders’ Registrable Shares as the case may be.
1.9 Underwriting Requirements. In connection with any offering involving an underwriting of
securities being issued by the Company, the Company shall not be required under Section 1.3 to
include any of the Holders’ or Founders’ securities in such underwriting unless such Holders or
Founders accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity, if any, as in the opinion of the
underwriters, marketing factors allow. If the managing underwriter for the
8.
offering shall advise
the Company in writing that the total amount of securities, including Registrable Securities and
Founders’ Registrable Shares, requested by shareholders to be included in such offering exceeds the
amount of securities to be sold other than by the Company that marketing factors allow, then the
Company shall be required to include in the offering only that number of such securities, including
Registrable Securities and Founders’ Registrable Shares, which the managing underwriter believes
marketing factors allow (the securities so included to be reduced as follows: (a) all securities
which stockholders other than the Company, the Founders and the Holders seek to include in the
offering shall be excluded from the offering to the extent limitation on the number of shares
included in the underwriting is required, (b) if further limitation on the number of shares to be
included in the underwriting is required, then the number of shares held by Founders that may be
included in the underwriting shall be reduced so that the number of Founders’ Registrable Shares
included in the underwriting are pro rata in accordance with the number of Founders’ Registrable
Shares held by each such Founder, and (c) if, after the maximum reductions pursuant to (b) above
have been made, further limitation on the number of shares to be included in the underwriting is
required, then the number of shares held by Holders that may be included in the underwriting shall
be reduced so that the number of shares included in the underwriting are pro rata in accordance
with the number of shares of Registrable Securities held by each such Holder), but in no event
shall the amount of securities of the selling Holders included in the offering be reduced below 25%
of the total amount of securities included in such offering, unless such offering is the initial
public offering of the Company’s securities in which case the selling Holders may be excluded if
the managing underwriter makes the determination described above and no securities other than those
of the Company are included. For purposes of the preceding parenthetical concerning apportionment,
for any selling shareholder which is a Holder of Registrable Securities and which is a partnership,
a limited liability company or a corporation, the partners, retired partners, members, retired
members and shareholders of such Holder, or the estates and family members of such partners,
retired partners, members and retired members and any trusts for the benefit of any of the
foregoing persons shall collectively be deemed to be a “selling Holder,” and any pro rata reduction
with respect to such “selling Holder” shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such “selling Holder,” as
defined in this sentence.
1.10 Indemnification. In the event any Registrable Securities or Founders’ Registrable Shares
are included in a registration statement under this Section 1:
(a) The Company will indemnify and hold harmless each Holder or Founder, the officers,
directors, partners, members, agents and employees of each Holder or Founder, any underwriter (as
defined in the ▇▇▇▇ ▇▇▇) for such Holder or Founder and each person, if any, who controls such
Holder or Founder or underwriter within the meaning of the 1933 Act or the 1934 Act, against any
losses, claims, damages or liabilities (joint or several) to which they may become subject under
the 1933 Act, the 1934 Act or any 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 (each 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 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, in light
of
9.
the circumstances in which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the 1933 Act, the 1934 Act or any state securities law in connection
with any matter relating to such registration statement. The Company will reimburse each such
Holder or Founder, and each of its officers, directors, partners, members, agents, employees,
underwriters or controlling persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability, or action. The
indemnity agreement contained in this Section 1.10(a) shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld or delayed), nor shall the Company
be liable to a Holder or Founder in any such case for any such loss, claim, damage, liability or
action (1) 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 or on behalf of such Holder or Founder, underwriter or controlling person
or (2) in the case of a sale directly by a Holder of Registrable Securities or by a Founder of
Founders’ Registrable Shares (including a sale of such Registrable Securities or Founders’
Registrable Shares through any underwriter retained by such Holder or Founder engaging in a
distribution solely on behalf of such Holder or Founder), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary prospectus and corrected
in a final or amended prospectus, and such Holder or Founder failed to deliver a copy of the final
or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities or
Founders’ Registrable Shares to the person asserting any such loss, claim, damage or liability in
any case in which such delivery is required by the ▇▇▇▇ ▇▇▇.
