THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Agreement is made and entered into as of September 27, 2000 by and among
Adaytum Software, Inc., a Delaware corporation (the "COMPANY"), Ronald Howie,
John David "Guy" Haddleton, George Kunzle, Valerie Kunzle, Adrian Kunzle,
Robert E. Switz, Neal Bastick, Keri Jackson, as Trustee under the Alexandra
Kunzle Trust Agreement dated April 13, 2000 and Adrian Kunzle, as Trustee
under the Adrian Kunzle 2000 Grantor Retained Annuity Trust Agreement, dated
July 15, 2000 (collectively referred to as the "EXISTING STOCKHOLDERS") and
St. Paul Venture Capital IV, LLC, St. Paul Venture Capital V, LLC, St. Paul
Venture Capital Affiliates Fund I, LLC, H & Q Adaytum Investors, L.P.,
Hambrecht & Quist California, Hambrecht & Quist Employee Venture Fund, L.P.,
Hambrecht & Quist Employee Venture Fund, L.P. II, Hambrecht & Quist Employee
Venture Fund 2000, L.P., 3i Group plc, D & W Ventures I, LLC, Andersen
Consulting LLP, World Technologies Portfolio, a series of World Trust, Equity
Portfolio, a series of IDS Life Series Fund, Inc., AXP Strategy Aggressive
Fund, a series of AXP Strategy Series, Inc. and AXP Variable Portfolio -
Strategy Aggressive Fund, a series of AXP Variable Portfolio Investment
Series, Inc. (collectively referred to as the "INVESTORS").
RECITALS:
A. Certain of the Investors, the Company and the Existing Stockholders are
currently parties to a Second Amended and Restated Registration Rights
Agreement, dated as of June 12, 2000 (the "Existing Agreement"), and
the parties thereto wish to amend and restate the Existing Agreement.
B. The Company and World Technologies Portfolio, a series of World Trust,
Equity Portfolio, a series of IDS Life Series Fund, Inc., AXP Strategy
Aggressive Fund, a series of AXP Strategy Series, Inc. and AXP Variable
Portfolio - Strategy Aggressive Fund, a series of AXP Variable
Portfolio Investment Series, Inc. have entered into a Series E
Preferred Stock Purchase Agreement, dated as of September 27, 2000 (the
"PURCHASE AGREEMENT"), pursuant to which such Investors are purchasing
shares of the Company's Series E Preferred (as defined herein).
C. As a condition to the obligations of such Investors under the Purchase
Agreement, the Company has agreed to grant registration rights on the
terms and conditions set forth herein.
D. Certain capitalized terms used herein have the meanings specified in
Section 1 below or in the Purchase Agreement.
AGREEMENT:
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows.
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms, not previously defined,
will have the meanings as set forth below:
1.1 "AFFILIATE" means any Person which controls, is controlled by or is
under common control with any other Person or Persons. For the purposes of this
definition, "control" has the meaning specified as of the date of this Agreement
for that word in Rule 405 promulgated by the Commission under the Securities
Act. In addition to the foregoing, with respect to Andersen Consulting,
"AFFILIATE" also means any of the partnerships, firms, corporations, entities
and individuals, wherever located, which together are referred to as the
"Andersen Consulting Business Unit" of the Andersen Worldwide Organization
whether by virtue of their member firm interfirm agreements with Andersen
Worldwide Societe Cooperative (or any successor or assignee thereto acting to
coordinate the business of such entities) or by virtue of ownership, direct or
indirect, by such an entity or otherwise being under the control of or under
common control, directly or indirectly, with such an entity and which are
thereby deemed part of the Andersen Consulting Business Unit.
1.2 "BOARD" means the Board of Directors of the Company.
1.3 "COMMISSION" means the United States Securities and Exchange
Commission and any successor thereto.
1.4 "COMMON STOCK" means the Company's common stock, $.01 par value per
share.
1.5 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated from time to time thereunder.
1.6 "HOLDER" means (a) a holder, as of the date of this Agreement, of
Series A Preferred, Series B Preferred, Series C Preferred, Series D Preferred,
Series E Preferred or the Warrant, (b) an Existing Stockholder and (c) any
subsequent legal or beneficial owner of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred, the Warrant or
Registrable Common who has become a party to this Agreement in accordance with
Section 10.8 below.
1.7 "PERSON" means an individual, partnership, limited partnership,
corporation, business trust, limited liability company, an association, joint
stock company, a trust, unincorporated organization, joint venture or other
entity of whatever nature.
