Investors' Rights Agreement - Roving Software Inc.
ROVING SOFTWARE INCORPORATED
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
DATED AS OF
MAY 12, 2006
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TABLE OF CONTENTS
Page
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1. Definitions.................................................... 1
1.1 Capitalized Terms..................................... 1
1.2 Definitions........................................... 1
2. Registration Rights............................................ 4
2.1 Demand Registration Rights............................ 4
2.2 Company Registration.................................. 7
2.3 Obligations of the Company............................ 7
2.4 Furnish Information................................... 10
2.5 Expenses of Registration.............................. 10
2.6 Damages............................................... 10
2.7 Indemnification....................................... 11
2.8 Reports Under Securities Exchange Act of 1934......... 13
2.9 Form S-3 Registration................................. 14
2.10 Assignment of Registration Rights..................... 15
2.11 Limitations on Subsequent Registration Rights......... 15
2.12 "Market Stand-Off" Agreement.......................... 15
2.13 Obligations of the Holders............................ 16
3. Covenants of the Company....................................... 16
3.1 Pre-emptive Rights.................................... 16
3.2 Delivery of Financial Statements...................... 18
3.3 Budget and Operating Forecast; Inspection............. 18
3.4 Board of Directors; Meetings; Indemnification......... 19
3.5 Composition of Board Committees....................... 19
3.6 Positive Covenants.................................... 20
4. VOTING RESTRICTIONS............................................ 21
5. Miscellaneous.................................................. 22
5.1 Survival of Covenants................................. 22
5.2 Legend on Securities.................................. 23
5.3 Successors and Assigns................................ 23
5.4 Governing Law......................................... 23
5.5 Counterparts.......................................... 23
5.6 Titles and Subtitles; Gender.......................... 23
5.7 Notices............................................... 23
5.8 Expenses.............................................. 24
5.9 Amendments and Waivers................................ 24
5.10 Additional Parties.................................... 24
5.11 Potential Conflict With Existing Agreement............ 25
5.12 Existing Stock Restriction Agreement.................. 25
5.13 Amendments to Existing Agreements..................... 25
5.14 Severability.......................................... 26
5.15 Aggregation of Stock.................................. 26
5.16 Entire Agreement; Amendment; Waiver................... 26
5.17 Consent Under Existing Agreement...................... 26
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AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT (this
"Agreement") is made as of the 12th day of May, 2006, by and among Roving
Software Incorporated, a Delaware corporation (the "Company"), the investors
named on Schedule A attached hereto, as it may be amended from time to time in
accordance with this Agreement (collectively, the "Investors," and each
individually, an "Investor"), and solely with respect to Section 4 below, Gail
F. Goodman, Steven R. Wasserman and Eric Groves (each, a "Common Holder" and
together with any other parties who may become Common Holder parties to this
Agreement pursuant to Section 5.10 below, the "Common Holders").
RECITALS
WHEREAS, certain of the Investors (the "Current Investors") hold shares of
the Company's Common Stock, $0.01 par value per share (the "Common Stock"),
Series A Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), and Series B Preferred Stock, $0.01 par value per share (the "Series B
Preferred Stock"), and possess certain rights pursuant to a Preferred Investors'
Rights Agreement dated as of November 27, 2002 by and among the Company, the
Current Investors and certain of the Common Holders (the "Current Agreement");
WHEREAS, certain of the Investors (the "Existing Investors") possess
certain rights pursuant to an Amended and Restated Investors' Rights Agreement
dated as of August 9, 2001 by and among the Company, the Existing Investors and
certain other stockholders of the Company (the "Existing Agreement"); and
WHEREAS, the Company and the Investors are parties to the Stock Purchase
Agreement of even date herewith (the "Purchase Agreement") relating to the sale
and purchase of shares of the Company's newly created Series C Preferred Stock,
$0.01 par value per share (the "Series C Preferred Stock"), certain of the
Company's and such Investors' obligations under which are conditioned upon the
execution and delivery of this Agreement by the Investors, including Current
Investors holding at least sixty percent (60%) of the Registrable Securities (as
defined in the Current Agreement) outstanding as of the date hereof, and the
Company.
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the Investors and the Company hereby amend and restate the Current
Agreement as follows:
1. DEFINITIONS.
1.1 Capitalized Terms. Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Purchase Agreement.
1.2 Definitions. The following capitalized terms as used in this Agreement
shall have the meanings set forth below.
(a) An "Affiliate" of any Person shall mean a Person that directly
or indirectly, through one or more intermediaries, controls, is controlled by or
is under common
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control with the first mentioned Person. A Person shall be deemed to control
another Person if such first Person possesses directly or indirectly the power
to direct, or cause the direction of, the management and policies of the second
Person, whether through the ownership of voting securities, by contract or
otherwise.
(b) The term "Board of Directors" shall mean the Board of Directors
of the Company.
(c) The term "Common Stock" shall mean the Company's Common Stock,
and any other securities into which the Company's Common Stock may be converted
or exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise.
(d) The term "Existing Agreement Registrable Securities" shall mean
the Registrable Securities as such term is defined in the Existing Agreement.
(e) The term "Form S-3" shall mean such form under the Securities
Act as in effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC in lieu of such form as currently
in effect which similarly permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(f) The term "Holder" shall mean any person owning Registrable
Securities or any assignee thereof in accordance with Section 2.10 hereof.
(g) The term "Investor" shall have the meaning set forth in the
Preamble and shall include all Permitted Transferees.
(h) The term "Investors' Nominee" shall mean one (1) director
designated by Morgan Stanley Dean Witter Venture Partners IV, L.P., who shall
initially be Patrick Gallagher, one (1) director designated by Commonwealth
Capital Ventures II L.P., who shall initially be Michael T. Fitzgerald, and one
(1) director designated by Greylock XII Limited Partnership, who shall initially
be William S. Kaiser (collectively, the "Investors' Nominees").
(i) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(j) The term "Permitted Transferee" shall mean with respect to any
Investor, (i) any such Investor's Affiliates, partners, retired partners,
members, employees, general partners or managing members of such Investor; (ii)
a liquidating trust established solely for the benefit of any partners or
members of such Investor; or (iii) any investment fund or other entity now or
hereafter existing which is controlled or managed by an Affiliate of, or shares
the same management company as, such Investor or any other person who acquires
at least eighty percent (80%) of such Investor's shares of Preferred Stock or
Common Stock issued upon conversion of such shares of Preferred Stock; provided
that the Company has been provided written notice of any transfer permitted
under this Section 1.2(j) and such transferee agrees in writing to be bound by
the terms of this Agreement.
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(k) The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, a trust, an unincorporated organization, a limited
liability company, and any other entity or organization, governmental or
otherwise.
(l) The term "Preferred Stock" shall mean the Company's Series A
Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock and any
other securities into which the Series A Preferred Stock, Series B Preferred
Stock, and Series C Preferred Stock may be converted or exchanged pursuant to a
plan of recapitalization, reorganization, merger, sale of assets or otherwise.
(m) The term "Pro Rata Share" shall mean, with respect to any
Holder, the percentage that the Shares held by such Holders then represents of
all Common Stock of the Company then outstanding, giving effect to the
conversion of all securities convertible into Common Stock on an as converted
basis, and assuming the exercise of all vested outstanding options, warrants or
subscription rights for capital stock of the Company.
(n) The term "Qualified Public Offering" shall mean the offer and
sale of Common Stock in a firm commitment underwritten public offering pursuant
to an effective registration statement under the Securities Act at a price to
the public of at least $11.898 per share (subject to appropriate adjustment in
the event of any stock dividend, stock split, combination or other similar
recapitalization with respect to the Common Stock), resulting in at least
$25,000,000 of aggregate proceeds to the Company.
(o) The terms "register," "registered," and "registration" shall
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(p) The term "Registrable Securities" shall mean (i) the Common
Stock issuable or issued upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock, and Series C Preferred Stock and held by the Investors
or their Permitted Transferees (it being understood that for purposes of this
Agreement, a Person will be deemed to be a Holder (as defined above) whenever
such Person has the right to then acquire or obtain from the Company any
Registrable Securities, whether or not such acquisition has actually been
effected) and (ii) any shares of Common Stock issued or issuable with respect to
any such shares described in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization; provided, however, that
notwithstanding anything to the contrary contained herein, "Registrable
Securities" shall not at any time include any securities (I) registered and sold
pursuant to the Securities Act or (II) sold to the public pursuant to Rule 144
promulgated under the Securities Act.
(q) The number of shares of "Registrable Securities then
outstanding" shall mean the number of shares of Common Stock outstanding and the
number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities that, in either case, are Registrable Securities.