(b) Each Holder or Founder which includes any Registrable Securities or Founders’ Registrable
Shares in any registration statement will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the 1933 Act, each employee, agent, and any
underwriter for the Company, and any other Holder or Founder or other stockholder selling
securities in such registration statement or any of its directors, officers, partners, members,
agents or employees or any person who controls such Holder or Founder or such other stockholder or
such underwriter, against any losses, claims, damages, or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, employee, agent, or underwriter or
controlling person, or other such Holder, Founder, stockholder, director, officer or controlling
person may become subject, under the 1933 Act, 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 or on behalf of
such Holder or Founder expressly for use in connection with such registration, and each such Holder
or Founder will reimburse any legal or
other expenses reasonably incurred by the Company or any such director, officer, controlling
person, agent or underwriter or controlling person, other Holder or Founder or other stockholder,
officer, director, partner, member, agent, employee, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or action; provided, however,
that the liability of any Holder or Founder hereunder shall be limited to the amount of net
proceeds (after deduction of all underwriters’ discounts and commissions paid by such Holder or
10.
Founder in connection with the registration in question) received by such Holder or Founder, in the
offering giving rise to the Violation; and provided, further, that the indemnity agreement
contained in this Section 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
or Founder, as applicable, which consent shall not be unreasonably withheld or delayed nor, in the
case of a sale directly by the Company of its securities (including a sale of such securities
through any underwriter retained by the Company to engage in a distribution solely on behalf of the
Company), shall the Holder or Founder be liable to the Company in any case in which such untrue
statement or alleged untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus, and the Company failed to
deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of
the securities to the person asserting any such loss, claim, damage or liability in any case in
which such delivery is required by the ▇▇▇▇ ▇▇▇. The obligations of the Holders and the Founders
hereunder are several, not joint.
(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 and control the defense
thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own 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 to actual or potential differing interests, as
reasonably determined by either party, 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 to the extent of such prejudice, 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.
(d) The obligations of the Company, the Holders and the Founders under this Section 1.10 shall
survive the conversion, if any, of the Registrable Securities and Founders’ Registrable Shares and
the completion of any offering of Registrable Securities or Founders’ Registrable Shares in a
registration statement whether under this Section 1 or otherwise.
1.11 Reports Under Securities Exchange Act of 1934.
(a) Resales Under Rule 144; Form S-3 Registration. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the 1933 Act (“Rule 144”) 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, and with a view to making it possible for Holders to have the resale
of the Registrable Securities registered pursuant to a registration statement on Form S-3, the
Company agrees to:
11.
(i) use its best efforts to make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after 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;
(ii) as soon as practicable after the first registered public offering, take such action,
including the voluntary registration of its Common Stock under Section 12 of the 1934 Act or
compliance with the reporting requirements of Section 15(d) of the 1934 Act, as is necessary to
enable the Holders to utilize Form S-3 for the sale of their Registrable Securities.
(iii) use its best efforts, after the first registered public offering, to file with the SEC
in a timely manner all reports and other documents required of the Company under the 1933 Act and
the 1934 Act; and
(iv) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (1) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for the offering of the securities to the general
public), the 1933 Act and the 1934 Act (at any time after it has become subject to such reporting
requirements), or as to its qualification as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (2) 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 (3) such
other documents 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.
(a) In case the Company shall receive from any Holder or Holders a written request or requests
that the Company effect a registration on Form S-3 (or on any successor form to Form S-3 regardless
of its designation) 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:
(i) promptly give written notice of the proposed registration, and any related qualification
or compliance, to all other Holders; and
(ii) use its best efforts to effect, as soon as practicable, such registration (and to keep
such registration effective for up to six months), qualification or
compliance 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 20 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 if: (1) Form S-3 (or any successor form to Form S-3 regardless of its designation) is not
available for such offering by the Holders; (2) the aggregate net offering price (after deduction
of
12.
underwriting discounts and commissions) of the Registrable Securities specified in such request
is not at least $500,000; (3) the Company has already effected one registration on Form S-3 or
pursuant to Section 1.2 hereof within the previous six-month period; or (4) 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, it would be materially harmful to the Company and
its stockholders 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 for a period of not
more than 90 days after receipt of the request of the Holder or Holders under this Section 1.12
provided, however, that the Company shall not utilize this right more than once in any twelve-month
period.
