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EXHIBIT 4.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT ("Agreement")
is made as of this 2nd day of June, 2000, by and among ServiceWare Technologies,
Inc., a Delaware corporation (the "Company"), the persons or entities listed on
Schedule A attached hereto (the "Original Investors"), the purchasers of the
Company's Series F Convertible Preferred Stock listed on Schedule B hereto
pursuant to that certain Series F Convertible Preferred Stock Purchase Agreement
dated as of June 2, 2000 (the "Series F Investors" and together with the
Original Investors, the "Investors") and the Stockholders (as hereinafter
defined).
WHEREAS, the Company (successor by merger to ServiceWare Technologies,
Inc., a Pennsylvania corporation), the Stockholders and the Original Investors
are parties to that certain Registration Rights Agreement, dated as of July 13,
1999 (the "July 13, 1999 Registration Rights Agreement");
WHEREAS, the Series F Investors are purchasing from the Company an
aggregate of 1,325,000 shares of the Company's Series F Convertible Preferred
Stock, par value $0.01 per share (the "Series F Preferred Stock");
WHEREAS, Section 8(c) of the July 13, 1999 Registration Rights
Agreement provides that the July 13, 1999 Registration Rights Agreement may be
amended by the written consent of the Company and the holders of at least a
majority in interest of the Registrable Securities (as defined therein);
WHEREAS, the Company and the Original Investors who are executing
counterpart signature pages hereto wish to amend and restate the July 13, 1999
Registration Rights Agreement as set forth herein, and such signatories
represent at least a majority in interest of the Registrable Securities (as
defined therein);
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and intending to be legally bound hereby, the
Company, the Stockholders and the Investors hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following meanings.
(a) "Commission" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities
Act and Exchange Act.
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(b) "Common Stock" means: (i) the Company's Common Stock, par
value $0.01 per share, as authorized on the date of this Agreement; and
(ii) any other securities into which or for which any of the securities
described in (i) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, as shall be in effect at the
time.
(d) "Person" means an individual, corporation, partnership,
joint venture, trust, or unincorporated organization, or a government
or any agency or political subdivision thereof.
(e) "Registrable Securities" means any shares of Common Stock
owned by an Investor or its permitted successors and assigns, including
but not limited to shares of Common Stock issued or issuable upon
conversion of any shares of Series A Convertible Preferred Stock,
Series B Convertible Preferred Stock, Series C Convertible Preferred
Stock, Series D Convertible Preferred Stock, Series E Convertible
Preferred Stock, or Series F Convertible Preferred Stock or upon
exercise of any warrants outstanding on the date hereof, or issued
after the date hereof to a Series F Investor, to purchase Common Stock;
provided that "Registrable Securities" shall not include shares of
Common Stock that: (i) have at any time been sold by such parties other
than to a permitted assignee, as defined in Section 5 hereof; or (ii)
which have at any time been sold in a registered public offering or
pursuant to Rule 144 promulgated under the Securities Act. In addition,
a holder's Registrable Securities shall cease to be "Registrable
Securities," and all registration rights with respect thereto shall
terminate, when all Registrable Securities held by such holder may be
sold pursuant to Rule 144 without limitation as to volume in any two
successive three month periods.
(f) "Securities Act" means the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
(g) "Stockholders' Agreement" means that certain Amended and
Restated Stockholders' Agreement dated as of the date hereof among the
Company, the Investors and the Stockholders.
(h) "Stockholders" mean Jeff Pepper, Rajiv Enand, and Bruce
Molloy.
(i) "Stockholders' Shares" shall mean all shares of Common
Stock owned by the Stockholders now held or hereafter acquired, but
excluding any such Common Stock that: (i) has been registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in
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accordance with that registration statement; (ii) has been publicly
sold pursuant to Rule 144 under the Securities Act; or (iii) may be
sold pursuant to Rule 144 without limitation as to volume in any two
successive three month periods.
