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EXHIBIT 4.02
PORTABLE SOFTWARE CORPORATION
SECOND AMENDED AND RESTATED INFORMATION
AND REGISTRATION RIGHTS AGREEMENT
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions ........................................................ 1
2. Financial Statements and Reports to Shareholders ........................... 2
3. Additional Information ..................................................... 3
4. Inspection ................................................................. 3
5. Right of First Refusal ..................................................... 4
6. Termination of Covenants ................................................... 5
7. Demand Registration ........................................................ 5
7.1 Request for Registration on Form Other Than Form S-3 .................. 5
7.2 Right of Deferral of Registration on Form Other Than S-3 .............. 6
7.3 Request for Registration on Form S-3 .................................. 6
7.4 Registration of Other Securities in Demand Registration ............... 7
7.5 Underwriting in Demand Registration ................................... 7
7.5.1 Notice of Underwriting ....................................... 7
7.5.2 Inclusion of Other Holders in Demand Registration ............ 7
7.5.3 Selection of Underwriter in Demand Registration .............. 8
7.5.4 Marketing Limitation in Demand Registration .................. 8
7.5.5 Right of Withdrawal in Demand Registration ................... 8
7.6 Blue Sky in Demand Registration ....................................... 8
8. Piggyback Registration ..................................................... 9
8.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities .................................................... 9
8.2 Underwriting in Piggyback Registration ............................ 9
8.2.1 Notice of Underwriting in Piggyback Registration ......... 9
8.2.2 Marketing Limitation in Piggyback Registration ........... 9
8.2.3 Allocation of Shares in Piggyback Registration ........... 10
8.2.4 Withdrawal in Piggyback Registration ..................... 10
8.3 Blue Sky in Piggyback Registration .................................... 10
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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9. Expenses of Registration ................................................... 11
10. Termination of Registration Rights ......................................... 11
11. Registration Procedures and Obligations .................................... 11
12. Information Furnished by Holder ............................................ 12
13. Indemnification ............................................................ 12
13.1 Company's Indemnification of Holders .................................. 12
13.2 Holder's Indemnification of Company ................................... 13
13.3 Indemnification Procedure ............................................. 14
13.4 Contribution .......................................................... 14
14. Limitations on Registration Rights Granted to Other Securities ............. 15
15. Transfer of Rights ......................................................... 15
16. Market Stand-off ........................................................... 15
17. Conversion of Preferred Stock .............................................. 16
18. Reports Under Securities Exchange Act of 1934 .............................. 16
19. Miscellaneous .............................................................. 17
19.1 Entire Agreement; Successors and Assigns .............................. 17
19.2 Governing Law ......................................................... 17
19.3 Counterparts .......................................................... 17
19.4 Headings .............................................................. 17
19.5 Notices ............................................................... 17
19.6 Amendment of Agreement ................................................ 18
19.7 Severability .......................................................... 18
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SECOND AMENDED AND RESTATED INFORMATION
AND REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED INFORMATION AND REGISTRATION RIGHTS
AGREEMENT (the "Agreement") is made as of May 29, 1998, by and among Portable
Software Corporation, a Washington corporation (the "Company") and the persons
listed on the attached Schedule A who become signatories to this Agreement
(collectively, the "Investors").
R E C I T A L S
A. The Company and the Investors have entered into agreements for sale
by the Company and purchase by the Investors of the Company's securities.
B. In connection with the purchase and sale of the Company's
securities, the Company and the Investors desire to provide for the rights of
the Investors with respect to information about the Company and registration of
the Company's common stock ("Common Stock") issued upon conversion or exercise
of the securities according to the terms of this Agreement. In addition, the
Investors who were signatories to the Restated Information and Registration
Rights Agreement made as of July 12, 1996 and amended July 22, 1997 (as amended,
the "Previous Agreement") desire to restate the Previous Agreement as set forth
below and consent to the addition, as parties to this Agreement, of the
Investors who purchase shares of the Company's Series E Preferred Stock.
THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Convertible Securities" shall mean securities of the
Company convertible into or exchangeable for Common Stock of the Company or into
other securities that are convertible into or exchangeable for Common Stock.
(c) "Form S-3" shall mean Form S-3 issued by the
Commission or any substantially similar form then in effect.
(d) "Holder" shall mean any holder of outstanding
Registrable Securities which have not been sold to the public, but only if such
holder is one of the Investors or an assignee or transferee of Registration
rights as permitted by Section 15.
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(e) "Initiating Holders" shall mean Holders who in the
aggregate hold at least twenty-five percent (25%) of the Registrable Securities.
(f) "Material Adverse Event" shall mean an occurrence
having a consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or (b) is
reasonably foreseeable, has a reasonable likelihood of occurring, and if it were
to occur might materially adversely affect the business, properties, prospects,
or financial condition of the Company.
(g) The terms "Register", "Registered", and
"Registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act ("Registration
Statement"), and the declaration or ordering of the effectiveness of such
Registration Statement.
(h) "Registrable Securities" shall mean all Common Stock
not previously sold to the public and issued or issuable upon conversion or
exercise of any of the Company's Convertible Securities purchased by or issued
to the Investors, including Common Stock issued pursuant to stock splits, stock
dividends and similar distributions, and any securities of the Company granted
registration rights pursuant to Section 14 of this Agreement.
(i) "Registration Expenses" shall mean all expenses
incurred by the Company in complying with Sections 7 or 8 of this Agreement,
including, without limitation, all federal and state registration,
qualification, and filing fees, printing expenses, fees and disbursements of
counsel for the Company and one special counsel for Holders (if different from
the Company), blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration.
(j) "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.
(k) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities pursuant to this Agreement.
