Exhibit 10.23
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of March 19, 1996 is entered into by and among
White Pine Software, Inc., a Delaware corporation (the "Company"), those persons
listed on Schedule 1 hereto (the "Investors"), and those persons listed on
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Schedule 2 hereto (the "Current Stockholders;" together with the Investors, the
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"Stockholders").
WHEREAS, the Investors are acquiring an aggregate of 343,053 shares of
common stock, $5.83 par value per share (the "$5.83 par Common Stock"), of the
Company pursuant to the terms of a Stock Purchase Agreement dated as of the date
hereof between the Company and the Investors (the "Purchase Agreement");
WHEREAS, the shares of the Company's common stock , $.01 par value per
share (the "$.01 par Common Stock"), now owned by the Current Stockholders are
subject to that certain Registration Rights Agreement dated as of October 10,
1995 by and among the Company and certain Current Stockholders, that certain
Registration Rights Agreement dated as of March 8, 1994 by and among the Company
and certain Current Stockholders, and that certain Registration Rights Agreement
dated as of August 31, 1993 by and among the Company and certain Current
Stockholders (collectively, the "Prior Registration Rights Agreements");
WHEREAS, each of the Prior Registration Rights Agreements may be amended by
the written consent of the parties thereto, and the requisite percentage of the
Stockholders who are parties to each of the Prior Registration Rights Agreements
have executed and delivered this Agreement;
WHEREAS, the Investors have required, as a condition to the consummation of
the transactions contemplated by the Purchase Agreement, that the Company
provide for certain arrangements with respect to the registration of the shares
of $5.83 par Common Stock under the Securities Act of 1933, as amended, and the
Investors and the Current Stockholders wish to coordinate such arrangements with
the arrangements previously granted under the Prior Registration Rights
Agreements; and
WHEREAS, the Investors have required as a condition under the Purchase
Agreement that this Agreement be executed by the parties hereto, and the parties
are willing to execute this Agreement and to be bound by the provisions hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that the
Prior Registration Rights Agreements are hereby amended and restated in their
entirety as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"$.01 par Common Stock" means the common stock, $.01 par value per share,
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of the Company.
"$5.83 par Common Stock" means the common stock, $5.83 par value per share,
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of the Company.
"Common Stock" means the $.01 par Common Stock and the $5.83 par Common
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Stock, collectively.
"Commission" means the Securities and Exchange Commission, or any other
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Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
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any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 5.
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"Registrable Shares" means (i) any shares of $5.83 par Common Stock and
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$.01 par Common Stock, and any shares of Common Stock issued or issuable upon
the conversion or exercise of any other securities, now owned or hereafter
acquired by the Stockholders and (ii) any shares of Common Stock issued in
respect of such shares (because of stock splits, stock dividends,
reclassification, recapitalizations, or similar events); provided, however, that
shares of Common Stock which are Registrable Shares shall cease to be
Registrable Shares (i) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (ii) upon any sale in any manner to a
person or entity which, by virtue of Section 12 of this Agreement, is not
entitled to the rights provided by this Agreement. Wherever reference is made in
this Agreement to a request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include shares of
Common Stock issuable upon conversion of such shares even if such conversion has
not yet been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
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2. Demand Registrations.
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(a) If, after six (6) months following an initial public offering of
equity securities of the Company, the Company shall receive a written request
(specifying that it is being made pursuant to this Section 2) from (i)
Stockholders owning in excess of 50% of the then outstanding shares of $5.83 par
Common Stock or (ii) Stockholders owning in excess of 50% of the then
outstanding $.01 par Common Stock requesting that the Company file a
registration statement under the Securities Act, or a similar document pursuant
to any other statute then in effect corresponding to the Securities Act,
covering the registration of Registrable Shares then owned by such Stockholder,
then the Company shall not later than seventy-five (75) days after receipt by
the Company of such a written request, file a registration statement with the
Commission relating to such Registrable Shares as to which such request for a
demand registration relates and the Company shall use its best efforts to cause
the offering of such Registrable Shares to be registered under the Securities
Act. No registration initiated hereunder shall count as a registration under
this Section 2 unless and until it shall have been declared effective by the
Commission.