2. Registration Rights.
(a) Piggyback Registrations. If at any time or times after the
date hereof, the Company shall determine to register any of its Common
Stock or securities convertible into or exchangeable for Common Stock
under the Securities Act, whether in connection with a public offering
of securities by the Company (a "primary offering"), a public offering
thereof by stockholders (a "secondary offering"), or both (but not in
connection with a registration in connection with the Company's initial
public offering or effected solely to register securities issuable
pursuant to, or rights or interests under, an employee benefit plan or
a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable), the Company will
promptly give written notice thereof to the holders of Registrable
Securities and Stockholders' Shares then outstanding (the "Holders"),
and will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities and Stockholders' Shares
which the Holders may request in a writing delivered to the Company
within fifteen (15) days after the notice given by the Company;
provided, however, that in the event that any registration pursuant to
this Section 2(a) (including a registration requested under Section
2(b) and subsequently converted into a piggyback registration at the
election of the Company, as provided in Section 2(b)) shall be, in
whole or in part, an underwritten public offering of Common Stock, the
number of shares of Registrable Securities and Stockholders' Shares to
be included in such an underwriting may be reduced (pro rata among the
requesting Holders based upon the number of shares of Registrable
Securities and Stockholders' Shares owned by such Holders) if and to
the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities
to be sold by the Company therein provided, further, that, prior to any
such reduction, the Company shall first exclude from such registration,
in the following order, all shares of Common Stock sought to be
included therein by: (i) any holder thereof not having any such
contractual, incidental registration rights; and (ii) any holder
thereof having contractual, incidental registration rights subordinate
and junior to the rights of the Holders of Registrable Securities. The
Holders acknowledge that the rights of holders of Registrable
Securities and Stockholders' Shares exercising their "piggyback rights"
pursuant to this Section 2(a) shall be junior to the rights of holders
of Registrable Securities who have exercised their demand rights under
Section 2(b) in a situation in which the Company did not elect to make
a primary offering, as provided in Section 2(b).
(b) Demand Registrations. If at any time following the date
which is six months after the Company's initial public offering, one or
more of the holders
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of an aggregate of not less than 20% of the Registrable Securities then
outstanding shall notify the Company in writing that it or they intend
to offer or cause to be offered for public sale all or any portion of
their Registrable Securities, the Company will notify all of the
holders of Registrable Securities who would be entitled to notice of a
proposed registration under the terms of this Agreement. Upon the
written request of any such holder after receipt from the Company of
such notification, the Company shall either: (A) elect to make a
primary offering, in which case the rights of Holders shall be as set
forth with respect to a primary offering in Section 2(a) and such
registration shall be deemed to be a registration under Section 2(a)
and not a registration hereunder (in which event the Company shall not
be required to cause a registration statement requested pursuant to
this Section 2(b) to become effective prior to 90 days following the
effective date of the registration statement initiated by the Company
under Section 2(a)); or (B) file as soon as practicable, and in any
event within 60 days of the receipt of such written request, a
registration statement, and use its best efforts to cause to become
effective the registration of such Registrable Securities as may be
requested by any holders (including the holder or holders giving the
initial notice of intent to register hereunder) to be registered under
the Securities Act in accordance with the terms of this Section 2(b).
Anything herein to the contrary notwithstanding, the Company shall be
obligated to comply with this Section 2(b) on two occasions only.
Notwithstanding the foregoing, if the Company shall furnish to holders
requesting a registration statement pursuant to this Section 2(b) a
certificate signed by the Chairman of the Board stating that in the
good faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company and its stockholders for such
registration statement to be effected at such time, in which event the
Company shall have the right to defer such filing for a period of not
more than one hundred and twenty (120) days after receipt of the
request of the holders; provided that such right to delay a request
shall be exercised by the Company not more than once in any twelve (12)
month period.