2. Financial Statements and Reports to Shareholders.
The Company shall deliver to each Investor as soon as
practicable after the end of each fiscal year of the Company, and in any event
within 90 days thereafter, an audited consolidated balance sheet of the Company
as of the end of such year and audited consolidated statements of income,
shareholders' equity and cash flow for such year, which year-end financial
reports shall be in reasonable detail and shall be prepared in accordance with
generally accepted accounting principles and accompanied by the opinion of
independent public accountants of nationally recognized standing selected by the
Company. In addition, the Company shall deliver to the Investors: (a)
contemporaneously with delivery to holders of Common Stock, a copy of each
report of the Company delivered to holders of Common Stock and (b) an annual
capitalization summary.
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3. Additional Information.
As long as an Investor (together with any affiliate) or its
transferee holds the lesser of (i) all of the Convertible Securities purchased
by such Investor, (ii) not less than 5% of the total number of Convertible
Securities of the Company (or an equivalent number of shares consisting of
Registrable Securities issued upon conversion or exercise of the Convertible
Securities of the Company or a combination of such Registrable Securities and
such Convertible Securities), and (iii) 100,000 shares of Series E Preferred
Stock (including for these purposes as a share of Series E Preferred Stock
shares of Common Stock issued upon conversion of Series E Preferred Stock) as
adjusted for recapitalizations, stock splits, stock dividends and the like, the
Company will deliver to such Investor:
(a) As soon as practicable after the end of each month,
and in any event within 30 days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such month, and
consolidated statements of income and cash flow for such month and for the
fiscal year to date, prepared in accordance with generally accepted accounting
principles (other than for accompanying notes) and signed by the Chief Financial
Officer or President of the Company certifying that they fairly and accurately
present the financial condition and results of operation of the Company, subject
to changes resulting from year-end audit adjustment.
(b) As soon as practicable after the end of each of the
first three fiscal quarters of each fiscal year after fiscal year 1998, and in
any event within thirty (30) days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such quarter, and
consolidated statements of income and cash flow for such quarter and the fiscal
year to date, prepared in accordance with generally accepted accounting
principles (other than for accompanying notes) and signed by the Chief Financial
Officer or President of the Company certifying that they fairly and accurately
present the financial condition and results of operation of the Company, subject
to changes resulting from year-end audit adjustment.
(c) As soon as practicable following submission to and
approval by the Board of Directors of the Company, but in no event later than 90
days after the end of each fiscal year, an operating budget and plan (the
"Plan") respecting the next fiscal year and a summary of such Plan together with
any update of the Plan as such update is prepared.
(d) Such other information relating to the financial
condition, business, prospects, or corporate affairs of the Company as the
Investor or any assignee of the Investor may from time to time request,
provided, however, that the Company shall not be obligated under this subsection
(d) or any other subsection of Section 3 to provide information which it deems
in good faith to be a trade secret or confidential information unless the
Investor signs an appropriate confidentiality agreement with the Company.
4. Inspection.
The Company shall permit each Investor, at such Investor's
expense, to visit and inspect the Company's properties, to examine its books of
account and records and to discuss the
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Company's affairs, finances, and accounts with its officers, all at such
reasonable times as may be requested by each such Investor; provided, however,
that the Company shall not be obligated pursuant to this Section 4 to provide
any information which it reasonably considers to be a trade secret or
confidential information. Subject to Section 15, the rights of an Investor under
this Section 4 may not be assigned as part of such Investor's sale of any of the
Registrable Securities or Convertible Securities except with the consent of the
Company, which consent shall not be unreasonably withheld.
5. Right of First Refusal.
5.1 The Company hereby grants to each Investor the right
of first refusal to purchase up to its Pro Rata Share of the New Securities (as
defined below) which the Company may, from time to time, propose to sell and
issue. The Investors may purchase said New Securities on the same terms and at
the same price at which the Company proposes to sell the New Securities. The
"Pro Rata Share" of each Investor, for purposes of this right of first refusal,
is the ratio of (i) the total number of shares of Common Stock held by such
Investor (including any shares of Common Stock into which shares of the
Convertible Securities held by such Investor are convertible) to (ii) the total
number of shares of Common Stock and Common Stock options outstanding
immediately prior to the issuance of the New Securities (including any shares of
Common Stock into which outstanding shares of the Convertible Securities are
convertible).
5.2 "New Securities" shall mean any capital stock of the
Company, whether authorized or not, and any rights, options, or warrants to
purchase said capital stock, and securities of any type whatsoever that are, or
may become, convertible into said capital stock; provided that "New Securities"
does not include (i) the Convertible Securities listed on Schedule A hereto or
the securities issuable upon conversion of such Convertible Securities, (ii)
securities offered pursuant to a registration statement filed under the
Securities Act, (iii) securities issued pursuant to the acquisition of another
corporation by the Company by merger, purchase of substantially all of the
assets, or other reorganization, if approved by the Company's Board of
Directors, (iv) shares issued or issuable to officers, directors, employees of,
or consultants to, the Company pursuant to a plan or arrangement approved by the
Company's Board of Directors, (v) shares issued without consideration pursuant
to a stock dividend, stock split, or similar transaction, and (vi) warrants, and
shares issuable upon exercise of such warrants, issued in connection with
equipment leasing transactions approved by the Company's Board of Directors.
5.3 In the event the Company proposes to undertake an
issuance of New Securities, it shall give to each Investor written notice (the
"Notice") of its intention, describing the type of New Securities, the price,
the terms upon which the Company proposes to issue the same, the number of
shares which such Investor is entitled to purchase, and a statement that each
Investor shall have twenty (20) days to respond to such Notice. Each Investor
shall have twenty (20) days from the date of receipt of the Notice 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
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and forwarding payment for such New Securities to the Company if immediate
payment is required by such terms.