1.8 "PREFERRED STOCK" means the Series A Preferred, the Series B
Preferred, the Series C Preferred, the Series D Preferred and the Series E
Preferred.
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1.9 "REGISTRABLE COMMON" means (a) any shares of Common Stock held by
any of the Existing Stockholders as of the date hereof, (b) any shares of Common
Stock which have been issued or are issuable upon the conversion of the
Preferred Stock, (c) any shares of Common Stock which have been issued or are
issuable upon exercise of the Warrant and (d) any shares of Common Stock issued
as a dividend, stock split, reclassification, recapitalization or other
distribution with respect to or in exchange for replacement of any of the
preceding; provided, however, that shares of Common Stock will no longer be
Registrable Common (i) when they have been registered under the Securities Act
and sold by the Holder thereof in accordance with such registration, (ii) when
they have been sold by the Holder pursuant to Rule 144 or (iii) the later of (A)
the two-year anniversary of the date hereof or (B) the date when registration
under the Securities Act would no longer be required for the immediate public
sale of all of such shares of Common Stock as a result of the provisions of Rule
144.
1.10 "REGISTER," "REGISTERED" AND "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement.
1.11 "RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, as such rule may be amended from time to time, or any successor
rule thereto.
1.12 "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated from time to time thereunder.
1.13 "SERIES A PREFERRED" means (a) up to 1,544,000 outstanding shares
of the Company's Series A Convertible Preferred Stock, $.01 par value per share,
and any shares of Series A Preferred issued in payment of a dividend upon any
share of Series A Preferred and (b) any Registrable Common issued as a dividend
or other distribution with respect to, or in replacement of, any Series A
Preferred.
1.14 "SERIES B PREFERRED" means (a) up to 4,350,000 outstanding shares
of the Company's Series B Convertible Preferred Stock, $.01 par value per share,
and any shares of Series B Preferred issued in payment of a dividend upon any
share of Series B Preferred and (b) any Registrable Common issued as a dividend
or other distribution with respect to, or in replacement of, any Series B
Preferred.
1.15 "SERIES C PREFERRED" means (a) up to 2,750,100 outstanding shares
of the Company's Series C Convertible Preferred Stock, $.01 par value per share,
and any shares of Series C Preferred issued in payment of a dividend upon any
share of Series C Preferred and (b) any Registrable Common issued as a dividend
or other distribution with respect to, or in replacement of, any Series C
Preferred.
1.16 "SERIES D PREFERRED" means (a) up to 2,049,624 outstanding shares
of the Company's Series D Preferred Stock, $.01 par value per share, and any
shares of Series D Preferred issued in payment of a dividend upon any share of
Series D Preferred and (b) any Registrable Common issued as a dividend or other
distribution with respect to, or in replacement of, any Series D Preferred.
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1.17 "SERIES E PREFERRED" means (a) up to 1,594,896 outstanding shares
of the Company's Series E Preferred Stock, $.01 par value per share, and any
shares of Series E Preferred issued in payment of a dividend upon any share of
Series E Preferred and (b) any Registrable Common issued as a dividend or other
distribution with respect to, or in replacement of, any Series E Preferred.
1.18 "WARRANT" means the warrant of the Company, dated as of June 12,
2000 and issued pursuant to the Warrant Issuance Agreement dated June 8, 2000
between the Company and Andersen Consulting LLP, representing the right to
purchase up to 1,365,188 shares of the Company's Common Stock (as such number
may be adjusted pursuant to the terms thereof).
SECTION 2. REGISTRATION RIGHTS.
2.1 REQUIRED REGISTRATION.
2.1.1 If, at any time after the earlier of: (i) six (6) months
after the Company's initial public offering or (ii) December 30, 2001,
the Company receives a written request for registration under the
Securities Act from the Investors holding in the aggregate at least
twenty percent (20%) of the Registrable Common in the case of
registrations on Form S-3 and at least fifty percent (50%) of the
Registrable Common in the case of registrations not on Form S-3 (a
"REGISTRATION REQUEST"):
(a) the Company will promptly give written
notice to all other record Holders of Registrable Common that
such registration is to be effected ("REGISTRATION NOTICE");
and
(b) subject to the limitations and
requirements set forth in this Section 2.1, the Company will
use its best efforts to prepare and file a registration
statement under the Securities Act on the appropriate form
covering the Registrable Common which is the subject of the
Registration Request and such additional Registrable Common
for which it has received written requests to register by such
other record Holders within forty-five (45) days after the
delivery of the Registration Notice, and will use its best
efforts to cause such registration statement to become
effective as soon as is practicable after such filing.