(b) If the total amount of Registrable Shares that all Stockholders
request to be included in an offering made pursuant to this Section 2 exceeds
the amount of securities that the underwriters reasonably believe compatible
with the success of the offering, then the Company will include in such
registration only the number of securities which, in the good faith opinion of
such underwriters, can be sold, selected from the Registrable Shares requested
to be included by the Stockholders who requested the registration pursuant to
this Section 2 pro rata based on the number of Registrable Shares each of them
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owns.
(c) The underwriter of any underwriting requested under this Section
2 shall be selected by a majority in interest of the Stockholders requesting
such registration and the Company.
3. Registration on Form S-3. The Company shall use its best efforts to
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qualify for registration on Form S-3 or any comparable or successor form; and to
that end the Company shall register (whether or not required by law to do so)
the Common Stock under the Exchange Act in accordance with the provisions of the
Exchange Act following the effective date of the first registration of any
securities of the Company on Form S-1 or any comparable or successor form.
After the Company has qualified for the use of Form S-3, in addition to the
rights contained in Section 2 hereof, the Investors shall have the right to
request an unlimited number of registrations on Form S-3 (such requests shall be
in writing and shall state the number of shares of Registrable Shares to be
disposed of and the intended methods of disposition of such shares by such
Stockholder or Stockholders), provided that in no event shall the Company be
required to register shares with an aggregate market value of less than
$1,000,000.
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4. Registration Procedures. If and whenever the Company is required by
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the provisions of this Agreement to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective, in the case of a firm commitment underwritten
public offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or 120 days after
the effective date thereof;
(c) enter into any underwriting agreement with a first-tier
underwriter reasonably necessary to effect the offer and sale of Common Stock,
provided such underwriting agreement contains customary underwriting provisions
and is entered into by the Stockholder or Stockholders selling Common Stock
pursuant to such Registration Statement and provided further that, if the
underwriter so requests, the underwriting agreement will contain customary
contribution provisions on the part of the Company;
(d) To the extent then permitted under applicable professional
guidelines and standards, obtain a comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by comfort letters and an opinion from the Company's counsel
in customary form and covering such matters of the type customarily covered in a
public issuance of securities, in each case addressed to the Stockholder, and
provide copies thereof to the Stockholders;
(e) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder; and
(f) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; provided, however, that the Company shall not be
required in connection with this paragraph (f) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
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If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume malting offers of
the Registrable Shares.
5. Expenses. The Company will pay all reasonable, customary and
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necessary Registration Expenses of all registrations under this Agreement. For
purposes of this Section 5, the term "Registration Expenses" shall mean all
expenses incurred by the Company in complying with this Agreement, including,
without limitation, all reasonable, customary and necessary registration and
filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company and the fees and expenses of one counsel jointly
selected by the Stockholders requesting registration to represent the selling
Stockholders, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of the
selling Stockholders' own counsel (other than the counsel selected to represent
all selling Stockholders).
6. Indemnification.
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(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, and each other person,
if any, who controls such seller within the meaning of the Securities Act or the
Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, and each
such controlling person for any legal or any other expenses reasonably incurred
by such seller or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission made in such Registration Statement, preliminary
prospectus or final prospectus, or any such amendment or supplement, in reliance
upon and in conformity with
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information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages or liabilities, joint or several, to which the
Company, such directors and officers or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Stockholder
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hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 6. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
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(d) No Stockholder shall be required to participate in a registration
pursuant to which it would be required to execute an underwriting agreement in
connection with a registration effected under this Agreement which imposes
indemnification or contribution obligations on such Stockholder more onerous
than those imposed hereunder; provided, however, that the Company shall not be
deemed to breach the provisions of this Agreement if a Stockholder is not
permitted to participate in a registration on account of his refusal to execute
an underwriting agreement on the basis of this subsection (d).
7. Exception to Registration. The Company shall not be required to
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effect a registration under this Agreement if (i) in the written opinion of
counsel for the Company such Stockholders may sell without registration under
the Securities Act all Registrable Shares for which they requested registration
under the provisions of the Securities Act and in the manner and in the quantity
in which the Registrable Shares were proposed to be sold, or (ii) the Company
shall have obtained from the Commission a "no-action" letter to that effect;
provided that this Section 7 shall not apply to sales made under Rule 144(k) or
any successor rule promulgated by the Commission until after the effective date
of the Company's initial registration of shares under the Securities Act.