(b) In the event that the Company consummates the initial public offering of its securities,
then as soon as reasonably possible following a written request from a majority in interest of the
Registrable Securities, and in any event not before 366 days after the effective date of the
registration statement filed in connection with such initial public offering, the Company shall
file a shelf registration statement on Form S-3 (or on any successor form to Form S-3 regardless of
its designation) which would permit or facilitate the sale and distribution of the Holders’
Registrable Securities, and the Company shall use best efforts to keep such shelf registration
effective in accordance with applicable regulations.
1.13 Lock-up Agreements. If reasonably requested by the Company and the managing underwriter,
the Holders agree to enter into lock-up agreements pursuant to which they will not, for a period of
no more than 180 days following the effective date of the first registration statement for a public
offering of the Company’s securities (or such longer period as the Company and the managing
underwriter shall request in order to facilitate compliance with NASD Rule 2711), offer, sell or
otherwise dispose of the Registrable Securities or other equity securities of the Company, except
the Registrable Securities sold pursuant to such registration statement, without the prior consent
of the Company and the underwriter, provided that the officers, directors and all holders of more
than 1% of the shares of Common Stock (calculated for the purpose as if all securities convertible
into or exercisable for Common Stock, directly or indirectly, are so converted or exercised) of the
Company enter such lock-up agreements for the same period and on the same terms and provided,
further, that any Holder that is a limited liability company, limited partnership, partnership or
the like may, during the period of such lock-up agreements, distribute the Company’s equity
securities to its members, limited partners or general partners, as the case may be, but only if
such members, limited partners or general partners agree to be bound by the terms of such lock-up
agreements in the same manner as it applies to the transferor Holder.
1.14 Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 1 may be assigned by any Holder to a permitted
transferee, and by such transferee to a subsequent permitted transferee, but only if such rights
are transferred (a)(i) to an affiliate, subsidiary, partner, member or stockholder of such Holder
or transferee or an account managed or advised by the manager or adviser of such Holder or
transferee, (ii) by gift or bequest or through inheritance to, or for the benefit of, any member or
members of such Holder’s Immediate Family or to a trust for the benefit of any member or members of
such Holder’s Immediate Family, or (iii) to a trust in respect of which such Holder serves as
trustee, provided, however, that the trust instrument governing such trust shall provide
13.
that such
Holder, as trustee, shall retain sole and exclusive control over the voting and disposition of such
rights until the termination of this Agreement, or (b) in connection with the sale or other
transfer of not less than an aggregate of 100,000 Registrable Securities (as adjusted for stock
splits, combinations, stock dividends and recapitalizations) or some lesser number, if such lesser
number represents all the Registrable Securities then held by such Holder. Any transferee to whom
rights under this Agreement are transferred shall (i) as a condition to such transfer, deliver to
the Company a written instrument by which such transferee agrees to be bound by the obligations
imposed upon Holders under this Agreement to the same extent as if such transferee were a Holder
under this Agreement and (ii) be deemed to be a Holder hereunder.
1.15 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the Holders of a majority of
the Registrable Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company relating to registration rights unless such
agreement includes (a) to the extent such agreement would allow such holder or prospective holder
to include such securities in any registration filed under Section 1.2, 1.3 or 1.12 hereof, a
provision that such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of its securities will not reduce the amount of
the Registrable Securities of the Holders which would otherwise be included and (b) no provision
which would allow such holder or prospective holder to make a demand registration which could
result in such registration statement being declared effective prior to the earlier of the dates
set forth in Section 1.2(a) and (c) a provision which permits the Holders to include in such
registration and in any underwriting involved therewith, Registrable Securities pro rata with the
sellers of securities in such registration based on the number of equivalent shares of Common Stock
held by each person (where an equivalent share is either a share of Common Stock held directly or
the number of shares of Common Stock receivable upon conversion or exercise of securities held
directly).
| 2. | Miscellaneous. |
2.1 Notices. All notices, requests, consents and demands shall be in writing and shall be
personally delivered (effective upon receipt), mailed, postage prepaid (effective three business
days after dispatch), facsimiled (effective upon receipt of the facsimile in complete, readable
form if sent during business hours, otherwise the next business day), or sent via a reputable
overnight courier service (effective the following business day), to the Company at:
BroadSoft, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
14.
with a copy sent at the same time and by the same means to:
▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ Godward Kronish LLP
One Freedom Square
Reston Town Center
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Godward Kronish LLP
One Freedom Square
Reston Town Center
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
or to each Investor at its address set out on Exhibit A hereto with a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
WilmerHale
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
WilmerHale
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may be furnished in writing to the other parties hereto or to each Founder
at its address set out on Exhibit B hereto or such other address as may be furnished in writing to
the other parties hereto.