(c) Form S-3. If the Company becomes eligible to use
Form S-3, the Company shall use its commercially reasonable efforts to
continue to qualify at all times for registration of securities on Form
S-3. If and when the Company becomes entitled to use Form S-3, the
holders of an aggregate of such number of Registrable Securities that
have an aggregate sales price of not less than $250,000 shall have the
right to request and have effected not more than one registration per
year of shares of Registrable Securities held by them on Form S-3. Such
requests shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended method of
disposition of such shares by such holder or holders. The Company shall
not be required to cause a registration statement requested pursuant to
this Section 2(c) to become effective prior to 90 days following the
effective date of a registration statement initiated by the Company, if
the request for registration has been received by the Company
subsequent to the giving of written notice by the Company, made in good
faith, to the holders or Registrable Securities to the effect that the
Company
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is commencing to prepare a Company-initiated registration statement
(other than a registration effected solely to register securities
issuable pursuant to, or rights or interests under, an employee benefit
plan or a transaction to which Rule 145 or any other similar rule of
the Commission under the Securities Act is applicable); provided,
however, that the Company shall use its best efforts to achieve such
effectiveness promptly following such 90-day period. The Company shall
give notice to all holders of Registrable Securities of the receipt of
a request for registration pursuant to this Section 2(c) and shall
provide a reasonable opportunity for such holders to participate in the
registration. Subject to the foregoing, the Company will use its best
efforts to effect promptly the registration of all shares of Common
Stock on Form S-3 to the extent requested by the holder or holders
thereof for purposes of disposition. In connection with any Form S-3,
the Stockholders agree: (i) to provide all such information and
material and take all actions as may be reasonably required in order to
enable the Company to comply with all applicable requirements of the
Commission and to obtain acceleration of the effective dates of any
Form S-3; (ii) that the distribution of shares of Common Stock included
in the Form S-3 shall be made in accordance with the plan of
distribution set forth in such registration statement and with all
applicable rules and regulations of the Commission; (iii) not to
deliver any form of prospectus in connection with the sale of any
shares of Common Stock as to which the Company has advised the Holders
in writing that it is preparing an amendment or supplement; and (iv) to
notify the Company promptly in writing upon the sale by the Holder of
any shares of Common Stock covered by the Form S-3. Notwithstanding the
foregoing, if the Company shall furnish to holders requesting a
registration statement pursuant to this Section 2(c) a certificate
signed by the Chairman of the Board stating that in the good faith
judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such
registration statement to be effected at such time, in which event the
Company shall have the right to defer such filing for a period of not
more than one hundred and twenty (120) days after receipt of the
request of the holders; provided that such right to delay a request
shall be exercised by the Company not more than once in any twelve (12)
month period.
(d) Registration Expenses. In the event of a registration
described in Section 2(a) or 2(b), all expenses of registration and
offering of the Holders participating in the offering including,
without limitation, printing expenses, fees and disbursements of
counsel (including one counsel for the selling Holders of Registrable
Securities or Stockholders' Shares), and independent public
accountants, fees and expenses (including counsel fees incurred by the
Company in connection with complying with state securities or "blue
sky" laws), fees of the National Association of Securities Dealers,
Inc. and fees of transfer agents and registrars), shall be borne by the
Company, except that the Holders shall bear underwriting commissions
and discounts attributable to their Registrable Securities or
Stockholders' Shares, as the case may be, being registered. In the
event of a registration described in Section 2(c), all expenses of
registration and
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offering of the Holders shall be paid for pro rata by the Holders whose
Registrable Securities are included in the Form S-3.