8. Information by Holder. Each Stockholder including Registrable Shares
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in any registration shall furnish to the Company such information regarding such
Stockholder and the distribution proposed by such Stockholder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
9. "Stand-Off" Agreement. Each Stockholder, if requested by the Company
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and the managing underwriter of an offering by the Company of Common Stock or
other securities of the Company pursuant to a Registration Statement, shall
agree not to sell publicly or otherwise transfer or dispose of any Registrable
Shares or other securities of the Company held by such Stockholder for a
specified period of time (not to exceed 180 days) following the effective date
of such Registration Statement; provided, that all Stockholders holding not less
than the number of shares of Common Stock held by the Stockholder (including
shares of Common Stock issuable upon the conversion of Registrable Shares, or
other convertible securities, or upon the exercise of options, warrants or
rights) and all officers and directors of the Company enter into similar
agreements.
10. Rule 144 Requirements. After the earlier of (i) the closing of the
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sale of securities of the Company pursuant to a Registration Statement, or (ii)
the registration by the Company of a class of securities under Section 12 of the
Exchange Act, the Company agrees:
(a) to comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Company;
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(b) to use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) to furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c), and the reporting requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or regulation
of the Commission allowing it to sell any such securities without registration.
11. Mergers, Etc. The Company shall not, directly or indirectly, enter
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into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to be references to
the securities which the Stockholders would be entitled to receive in exchange
for Registrable Shares under any such merger, consolidation or reorganization;
provided, however, that the provisions of this Section 11 shall not apply in the
event of any merger, consolidation or reorganization in which the Company is not
the surviving corporation if the Stockholders are entitled to receive in
exchange for their Registrable Shares consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act, or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 180 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
12. Listing Application. If shares of any class of stock of the Company
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shall be listed on a national securities exchange, the Company shall, at its
expense, include in its listing application all of the shares of the listed
class then eligible for listing owned by any Stockholder.
13. Damages. The Company recognizes and agrees that the holder of
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Registrable Shares shall not have an adequate remedy if the Company fails to
comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Company expressly agrees that in the event of
such failure any Stockholder shall be entitled to seek specific performance of
the Company's obligations hereunder.
14. Termination. All of the Company's obligations to register Registrable
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Shares under this Agreement shall terminate on the tenth anniversary of this
Agreement.
15. Transfers of Rights. This Agreement, and the rights and obligations
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of each Stockholder hereunder, may be assigned by such Stockholder to any person
or entity
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acquiring at least 25% of the Registrable Shares owned by such Stockholder
(subject to adjustment for stock splits, stock dividends, recapitalizations or
similar events), and such transferee shall be deemed a "Stockholder" for
purposes of this Agreement; provided that the transferee provides written notice
of such assignment to the Company.
16. General.
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(a) Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to the Company, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: President, or at such other address or addresses as may have been
furnished in writing by the Company to the Stockholders; or
If to a Stockholder, at such address or addresses as may have been
furnished to the Company in writing by such Stockholder.
Notices provided in accordance with this Section 16(a) shall be deemed
delivered upon personal delivery or two (2) business days after deposit in the
mail.
(b) Entire Agreement. This Agreement embodies the entire agreement
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and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter, including without limitation the rights and obligations of the
Current Stockholders under the Prior Registration Rights Agreements and each
Current Stockholder hereby waives all of its rights under the Prior Registration
Rights Agreements and hereby cancels the Prior Registration Rights Agreements.
(c) Amendments and Waivers. Neither this Agreement nor any provision
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hereof may be waived, modified, amended or terminated except by a written
agreement signed by the parties hereto; provided, however, that Stockholders
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owning at least 66 2/3% of the Registrable Shares owned by all Stockholders may
effect any such waiver, modification, amendment or termination on behalf of all
of the Stockholders; provided, further, that, without the consent of all parties
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to this Agreement who own Registrable Shares, no amendment or addition to this
Agreement may be made which (i) modifies this Section 16(c) or (ii) would affect
the holders of Registrable Shares in a disproportionate manner; and provided,
further, that no amendment or addition to this Agreement which affects any
Stockholder's rights under Section 2 or 3 hereof may be made without the consent
of such Stockholder. For purposes hereof, the term "disproportionate manner"
shall refer to any event which would impair the rights of one Stockholder while
not impairing similar rights held by another Stockholder. No waiver of any
breach or default hereunder shall be considered valid unless in writing, and no
such waiver shall be deemed a waiver of any subsequent breach or default of the
same or similar nature.