5.4 In the event an Investor fails to exercise in full
the right of first refusal within said twenty (20) day period, the Company shall
have ninety (90) days thereafter to sell or enter into an agreement (pursuant to
which the sale of New Securities covered thereby shall be closed, if at all,
within sixty (60) days from date of said agreement) to sell the New Securities
respecting which such Investor's rights were not exercised, at a price and upon
general terms no more favorable to the purchaser thereof than specified in the
Notice. In the event the Company has not sold the New Securities within said
ninety (90) day period (or sold and issued New Securities in accordance with the
foregoing within sixty (60) days from the date of said agreement), the Company
shall not thereafter issue or sell any New Securities without first offering
such securities to such Investor in the manner provided above.
5.5 The right of first refusal granted under this Section
5 is assignable by each Investor to (i) any transferee of a minimum of One
Million (1,000,000) shares of Common Stock (including any shares of Common Stock
into which shares of Convertible Securities then held by it are convertible),
and (ii) any other transferee approved by the Board of Directors, such approval
not to be unreasonably withheld or delayed.
6. Termination of Covenants.
The covenants of the Company set forth in Sections 2, 3, 4 and
5 shall be terminated and be of no further force or effect upon the earlier of
(a) immediately prior to the closing of the first public offering of the Common
Stock of the Company that is effected pursuant to a Registration Statement filed
with, and declared effective by, the Commission under the Securities Act (other
than either a public offering limited solely to employees of the Company or an
offering pursuant to Rule 145 under the Securities Act) and (b) the date the
Company registers any securities under the Securities and Exchange Act of 1934,
and such covenants shall terminate as to any Investor as of the date such
Investor no longer holds any shares of the capital stock of the Company.
7. Demand Registration.
7.1 Request for Registration on Form Other Than Form S-3.
Subject to the terms of this Agreement, in the event
that the Company shall receive from the Initiating Holders at any time after the
earlier of (a) October 31, 1999 and (b) one year after the closing of the
Company's initial public offering of shares of Common Stock under a Registration
Statement, a written request that the Company effect any Registration with
respect to all or a part of the Registrable Securities on a Form other than Form
S-3 for an offering of at least 25% of the then outstanding Registrable
Securities (or any lesser percent if the reasonably anticipated aggregate
offering price to the public would exceed $10,000,000), the Company (i) shall
promptly give written notice of the proposed Registration to all other Holders
and (ii) shall, as soon as practicable, use its best efforts to effect
Registration of the Registrable Securities specified in such request, together
with any Registrable Securities of any Holder
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joining in such request as are specified in a written request given within 20
days after written notice from the Company. The Company shall not be obligated
to take any action to effect any such Registration pursuant to this Section 7.1
(i) during the period starting with the date sixty (60) days prior to the
Company's estimated date of filing, and ending on the date sixty (60) days
immediately following the effective date of an underwritten public offering
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan) provided
that the Company is employing all reasonable efforts in good faith to cause such
Registration to become effective or (ii) after the Company has effected three
such Registrations pursuant to this Section 7.1 and such Registrations have been
declared effective.
7.2 Right of Deferral of Registration on Form Other Than
Form S-3.
If the Company shall furnish to all such Holders who
joined in the request a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for any Registration
to be effected as requested under Section 7.1, the Company shall have the right,
exercisable not more than once in any twelve-month period, to defer the filing
of a Registration Statement with respect to such offering for a period of not
more than 90 days from delivery of the request of the Initiating Holders.
7.3 Request for Registration on Form S-3.
(a) If a Holder or Holders of the outstanding
Registrable Securities request that the Company file a Registration Statement on
Form S-3 (or any successor form to Form S-3) for a public offering of shares of
Registrable Securities the reasonably anticipated aggregate price to the public
of which, net of underwriting discounts and commissions, would not be less than
$2,000,000, and the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company shall use all
reasonable efforts to cause such Registrable Securities to be Registered for the
offering on such form and to cause such Registrable Securities to be qualified
in such jurisdictions as the Holder or Holders may reasonably request; provided,
however, that the Company shall not be required to effect more than two
Registrations pursuant to this Section 7.3 in any twelve (12) month period. The
substantive provisions of Section 7.5 shall be applicable to each registration
initiated under this Section 7.3.
(b) Notwithstanding the foregoing, the Company shall
not be obligated to file a registration statement pursuant to this Section 7.3:
(i) in any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification, or compliance unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
(ii) if the Company, within ten (10) days of
the receipt of the request of the Initiating Holders, gives notice of its bona
fide intention to effect the filing of a
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registration statement with the Commission within sixty (60) days of receipt of
such request (other than with respect to a registration statement relating to a
Rule 145 transaction or an offering solely to employees), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(iii) within six months immediately
following the effective date of any registration statement pertaining to the
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan); or
(iv) if the Company shall furnish to such
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 seriously detrimental
to the Company or its shareholders for a registration statement to be filed in
the near future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed 90 days from
the receipt of the request to file such registration by such Holder provided
that the Company shall not exercise the right contained in this paragraph (iv)
more than once in any twelve (12) month period.
7.4 Registration of Other Securities in Demand Registration.
Any Registration Statement filed pursuant to the
request of the Initiating Holders under this Section 7 may, subject to the
provisions of Section 7.5, include securities of the Company in addition to
Registrable Securities.
7.5 Underwriting in Demand Registration.
7.5.1 Notice of Underwriting.
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 a part of their request made pursuant to
this Section 7, and the Company shall include such information in the written
notice referred to in Section 7.1 or 7.3. The right of any Holder to
Registration pursuant to Section 7 shall be conditioned upon such Holder's
agreement to participate in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting.
7.5.2 Inclusion of Other Holders in Demand
Registration.