(e) Further Obligations of the Company. Whenever under the
preceding sections of this Agreement the Company is required hereunder
to register Registrable Securities or Stockholders' Shares, it agrees
that it shall also do the following:
(i) use commercially reasonable efforts to
diligently prepare for filing with the Commission a
registration statement and such amendments and supplements to
said registration statement and the prospectus used in
connection therewith as may be necessary to keep said
registration statement effective and to comply with the
provisions of the Securities Act with respect to the sale of
securities covered by said registration statement for the
period necessary to complete the proposed public offering;
(ii) furnish to each selling Holder such
copies of each preliminary and final prospectus and such other
documents as such Holder may reasonably request to facilitate
the public offering of his Registrable Securities or
Stockholders' Shares;
(iii) enter into and perform its obligations
under any underwriting agreement with provisions reasonably
required by the proposed underwriter for the selling Holders,
if any;
(iv) use its commercially reasonable efforts
to register or qualify the Registrable Securities and
Stockholders' Shares covered by said registration statement
under the securities or "blue-sky" laws of such jurisdictions
as any selling holder of Registrable Securities or
Stockholders' Shares may reasonably request, provided that the
Company shall not be required to register in any states which
shall require it to qualify to do business or subject itself
to general service of process as a condition of such
registration;
(v) prepare and file with the Commission
such amendments and supplements to such registration statement
and the prospectus used in connection with such registration
statement as and to the extent necessary to comply with the
federal securities and any applicable state securities statute
or regulation;
(vi) notify each holder of Registrable
Securities covered by such registration statement at any time
when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement
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of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(vii) cause all such Registrable Securities
registered pursuant hereto to be listed or quoted on each
securities exchange or tier of The Nasdaq Stock Market on
which similar securities issued by the Company are then listed
or quoted; and
(viii) provide a transfer agent and
registrar for all Registrable Securities registered hereunder
not later than the effective date of such registration.
3. Indemnification.
(a) Incident to any registration referred to in this
Agreement, and subject to applicable law, the Company will indemnify
each underwriter, each Holder of Registrable Securities and
Stockholders' Shares so registered, the officers and directors of each
Holder of Registrable Securities and each person controlling any of
them against all claims, losses, damages and liabilities, including
legal and other expenses reasonably incurred in investigating or
defending against the same, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any prospectus
or other document (including any related registration statement) or any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities
or "blue-sky" laws or any rule or regulation thereunder in connection
with such registration; provided, however, that the Company will not be
liable in any case to the extent that any such claim, loss, damage or
liability may have been caused by an untrue statement or omission based
upon information furnished in writing to the Company by such
underwriter or such Holder expressly for use therein. In the event of
any registration of any of the Registrable Securities or Stockholders'
Shares under the Securities Act pursuant to this Agreement, each seller
of Registrable Securities or Stockholders' Shares, as the case may be,
severally and not jointly, will indemnify and hold harmless the
Company, each of its directors and officers and each underwriter (if
any) and each person, if any, who controls the Company or any such
underwriter within the meaning of the Securities Act or the Exchange
Act against any claim, losses, damages and liabilities, including legal
and other expenses reasonably incurred in investigating, or defending
it against the same, arising out of any untrue statement of a material
fact contained in any prospectus or other document (including any
related registration statement) or any omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of such selling
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Holder, specifically for use in connection with the preparation of such
registration statement, prospectus, amendment or supplement; provided,
however, that the obligations of such selling Holders hereunder shall
be limited to an amount equal to the proceeds to each Holder of
Registrable Securities or Stockholders' Shares sold as contemplated
herein.
(b) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any
indemnifying party under this subsection, notify the indemnifying party
who shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that the
indemnified parties in any such proceeding shall have the right to
retain one counsel at the expense of the indemnifying party, if there
is or could reasonably be expected to be a conflict of interest with
respect to a third party between the position of the indemnified
parties and the indemnifying party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
subsection, but the omission so to notify the indemnifying party will
not relieve him of any liability that he may have to any indemnified
party otherwise than under this Section.
(c) To the extent that the indemnification provided for in
this Section 3 from the indemnifying party is held by a court of
competent jurisdiction (by the entry of a final judgment or decree and
the expiration of time to appeal or the denial of the last right of
appeal) to be unavailable to an indemnified party hereunder in respect
of any losses, claims, damages liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among
other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. No
person or entity 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 guilty of such fraudulent
misrepresentation.
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(d) The obligations of the Company and the Holders under this
Section 3 shall survive the completion of any offering of Registrable
Securities in a registration statement under Section 2.
4. Rule 144 Requirements. If the Company becomes subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange
Act, the Company will use its best efforts to file with the Commission such
information as the Commission may require under either of said Sections; and in
such event, the Company shall use its best efforts to take all action as may be
required as a condition to the availability of Rule 144 under the Securities Act
(or any successor exemptive rule hereinafter in effect). The Company shall
furnish to any Holder of Registrable Securities or Stockholders' Shares upon
request, a written statement executed by the Company as to the steps it has
taken to comply with the reporting requirements of Rule 144.