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(d) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
(e) Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New Hampshire.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
COMPANY:
WITNESS WHITE PINE SOFTWARE, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________ --------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
INVESTORS:
ADWEST LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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ADTEL LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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ADVENTACT LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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GOLDEN GATE DEVELOPMENT AND LIMITED
PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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ADVENT INTERNATIONAL INVESTORS LIMITED
PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
its general partner
By: **
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** By: Advent International
Corporation, its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President, General Partner
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CURRENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Witness ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Witness ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇ & Co., Inc.
By: /s/ illegible
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Witness
Innolion
By: /s/ ▇.▇. ▇▇▇▇▇▇
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Witness
Land Free Investment
By: /s/ illegible
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Witness
Signature Page Amended and Restated
Registration Rights Agreement
H & Q London Ventures
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
H & Q Tiawan Ventures, C.V.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
H & Q Ventures International C.V.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
H & Q Ventures IV
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
The ▇▇▇▇▇▇▇▇▇ 1980 Revocable Trust
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
Hamco Capital Corporation
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
Hamquist
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phoenix Venture (BVI) Ltd.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SOFINNOVA S.A.
By: /s/ illegible
------------------------ ---------------------------------
Witness ________________________ its duly
authorized _______________________
SOFINNOVA CAPITAL FCPR
By: /s/ illegible
------------------------ ---------------------------------
Witness ________________________ its duly
authorized _______________________
CV SOFINNOVA VENTURES PARTNERS II
By: /s/ illegible
------------------------ ---------------------------------
Witness ________________________ its duly
authorized _______________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------ -------------------------------------
Witness ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ -------------------------------------
Witness ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ Michiel Fast
------------------------ -------------------------------------
Witness Michiel Fast
/s/ ▇▇▇▇-▇▇▇▇▇▇▇▇ Ducarroz
------------------------ -------------------------------------
Witness ▇▇▇▇-▇▇▇▇▇▇▇▇ Ducarroz
/s/ Mallku ▇▇▇▇▇▇▇▇▇
------------------------ -------------------------------------
Witness Mallku ▇▇▇▇▇▇▇▇▇
/s/ Pascal Crausaz
------------------------ -------------------------------------
Witness Pascal Crausaz
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------ -------------------------------------
Witness ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signature Page Amended and Restated
Registration Rights Agreement
SCHEDULE 1
INVESTORS
---------
Adwest Limited Partnership
Adtel Limited Partnership
ADVENTACT Limited Partnership
Golden Gate Development Investment Fund
Advent International Investors II Limited Partnership
Advent Partners Limited Partnership
c/o Advent International Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
- 16 -
SCHEDULE 2
CURRENT STOCKHOLDERS
--------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇ & Co., Inc.
Innolion
Land Free Investment
Sofinnova S.A.
Sofinnova Capital FCPR
CV Sofinnova Ventures Partners III
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Michiel Fast
▇▇▇▇-▇▇▇▇▇▇▇▇ Ducarroz
Mallku ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Crausaz
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
H & Q London Ventures
H & Q Taiwan Ventures, C.V.
H & Q Ventures International C.V.
H & Q Ventures IV
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
The ▇▇▇▇▇▇▇▇▇ 1980 Revocable Trust
Hamco Capital Corporation
Hamquist
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phoenix Venture (BVI) Ltd.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- 17 -
FIRST AMENDMENT
TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This First Amendment dated as of July 22, 1996 (this "Amendment") amends the
Amended and Restated Registration Rights Agreement dated as of March 19, 1996
(the "Agreement") by and among White Pine Software, Inc., a Delaware corporation
(the "Company"), the persons listed on Schedule 1 thereto (the "Investors"), and
----------
the persons listed on Schedule 2 thereto (the "Current Stockholders" and,
----------
together with the Investors, the "Stockholders").
In consideration of the mutual promises and covenants contained in this
Amendment and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the Agreement is hereby amended
as follows:
1. The following paragraph is inserted in Section 1 after the definition of
"Common Stock":
"`Converted Common Stock' means (i) the shares of $.01 par Common Stock
----------------------
issued or issuable upon conversion of shares of $5.83 par Common Stock and
(ii) any additional shares of $.01 par Common Stock issued in respect of such
shares (because of stock splits, stock dividends, reclassification,
recapitalizations, or similar events)."