(r) The term "SEC" shall mean the Securities and Exchange
Commission.
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(s) The term "Securities Act" shall mean the Securities Act of 1933,
as amended.
(t) The term "Selling Holders' Counsel" shall mean one (1) counsel
selected by the selling Holders, it being understood and agreed that in the
event of a registration pursuant to which both Holders hereunder and under the
Existing Agreement seek to register Shares, the Holders shall select as the
Selling Holders' Counsel hereunder the same counsel selected as the Selling
Holders' Counsel selected by the Holders under the Existing Agreement.
(u) The term "Shares" shall mean, with respect to the Investors,
Common Stock issued and held and Common Stock issuable upon conversion of
Preferred Stock then held by the Investors.
2. REGISTRATION RIGHTS.
2.1 Demand Registration Rights.
(a) So long as the Investors beneficially own at least Twenty
Percent (20%) of the Registrable Securities beneficially owned by them as of the
Second Closing (as defined in the Purchase Agreement), or if there is no Second
Closing, as of the date hereof (as adjusted for stock dividends, combinations,
splits, recapitalizations and the like), if the Company shall receive a written
request from the Investors holding at least Fifty Percent (50%) of the
Registrable Securities then outstanding that the Company file a registration
statement under the Securities Act covering the registration and sale of at
least Twenty Percent (20%) of the Registrable Securities then outstanding (or a
lesser percentage if the anticipated aggregate price to the public of the
offering shall exceed an amount equal to Twenty Percent (20%) of the
consideration paid by the Investors with respect to such shares of Preferred
Stock), then the Company shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Investors; and
(ii) file, as soon as practicable and in any event within
ninety (90) days of the receipt of such request, a registration statement
with the SEC under the Securities Act covering all Registrable Securities
which the Investors request to be registered (such request having been
made within twenty (20) days of the mailing of such notice by the Company
in accordance with Section 5.7) subject to the limitations of Section
2.1(b), and thereafter to use its best efforts to cause the registration
statement to be declared effective as soon as practicable.
(b) If the Investors initiating the registration request hereunder
(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 Section 2.1(a)(i) and the
Company shall include such information in the written notice referred to in
Section 2.1(a). The managing underwriter will be selected by a majority in
interest of the Initiating Holders and shall be reasonably acceptable to the
Company. In such event, the right of any Investor to include its Registrable
Securities in such registration shall be conditioned upon such Investor's
participation in such underwriting and the inclusion of such
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Investor's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders, such Investor and
the Company) to the extent provided herein.
(c) The Company may not cause any other registration of securities
for sale for its own account (other than a registration effected solely to
implement an employee benefit plan or a transaction to which Rule 145 of the
Securities Act is applicable) to become effective within one hundred eighty
(180) days following the effective date of a Qualified Public Offering and
ninety (90) days following the effective date of any registration required
pursuant to this Section 2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Investors requesting a registration statement pursuant to this Section 2.1 a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors it would be materially
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.
(e) Notwithstanding any other provisions of this Section 2 to the
contrary, if the Company is advised in writing in good faith by any managing
underwriter of the Company's securities being offered in an underwritten public
offering pursuant to such registration statement that the amount to be sold by
persons other than the Company (collectively, "Selling Stockholders") is greater
than the amount which can be offered without adversely affecting the offering,
the Company may reduce the amount offered for the accounts of Selling
Stockholders (including such holders of Registrable Securities) to a number
deemed satisfactory by such managing underwriter; and provided that the shares
to be excluded shall be determined in the following order of priority: (i)
first, securities held by any Persons not having any such contractual,
incidental registration rights, (ii) second, securities held by any Persons
having contractual, incidental registration rights pursuant to an agreement that
is not this Agreement or the Existing Agreement, (iii) third, Registrable
Securities issued or issuable in respect of Series A Preferred Stock held by the
Investors (such Registrable Securities to be excluded pro rata based on the
number of such Registrable Securities requested to be registered by each
Investor), (iv) fourth, Registrable Securities issued or issuable in respect of
Series B Preferred Stock and Series C Preferred Stock held by the Investors
(such Registrable Securities to be excluded pro rata based on the number of such
Registrable Securities requested to be registered by each Investor); and (v)
fifth, Existing Agreement Registrable Securities held by parties to the Existing
Agreement; provided, further, that in no event shall the amount of Registrable
Securities of the selling Investors to be included in such offering be reduced
below Twenty Percent (20%) of the total amount of securities to be included in
such offering, except that the number of Registrable Securities to be included
by them in such offering may be reduced below twenty percent (20%) of the total
amount of securities to be included in such offering if any managing underwriter
advises as provided above and no other stockholder's securities are included.
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(f) The Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to this Section 2.1:
(i) After the Company has effected two registrations in the
aggregate pursuant to this Section 2.1 and such registrations have been
declared or ordered effective; provided, however, that the Company will
not be deemed to have effected a registration for purposes of this Section
2.1(f)(i) so long as the Initiating Holders are unable to sell at least
Thirty Percent (30%) of the Registrable Securities sought to be included
in such registration statement;
(ii) During the period starting with the effective date of,
and ending on a date one hundred eighty (180) days after the effective
date of, a registration subject to Section 2.2 hereof or Section 2.2 of
the Existing Agreement; or
(iii) If the Investors propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 2.9 below.
(g) The parties hereto acknowledge and agree that it is their
intention to provide Hudson Venture Partners, II, L.P. (including its Permitted
Transferees) (collectively, "Hudson") and Greylock XII Limited Partnership
(including its Permitted Transferees) (collectively, "Greylock") with
registration rights substantially equivalent to the aggregate registration
rights of the other Investors party hereto under both this Agreement and the
Existing Agreement and, to the extent Hudson and Greylock are materially
adversely affected by not being a party to the Existing Agreement (including
without limitation Hudson and Greylock failing to achieve such substantially
equivalent aggregate registration rights), the parties hereto further agree to
take all actions reasonably necessary to provide Hudson and Greylock with such
substantially equivalent registration rights, including reallocating (to the
extent necessary) the Registrable Securities entitled to be sold pursuant to any
registration under the Existing Agreement or this Agreement between or among
Hudson, Greylock and the Investors party hereto and party to the Existing
Agreement such that Hudson and Greylock shall be entitled to participate in any
such registration on a pro-rata basis, based upon the number of Registrable
Securities held by Hudson and Greylock as it relates to the total number of
Registrable Securities (under this Agreement and the Existing Agreement) held by
Hudson, Greylock and the Investors party hereto and party to the Existing
Agreement participating in such registration. To the extent the Company delivers
any notice or other information to the investors under the Existing Agreement,
the Company shall, at the same time, provide Hudson and Greylock with a copy of
such notice or other information. Notwithstanding anything in this Agreement to
the contrary, no amendment or waiver of this Section 2.1(g) shall be made or be
effective without the prior written consent of both Hudson and Greylock.
2.2 Company Registration.
(a) If the Company at any time proposes to register (including for
this purpose a registration effected by the Company for stockholders other than
the Holders) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities solely for cash (other
than a Qualified Public Offering or a registration statement
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relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145
transaction), the Company shall, at such time, promptly give each Holder at
least twenty (20) days' written notice of its intention to do so. Upon the
written request of each Holder given within fifteen (15) days after receipt of
such notice by the Holder in accordance with Section 5.7, the Company shall use
its best efforts to cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
(b) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be required under
this Section 2.2 to include any of the Holders' securities in such underwriting
unless such Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by the Company (or by other persons
entitled to select the underwriters). If the Company is advised in writing in
good faith by any managing underwriter of the Company's securities being offered
in an underwritten public offering pursuant to such registration statement that
the amount to be sold by Selling Stockholders is greater than the amount which
can be offered without adversely affecting the offering, the Company may reduce
the amount offered for the accounts of Selling Stockholders (including such
Holders of Registrable Securities) to a number deemed satisfactory by such
managing underwriter; provided that the shares to be excluded shall be
determined in the following order of priority: (i) first, securities held by any
Persons not having any such contractual, incidental registration rights, (ii)
second, securities held by any Persons having contractual, incidental
registration rights pursuant to an agreement that is not this Agreement or the
Existing Agreement, (iii) third, Registrable Securities issued or issuable in
respect of Series A Preferred Stock held by the Investors (such Registrable
Securities to be excluded pro rata based on the number of such Registrable
Securities requested to be registered by each Investor), (iv) fourth,
Registrable Securities issued or issuable in respect of Series B Preferred Stock
and Series C Preferred Stock held by the Investors (such Registrable Securities
to be excluded pro rata based on the number of such Registrable Securities
requested to be registered by each Investor); (v) fifth, Existing Agreement
Registrable Securities held by parties to the Existing Agreement; and (vi)
sixth, securities to be registered for the Company's own account.