5. Transfer of Registration Rights. The registration rights of the
Holders under this Agreement may be transferred to any transferee of any shares
of Series A Convertible Preferred Stock, shares of Series B Convertible
Preferred Stock, shares of Series C Convertible Preferred Stock, shares of
Series D Convertible Preferred Stock, shares of Series E Convertible Preferred
Stock, shares of Series F Preferred Stock, Registrable Securities or
Stockholders' Shares who: (i) is a Holder of shares of Series A Convertible
Preferred Stock, shares of Series B Convertible Preferred Stock, shares of
Series C Convertible Preferred Stock, shares of Series D Convertible Preferred
Stock, shares of Series E Convertible Preferred Stock, shares of Series F
Preferred Stock, Registrable Securities or Stockholders' Shares as of the date
of this Agreement; (ii) is an affiliate, as that term is defined in the
Investment Company Act of 1940, of a Holder of Registrable Securities as of the
date of this Agreement (including a partner of such Holder); or (iii) is the
owner of an investment account which is managed or advised by an Investor, an
affiliate of an Investor, or any person or entity that acquires 76,000 shares of
Series B Convertible Preferred Stock (as adjusted for stock splits, stock
dividends, reclassifications, recapitalizations or other similar events) (each a
"permitted assignee"). Each such transferee shall be deemed to be a "Holder" for
purposes of this Agreement; provided, that, no transfer of registration rights
by a Holder pursuant to this Section 5 shall create any additional rights in the
transferee beyond those rights granted to Holders in this Agreement.
6. Granting of Registration Rights. The Company shall not, without the
prior written consent of the holders of at least a majority in interest of the
Registrable Securities, grant any rights to any Persons to register any shares
of capital stock or other securities of the Company if such rights could
reasonably be expected to be superior to or be on parity with, the rights of the
holders of Registrable Securities granted pursuant to this Agreement. The
Original Investors who execute counterpart signature pages to this Agreement who
hold a majority of the Registrable Securities under the July 13, 1999
Registration Rights Agreement hereby consent to the grant of the registration
rights set forth in this Agreement to the Series F Investors.
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7. Prior Agreements. All parties to that certain Registration Rights
Agreement dated June 29, 1995 (the "June 29 Agreement") acknowledge and agree
that the June 29 Agreement which was superseded and replaced by the April 24
Agreement (defined below) has no effect whatsoever and is null and void. Poly
Ventures II, L.P. acknowledges and agrees that Section 11 ("Section 11") of that
certain Share Purchase Agreement with the Company dated as of July 25, 1994
which was superseded by the April 24 Agreement has no effect whatsoever and is
null and void. All parties to that certain Registration Rights Agreement dated
April 24, 1996 (the "April 24 Agreement") acknowledge and agree that the April
24 Agreement which was superseded by the July 13, 1999 Registration Rights
Agreement has no effect whatsoever and is null and void. This Agreement amends
and restates the July 13, 1999 Registration Rights Agreement. The Original
Investors who are executing counterpart signature pages to this Agreement hold a
majority of the Registrable Securities under the July 13, 1999 Registration
Rights Agreement and have the requisite power and authority to amend and restate
the July 13, 1999 Registration Rights Agreement. Each other holder of
Registrable Securities under the July 13, 1999 Registration Rights Agreement is
bound by the amendment and restatement of the July 13, 1999 Registration Rights
Agreement and the terms of this Agreement.
8. Miscellaneous.
(a) Damages. The Company recognizes and agrees that the
holders of Registrable Securities will not have an adequate remedy if
the Company fails to comply with this Agreement and that damages may
not be readily ascertainable, and the Company expressly agrees that, in
the event of such failure, it shall not oppose an application by a
Holder of Registrable Securities requiring specific performance of any
and all provisions hereof or enjoining the Company from continuing to
commit any such breach of this Agreement.