If the Company, officers or directors of the Company
holding Common Stock other than Registrable Securities, or holders of securities
other than Registrable Securities, request inclusion in such Registration, the
Initiating Holders, to the extent they deem advisable and consistent with the
goals of such Registration, may, in their sole discretion, on behalf of all
Holders, offer to any or all of the Company, such officers or directors, and
such holders of securities other than Registrable Securities that such
securities other than Registrable Securities be included in the underwriting and
may condition such offer on the acceptance by such persons of the terms of this
Section 7. In the event, however, that the number of shares so
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included exceeds the number of shares of Registrable Securities included by all
Holders, such Registration shall be treated as governed by Section 8 hereof
rather than Section 7, and it shall not count as a Registration for purposes of
Section 7.1 hereof.
7.5.3 Selection of Underwriter in Demand Registration.
The Company shall (together with all Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement with the representative ("Underwriter's
Representative") of the underwriter or underwriters selected for such
underwriting by the Holders of a majority of the Registrable Securities being
registered by the Initiating Holders and agreed to by the Company.
7.5.4 Marketing Limitation in Demand Registration.
In the event the Underwriter's Representative
advises the Initiating Holders in writing that market factors (including,
without limitation, the aggregate number of shares of Common Stock requested to
be Registered, the general condition of the market, and the status of the
persons proposing to sell securities pursuant to the Registration) require a
limitation of the number of shares to be underwritten, then (i) first the Common
Stock (other than Registrable Securities) held by officers or directors of the
Company, (ii) next the securities other than Registrable Securities, and (iii)
last the securities requested to be registered by the Company, shall be excluded
from such Registration to the extent required by such limitation. If a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the Registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities entitled to inclusion in such Registration
held by such Holders at the time of filing the Registration Statement. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 7.5.4 shall be included in such Registration Statement.
7.5.5 Right of Withdrawal in Demand Registration.
If any Holder of Registrable Securities, or a holder
of other securities entitled (upon request) to be included in such Registration,
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Initiating
Holders delivered at least seven days prior to the effective date of the
Registration Statement. The securities so withdrawn shall also be withdrawn from
the Registration Statement.
7.6 Blue Sky in Demand Registration.
In the event of any Registration pursuant to Section 7,
the Company will exercise its best efforts to Register and qualify the
securities covered by the Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of
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process in any such states or jurisdictions, and (ii) notwithstanding anything
in this Agreement to the contrary, in the event any jurisdiction in which the
securities shall be qualified imposes a non-waivable requirement that expenses
incurred in connection with the qualification of the securities be borne by
selling shareholders, such expenses shall be payable pro rata by selling
shareholders.
8. Piggyback Registration.
8.1 Notice of Piggyback Registration and Inclusion of
Registrable Securities.
Subject to the terms of this Agreement, in the event the
Company decides to Register any of its Common Stock (either for its own account
or the account of a security holder or holders exercising their respective
demand registration rights) on a form that would be suitable for a registration
involving solely Registrable Securities, the Company will: (i) promptly give
each Holder written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to qualify such securities
under the applicable Blue Sky or other state securities laws) and (ii) include
in such Registration (and any related qualification under Blue Sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the Company by any Holder
within 20 days after delivery of such written notice from the Company.
8.2 Underwriting in Piggyback Registration.
8.2.1 Notice of Underwriting in Piggyback
Registration.
If the Registration of which the Company gives
notice is for a Registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 8.1. In such event, the right of any Holder to Registration
shall be conditioned upon such underwriting and the inclusion of such Holder's
Registrable Securities in such underwriting to the extent provided in this
Section 8. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
with the Underwriter's Representative for such offering. The Holders shall have
no right to participate in the selection of the underwriters for an offering
pursuant to this Section 8.
8.2.2 Marketing Limitation in Piggyback
Registration.
In the event the Underwriter's Representative
advises the Holders seeking registration of Registrable Securities pursuant to
Section 8 in writing that market factors (including, without limitation, the
aggregate number of shares of Common Stock requested to be Registered, the
general condition of the market, and the status of the persons proposing to sell
securities pursuant to the Registration) require a limitation of the number of
shares to be underwritten, the Underwriter's Representative (subject to the
allocation priority set forth in Section 8.2.3) may:
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(a) in the case of the Company's initial
Registered public offering, limit the number of shares of Registrable Securities
to be included in such registration and underwriting to not less than fifteen
percent (15%) of the securities included in such Registration (based on
aggregate market values); and
(b) in the case of any Registered public
offering subsequent to the initial public offering, limit the number of shares
of Registrable Securities to be included in such Registration and underwriting
to not less than thirty percent (30%) of the securities included in such
Registration (based on aggregate market values).
8.2.3 Allocation of Shares in Piggyback Registration.
In the event that the Underwriter's
Representative limits the number of shares to be included in a Registration
pursuant to Section 8.2.2, the number of shares to be included in such
Registration shall be allocated (subject to Section 8.2.2) in the following
manner: The shares (other than Registrable Securities) held by officers or
directors of the Company shall be excluded from such Registration and
underwriting to the extent required by such limitation. If a limitation of the
number of shares is still required after such exclusion, the number of shares
that may be included in the Registration and underwriting by selling
shareholders shall be allocated among all other Holders thereof, in proportion,
as nearly as practicable, to the respective amounts of securities (including
Registrable Securities) which such Holders would otherwise be entitled to
include in such Registration. No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 8.2.3 shall be included
in the Registration Statement.