2.3 Obligations of the Company. Whenever required under this Section 2 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as possible:
(a) Prepare and file with the SEC, within ninety (90) days of the
receipt of a request pursuant to Section 2.1 or 2.9, a registration statement on
the appropriate form under the Securities Act with respect to such securities,
which form shall comply in all material respects with the requirements of the
SEC, and use its best efforts to cause such registration statement to become and
remain effective until the completion of the proposed offering (but for no more
than one hundred twenty (120) days); provided, however, that (i) such one
hundred twenty (120) day period shall be extended for a period of time equal to
the period the Holder refrains from selling any securities included in such
registration at the request of an underwriter of Common Stock (or other
securities) of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such one hundred twenty (120) day period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold, provided that Rule
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415, or any successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under
the Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (I) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the incorporation by reference of
information required to be included in (I) and (II) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the 1934 Act in the
registration statement;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all of the
securities covered by such registration statement;
(c) Furnish to the selling Holders and the underwriters, if any,
such numbers of copies of such registration statement, any amendments thereto,
any documents incorporated by reference therein, the 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 sale or other disposition of the securities owned by them;
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the selling
Holders and do any and all other acts and things that may be necessary under
such securities and blue sky laws to enable such selling Holders to consummate
the sale or other disposition of the securities owned by them; 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, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Securities
Act;
(e) Within a reasonable time before each filing of the registration
statement or prospectus or amendments or supplements thereto with the SEC,
furnish to the Selling Holders' Counsel copies of such documents proposed to be
filed;
(f) Promptly notify each selling Holder of Registrable Securities,
the Selling Holders' Counsel and any underwriter and (if requested by any such
Person) confirm such notice in writing, of the happening of any event which
makes any statement made in the registration statement or related prospectus
untrue or which requires the making of any changes in such registration
statement or prospectus so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein in the light of the circumstances
under which they were made not misleading; and, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
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(g) Use its commercial best efforts to prevent the issuance of any
order suspending the effectiveness of a registration statement and, if one is
issued, use its commercial best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement at the earliest
possible moment;
(h) If requested by the managing underwriter or underwriters (if
any), any selling Holder, or the Selling Holders' Counsel, promptly incorporate
in a prospectus supplement or post-effective amendment such information as such
Person requests to be included therein with respect to the selling Holder or the
securities being sold by such Holder, including, without limitation, with
respect to the securities being sold by such selling Holder to such underwriter
or underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of an underwritten offering of
the securities to be sold in such offering, and promptly make all required
filings of such prospectus supplement or post-effective amendment;
(i) Make available to each selling Holder, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other agent or representative retained by any such
selling Holder or underwriter (collectively, the "Inspectors"), upon request,
all financial and other records, pertinent corporate documents and properties of
the Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Inspector in connection with such registration statement
subject, in each case, to such confidentiality agreements as the Company shall
reasonably request;
(j) 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 or underwriters of such offering;
(k) Cause all such Registrable Securities registered pursuant to
such registration statement to be listed on each securities exchange or quoted
on the quotation system on which the Common Stock is then listed or quoted (or
if the Common Stock is not yet listed or quoted, then on such exchange or
quotation system as the selling Holders and the Company shall mutually agree);
(l) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(m) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 2, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 2, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, 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, addressed to the underwriters, if any, and (ii) a letter dated
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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, if any;
(n) Otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make generally available to its security
holders, in each case as soon as practicable, but not later than 45 days after
the close of the period covered thereby, an earnings statement of the Company
which will satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any comparable successor provisions); and
(o) Otherwise cooperate with the underwriter(s), the SEC and other
regulatory agencies and take all reasonable actions and execute and deliver or
cause to be executed and delivered all documents reasonably necessary to effect
the registration of any securities under this Agreement.
2.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall reasonably be required to effect the registration of such Holder's
Registrable Securities.
2.5 Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 2.1, Section 2.2 (which right may be assigned
as provided in Section 2.10) or Section 2.9, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company (which counsel shall be reasonably
acceptable to the Investors) and the reasonable fees and disbursements of the
Selling Holders' Counsel shall be borne by the Company.
2.6 Damages. The Company recognizes and agrees that each holder of
Registrable Securities will not have an adequate remedy if the Company fails to
comply with the terms and provisions of this Agreement and that damages will not
be readily ascertainable, and the Company expressly agrees that, in the event of
such failure, it shall not oppose an application by any holder of Registrable
Securities or any other Person entitled to the benefits of this Agreement
requiring specific performance of any and all provisions hereof or enjoining the
Company from continuing to commit any such breach of this Agreement.
2.7 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 2:
(a) The Company shall indemnify and hold harmless each selling
Holder, each underwriter (as defined in the Securities Act) and each Person who
participates in the offering of securities under such registration statement,
and each other Person, if any, who controls (within the meaning of the
Securities Act) such seller, underwriter or participating Person (individually
and collectively, the "Indemnified Person"), against any losses, claims, damages
or liabilities (joint or several) to which they may become subject under the
Securities
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Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (joint or several), or actions in respect thereof, arise
out of or are based upon: (i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
state securities law, and the Company shall pay to each such Indemnified Person,
as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the Company shall not be liable to
any Indemnified Person in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission in
such registration statement, preliminary or final prospectus, or amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Person expressly for use therein.
(b) Each selling Holder of Registrable Securities included in such
registration being effected shall indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration
statement, each of its agents, each underwriter, any other Holder selling
securities in such registration statement and any Person who controls (within
the meaning of the Securities Act) the Company, such underwriter or such Holder
(individually or collectively, also the "Indemnified Person"), against any
losses, claims, damages, or liabilities (joint or several), or actions in
respect thereof, to which they may become subject, under the Securities Act or
any other statute or at common law, which arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained, on
the effective date thereof, in any registration statement under which securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission by such selling Holder to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading under the circumstances in which such statements were
made, in the case of (i) and (ii) to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary or final
prospectus, amendment or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by such selling Holder
specifically for use therein, and such selling Holder shall reimburse, as
incurred, any Indemnified Person for any legal fees incurred in investigating or
defending any such liability; provided, however, that such selling Holder's
obligations hereunder shall be limited to an amount equal to the proceeds (net
of underwriting discounts, commissions and expenses) to such selling Holder of
the securities sold in any such registration; and provided further, that no
selling Holder shall be required to indemnify any Person against any liability
arising from any untrue or misleading statement or omission contained in any
preliminary prospectus if such deficiency is corrected in the final prospectus
or for any liability which arises out of the failure of any Person to deliver a
prospectus as required by the Securities Act.
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(c) Promptly after receipt by an indemnified party under this
Section 2.7 of a complaint, claim or notice of the commencement of any liability
or action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 2.7, promptly notify the indemnifying party of such complaint, claim,
notice or action, and such indemnifying party shall have the right to
investigate and assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the reasonable fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflicts of interest between such
indemnified party and any other party represented by such counsel in such
proceeding. The Person claiming indemnification shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and the expenses of such counsel shall not be at the expense of the
Person against whom indemnification is sought (unless the indemnifying party
fails to promptly defend, in which case the reasonable fees and expenses of such
separate counsel shall be borne by the Person against whom indemnification is
sought). The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party for any losses,
claims, damages or liabilities for which indemnification would otherwise be
available under this Section 2.7, but the omission to so deliver written notice
to the indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section 2.7. In no event
shall a Person against whom indemnification is sought be obligated to indemnify
any Person for any settlement of any claim or action effected without the
indemnifying Person's prior written consent which shall not be unreasonably
withheld.
(d) If the indemnification provided for in this Section 2.7 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 each 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
(i) in such proportion as is appropriate to reflect the relative fault of the
Company, the selling Holders of Registrable Securities, the other Selling
Stockholders and the underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, expenses or liabilities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative fault
referred to in clause (i) above but also the relative benefits received by the
Company, the selling Holders of Registrable Securities, the other Selling
Stockholders and the underwriters from the offering of Registrable Securities,
as well as any other relevant equitable considerations. The relative benefits
received by the Company, the selling Holders of Registrable Securities, the
other Selling Stockholders and the underwriters shall be deemed to be in the
same respective proportions that the proceeds or commissions from the offering
received by the Company, the selling Holders of Registrable Securities, the
other Selling Stockholders and the underwriters, in each case as set forth in
the table on the cover page of the applicable prospectus, bear to the aggregate
public offering price of the Registrable Securities. The relative fault of the
Company, the selling Holders of Registrable Securities, the other Selling
Stockholders and the underwriters shall be determined
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by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the selling
Holders of Registrable Securities, the other Selling Stockholders or the
underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the selling Holders of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
2.7 were determined solely by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. In no event, however, shall
a selling Holder be required to contribute any amount under this Section 2.7 in
excess of the proceeds (net of underwriting discounts, commissions and expenses)
received by such selling Holder from its sale of Registrable Securities under
such registration statement. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
(e) The obligations of the Company and selling Holders under this
Section 2.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 2 and the termination
of this Agreement.