(b) No Waiver; Cumulative Remedies. No failure or delay on the
part of any party to this Agreement in exercising any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
(c) Amendments and Waivers. Except as hereinafter provided,
amendments to this Agreement shall require and shall be effective upon
receipt of the written consent of: (i) the Company; (ii) the holders of
at least a majority in interest of the then Registrable Securities; and
(iii) in the case of any amendment adversely affecting the rights of
the Stockholders, the holders of at least a majority in interest of the
Stockholders' Shares. Except as hereinafter provided, compliance with
any covenant or provision set forth herein may be waived upon
written consent by the party or parties whose rights are being waived;
provided, that: (i) if the rights of holders of Registrable Securities
are being waived, upon
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the written consent of the holders of at least a majority in interest
of the Registrable Securities; and (ii) if the rights of holders of
Stockholders' Shares are being waived, upon the written consent of the
holders of at least a majority in interest of the Stockholders' Shares.
Notwithstanding the foregoing, no waivers or amendments shall be
effective to reduce the percentage in interest of the Registrable
Securities or Stockholders' Shares the consent of the holders of which
is required under this Section. Any waiver or amendments may be given
subject to satisfaction of conditions stated therein and any waiver or
amendments shall be effective only in the specific instance and for the
specific purpose for which given.
(d) Notices. As the terms "notice" or "notices" are used
herein as between the parties, such term shall mean a written document,
explaining the reason for the notice, and the same shall be mailed by
United States Postal Service, via Certified Mail, Return Receipt
Requested, addressed as follows:
to the Company:
ServiceWare Technologies, Inc.
333 Allegheny Ave.
Oakmont, PA 15139
Attn: Mark Tapling
with a copy by mail and fax (which shall not constitute notice) to:
Marlee S. Myers, Esquire
Morgan, Lewis & Bockius LLP
One Oxford Centre
Pittsburgh, PA 15219-1417
Facsimile: 412-560-3399
to the holders of Series B Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
William B. Asher, Jr., Esquire
Testa, Hurwitz & Thibeault
53 State Street
Boston, MA 02109
to the holders of Series C Preferred Stock:
at the addresses on Schedule A,
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with a copy by mail and fax (which shall not constitute notice) to:
Steven E. Bochner, Esquire
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
to the holders of Series D Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Golenbock, Eiseman, Assor & Bell
437 Madison Avenue
New York, NY 10022-7302
Attn: Lawrence M. Bell, Esq.
Telephone: 212-907-7300
Facsimile: 212-754-0330
to the holders of Series E Preferred Stock:
at the addresses on Schedule A,
with a copy by mail and fax (which shall not constitute notice) to:
Golenbock, Eiseman, Assor & Bell
437 Madison Avenue
New York, NY 10022-7302
Attn: Lawrence M. Bell, Esq.
Telephone: 212-907-7300
Facsimile: 212-754-0330
and
to the holders of Series F Preferred Stock:
at the addresses on Schedule B.
Such notice shall be deemed to have been given on the date received by
the addressee. The parties shall, as a matter of convenience and
courtesy, send each party receiving notice a copy of said notice by
facsimile or electronic means, or by courier, Federal Express, or
similar service, but such notifications shall not be deemed lawful
"notice" as required hereby. The parties may from time to time amend
the above addresses and names by written notice given the other party.
<PAGE> 13
(e). Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns, except that the
Company shall not have the right to delegate its obligations hereunder
or to assign its right hereunder or any interest herein without the
prior written consent of the holders of at least a majority in interest
of the Registrable Securities.
(f) Prior Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes any prior understandings
or agreements concerning the subject matter hereof.
(g) Severability. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of a
provision contained in this Agreement, shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of a provision, had never been
contained herein, and such provisions or part reformed so that it would
be valid, legal and enforceable to the maximum extent possible.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the Commonwealth
of Pennsylvania, excluding its conflict of laws principles.
(i) Headings. Article, section and subsection headings in this
Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose.
(j) Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
(k) Further Assurances. From and after the date of this
Agreement, upon the request of any party hereto, the other parties
shall execute and deliver such Agreements, documents and other writings
as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
<PAGE> 14
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the day and year first above written.
SERVICEWARE TECHNOLOGIES, INC.