2. The following paragraph is inserted in Section 1 after the definition of
"Registration Expenses":
"`Registrable Converted Shares' means Registrable Shares consisting of
----------------------------
shares of Converted Common Stock."
3. The definition of "Registrable Shares" in Section 1 is hereby deleted and
replaced with the following:
"`Registrable Shares' means (i) any shares of $.01 par Common Stock
------------------
(including shares of Converted Common Stock), and any additional shares of
$.01 par Common Stock issuable upon the conversion or exercise of any other
securities, owned by the Stockholders as of the date of the final prospectus
for the initial public offering of equity securities of the Company and (ii)
any shares of $.01 par Common Stock issued in respect of such shares or
additional shares (because of stock splits, stock dividends,
reclassification, recapitalizations, or similar events); provided, however,
-------- -------
that shares of $.01 par Common Stock that are Registrable Shares shall cease
to be Registrable Shares (a) upon any sale pursuant to any registration
statement filed by the Company with the Commission or pursuant to Rule 144 or
Rule 701 under the Securities Act or (b) upon any sale in any manner to a
person or entity which, by virtue of Section 15 of this Agreement, is not
entitled to the rights provided by this Agreement. Wherever reference is
made in this Agreement to a request or consent of holders of a certain
percentage of Registrable Shares, the determination of such percentage shall
include Registrable Shares consisting of shares of $.01 par Common Stock
issuable upon conversion or exercise of securities, even if such conversion
or exercise has not yet been effected."
4. Section 2 is hereby deleted and replaced with the following:
"2. Demand Registrations.
--------------------
"(a) If, after 120 days following the date of the final prospectus
for an initial public offering of equity securities of the Company, the
Company shall receive a written request (specifying that it is being made
pursuant to this Section 2(a)) from Stockholders owning in excess of 50% of
the then-outstanding Registrable Converted Shares requesting that the Company
file a registration statement under the Securities Act, or a similar document
pursuant to any other statute then in effect corresponding to the Securities
Act, covering the registration of Registrable Converted Shares then owned by
such Stockholders, then the Company shall, not later than 75 days after
receipt by the Company of such a written request, file a registration
statement with the Commission for the Registrable Converted Shares as to
which such request relates and the Company shall use its best efforts to
cause the offering of such Registrable Converted Shares to be registered
under the Securities Act; provided, however, that (i) the effective date of
such Registration Statement shall not occur prior to the one hundred eighty-
first day after the date of the final prospectus for the initial public
offering of equity securities of the Company, (ii) the aggregate market value
of the Registrable Converted Shares registered pursuant to this Section 2(a)
shall not exceed $2,300,000 and (iii) the Company shall not be required to
effect more than one demand registration pursuant to this Section 2(a). For
purposes of this Agreement, the `market value' of a Registrable Converted
Share as of a specified date shall be the average of the closing prices per
share of $.01 par Common Stock on the Nasdaq National Market or any national
securities exchange during the ten trading days preceding such date. If the
market value of Registrable Converted Shares that Stockholders request to be
included in an offering made pursuant to this Section 2(a) exceeds
$2,300,000, then the Company will include in such registration only
Registrable Converted Shares the market value of which shall not exceed
$2,300,000, selected from the Registrable Converted Shares requested to be
included in such registration pro rata based on the number of Registrable
--- ----
Converted Shares each of them then owns. No registration initiated hereunder
shall count as a registration under this Section 2(a) unless and until it
shall have been declared effective by the Commission.
"(b) If, after 180 days following the date of the final prospectus
for an initial public offering of equity securities of the Company, the
Company shall receive a written request (specifying that it is being made
pursuant to this Section 2(b)) from Stockholders owning in excess of 50% of
the then-outstanding Registrable Shares held by the Stockholders requesting
that the Company file a registration statement under the Securities Act, or a
similar document pursuant to any other statute then in effect corresponding
to the Securities Act, covering the registration of Registrable Shares then
owned by such Stockholders, then the Company shall, not later than 75 days
after receipt by the Company of such written request, file a registration
statement with the Commission for the Registrable Shares as to which such
request relates and the Company shall use its best efforts to cause the
offering of such Registrable Shares to be registered under the Securities
Act; provided, however, that the Company shall not be required to effect
-------- -------
more than one registration pursuant to this Section 2(b). No registration
initiated hereunder shall count as a registration under this Section 2(b)
unless and until it shall have been declared effective by the Commission.