2.8 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 successor rule) ("SEC Rule 144") and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public, and take all
reasonable action as may be required as a condition to the availability of SEC
Rule 144;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective, and to maintain such
status;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act and
make such other filings and take such other actions required of the issuer to
effect sales of Registrable Securities in reliance upon SEC Rule 144;
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the
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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 SEC which permits the selling of any such securities without registration
or pursuant to such form; and
(e) facilitate and expedite transfers of Registrable Securities
pursuant to SEC Rule 144, including providing timely notice to its transfer
agent to expedite such transfers.
2.9 Form S-3 Registration. After the initial public offering of its
securities registered under the Securities Act, the Company shall use its
commercially reasonable efforts to qualify and remain qualified to register
securities on Form S-3 (or any successor form) under the Securities Act. In case
the Company shall receive from any Investor or Investors (as defined herein or
in the Existing Agreement) a written request or requests that the Company effect
a registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities held by such Investor or
Investors, the Company will:
(a) promptly give at least twenty (20) days' written notice of the
proposed registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of the Investor's or
Investors' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders (as defined herein or in the Existing Agreement) joining in such request
as are specified in a written request given within fifteen (15) days after
receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 2.9: (1) if Form S-3 is not available for
such offering by the Investors; (2) if the Investors, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than One Million Dollars
($1,000,000); (3) if the Company shall furnish to the Investors a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors, it would be materially detrimental to
the Company and its stockholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
ninety (90) days after receipt of the request of Holders under this Section 2.9;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; (4) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected in the
aggregate two (2) registrations on Form S-3 for the Investors pursuant to this
Section 2.9 and/or for the Investors as defined in, and pursuant to Section 2.9
of, the Existing Agreement; (5) if the Company has already effected in the
aggregate a total of four (4) registrations on Form S-3 for Investors pursuant
to this Section 2.9 and/or for the Investors as defined in, and pursuant to
Section 2.9 of, the Existing Agreement; (6) if, at the time of its written
request pursuant to this Section 2.9, Investors
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beneficially own less than Twenty Percent (20%) of the aggregate Registrable
Securities beneficially owned by them as of the Second Closing, or if there is
no Second Closing, as of the date hereof (as adjusted for stock dividends,
combinations, splits, recapitalizations and the like); or (7) in any particular
jurisdiction in which the Company would be required to qualify to do business or
to execute a general consent to service of process in effecting such
registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Investors. Registrations effected pursuant to this Section 2.9 shall not
be counted as demands for registration or registrations effected pursuant to
Sections 2.1 or 2.2, respectively.
2.10 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned (but
only with all related obligations) by a Holder to a Permitted Transferee of such
Registrable Securities, provided that: (a) the Company is, within a reasonable
time after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 2.12 below.
2.11 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Investors holding a majority of the outstanding Registrable Securities
held by the Investors, (a) allow purchasers of the Company's securities to
become a party to this Agreement, except as contemplated by Section 5.9 below,
or (b) grant any other registration rights to any third parties other than
subordinate piggyback registration rights.
2.12 "Market Stand-Off" Agreement. Each Investor hereby agrees that,
during the ninety (90) day period following the date of the first sale to the
public pursuant to a registration statement of the Company filed under the
Securities Act, it shall not, to the extent requested by the Company and the
underwriter of such registration, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period except Common Stock included in such registration;
provided, however, that:
(a) such agreement shall be applicable only (i) to the first such
registration statement of the Company which covers Common Stock to be sold on
its behalf to the public in an underwritten offering; and (ii) so long as the
Investors continue to own Twenty Percent (20%) or more of the outstanding equity
securities of the Company, to any subsequent registration statement of the
Company which covers Common Stock to be sold on its behalf to the public in an
underwritten offering;
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(b) officers and directors of the Company, all holders of more than
Five Percent (5%) of the outstanding capital stock of the Company, and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements; and
(c) such market stand-off time period shall not exceed ninety (90)
days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of the
Investors (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. Notwithstanding the
foregoing, the obligations described in this Section 2.12 shall not apply to a
registration relating solely to employee benefit plans on Form S-8 or similar
forms which may be promulgated in the future, or a registration relating solely
to a SEC Rule 145 transaction on Form S-4 or similar forms which may be
promulgated in the future.
2.13 Obligations of the Holders. All selling Holders proposing to
distribute their securities through an underwritten offering shall (together
with the Company as provided in Section 2.3(j)) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting. All selling Holders proposing to distribute their securities
through an offering pursuant to this Section 2 shall enter into such agreements
and shall execute such other documents in customary form as may reasonably be
requested by the Company or, in the event of an underwritten offering, by any
managing underwriter.
3. COVENANTS OF THE COMPANY.
The Company agrees for the benefit of the Investors that it shall comply
with the following covenants, provided that the covenants set forth in Section
3.2 shall not be in effect during any period in which the Company is subject to
the periodic reporting obligations set forth in Section 13(a) or Section 15(d)
of the 1934 Act and that all of the covenants set forth in this Section 3 shall
terminate as of the closing of (a) a Qualified Public Offering or (b) a sale of
all or substantially all of the assets or business of the Company, whether by
merger, sale of assets, change of voting control, or otherwise, or on the date
specified by written consent of the holders of Fifty and One-Tenth percent
(50.1%) of the voting power of all then-outstanding shares of Series B Preferred
Stock and Series C Preferred Stock (voting together as a single class).
3.1 Pre-emptive Rights. So long as any shares of Preferred Stock are
outstanding, the Company hereby grants the Holders certain pre-emptive rights
with respect to future sales of equity securities by the Company. The Company
agrees that it will not sell or issue any shares of, or securities convertible
into or exercisable for any shares of, any class of its capital stock
("Securities"), unless the Company shall first submit a written offering of all
such Securities to the Holders in accordance with the following provisions:
(1) The Company shall deliver a notice ("Offer Notice") to each
Holder stating (i) that the Company is offering such Securities, (ii) the number
of such Securities to be offered, and (iii) the price and material terms, if
any, upon which it proposes to offer such Securities, and offering the Holders
the opportunity to purchase its Pro Rata Share of the Securities on terms and
conditions, including price, not less favorable than those on which the Company
proposes to sell such Securities to a third party or parties.
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(2) Within ten (10) days after the date of the Offer Notice, each
Holder may elect to purchase or obtain, at the price and on the terms and
conditions specified in the Offer Notice, up to its Pro Rata Share of such
Securities. Within ten (10) days after expiration of such period, the Company
shall provide written notice (an "Undersubscription Notice") to each Holder who
elected to purchase all the Securities available to it pursuant to the preceding
sentence (each a "Fully Exercising Stockholder") of all other Holders' failure
to do likewise and offering the unsubscribed shares to the Fully Exercising
Stockholder in accordance with this Section 3.1(2). Within ten (10) days after
the Undersubscription Notice (the "Second Subscription Period"), each Fully
Exercising Stockholder shall notify the Company in writing if it wishes to
obtain that portion of the Securities not subscribed for by the other Holder
which is equal to the proportion that the number of Shares held by such Fully
Exercising Stockholder as of the date of the Offer Notice bears to the total
number of Shares held by all Fully Exercising Stockholders who wish to purchase
some of the unsubscribed Securities. Each Holder acknowledges and agrees that
any failure to notify the Company within the applicable time periods specified
above shall be deemed a waiver of such Holder's rights to participate in the
applicable offering.
(3) If the Holders do not elect to purchase all Securities referred
to in the Offer Notice at the end of the Second Subscription Period, the Company
may, during the ninety (90) day period following the Second Subscription Period,
offer the remaining unsubscribed portion of such Securities to any person or
persons at a price not less than, and upon terms and conditions no more
favorable to the offeree than those specified in the Offer Notice. If the
Company does not enter into an agreement for the sale of the Securities within
such period, or if such agreement is not consummated within three (3) months of
the execution thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first re-offered to the
Holders in accordance herewith.