8.2.4 Withdrawal in Piggyback Registration.
If any Holder disapproves of the terms of any
such underwriting, such person may elect to withdraw therefrom by written notice
to the Company and the underwriter delivered at least seven days prior to the
effective date of the Registration Statement. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
8.3 Blue Sky in Piggyback Registration.
In the event of any Registration of Registrable Securities
pursuant to Section 8, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions (not exceeding 20 unless
otherwise agreed to by the Company) as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling shareholders, such expenses shall be payable pro rata by
selling shareholders.
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9. Expenses of Registration.
All Registration Expenses incurred in connection with three
Registrations pursuant to Section 7 and unlimited Registrations pursuant to
Sections 7.3 and 8, shall be borne by the Company. All Registration Expenses
incurred in connection with any other registration, qualification, or
compliance, shall be apportioned among the Holders and other holders of the
securities so registered on the basis of the number of shares so registered.
Notwithstanding the above, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 7 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (which 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 7; provided further, however, that if at the time of such withdrawal,
the Holders have learned of a Material Adverse Event with respect to the
condition, business, or prospects of the Company not known to the Holders at the
time of their request, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 7. All Selling
Expenses shall be borne by the holders of the securities Registered pro rata on
the basis of the number of shares Registered.
10. Termination of Registration Rights.
The rights to cause the Company to register securities granted
under Sections 7 and 8 of this Agreement shall terminate, with respect to each
Holder, on the earlier of (i) the date five years after the closing date of the
Company's initial public offering and (ii) upon such Holder holding less than 1%
of the outstanding Registrable Securities (or, if less, one-half of the
Registrable Securities acquired by such Holder from the Company).
11. Registration Procedures and Obligations.
Whenever required under this Agreement to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities and use its best efforts
to cause such Registration Statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such Registration Statement effective for up to one hundred
twenty (120) days.
(b) Prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
11
15
(d) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities 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.
(g) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such Registration Statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such Registration.
(h) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Agreement, on the date
that such Registrable Securities are delivered for sale in connection with a
Registration pursuant to this Agreement, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such Registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, and (ii) a letter dated such date, from the independent certified
public accountants 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.
12. Information Furnished by Holder.
It shall be a condition precedent of the Company's obligations
under this Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder and
the distribution proposed by such Holder or Holders as the Company may
reasonably request.
13. Indemnification.
13.1 Company's Indemnification of Holders.
To the extent permitted by law, the Company will
indemnify each Holder, each of its officers, directors, and constituent
partners, legal counsel for the Holders, and each person controlling such
Holder, with respect to which Registration, qualification, or compliance of
Registrable Securities has been effected pursuant to this Agreement, and each
underwriter, if
12
16
any, and each person who controls any underwriter against all claims, losses,
damages, or liabilities (or actions in respect thereof) to the extent such
claims, losses, damages, or liabilities arise out of or are based upon any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus or other document (including any related Registration Statement)
incident to any such Registration, qualification, or compliance, or are 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 not misleading, or
any violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification,
or compliance; and the Company will reimburse each such Holder, each such
underwriter, and each person who controls any such Holder or underwriter, for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability, or action;
provided, however, that the indemnity contained in this Section 13.1 shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability,
or action if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); and provided, further, 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 upon any untrue
statement or omission based upon written information furnished to the Company by
such Holder, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Company.
13.2 Holder's Indemnification of Company.
To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such Registration, qualification or, compliance is being effected pursuant
to this Agreement, indemnify the Company, each of its directors and officers,
each legal counsel and independent accountant of the Company, each underwriter,
if any, of the Company's securities covered by such a Registration Statement,
each person who controls the Company or such underwriter within the meaning of
the Securities Act, and each other such Holder, each of its officers, directors,
and constituent partners, and each person controlling such other Holder, against
all claims, losses, damages, and liabilities (or actions in respect thereof)
arising out of or based upon any untrue statement (or alleged untrue statement)
of a material fact contained in any such 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, or any violation by such Holder of any
rule or regulation promulgated under the Securities Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such Registration, qualification, or compliance, and will reimburse the
Company, such Holders, such directors, officers, partners, persons, law and
accounting firms, underwriters or control persons for any legal and 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
in each case only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular, or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use in connection with
13
17
the offering of securities of the Company, provided, however, that the indemnity
contained in this Section 13.2 shall not apply to amounts paid in settlement of
any such claim, loss, damage, liability or action if settlement is effected
without the consent of such Holder (which consent shall not be unreasonably
withheld) and provided, further, that each Holder's liability under this Section
13.2 shall not exceed such Holder's proceeds from the offering of securities
made in connection with such Registration.
13.3 Indemnification Procedure.
Promptly after receipt by an indemnified party under this
Section 13 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 13, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the defense of such claim;
provided, however, that the indemnifying party shall be entitled to select
counsel for the defense of such claim with the approval of any parties entitled
to indemnification, which approval shall not be unreasonably withheld; provided
further, however, that if either party reasonably determines that there may be a
conflict between the position of the Company and the Investors in conducting the
defense of such action, suit, or proceeding by reason of recognized claims for
indemnity under this Section 13, then counsel for such party shall be entitled
to conduct the defense to the extent reasonably determined by such counsel to be
necessary to protect the interest of such party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to the ability of the indemnifying party to defend such action,
shall relieve such indemnifying party, to the extent so prejudiced, of any
liability to the indemnified party under this Section 13, but the omission to so
notify the indemnifying party will not relieve such party of any liability that
such party may have to any indemnified party otherwise other than under this
Section 13.