"(c) If the total amount of Registrable Shares that all Stockholders
request to be included in an offering made pursuant to this Section 2 exceeds
the amount of securities that the underwriters reasonably believe compatible
with the success of such offering, then the
Company will include in such registration only the number of Registrable
Shares which, in the good faith opinion of such underwriters, can be sold,
selected from the Registrable Shares requested to be included in such
registration as follows:
"(i) in the case of a registration initiated pursuant to a written
request under Section 2(a), (A) all of the Registrable Converted Shares
that have been requested to be included in such registration by the
Stockholders at whose request the registration is made, provided that if
--------
such Registrable Converted Shares exceed the limitation described in
Section 2(a)(ii), then, in order to comply with such limitation, the
number of such Registrable Converted Shares to be registered shall be
decreased pro rata based on the number of Registrable Converted Shares
--- ----
each of the Stockholders then owns and (B) to the extent the Registrable
Converted Shares that have been requested to be included in such
registration by the Stockholders at whose request the registration is made
are less than such limitation, then (and only then) Registrable Shares of
other Stockholders shall be included, pro rata based on the number of
--- ----
Registrable Shares each of them then owns; and
"(ii) in the case of a registration initiated pursuant to a written
request under Section 2(b), (A) the Registrable Shares requested to be
included by the Stockholders at whose request the registration is made,
pro rata based on the number of Registrable Shares each of them owns and
--- ----
(B) then (and only then) the remaining Registrable Shares, pro rata based
--- ----
on the number of Registrable Shares each of the Stockholders then owns.
"(d) The underwriter of any underwriting requested under Section
2(a) or Section 2(b), as the case may be, shall be selected by a majority in
interest of the Stockholders requesting such registration and the Company."
5. The reference to "Common Stock" in Section 3 is deleted and replaced with
"$.01 par Common Stock" and the following phrase is inserted before the period
at the end of Section 3:
", determined in accordance with the definition of `market value' in Section
2(a)".
6. Schedule 1 is hereby amended to include "▇.▇. ▇▇▇▇ Co., Inc."
7. Except as amended by this Amendment, the Agreement shall remain in effect
in accordance with its terms.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto as of the date first written above.
COMPANY:
WHITE PINE SOFTWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
President
INVESTORS:
ADWEST LIMITED PARTNERSHIP
ADVENTACT LIMITED PARTNERSHIP
ADTEL LIMITED PARTNERSHIP
GOLDEN GATE DEVELOPMENT AND
INVESTMENT FUND
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
ADVENT INTERNATIONAL INVESTORS
LIMITED PARTNERSHIP II
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation,
General Partner
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
Vice President, Controller
*For all of the above
▇.▇. ▇▇▇▇ CO., INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
CURRENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇ CO., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
INNOLION
By: /s/ ▇.▇. ▇▇▇▇▇▇
________________________________
LAND FREE INVESTMENT
By: /s/ illegible
________________________________
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SOFINNOVA S.A.
By:/s/ Olivier Protard
_______________________, its duly
authorized Officer
________________________
SOFINNOVA CAPITAL FCPR
By:/s/ Olivier Protard
_______________________________, its duly
authorized Officer
______________________________
CV SOFINNOVA VENTURES PARTNERS II
By:/s/ Olivier Protard
___________________________, its duly
authorized Attorney
_____________________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ Michiel Fast
_________________________________________
Michiel Fast
/s/ ▇▇▇▇-▇▇▇▇▇▇▇▇ Ducarroz
_________________________________________
▇▇▇▇-▇▇▇▇▇▇▇▇ Ducarroz
/s/ Mallku ▇▇▇▇▇▇▇▇▇
_________________________________________
Mallku ▇▇▇▇▇▇▇▇▇
/s/ Pascal Crausaz
_________________________________________
Pascal Crausaz
_________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
H & Q LONDON VENTURES
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
H & Q TV MANAGEMENT N.V.
By: /s/ illegible
_____________________________________
H & Q VENTURES INTERNATIONAL C.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
H & Q VENTURES IV
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
THE ▇▇▇▇▇▇▇▇▇ 1980 REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
H & Q VENTURE PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
HAMQUIST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PHOENIX VENTURE (BVI) LTD.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GROUP
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
_____________________________________