(4) The pre-emptive rights in this Section 3.1 shall not be
applicable (i) to the issuance of up to 4,311,041 shares of Common Stock
(including the grant of options therefor and the issuance or sale of shares or
grants prior to the date hereof) to officers, directors, employees, advisors and
consultants of the Company pursuant to the Company's 1999 Stock Option/Stock
Issuance Plan (the "Stock Plan") or any other stock or option plan approved by
the unanimous consent of the Compensation Committee of the Company's Board of
Directors, or such greater number of shares as is approved by the Company's
Board of Directors (including at least a majority of the Investors' Nominees),
(ii) with respect to, or after consummation of, a Qualified Public Offering,
(iii) to the issuance of securities pursuant to the conversion or exercise of
convertible or exercisable securities outstanding on the date hereof, (iv) to
the issuance of not more than 691,552 shares of Common Stock (or an equivalent
amount of securities convertible or exercisable to or for Common Stock), in the
aggregate (as adjusted for stock splits, stock dividends, stock combinations and
similar events), to financial institutions or lessors in connection with
obtaining commercial credit, equipment financings or similar transactions, (v)
to the issuance of securities as consideration in a bona fide acquisition of or
by the Company, whether by merger, consolidation, sale of assets, sale or
exchange of stock or otherwise, unanimously approved by the Board of Directors,
or (vi) to the issuance of up to 164,302 shares of Series C Preferred Stock at
the Second Closing (as defined in the Purchase Agreement).
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3.2 Delivery of Financial Statements. The Company will maintain a
comparative system of accounts in accordance with generally accepted accounting
principles, keep full and complete financial records and furnish to the
Investors the following reports:
(a) as soon as available and within ninety (90) days after the end
of each fiscal year commencing with the year ending December 31, 2005, a copy of
the balance sheet of the Company as of the end of such year, together with
statements of income and retained earnings and cash flow of the Company for such
year, audited and reported on by independent public accountants of recognized
national standing reasonably satisfactory to the Board of Directors, prepared in
accordance with generally accepted accounting principles and practices
consistently applied;
(b) as soon as available and in any event within forty-five (45)
days after the end of each quarter of each fiscal year commencing with the
quarter ending March 31, 2006, a copy of the balance sheet of the Company as of
the end of such quarter, together with statements of income and retained
earnings and cash flow of the Company for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal quarter, such
balance sheets, statements of income and retained earnings and cash flows
setting forth in comparative form the corresponding figures for the
corresponding fiscal period in the prior fiscal year, all in reasonable detail
and certified (subject to year-end audit adjustments) by the chief financial
officer of the Company as having been prepared in a manner consistent with
generally accepted accounting principles and practices consistently applied; and
(c) as soon as available and in any event within thirty (30) days
after the end of each month commencing with the month ending April 30, 2006, an
unaudited balance sheet of the Company as of the end of such month and unaudited
statements of income and retained earnings and cash flow for the Company for
such month; and
(d) such other information relating to the financial condition,
business, prospects or results of operations as the Investors may reasonably
request, including, without limitation, certificates of the principal financial
officer of the Company concerning compliance with the covenants of the Company
under this Section 3.2.
3.3 Budget and Operating Forecast; Inspection.
(a) The Company will prepare and submit to the Board of Directors a
budget for the Company for each fiscal year of the Company at least thirty (30)
days prior to the beginning of such fiscal year. The budget shall be accepted as
the budget for such fiscal year when it has been approved by a majority of the
Board of Directors and, thereupon, a copy of such budget promptly shall be sent
to each Investor. The Company shall review the budget periodically and shall
advise the Board of Directors and the Investors of all material changes therein
and all material deviations therefrom.
(b) The Company will, upon reasonable prior notice to the Company,
permit authorized representatives (including, without limitation, accountants
and legal counsel) of any Investor, at the Investor's expense, to visit and
inspect any of the properties of the Company, including its books of account
(and to make copies thereof and take extracts
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therefrom), and to discuss its affairs, finances and accounts with its officers,
administrative employees and independent accountants, all at such reasonable
times during normal business hours and as often as may be reasonably requested
by any Investor; provided, that in the event any person exercising such
inspection rights shall be someone other than an Investors' Nominee or a
director designated by the Investors, the Company may, as a condition to the
exercise of such visitation or inspection rights, require such person to execute
a standard form non-disclosure agreement in form and substance satisfactory to
the Company.
3.4 Board of Directors; Meetings; Indemnification. The Company will ensure
that meetings of its Board of Directors are held at least six (6) times each
year at intervals of not more than two (2) months. The Company shall reimburse
each Investors' Nominee for reasonable travel expenses incurred in connection
with attending meetings or other functions of the Board of Directors and for the
Investors' Nominees' reasonable out-of-pocket costs associated with any other
work performed at the request of, and on behalf of, the Company. The Charter and
By-laws of the Company will in respect of all times during which any Investors'
Nominee serves as a director of the Company provide for exculpation and
indemnification of the directors and limitations on the liability of the
directors to the fullest extent permitted under applicable state law. The
Company shall maintain directors and officers' liability insurance coverage in
such form and amount from such insurance carrier as shall be reasonably
satisfactory to the Investors, and shall use its best efforts to obtain, prior
to an initial public offering of the Company's securities, additional directors
and officers' liability insurance coverage to include claims under the
Securities Act and the 1934 Act.
3.5 Observation. For a period of two years following the date of this
Agreement, the Company will permit each of Hudson Venture Partners II, L.P. and
Longworth Venture Partners, L.P., or any authorized representative thereof, for
as long as they shall hold any Preferred Stock, to attend all meetings of the
Board of Directors of the Company, and shall provide such person with such
notice and other information with respect to such meetings as are delivered to
the directors of the Company. Notwithstanding the foregoing, the Company (i) may
condition the right of any such person to attend meetings of the Board of
Directors and receive notice and other information with respect to such meetings
on the execution of a confidentiality agreement reasonably acceptable to the
Company, and (ii) may prevent such person from attending a Board of Directors
meeting (or portion thereof) or receiving certain information with respect
thereto if the Company believes, after consultation with counsel, that it is
necessary to do so to ensure preservation of the attorney-client privilege.
3.6 Composition of Board Committees. The Company agrees to cause the Board
of Directors to maintain a Compensation Committee (which shall be charged with
exclusive authority over all compensation matters with respect to the senior
management of the Company and shall, together with the Chief Executive Officer,
serve as the administering committee under the Stock Plan) and an Audit
Committee (which shall be charged with reviewing the Company's financial
statements and accounting practices). Each such committee shall consist of
non-management directors. Each of Morgan Stanley Dean Witter Venture Partners
IV, L.P., Commonwealth Capital Ventures II L.P. and Greylock XII Limited
Partnership shall be entitled to nominate at least one (1) representative to
each such committee and to any other committee formed by the Company.