13.4 Contribution.
If the indemnification provided for in this Section 13
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
14
18
14. Limitations on Registration Rights Granted to Other Securities.
From and after the date of this Agreement, the Company shall
not enter into any agreement with any holder or prospective holder of any
securities of the Company providing for the granting to such holder of any
information or Registration rights, except that, with the consent of (i) the
Holders of a majority of the aggregate of the Convertible Securities and
Registrable Securities then outstanding and (ii) if such holders are to receive
piggyback registration rights superior to or on a parity with the holders of
Series E Preferred Stock, with the consent of the holders of a majority of the
aggregate of the Series E Preferred Stock (and Registrable Securities issued
upon conversion thereof) then outstanding, additional holders may be added as
parties to this Agreement with regard to any or all securities of the Company
held by them. Any such additional parties shall execute a counterpart of this
Agreement, and upon execution by such additional parties and by the Company,
shall be considered an Investor for all purposes of this Agreement. The
additional parties and the additional Registrable Securities shall be identified
in an amendment to Schedule A hereto.
15. Transfer of Rights.
The rights to information under Sections 2, 3, and 4 and the
right to cause the Company to Register securities granted by the Company to the
Investors under this Agreement may be assigned by any Holder to a transferee or
assignee of any Convertible Securities or Registrable Securities not sold to the
public acquiring at least 100,000 shares of such Holder's Registrable Securities
(equitably adjusted for any stock splits, subdivisions, stock dividends,
changes, combinations or the like); provided, however, that (i) the shares of
Convertible Securities or Registrable Securities acquired by said transferee
must constitute at least 20% of Holder's aggregate of Convertible Securities and
Registrable Securities immediately prior to the transfer, (ii) the Company must
receive written notice prior to the time of said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such information and Registration rights are being assigned,
(iii) such transferee or assignee must agree to be bound by the provisions of
this Agreement, and (iv) the transferee or assignee of such be a person deemed
by the Board of Directors of its best judgment, to be a competitor or potential
competitor of the Company. Notwithstanding the limitation set forth in the
foregoing sentence respecting the minimum number of shares which must be
transferred, any Holder which is a partnership may transfer such Holder's
Registration rights to such Holder's constituent partners without restriction as
to the number or percentage of shares acquired by any such constituent partner.
16. Market Stand-off.
Each Holder hereby agrees that, if so requested by the Company
and the Underwriter's Representative (if any) in connection with the Company's
initial public offering, such Holder shall not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise transfer or dispose of
any Registrable Securities or other securities of the Company without the prior
written consent of the Company and the Underwriters Representative for such
period of time (not to exceed 90 days) following the effective date of a
Registration Statement of
15
19
the Company filed under the Securities Act as may be requested by the
Underwriter's Representative. The obligations of Holders under this Section 16
shall be conditioned (i) upon similar agreements being in effect with each other
shareholder who is an officer, director, or 1% shareholder of the Company, and
(ii) if marketing limitations are sought by the Underwriter's Representative,
upon imposition of marketing limitations no more extensive than those described
in Section 8.2.2(a).
17. Conversion of Preferred Stock.
The Registration rights of the Holders of the shares set forth
in this Agreement are conditioned upon the conversion of the shares with respect
to which Registration is sought into Common Stock immediately prior to the
closing of the offering of Common Stock effected pursuant to the Registration
Statement.
18. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Securities Act and any other rule or regulation
of the Commission that may at any time permit a Holder to sell securities of the
Company to the public without Registration or pursuant to a registration on Form
S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times after ninety (90)
days after the effective date of the first Registration Statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Registrable Securities, such action to be
taken as soon as practicable after the end of the fiscal year in which the first
Registration Statement filed by the Company for the offering of its securities
to the general public is declared effective;
(c) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first Registration
Statement filed by the Company), the Securities Act, and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the Commission which permits
the selling of any such securities without Registration or pursuant to such
form.
16
20
19. Miscellaneous.
19.1 Entire Agreement; Successors and Assigns.
This Agreement constitutes the entire contract between
the Company and the Investors relative to the subject matter hereof. Any
previous agreement between the Company and any Investor concerning Registration
rights, including the Previous Agreement, is superseded by this Agreement.
Subject to the exceptions specifically set forth in this Agreement, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective executors, administrators, heirs, successor, and assigns of
the parties. Investors who are parties to the Previous Agreement are waiving
rights of first refusal; with respect to shares of Series E Preferred Stock that
it is not acquiring, each investor who was a signatory to the Previous Agreement
waives the right of first refusal with respect to the shares of Series E
Preferred Stock it has elected not to purchase. In addition, the Investors agree
to the grant of Registration rights with respect to the shares of Series E
Preferred Stock or other securities issuable upon exercise of certain warrants
issued to Comdisco, Inc., Imperial Bank, and the American Express Company, and
the Common Stock issuable upon conversion thereof.
19.2 Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California excluding those laws that
direct the application of the laws of another jurisdiction.
19.3 Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19.4 Headings.
The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
19.5 Notices.
Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery, or five days after deposit in the United States mail, by registered or
certified mail, postage prepaid, addressed (i) if to the Company, as set forth
below the Company's name on the signature page of this Agreement, and (ii) if to
an Investor, at such Investor's address as set forth on Schedule A, or at such
other address as the Company or such Investor may designate by ten (10) days'
advance written notice to the Investors or the Company, respectively.
17
21
19.6 Amendment of Agreement.
Any provision of this Agreement may be amended only by a
written instrument signed by the Company and by persons holding at least sixty
percent (60%) of the Registrable Securities as defined in Section 1 of this
Agreement.
19.7 Severability.
In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
18
22
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By /s/ ββββββ βββββ
-----------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTORS: RRE INVESTORS, L.P.
By: RRE Investors II, LLC,
its General Partner
By /s/ ββββββ βββββββ
-----------------------------------
Name: ββββββ βββββββ
Title: Member General Partner
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By /s/ ββββββ βββββββ
-----------------------------------
Name: ββββββ βββββββ
Title: Member, General Partner
23
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-----------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTOR: AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ βββ βββββββ
-----------------------------------
Name: βββ βββββββ
Title: President, American Express
Relationship Services
24
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By_________________________________
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTORS: U.S.V.P. ENTREPRENEUR PARTNERS II, L.P.