2.1.2 The Company will be obligated (a) to proceed with filing
the registration statement only if the anticipated gross offering
proceeds to the selling Holders is at least (i) $500,000, if the
Company meets the requirements for using Form S-3, or (ii) $5,000,000,
if the Company is required to use Form S-1 and the registration covers
at least twenty percent (20%) of the Registrable Common, and (b) to
prepare, file and cause to become effective (i) no more than two (2)
registration statements on Form S-1 pursuant to Registration Requests
made under this Section 2.1 and (ii) no more than two (2) registration
statements on Form S-3 per year pursuant to Registration Requests made
under this Section 2.1.
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2.1.3 If the Company furnishes to such Holder(s) within thirty
(30) days of a Registration Notice a certificate signed by the
President of the Company stating that (i) the Company, pursuant to an
action approved by the Board of Directors, has already a present plan
to commence preparation of a Registration Statement and to file the
same within ninety (90) days or (ii) 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
filed at such time, then the Company will have the right to defer such
filing for a period ending not later than one hundred eighty (180) days
from the delivery date of such Registration Notice. The Company may
delay a request for registration under this subsection 2.1.3 not more
than once in any two (2) year period.
2.1.4 To the extent covered by such registration statement,
all shares of Preferred Stock will be converted into Common Stock and
the Warrant (to the extent exercisable pursuant to the terms thereof)
will be exercised for Common Stock or such Holder(s) will deliver a
written commitment to the Company to convert such Preferred Stock into
shares of Common Stock or exercise the Warrant, as the case may be,
simultaneously with the effective date of such registration statement,
but subject to the closing of such offering.
2.1.5 If the Holders submitting the Registration Request (the
"INITIATING HOLDERS") intend to distribute the Registrable Common
covered by such request by means of an underwriting, the Registration
Request will so indicate and the Company will include such information
in the Registration Notice. The Company will select the underwriter,
with the approval of a majority in interest of the Initiating Holders,
which approval will not be unreasonably withheld. Notwithstanding any
other provision of this Section 2, if the managing underwriter advises
the Initiating Holders in writing that marketing factors require
reducing the number of shares to be underwritten, then the number of
shares of Registrable Common included in the underwriting will be
reduced pro rata among all participating Holders in proportion (as
nearly as practicable) to the amount of Registrable Common to be
included in such underwriting owned by each participating Holder;
provided, however, that such reduction will be made only if all other
securities to be included already have been entirely excluded from the
underwriting unless the holders of at least 50% of the Registrable
Common consent to the inclusion of such other securities; provided
further, however, that in the event shares of Registrable Common of the
Existing Stockholders are included in the shares to be underwritten,
the other participating Holders will subordinate their registration
rights under this Section 2.1 and, accordingly, reduce the number of
shares of Registrable Common included in the underwriting to permit the
Existing Stockholders first to sell up to ten percent (10%) of their
respective shares of Registrable Common, and after the Existing
Stockholders are allowed to include up to 10% of their respective
shares in the underwriting, all Holders (including Existing
Stockholders) are entitled to a pro rata inclusion of their shares in
the underwriting.
2.1.6 In the event that the Holders of a majority of the
Registrable Common for which registration has been requested pursuant
to this Section 2.1 determine for any
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reason not to proceed with a registration at any time before a
registration statement has been declared effective by the Commission,
and such registration statement, if theretofore filed with the
Commission, is withdrawn with respect to the Registrable Common covered
thereby, and, unless the withdrawal is based on a materially adverse
change in the condition, business or prospects of the Company from that
known to the Holders at the time of their Registration Request, the
participating Holders of such Registrable Common agree to bear their
own expenses incurred in connection therewith and to reimburse the
Company for the expenses incurred by it attributable to the filing of
such registration statement, and, if such participating Holders in fact
so reimburse the Company, then the Holders of such Registrable Common
will not be deemed to have exercised their right to require the Company
to register Registrable Common pursuant to this Section 2.1 (it being
understood that if such withdrawal is based upon such material adverse
change, the Holders of such Registrable Common will not be deemed to
have exercised their right to require the Company to register
Registrable Common pursuant to this Section 2.1).