2.2 Entire Agreement. This Agreement and the other Transaction Documents (as defined in the
Purchase Agreement) constitute the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede any and all prior
understandings and agreements, whether written or oral, with respect to such subject matter.
2.3 Amendments, Waivers and Consents. Any provision in this Agreement to the contrary
notwithstanding, modifications or amendments to this Agreement may be made, and compliance with any
covenant or provision herein set forth may be omitted or waived, if the Company shall agree thereto
and (a) shall obtain consent thereto in writing from persons holding
15.
or having the right to acquire
in the aggregate a majority of the aggregate of the Registrable Securities then outstanding and (b)
shall, in each such case, deliver copies of such consent in writing to any Holders who did not
execute the same; provided, however, that no Holder shall, without its consent, be adversely
affected by any such modification, amendment or waiver in any manner in which the other Holders are
not likewise adversely affected.
2.4 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit
of the personal representatives, successors and permitted assigns of the respective parties hereto.
The Company shall not have the right to assign its obligations hereunder or any interest herein
without obtaining the prior written consent of the Holders holding a majority of the Registrable
Securities then outstanding, provided in accordance with Section 2.3.
2.5 General. The headings contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement the
singular includes the plural, the plural includes the singular, and the masculine gender includes
the neuter, masculine and feminine genders. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
2.6 Severability. If any provision of this Agreement shall be found by any court of competent
jurisdiction to be invalid or unenforceable, the parties hereby waive such provision to the extent
that it is found to be invalid or unenforceable. Such provision shall, to the maximum extent
allowable by law, be modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, and all the other provisions hereof continuing in full
force and effect.
2.7 Counterparts. This Agreement may be executed in counterparts, all of which together shall
constitute one and the same agreement.
2.8 Specific Performance. The Company recognizes that the rights of the Holders under this
Agreement are unique, and, accordingly, the Holders shall, in addition to such other remedies as
may be available to them at law or in equity, have the right to enforce their rights hereunder by
actions for injunctive relief and specific performance to the extent permitted by law. This
Agreement is not intended to limit or abridge any rights of the Holders which may exist apart from
this Agreement.
[Remainder Of Page Left Blank Intentionally]
16.
In Witness Whereof, the Company, the Founders and the Investors have executed this
Fourth Amended and Restated Registration Rights Agreement as of the date and year first above
written.
| COMPANY: | BroadSoft, Inc. |
|||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||
| Title: | Chief Financial Officer | |||
| INVESTORS: | Meritech Capital Partners III L.P. By: Meritech Capital Associates III L.L.C. its General Partner By: Meritech Management Associates III L.L.C. a managing member |
|||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a managing member | ||||
| Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||
| Meritech Capital Affiliates III L.P. By: Meritech Capital Associates III L.L.C. its General Partner By: Meritech Management Associates III L.L.C. a managing member |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a managing member | ||||
| Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| Bessemer Venture Partners IV L.P. By: Deer IV & Co. LLC, General Partner |
||||
| By: | /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Chief Operating Officer | ||||
| Bessec Ventures IV L.P. By: Deer IV & Co. LLC, General Partner |
||||
| By: | /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Chief Operating Officer | ||||
| Plum ▇▇▇▇, Inc. |
||||
| By: | /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Attorney-in-Fact | ||||
| /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| (By J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Attorney-in-Fact) | ||||
| Cove Ventures, LLC By: Cove Road Associates, LLC Its: Managing Member |
||||
| By: | /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Attorney-in-Fact | ||||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| ▇▇▇▇▇▇▇ River Partnership IX, A Limited Partnership By: ▇▇▇▇▇▇▇ River IX GP Limited Partnership, General Partner |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: General Partner | ||||
| ▇▇▇▇▇▇▇ River Partnership IX-A, A Limited Partnership By: ▇▇▇▇▇▇▇ River IX GP Limited Partnership, General Partner |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: General Partner | ||||
| ▇▇▇▇▇▇▇ River IX-B LLC By: ▇▇▇▇▇▇▇ River Friends, Inc., Manager |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Officer | ||||