19
<PAGE>
3.7 Positive Covenants. So long as any shares of the Series B Preferred
Stock or Series C Preferred Stock are outstanding, the Company agrees, for the
benefit of the holders of the Company's Series B Preferred Stock and Series C
Preferred Stock, as follows:
(a) The Company will continue to engage principally in the business
now conducted by the Company or a business or businesses substantially similar
thereto. The Company will keep in full force and effect its corporate existence
and all Intellectual Property Rights useful in its business (except such rights
as the Board of Directors has reasonably determined are not material to the
continuing operations of the Company);
(b) The Company will promptly advise the Investors of any event
which represents or is reasonably likely to result in a material adverse effect
on the Company's business, properties, assets, prospects, results of operations
or financial condition (a "Material Adverse Effect"), and of each suit or
proceeding commenced or threatened against the Company which, if adversely
determined, is reasonably likely to have a Material Adverse Effect, other than
events, developments, suits or proceedings which could reasonably be expected to
equally affect all companies within the same or a similar industry. The Company
will promptly advise the Investors of any adverse developments relating to the
Company's products or services, and any suit or proceeding commenced or
threatened which is related to the Company's products or services which, if
adversely determined, in the reasonable judgment of the Company, is reasonably
likely to have a Material Adverse Effect, other than suits or proceedings which
could reasonably be expected to equally affect all companies within the same or
a similar industry;
(c) The compensation and other benefit arrangements of any senior
management of the Company shall be adjusted from time to time only by the
Compensation Committee, unless the Compensation Committee determines otherwise;
(d) All transactions by and between the Company and any officer or
key employee of the Company or persons controlling, controlled by, under common
control with or otherwise affiliated with or members of the families of such
officer or key employee (including compensation matters covered by Section
3.7(c) hereof), shall be conducted on an arm's-length basis, shall be on terms
and conditions no less favorable to the Company than could be obtained from
unrelated persons and shall be approved in advance by a majority of the Board of
Directors after full disclosure of the terms thereof;
(e) The Company shall maintain in full force and effect its
corporate existence, rights, and franchises and all licenses and other rights to
use patents, processes, licenses, trademarks, trade names, or copyrights owned
or possessed by it or any subsidiary and deemed by the Company to be necessary
to the conduct of its business;
(f) The Company will retain independent public accountants of
recognized national standing who shall certify the Company's financial
statements at the end of each fiscal year. In the event the services of the
Company's independent public accountants, or any firm of independent public
accountants hereafter employed by the Company are terminated, the Company will
promptly thereafter notify the Investors and will request the firm of
independent public accountants whose services are terminated to deliver to the
Investors a letter from such firm setting forth the reasons for the termination
of their services. In the event of such
20
<PAGE>
termination, the Company will promptly thereafter engage another firm of
independent public accountants of recognized national standing. In its notice to
the Investors the Company shall state whether the change of accountants was
recommended or approved by the Board of Directors or any committee thereof;
(g) The Company will cause each person now or hereafter employed by
it or any subsidiary with access to confidential information to enter into a
proprietary information and inventions agreement substantially in the form
approved by the Board of Directors; and
(h) The Company will use its best efforts to comply with the
reporting and recordkeeping requirements of Section 1202 of the Internal Revenue
Code of 1986, as amended, any regulations promulgated thereunder and any similar
state laws and regulations, and agrees not to repurchase any stock of the
Company if such repurchase would cause the shares of Common Stock (including the
Common Stock issuable or issued upon conversion of the Preferred Stock),
Preferred Stock and any other equity securities now of hereafter issued by the
Company, together with any options thereon and any other shares of stock issued
or issuable with respect thereto (whether by way of a stock dividend, stock
split or in exchange for or upon conversion of such shares or otherwise in
connection with a combination of shares, recapitalization, merger, consolidation
or other corporate reorganization) not to so qualify as "Qualified Small
Business Stock." The Company further covenants to submit to its stockholders and
to state and federal taxation authorities such form and filings as may be
required to document such compliance, with its franchise or income tax return
for the current income year.
4. VOTING RESTRICTIONS.
(a) Each of the Common Holders and Investors agrees to vote all of
its shares of the Company's capital stock having voting power (and any other
shares over which it exercises voting control) in connection with the election
of directors and to take such other actions as are necessary so as to fix the
number of directors at no more than seven (7) and to elect and continue in
office as directors the following:
(i) one (1) director designated by Morgan Stanley Dean Witter
Venture Partners IV, L.P. ("MSDWVP"), who shall initially be Patrick
Gallagher, one (1) director designated by Commonwealth Capital Ventures II
L.P., who shall initially be Michael T. Fitzgerald, one (1) director
designated by Greylock XII Limited Partnership, who shall initially be
William S. Kaiser, and the Chief Executive Officer of the Company; and
(ii) three (3) outside directors recruited by the Chief Executive
Officer of the Company, designated by the holders of the Common Stock,
voting as a separate class, and approved by a majority of the Investors'
Nominees, two of whom shall initially be John Campbell and Paul Schaut.
(b) Each Investor and each Common Holder agrees that it shall vote
all of its shares of the Company's Common Stock and Preferred Stock in
connection with the election of directors and to take such other actions as are
necessary so as to elect the outside directors designated pursuant to Section
4(a)(ii) above.
21
<PAGE>
(c) Each of the parties to this Agreement agrees to vote all of its
shares of the Company's capital stock having voting power (and any other shares
over which it exercises voting control) for the removal of any director upon the
request of the party designating such director and for the election to the Board
of Directors of a substitute designated by such party in accordance with the
provisions of this Section 4. Each of the parties to this Agreement further
agrees to vote all of its shares of the Company's capital stock having voting
power (and any other shares over which it exercises voting control) in such
manner as shall be necessary or appropriate to ensure that any vacancy on the
Board of Directors of the Company occurring for any reason shall be filled only
in accordance with the provisions of this Section 4.
(d) None of the Company, the Common Holders nor the Investors nor
any officer, director, shareholder, employee or agent of such party, if any, by
virtue of such party's execution of this Agreement or by the act of nominating a
nominee or voting for such nominee pursuant to this Section 4, makes any
representation or warranty as to the fitness or competence of the nominee of any
party hereunder to serve on the Board of Directors.
(e) The provisions of this Section 4 shall terminate upon the
earliest to occur of the following: (i) the closing of a Qualified Public
Offering; (ii) the effective time of the sale of all or substantially all of the
assets of the Company; and (iii) the effective time of the sale of all or
substantially all of the capital stock of the Company, by way of merger or
otherwise (excluding merger the sole purpose of which is to reincorporate the
Company in a different jurisdiction).
5. MISCELLANEOUS.
5.1 Survival of Covenants. Each of the parties hereto agrees that each
covenant and agreement made by it in this Agreement or in any certificate,
instrument or other document delivered pursuant to this Agreement is material,
shall be deemed to have been relied upon by the other parties and, except as
provided herein, shall remain operative and in full force and effect after the
date hereof regardless of any investigation. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties hereto and their respective successors and permitted assigns to the
extent contemplated herein.
5.2 Legend on Securities. The Company and the Investors acknowledge and
agree that the legends substantially as follows, as well as any legend required
pursuant to the Purchase Agreement, shall be typed on each certificate
evidencing any of the securities issued hereunder held at any time by any of the
Common Holders, the Investors or their Permitted Transferees.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A
PREFERRED INVESTORS' RIGHTS AGREEMENT, AS AMENDED AND IN EFFECT FROM TIME
TO TIME, INCLUDING THEREIN CERTAIN VOTING AGREEMENTS. COMPLETE AND CORRECT
COPIES OF THIS AGREEMENT ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND
WITHOUT CHARGE.
22
<PAGE>
5.3 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including the
Permitted Transferees). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.4 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Delaware, exclusive of the provisions thereof governing
conflicts of laws.
5.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.6 Titles and Subtitles; Gender. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. The use in this Agreement of the
masculine pronoun in reference to a party hereto shall be deemed to include the
feminine member, and vice versa as the context may require.
5.7 Notices. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given, delivered and
received (i) if delivered personally or (ii) when sent by confirmed electronic
mail or facsimile if sent during normal business hours of the recipient (and if
not, then on the next business day), or (iii) if sent by registered or certified
mail (return receipt requested) postage prepaid, or by courier guaranteeing next
day delivery, in each case to the party to whom it is directed at the following
addresses (or at such other address for any party as shall be specified by
notice given in accordance with the provisions hereof, provided that notices of
a change of address shall be effective only upon receipt thereof). Notices
delivered personally shall be effective on the day so delivered, notices sent by
registered or certified mail shall be effective three days after mailing,
notices sent by facsimile shall be effective when receipt is acknowledged, and
notices sent by courier guaranteeing next day delivery shall be effective on the
earlier of the second business day after timely delivery to the courier or the
day of actual delivery by the courier:
(a) if to the Company, at the mailing address for the Company shown
on the signature pages hereto, Attention: CEO, with a copy to Gesmer Updegrove,
LLP, 40 Broad Street, Boston, Massachusetts 02109 (facsimile: 617-350-6878),
Attention: Thomas H. Durkin, Esq., or such other address designated by the
Company to the Investors and the other parties hereto in writing;
(b) if to the Investors, to each Investor at the mailing address as
shown on the signature pages hereto, with a copy to Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP, 220 W. 42nd St., 20th Floor| New York, NY
10036, (facsimile: 877-881-3007), Attention: Kenneth R. McVay, Esq. and to
Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109, (facsimile: 617-526-5000), Attention: Mark G. Borden, Esq.,
or at such other address designated by an Investor to the Company and the other
Investors in writing.
23
<PAGE>
5.8 Expenses. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
5.9 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of at least Fifty and One
Tenth percent (50.1%) of the Registrable Securities issued or issuable upon
conversion of the Series B Preferred Stock and Series C Preferred Stock held by
all Investors; provided, however, that any amendment to Section 3.5 or Section 4
above that would adversely effect the right of a particular Investor to
designate a board observer or a member of the Board of Directors (including
Greylock, MSDWVP and Commonwealth Capital Ventures II L.P.) shall require the
consent of such Investor. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any securities purchased
under the Purchase Agreement then outstanding, each future holder of all such
securities, and the Company. Notwithstanding anything in this Agreement to the
contrary, no amendment to or waiver of Section 5.11, 5.12 or 5.13 shall be made
or be effective without the prior written consent of both Hudson and Greylock.