By: /s/ Mark Tapling
------------------------------------
Mark Tapling
President and Chief Executive
Officer
STOCKHOLDERS:
/s/ Jeff Pepper
----------------------------------
Jeff Pepper
/s/ Rajiv Enand
----------------------------------
Rajiv Enand
----------------------------------
Bruce Molloy
SERIES A INVESTOR:
POLY VENTURES II, L.P.
By: /s/ Susanne Harrison
------------------------------------
General Partner
SERIES B INVESTORS:
POLY VENTURES II, L.P.
By: /s/ Susanne Harrison
------------------------------------
General Partner
<PAGE> 15
GEOCAPITAL III, L.P.
By: Geocapital Management, L.P.
By: /s/ Richard Vines
------------------------------------
General Partner
-----------------------------------
Paul Deninger
-----------------------------------
Charles Federman
-----------------------------------
Bernard Goldstein
-----------------------------------
Harvey Poppel
-----------------------------------
Stephen Smith
SERIES C INVESTOR:
NORWEST EQUITY PARTNERS V
A Minnesota Limited Liability
Partnership
By: ITASCA PARTNERS V, L.L.P.,
General Partner
By: /s/ Kevin Hall
------------------------------------
Kevin G. Hall, Partner
<PAGE> 16
SERIES D INVESTORS:
POLY VENTURES II, L.P.
By: POLY VENTURES II L.P.
---------------------------------
Name: /s/ Susanne Harrison
---------------------------------
Title: General Partner
---------------------------------
GEOCAPITAL III, L.P.
By: /s/ Richard Vines
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
NORWEST EQUITY PARTNERS V
A Minnesota limited liability
partnership
By: Itasca Partners V, LLP, General
Partner
By: /s/ Kevin Hall
------------------------------------
Kevin G. Hall
Partner
LOVETT MILLER VENTURE FUND II,
Limited Partnership
By: Lovett Miller Venture Partners II,
LLC
Its General Partner
By: /s/ W. Scott Miller
------------------------------------
W. Scott Miller
Managing Director
<PAGE> 17
CEO VENTURE FUND III
By: /s/ Gary G. Glausser
---------------------------------
Name: Gary G. Glausser
---------------------------------
Title: General Partner and CFO
---------------------------------
-----------------------------------
Andrew Blum
LANCASTER INVESTMENT PARTNERS
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
-----------------------------------
Bruce Lewellyn
-----------------------------------
Burt Rubin
J.F. SHEA CO., INC. AS NOMINEE 1999-47
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
-----------------------------------
Alan Edelman
EDELMAN INVESTMENT PARTNERSHIP
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
<PAGE> 18
------------------------------------
Richard Edelman
------------------------------------
Estelle Konviser
------------------------------------
James Borner
------------------------------------
Lizabeth Moses
COMVEST CAPITAL MANAGEMENT LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
LINDEN PARTNERS
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
HULL OVERSEAS, LTD.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
F. BERDON & CO. L.P.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
<PAGE> 19
------------------------------------
Stanley Cohen
STANLEY COHEN 1994 IRREVOCABLE
RETAINED ANNUITY TRUST
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
RADIX ASSOCIATES
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
TAMAR TECHNOLOGY INVESTORS (DELAWARE)
L.P.
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
SERIES E INVESTORS:
------------------------------------
Jody Owen
------------------------------------
Robert C. Harris, Jr.
------------------------------------
John A. Dexheimer
<PAGE> 20
/s/ T. I. Unterberg
------------------------------------
Thomas I. Unterberg
------------------------------------
A. Robert Towbin
PARK CITY INVESTMENTS
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
UNTERBERG HARRIS PRIVATE EQUITY
PARTNERS, LP
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
UNTERBERG HARRIS PRIVATE EQUITY
PARTNERS, CV
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
C.E. UNTERBERG, TOWBIN 401K PROFIT
SHARING PLAN FBO ANDREW ARNO
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Trustee
---------------------------------
ANDREW ARNO, ACF
MATHEW ARNO, U/NY/UGMA
By: /s/ Andrew Arno
---------------------------------
Name: Andrew Arno
---------------------------------
<PAGE> 21
ANDREW ARNO, ACF
JESSE ARNO, U/NY/UGMA
By: /s/ Andrew Arno
---------------------------------
Name: Andrew Arno
---------------------------------
------------------------------------
Steven Hellman
PAINE WEBBER F/B/O MARTIN E. HELLMAN IRA
By:
---------------------------------
Name:
---------------------------------
MARTIN E. HELLMAN AND DOROTHIE L.