A Delaware Limited Partnership
U.S. VENTURE PARTNERS IV, L.P.
SECOND VENTURES II, L.P.
By: Presidio Management Group IV, L.P.
Their General Partner
By:__________________________________
Title:_______________________________
Address: ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββ βββββ
25
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
---------------------------------
S. ββββββ βββββ, President
INVESTOR: INSTITUTIONAL VENTURE
PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII,
L.P.
By: /s/ T. βββββ ββββββ
---------------------------------
T. βββββ ββββββ, A General
Partner
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
INVESTOR: IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: /s/ T. βββββ ββββββ
---------------------------------
T. βββββ ββββββ, A General
Partner
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
INVESTOR: INSTITUTIONAL VENTURE MANAGEMENT VII,
L.P.
By: /s/ T. βββββ ββββββ
---------------------------------
T. βββββ ββββββ, A General
Partner
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
26
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By_________________________________
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTOR: BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures, L.P.
Its General Partner
By:________________________________
General Partner
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
27
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
---------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTORS: ββββββββ ASSOCIATES FUND III
A California Limited Partnership
ββββββββ VIII
A California Limited Partnership
By: ββββββββ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Their General Partner
By: /s/ βββββββ βββββββββ
---------------------------------
Title: Managing Member
Address: ββββ ββββ ββββ ββββ, βββββ βββ
βββββ ββββ, ββ βββββ
28
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
---------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTOR: COMDISCO, INC.
By: /s/ βββββ β. ββββ
---------------------------------
Title: βββββ β. ββββ, President
Comdisco Ventures Division
Address: ββββ ββββ ββββ ββββ
ββββββββ β, βββββ βββ
βββββ ββββ, ββ βββββ
29
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
---------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTOR: CAMBRIDGE TECHNOLOGY CAPITAL
FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By: /s/ βββββ βββββββββ
---------------------------------
βββββ βββββββββ, Managing Director
Address: βββββ ββ ββββββ ββββ, βββββ βββ
βββ βββββ, ββ βββββ-ββββ
30
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-------------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTOR: BRENTWOOD AFFILIATES FUND II, L.P.
By: Brentwood VII Ventures, LLC
Its General Partner
By: /s/ βββββββ βββββ
-------------------------------------
Managing Member
Address: ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
1. /s/ βββββββ βββββ
-------------------------------------
(Signature)
βββββββ βββββ
-------------------------------------
(Print Name)
2. /s/ βββββ βββββββββ
-------------------------------------
(Signature)
βββββ βββββββββ
-------------------------------------
(Print Name)
3. /s/ ββββ ββββ
-------------------------------------
(Signature)
ββββ ββββ
-------------------------------------
(Print Name)
31
4. ________________________________
(Signature)
________________________________
(Print Name)
5. ________________________________
(Signature)
________________________________
(Print Name)
32
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-------------------------------------
S. ββββββ βββββ, President
Address: ββββ βββββ ββββββ
βββββββ, ββ βββββ
INVESTORS:
/s/ βββββ βββββ
----------------------------------------
S. ββββββ βββββ
/s/ βββββββ β. ββββββ
----------------------------------------
βββββββ β. ββββββ
/s/ ββββββββ ββββββ
----------------------------------------
ββββββββ ββββββ
/s/ βββ ββββββ
----------------------------------------
βββ ββββββ
/s/ βββ βββββ
----------------------------------------
βββ βββββ
/s/ βββββββββ β. ββββββ
----------------------------------------
ββββ ββββββ
ββββ βββββ ββββββ ββ
βββββββ, ββ βββββ
33
INVESTOR: βββββββββ & βββββ LLC
By: /s/ ββββ β. βββββ
-----------------------------------
Name: ββββ β. βββββ
---------------------------------
Title: Controller, Attorney-in-Fact
--------------------------------
Address: βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
34
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
--------------------------------------
S. ββββββ βββββ, President
INVESTOR:
/s/ βββββββ β. βββββ
-----------------------------------------
βββββββ β. βββββ
Address: c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββββββ β, βββββ βββ
βββββ ββββ, ββ βββββ
INVESTOR:
/s/ βββββββ β. βββββββ
-----------------------------------------
βββββββ β. βββββββ
Address: c/o Fenwick & West LLP
βββ ββββ ββββ ββββββ
ββββ ββββ, ββ βββββ
35
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Information and Registration Rights Agreement.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
--------------------------------------
S. ββββββ βββββ, President
INVESTOR:
/s/ βββββββββ ββββββ
-----------------------------------------
Name: βββββββββ ββββββ
------------------------------------
/s/ βββ βββββ
-----------------------------------------
Name: βββ βββββ
------------------------------------
/s/ ββββββ ββββββ
-----------------------------------------
Name: ββββββ ββββββ
------------------------------------
-----------------------------------------
Name:
------------------------------------
-----------------------------------------
Name:
-----------------------------------------
Address: β/β βββββββββ & βββββ LLC
βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
36
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Information and Registration Rights Agreement.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
--------------------------------------
S. ββββββ βββββ, President
INVESTORS:
/s/ βββββ βββββββββ
-----------------------------------------
βββββ βββββββββ
/s/ ββββ ββββ
-----------------------------------------
ββββ ββββ
Address: c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββββββ β, βββββ βββ
βββββ ββββ, ββ βββββ
37
Schedule A
To Portable Software Corporation
Second Amended and Restated Information and Registration Rights Agreement
------------------------------------------------- ------------------------- ------------------------