| ▇▇▇▇▇▇▇ River IX-C LLC By: ▇▇▇▇▇▇▇ River Friends, Inc., Manager |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: Officer | ||||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| Columbia BroadSoft Investors, LLC By: Columbia Capital, L.L.C. Its: Managing Member |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | CFO | |||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| Crescendo IV, L.P. By: Crescendo Ventures IV, LLC Its: General Partner |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | General Partner | |||
| Crescendo IV Entrepreneurs Funds, L.P. By: Crescendo Ventures IV, LLC Its: General Partner |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | General Partner | |||
| Crescendo IV Entrepreneur Funds A, L.P. By: Crescendo Ventures IV, LLC Its: General Partner |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | General Partner | |||
| Crescendo IV AG & Co. Beteiligungs KG By: Crescendo German Investments IV, LLC Its: Managing Partner |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | General Partner | |||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| RRE Ventures III-A, L.P. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| General Partner | ||||
| RRE Ventures III, L.P. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| General Partner | ||||
| RRE Ventures Fund III, L.P. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| General Partner | ||||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| Grotech Partners VI, L.P. By: Grotech Capital Group VI, LLC Its General Partner |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||
| General Partner | ||||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
| FOUNDERS: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1999 Irrevocable Trust (u/t/a dated December 29, 1999) |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Trustee | |||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2000 Family Irrevocable (u/t/a dated April 4, 2000) |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Trustee | |||
[Fourth Amended and Restated Registration Rights Agreement
Signature Page]
Signature Page]
Exhibit A
INVESTORS
Meritech Capital Partners III
Meritech Capital Affiliates III L.P.
Tekelec
Bessemer Venture Partners IV ▇.▇.
▇▇▇▇▇▇ Ventures IV L.P.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Cove Ventures, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Columbia BroadSoft Investors, LLC
▇▇▇▇▇▇▇ River Partnership IX
▇▇▇▇▇▇▇ River Partnership IX-A
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇ LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, NICUSA Capital
Yas Corporation
Crescendo IV, L.P.
Crescendo IV Entrepreneur Fund, L.P.
Crescendo IV Entrepreneur Fund A, L.P.
Crescendo IV AG & Co. Beteiligungs KG
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ Vort
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, BlueStream Ventures
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Cbeyond Communications
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, 2008611 Ontario, Inc.
Meritech Capital Affiliates III L.P.
Tekelec
Bessemer Venture Partners IV ▇.▇.
▇▇▇▇▇▇ Ventures IV L.P.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Cove Ventures, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Columbia BroadSoft Investors, LLC
▇▇▇▇▇▇▇ River Partnership IX
▇▇▇▇▇▇▇ River Partnership IX-A
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇ LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, NICUSA Capital
Yas Corporation
Crescendo IV, L.P.
Crescendo IV Entrepreneur Fund, L.P.
Crescendo IV Entrepreneur Fund A, L.P.
Crescendo IV AG & Co. Beteiligungs KG
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ Vort
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, BlueStream Ventures
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Cbeyond Communications
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, 2008611 Ontario, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, Hillcrest Laboratories Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Evolve Adapt Survive
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. Francesco
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
RRE Ventures III-A, L.P.
RRE Ventures III, L.P.
RRE Ventures Fund III, L.P.
GC&H Investments, LLC
Grotech Partners VI, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Evolve Adapt Survive
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. Francesco
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
RRE Ventures III-A, L.P.
RRE Ventures III, L.P.
RRE Ventures Fund III, L.P.
GC&H Investments, LLC
Grotech Partners VI, L.P.
Exhibit B
FOUNDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1999 Irrevocable Trust
(u/t/a dated December 29, 1999)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2000 Family Irrevocable
Trust (u/t/a dated April 4, 2000)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1999 Irrevocable Trust
(u/t/a dated December 29, 1999)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2000 Family Irrevocable
Trust (u/t/a dated April 4, 2000)