Notwithstanding the foregoing, the Company may amend Schedule A without the
consent of any other party hereto to reflect the addition of parties pursuant to
Section 5.10 below.
5.10 Additional Parties. Additional parties may be added as Investors
after the date hereof by (i) the execution and delivery of a counterpart to this
Agreement by such additional party, and (ii) the acceptance (by countersigning
and delivery) thereof by the Company, but only if such additional party is an
"Investor" as defined under the Purchase Agreement. In addition, the Company
shall require that any party to which it issues voting securities in the future,
as condition precedent to such issuance, sign an instrument of accession to this
Agreement by which such party agrees to be bound as a "Common Holder" or
"Investor", as applicable, hereunder with respect to the voting obligations
described in Section 4 above; provided, however, securities issued in connection
with an issuance of a type described in Section 3.1(4) above shall not be
subject to the foregoing requirement unless such issuance would result in the
stockholders bound by Section 4 above holding less than a majority of the shares
of any class or series of the Company's voting securities.
5.11 Potential Conflict with the Existing Agreement. The parties hereto
acknowledge and agree that if any of the rights or benefits contemplated for
Greylock under Section 4 above (relating to Greylock's right to designate one
member to the Company's Board of Directors) are not or cannot be achieved due to
a conflict with the Existing Agreement or the Amended and Restated Stock
Restriction Agreement dated August 9, 2001 among the Company and the parties
named therein (as such agreement may be further amended and in effect from time
to time, the "Existing Stock Restriction Agreement") or due to the fact that the
Existing Agreement or the Existing Stock Restriction Agreement is unable to be
amended to take into account such rights, the parties hereto agree to take all
action reasonably necessary to provide Greylock with such rights, including, if
applicable, adjusting its rights such that Greylock will each achieve the rights
contemplated hereunder.
24
<PAGE>
5.12 Existing Stock Restriction Agreement. The parties hereto agree to
take all actions reasonably necessary to provide Hudson and Greylock with rights
of first refusal and rights of co-sale substantially equivalent to the rights of
the other Investors party both hereto and to the Existing Stock Restriction
Agreement under Section 2.2 and Section 2.3 of the Existing Stock Restriction
Agreement, including, if necessary and to the extent not deemed a violation of
the Existing Stock Restriction Agreement, reallocating the shares of capital
stock purchasable pursuant to such Section 2.2 or entitled to be sold pursuant
to such Section 2.3 between or among Hudson, Greylock and the Investors party
both hereto and to the Existing Stock Restriction Agreement, with respect to
each such party, based on the number of shares of capital stock of the Company
held by such party and the number of shares of capital stock of the Company held
by Hudson, Greylock and the Investors party both hereto and to the Existing
Stock Restriction Agreement participating in such purchase or sale. To the
extent the Company or any other party delivers any notice or other information
to the investors under the Existing Stock Restriction Agreement, the Company or,
in the case of a notice received from another party, such investors shall, at
the same time, provide Hudson and Greylock with a copy of such notice or other
information.
5.13 Amendments to Existing Agreement and Existing Stock Restriction
Agreement.
(a) To the extent the parties hereafter amend either the Existing
Agreement or the Existing Stock Restriction Agreement, the parties shall use all
reasonable efforts to cause Hudson and Greylock to become parties to each such
agreement and to provide Hudson and Greylock with all the benefits and rights to
which it would be entitled thereunder as contemplated hereunder (including any
additional rights that may hereafter be granted under either such agreement to
the other Investors as a class).
(b) Notwithstanding anything else contained in this Agreement, if
for any reason Hudson and Greylock are not able to enjoy all rights and benefits
to which each of them would have been entitled had it been a party to the
Existing Agreement or the Existing Stock Restriction Agreement as an "Investor"
thereunder, then the parties to those agreements that are also parties to this
Agreement shall take all actions reasonably necessary to provide to Hudson and
Greylock such rights and benefits as if they each were a party to such other
agreements.
5.14 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5.15 Aggregation of Stock. All shares of Preferred Stock held or acquired
by affiliated entities or persons shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
5.16 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement among the parties with regard to the subjects
hereof and thereof.
25
<PAGE>
5.17 Consent Under Existing Agreement. By their signatures below, the
Existing Investors hereby consent to the Company's extension of the registration
rights described in this Agreement to the Investors party hereto. Hudson Venture
Partners, II, L.P. and Longworth Venture Partners, L.P. each consents to the
amendment of Section 4 of the Current Agreement and further acknowledges and
agrees that upon effectiveness of this Agreement, each shall no longer have any
right to designate a member of the Company's board of directors, as provided
under Sections 4(b) and 4(a)(i) respectively of the Current Agreement.
26
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Investors' Rights Agreement to be duly executed and delivered as of the
date first above written.
THE COMPANY:
ROVING SOFTWARE INCORPORATED
By: /s/ Gail F. Goodman
------------------------------------------
Name: Gail F. Goodman
Title: President & Chief Executive Officer
Address: Reservoir Place, Suite 329
1601 Trapelo Road
Waltham, MA 02451
Facsimile: (781) 472-8101
THE INVESTORS:
MORGAN STANLEY DEAN WITTER
VENTURE PARTNERS IV, L.P.
MORGAN STANLEY DEAN WITTER
VENTURE INVESTORS IV, L.P.
MORGAN STANLEY DEAN WITTER
VENTURE OFFSHORE INVESTORS IV, L.P.
By: MSDW Venture Partners IV, LLC,
as General Partner of each of the limited
partnerships named above
By: MSDW Venture Partners IV, Inc.,
as Member
By: /s/ Debra Abramovich
------------------------------------------
Name: Debra Abramovich
Title: Executive Director
Address: 1585 Broadway
38th Floor
New York, NY 10036
Facsimile: (212) 762-8424
<PAGE>
THE INVESTORS:
COMMONWEALTH CAPITAL VENTURES II L.P.
CCV II ASSOCIATES L.P.
By: Commonwealth Venture Partners II L.P., as
General Partner of each of the limited
partnerships named above
By: /s/ Michael T. Fitzgerald
------------------------------------------
Name:
Title: General Partner
Address: 950 Winter Street
Suite 4100
Waltham, MA 02451
Facsimile: (781) 890-5554
LONGWORTH VENTURE PARTNERS, L.P.
By: Longworth Venture Management LLC,
its sole General Partner
By: /s/ James J. Savage
------------------------------------------
Name: James J. Savage
Title: Manager
Address: 1050 Winter Street, Suite 2600
Waltham, MA 02451
Facsimile: (781) 663-3619
HUDSON VENTURE PARTNERS II, L.P.
By: Hudson Ventures II, L.L.C.,
its General Partner
By: /s/ Jay N. Goldberg
------------------------------------------
Name: Jay N. Goldberg
Title: Senior Managing Director
Address: 535 Fifth Avenue, 14th Floor
New York, NY 10017
Facsimile: (212) 644-7430
<PAGE>
GREYLOCK XII LIMITED PARTNERSHIP
By: Greylock XII GP LLC, its General Partner
By: /s/ Donald A. Sullivan
------------------------------------------
Name: Donald A. Sullivan
Title: Administrative Partner
Address: 880 Winter Street
Suite 300
Waltham, MA 02451
Facsimile: (781) 622-2300
GREYLOCK XII-A LIMITED PARTNERSHIP
By: Greylock XII GP LLC, its General Partner
By: /s/ Donald A. Sullivan
------------------------------------------
Name: Donald A. Sullivan
Title: Administrative Partner
Address: 880 Winter Street
Suite 300
Waltham, MA 02451
Facsimile: (781) 622-2300
GREYLOCK XII PRINCIPALS LLC
By: Greylock Management Corporation, Sole Member
By: /s/ Donald A. Sullivan
------------------------------------------
Name: Donald A. Sullivan
Title: Treasurer
Address: 880 Winter Street
Suite 300
Waltham, MA 02451
Facsimile: (781) 622-2300
<PAGE>
BANTAM GROUP INC.
By: __________________________________________
Name:
Title:
Address: 50 Bay Colony Drive
Westwood, MA 02090
Facsimile:
______________________________________________
K. Tucker Anderson
Address: 61 Above All Road
Warren, CT 06754-1710
Facsimile:
______________________________________________
Frank Argano
Address: 3543 Washington Blvd.