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
------------------------------------------------- ------------------------- ------------------------
Brentwood Affiliates Fund II, L.P. Series E 170,632
Brentwood Associates VI, L.P. Series A 3,824,092
ββββ ββββ ββββ ββββ Series B 781,250
Building One, Suite 260 Series C 593,750
βββββ ββββ, ββ βββββ Series D 338,447
Attn: βββββββ β. βββββ
------------------------------------------------- ------------------------- ------------------------
βββββββ β. βββββ Series E 9,678
c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
------------------------------------------------- ------------------------- ------------------------
Cambridge Technology Capital Fund I, L.P. Series E 161,290
βββββ ββ ββββββ ββββ, βββββ βββ
βββ βββββ, ββ βββββ-ββββ
Attn: βββββ βββββββββ
Managing Director
------------------------------------------------- ------------------------- ------------------------
ββββ ββββ Series E 3,226
c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
------------------------------------------------- ------------------------- ------------------------
Comdisco, Inc. Series D 106,165
ββββ ββββ ββββ ββββ Series β ββ,βββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ
Attn: βββββ β. ββββ
------------------------------------------------- ------------------------- ------------------------
βββββββββ & βββββ California Series E 51,614
βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
Attn: ββββ βββββββ
------------------------------------------------- ------------------------- ------------------------
38
------------------------------------------------- ------------------------- ------------------------
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
------------------------------------------------- ------------------------- ------------------------
βββββββ β. ββββββ Series C 175,975
c/o Portable Software Corporation Series E 9,678
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
ββββ ββββββ Series E 6,425
c/o Portable Software Corporation
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
Institutional Venture Management VII, LP Series C 75,000
ββββ ββββ ββββ ββββ Series D 6,510
Building Two, Suite 290 Series E 3,605
βββββ ββββ, ββ βββββ
Attn: ββββββ β. βββββββββ
------------------------------------------------- ------------------------- ------------------------
Institutional Venture Partners VII, LP Series C 4,750,000
ββββ ββββ ββββ ββββ Series D 307,584
Building Two, Suite 290 Series E 174,821
βββββ ββββ, ββ βββββ
Attn: ββββββ β. βββββββββ
------------------------------------------------- ------------------------- ------------------------
IVP Founders Fund I, L.P. Series C 75,000
ββββ ββββ ββββ ββββ Series D 11,392
Building Two, Suite 290 Series E 1,802
βββββ ββββ, ββ βββββ
Attn: ββββββ β. βββββββββ
------------------------------------------------- ------------------------- ------------------------
ββββββ ββββββ Series E βββ
β/β βββββββββ & βββββ LLC
βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
βββ ββββββ Series E 6,452
c/o Portable Software Corporation
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
ββββββββ Associates Fund III Series C 156,250
ββββ ββββ ββββ ββββ, βββββ βββ Series D 100,914
βββββ ββββ, ββ βββββ Series E 8,734
Attn: ββββ βββββββββ
------------------------------------------------- ------------------------- ------------------------
-2-
39
------------------------------------------------- ------------------------- ------------------------
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
------------------------------------------------- ------------------------- ------------------------
ββββββββ VIII Series C 2,968,750
ββββ ββββ ββββ ββββ, βββββ βββ Series D 1,917,359
βββββ ββββ, ββ βββββ Series E 165,949
Attn: ββββ βββββββββ
------------------------------------------------- ------------------------- ------------------------
βββββ βββββββββ Series E 3,226
c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββββββ βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
------------------------------------------------- ------------------------- ------------------------
ββββββββ β. ββββββ Series E 6,613
β/β βββββββββ & βββββ LLC
βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
βββββββ β. βββββββ Series E 3,226
c/o Fenwick & West LLP
βββ ββββ ββββ ββββββ
ββββ ββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
ββββββ β. βββββ Series E 4,839
β/β βββββββββ & βββββ LLC
βββ ββββ ββββββ
βββ βββββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
RRE Investors, L.P. Series E 1,040,218
RRE Investors Fund, L.P. Series E 572,685
βββ ββββ ββββ ββββββ
βββ ββββ, ββ βββββ
Attn: ββββββ β. βββββββ
------------------------------------------------- ------------------------- ------------------------
Second Ventures II, L.P. Series B 410,156
ββββ ββββ ββββ ββββ, βββββ βββ Series C 65,625
βββββ ββββ, ββ βββββ Series D 41,999
------------------------------------------------- ------------------------- ------------------------
The ββββββββ Revocable Trust Series C 31,250
dtd 2/10/95
c/o Brentwood Venture Capital
ββββ ββββ ββββ ββββ
ββββ. βββ, βββββ βββ
βββββ ββββ, ββ βββββ-ββββ
------------------------------------------------- ------------------------- ------------------------
-3-
40
------------------------------------------------- ------------------------- ------------------------
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
------------------------------------------------- ------------------------- ------------------------
ββββββ βββββ Series E 6,452
c/o Portable Software Corporation
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
S. ββββββ βββββ Series C 161,326
c/o Portable Software Corporation Series E 9,678
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
USVP Entrepreneur Partners II, L.P. Series B 117,188
ββββ ββββ ββββ ββββ, βββββ βββ Series C 18,750
βββββ ββββ, ββ βββββ Series D 12,000
------------------------------------------------- ------------------------- ------------------------
U.S. Venture Partners IV, L.P. Series B 3,378,906
ββββ ββββ ββββ ββββ, βββββ βββ Series C 540,625
βββββ ββββ, ββ βββββ Series D 345,987
------------------------------------------------- ------------------------- ------------------------
ββββββββ ββββββ Series E 6,452
c/o Portable Software Corporation
ββββ βββββ ββββββ, ββ
βββββββ, ββ βββββ
------------------------------------------------- ------------------------- ------------------------
-4-