HELLMAN TRUSTEES, FAMILY REVOCABLE TRUST
UAD 7/6/88
By:
---------------------------------
Name:
---------------------------------
C. E. UNTERBERG, TOWBIN LLC
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member
---------------------------------
UNTERBERG HARRIS INTERACTIVE
MEDIA LIMITED PARTNERSHIP, CV
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
<PAGE> 22
C. E. UNTERBERG, TOWBIN LP
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Managing Director
---------------------------------
VERNAT CO. C/O VERMONT NATIONAL BANK
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
GEORGE R. BEGLEY, ACF
G. ROLLO BEGLEY, U/NY/UGMA
By:
---------------------------------
Name: George R. Begley
GEORGE R. BEGLEY, ACF
TRACEY C. BEGLEY, U/NY/UGMA
By:
---------------------------------
Name: George R. Begley
------------------------------------
John R. Lakian
------------------------------------
Martha Logan
------------------------------------
Edward Swyer
<PAGE> 23
------------------------------------
Carol H. Plum
C.E. UNTERBERG, TOWBIN CAPITAL PARTNERS
I, L.P.
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
MARJORIE & CLARENCE E. UNTERBERG
FOUNDATION, INC.
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Officer
---------------------------------
ANDREW G. CELLI & JAMES SATLOFF TTEE
FBO: THEODORE JEAN SATLOFF
By: /s/ James Satloff
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ANDREW G. CELLI & JAMES SATLOFF TTEE
FBO: ANDREW THOMAS CELLI
By: /s/ Andrew Celli
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ANDREW G. CELLI & JAMES SATLOFF TTEE
FBO: HANNA ANDREA CELLI
By: /s/ Andrew Celli
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
/s/ Louis Venezia
------------------------------------
Louis Venezia
<PAGE> 24
FTS CAPITAL MANAGEMENT AG
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
TIGAN CAPITAL HOLDINGS LTD.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
SERIES F INVESTORS:
CEO VENTURE FUND III
By: /s/ Gary G. Glausser
---------------------------------
Name: Gary G. Glausser
---------------------------------
Title: General Partner & CFO
---------------------------------
BIRCHMERE VENTURES II L.P.
By: /s/ Gary G. Glausser
---------------------------------
Name: Gary G. Glausser
---------------------------------
Title: Partner & CFO
---------------------------------
LOVETT MILLER VENTURE FUND II,
Limited Partnership
By: Lovett Miller Venture Partners II,
LLC
Its General Partner
By: /s/ W. Scott Miller
---------------------------------
W. Scott Miller
Managing Director
<PAGE> 25
NORWEST EQUITY PARTNERS V
A Minnesota limited liability
partnership
By: Itasca Partners V, LLP, General
Partner
By: /s/ Kevin Hall
---------------------------------
Kevin G. Hall
Partner
C.E. UNTERBERG, TOWBIN PRIVATE EQUITY
PARTNERS II, L.P.
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
C.E. UNTERBERG, TOWBIN CAPITAL PARTNERS
I, L.P.
By: /s/ T. I. Unterberg
---------------------------------
Name: Thomas I. Unterberg
---------------------------------
Title: Member of the GP
---------------------------------
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ John W. McCain
---------------------------------
Name: John W. McCain
---------------------------------
Title: SVP
---------------------------------
PNC INVESTMENT CORP.
By: /s/ Maria C. Schaffer
---------------------------------
Name: Maria C. Schaffer
---------------------------------
Title: Controller
---------------------------------
GEOCAPITAL III, L.P.
By: /s/ Richard Vines
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