Jersey City, NJ 07310
Facsimile:
______________________________________________
John Beard
Address: Ropes & Gray
One International Place
Boston, MA 02110
Facsimile:
______________________________________________
Michael Mark
Address: 284 Summer Street
Reading, MA 01867
Facsimile:
<PAGE>
______________________________________________
Leon C. Sunstein, Jr.
Address: 1617 JFK Blvd., #335
Philadelphia, PA 19103
Facsimile:
<PAGE>
ONE & CO.
By: __________________________________________
Name:
Title:
Address: c/o Welch & Forbes
45 School Street
Boston, MA 02108
Facsimile:
LONGWORTH cAPITAL, LLC
By: __________________________________________
Name:
Title:
Address: 1050 Winter Street, Suite 2600
Waltham, MA 02451
Facsimile:
______________________________________________
John Campbell
Address: P.O. Box 74
12 Briarwood Lane
Monument Beach, MA 02553
Facsimile:
______________________________________________
Barry Coffman
Address: c/o Boldwater Capital
101 Federal Street
Boston, MA 02110
Facsimile:
<PAGE>
Scott G. Coffman Irrevocable Trust
By: __________________________________________
Name:
Trustee
Address:
Facsimile:
David R. Coffman Irrevocable Trust
By: __________________________________________
Name:
Trustee
Address:
Facsimile:
Alexandra B. Coffman Irrevocable Trust
By: __________________________________________
Name:
Trustee
Address:
Facsimile:
______________________________________________
Richard Connolly
Address: c/o Paine Webber
265 Franklin Street
Boston, MA 02110
Facsimile:
<PAGE>
______________________________________________
Michael DelBlasio
Address: 59 Park Drive South
Rye, NY 10580
Facsimile:
______________________________________________
David D. Holbrook
Address: 42 Downing Street
New York, NY 10014
Facsimile:
______________________________________________
Steve Lesser
Address: 47 Claypit Hill Road
Wayland, MA 01778
Facsimile:
______________________________________________
Harold L. Osher
Address: 66 Chadwick Street
Portland, ME 04102
Facsimile: 207-773-5220
______________________________________________
Peggy L. Osher
Address: 66 Chadwick Street
Portland, ME 04102
Facsimile: 207-773-5220
______________________________________________
James Philip
Address: 70 Shaw Road
Chestnut Hill, MA 02467
Facsimile:
<PAGE>
______________________________________________
Kermit Stofer
Address: 10 Post Office Square, Suite 600
Boston, MA 02109
Facsimile:
______________________________________________
William Volkmann
Address: 69 Hampshire Road
Wellesley, MA 02481
Facsimile:
<PAGE>
OTHER INVESTORS:
_______________________________________
Name:
Address:
Facsimile:
<PAGE>
THE COMMON HOLDERS:
Solely with respect to Section 4 hereof
/s/ Gail F. Goodman
-----------------------------------
Gail F. Goodman
/s/ Eric Groves
-----------------------------------
Eric Groves
/s/ Steven Wasserman
-----------------------------------
Steven Wasserman
<PAGE>
SCHEDULE A
INVESTORS
Morgan Stanley Dean Witter Venture Partners IV, L.P.
Morgan Stanley Dean Witter Venture Investors IV, L.P.
Morgan Stanley Dean Witter Venture Offshore Investors IV, L.P.
Commonwealth Capital Ventures II L.P.
CCV II Associates L.P.
Longworth Venture Partners, L.P.
Hudson Venture Partners II, L.P.
Greylock XII Limited Partnership
Greylock XII-A Limited Partnership
Greylock XII Principals LLC
Michael Mark
Leon C. Sunstein, Jr.
Frank Argano
Bantam Group Inc.
K. Tucker Andersen
John Beard
One & Co.
Barry Coffman
Scott G. Coffman Irrevocable Trust
David R. Coffman Irrevocable Trust
Alexandra B. Coffman Irrevocable Trust
Michael DelBlasio
William Volkmann
Richard Connolly
Alan Frohman
David D. Holbrook
Peggy Osher
Harold Osher
Longworth Capital, LLC
Steve Lesser
Kermit Stofer
<PAGE>
James Philip
John Campbell
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 19th day of May, 2006.
INVESTOR:
John Campbell / Jean Campbell
--------------------------------------------
(Name of Investor)
By: /s/ John Campbell /s/ Jean Campbell
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this 19th day of May, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP and CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ___ day of __________, 2006.
INVESTOR:
Barry Coffman
--------------------------------------------
(Name of Investor)
By: /s/ Barry Coffman
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this ___ day of _________ , 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ___ day of __________, 2006.
INVESTOR:
Scott G. Coffman Irrevocable Trust
--------------------------------------------
(Name of Investor)
By: /s/ Linda C. Coffman
----------------------------------------
(signature)
Name: Linda C. Coffman
Title: Trustee
Accepted and agreed to this 1 day of June, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ___ day of __________, 2006.
INVESTOR:
Alexandra Irrevocable Trust
--------------------------------------------
(Name of Investor)
By: /s/ Barry Coffman
----------------------------------------
(signature)
Name: Barry Coffman
Title: Trustee
Accepted and agreed to this ___ day of _________ , 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ___ day of __________, 2006.
INVESTOR:
David A. Coffman Irrevocable Trust
--------------------------------------------
(Name of Investor)
By: /s/ Linda C. Coffman
----------------------------------------
(signature)
Name: Linda C. Coffman
Title: Trustee
Accepted and agreed to this 1 day of June, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 30 day of May, 2006.
INVESTOR:
Alan L. Frohman
--------------------------------------------
(Name of Investor)
By: /s/ Alan L. Frohman
----------------------------------------
(signature)
Name: ___________________
Title: ____________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 1 day of JUNE, 2006.
INVESTOR:
David D. Holbrook
--------------------------------------------
(Name of Investor)
By: /s/ David D. Holbrook
----------------------------------------
(signature)
Name: DAVID D. HOLBROOK
Title: INVESTOR
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 22nd day of May, 2006.
INVESTOR:
Longworth Capital LLC
--------------------------------------------
(Name of Investor)
By: /s/ Paul A. Margolis
----------------------------------------
(signature)
Name: Paul A. Margolis
Title: Manager
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ___ day of __________, 2006.
INVESTOR:
Michael Mark
--------------------------------------------
(Name of Investor)
By: /s/ Michael Mark
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 14th day of June, 2006.
INVESTOR:
ONE & CO
--------------------------------------------
(Name of Investor)
By: /s/ Benjamin J. Williams, Jr.
----------------------------------------
(signature)
Name: Benjamin J. Williams, Jr.
Title: Senior Vice President
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 26th day of May, 2006.
INVESTOR:
HAROLD L. OSHER
--------------------------------------------
(Name of Investor)
By: /s/ Harold L. Osher
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 26th day of May, 2006.
INVESTOR:
PEGGY L. OSHER
--------------------------------------------
(Name of Investor)
By: /s/ Peggy L. Osher
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 27 day of May, 2006.
INVESTOR:
____________________________________________
(Name of Investor)
By: /s/ James H. Philip
----------------------------------------
(signature)
Name: James H. Philip
Title: _____________________________________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 28 day of May, 2006.
INVESTOR:
William H. Volkmann
--------------------------------------------
(Name of Investor)
By: /s/ William H. Volkmann
----------------------------------------
(signature)
Name: ______________________________________
Title: _____________________________________
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO
<PAGE>
AMENDED AND RESTATED PREFERRED INVESTORS' RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
Pursuant to Section 1.1(c) of the Amended and Restated Preferred
Investors' Rights Agreement dated May 12, 2006 (the "Agreement") by and among
the Company and the Investors listed on Schedule A thereto and in consideration
of the sale and issuance of shares of the Company's Series C Preferred Stock to
the undersigned, the undersigned hereby agrees to be bound by and to observe all
of the terms and conditions of the Agreement, all of the benefits, restrictions
and obligations of the Agreement shall inure to the undersigned as an Investor
thereunder and the undersigned shall be deemed an Investor for all purposes
thereof. The undersigned hereby authorizes the Company to attach this
counterpart signature page to the Agreement. Capitalized terms used but not
defined herein shell have the meanings ascribed thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the 23 day of May, 2006.
INVESTOR:
Bantam Group Inc.
--------------------------------------------
(Name of Investor)
By: /s/ J. J. Caruso
----------------------------------------
(signature)
Name: J. J. Caruso
Title: President
Accepted and agreed to this ___ day of __________, 2006:
ROVING SOFTWARE INCORPORATED
By: /s/ Steven R. Wasserman
----------------------------------------
(signature)
Name: STEVEN R. WASSERMAN
Title: VP & CFO