2.1.7 If, at the time a Registration Request is received by
the Company, the Company has already determined to proceed with the
actual preparation and filing of a registration statement under the
Securities Act in connection with the Company's proposed offer and sale
for cash of its securities, the Registration Request will be deemed to
have been given pursuant to Section 2.2 rather than this Section 2.1,
and the rights and obligations of the Holders and the Company with
respect to the Registration Request will be governed by Section 2.2
hereof.
2.2 INCIDENTAL REGISTRATION.
2.2.1 Each time the Company determines to proceed with the
actual preparation and filing of a registration statement under the
Securities Act (excluding a registration on Form S-4 or S-8 (or similar
special purpose forms promulgated after the date hereof)) in connection
with the proposed offer and sale for cash of any of its securities by
it or any of its security holders (other than in response to a
Registration Request, registration on a form that does not permit the
inclusion of shares by the Company's security holders or the Company's
initial public offering (if and only if no security holders of the
Company other than George Kunzle, Valene Kunzle and Ronald Howie are
permitted to include securities in the initial public offering)), the
Company will give written notice of its determination to all record
Holders of Registrable Common (a "PARTICIPATION NOTICE"). Upon the
written request of a record Holder of any Registrable Common given
within thirty (30) days after receipt of a Participation Notice, the
Company will, except as herein provided, cause all such Registrable
Common for which the record Holders have requested registration to be
included in such registration statement, provided that all applicable
shares of Preferred Stock will be converted into Common Stock or the
Warrant (to the extent exercisable pursuant to the terms thereof) will
be exercised for Common Stock in such registration statement, or such
Holder(s) will deliver a written commitment to the Company to convert
such Preferred Stock into shares of Common Stock or exercise the
Warrant, as the case may be, simultaneously with the effective date of
such registration
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statement but subject to the closing of such offering, all to the
extent requisite to permit the sale or other disposition by the
prospective seller or sellers of the Registrable Common to be so
registered. If any registration pursuant to this Section 2.2 is
underwritten in whole or in part, the Company may require that the
Registrable Common requested for inclusion pursuant to this Section 2.2
be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters.
2.2.2 Nothing contained in this Agreement will prevent the
Company from, at any time, abandoning or delaying any such registration
initiated by it. If the Company determines not to proceed with a
registration after the registration statement has been filed with the
Commission and the Company's decision not to proceed is primarily based
upon the anticipated public offering price of the securities to be sold
by the Company, the Company will promptly complete the registration for
the benefit of those participating Holders who agree to proceed with a
public offering of their securities and who agree to bear all expenses
incurred by the Company as the result of such registration arising
after the Company has decided not to proceed.
2.2.3 If in the good faith judgment of the managing
underwriter of a public offering under this Section 2.2, the inclusion
of all of the Registrable Common of the Holders originally covered by a
request for registration would interfere with the successful marketing
of the shares of Common Stock offered by the Company, the number of
shares of Registrable Common of the Holders otherwise to be included in
the underwritten public offering may be reduced pro rata (by number of
shares) among the participating Holders requesting such registration;
provided, however, that after any such required reduction, the
Registrable Common to be included in such offering shall constitute at
least 25% of the total number of shares to be included in such
offering; provided, further, that, not in limitation of the immediately
preceding proviso, in the event shares of Registrable Common of the
Existing Stockholders are included in the shares to be underwritten,
the other participating Holders will subordinate their registration
rights under this Section 2.2 vis-a-vis the Existing Stockholders and,
accordingly, reduce the number of shares of Registrable Common included
in the underwriting to permit the Existing Stockholders first to sell
up to ten percent (10%) of their respective shares of Registrable
Common and after the Existing Stockholders are allowed to include up to
10% of their respective shares in the underwriting, all Holders
(including Existing Stockholders) are entitled to a pro rata inclusion
of their shares in the underwriting.
2.3 UNDERWRITING. The right of any Holder to include shares of
Registrable Common in any underwritten registration pursuant to this Agreement
will be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Common in the underwriting. The
Holders proposing to distribute their securities through such underwriting will
(together with the Company, which will also undertake to do so) enter into an
underwriting agreement with the underwriter or underwriters selected containing
customary
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representations, covenants and indemnification provisions, provided that any
representations and warranties from the Holders will be limited to matters of
title to the securities sold.
SECTION 3. REGISTRATION PROCEDURES. When the Company is required by the
terms of this Agreement to effect the registration of Registrable Common under
the Securities Act, the Company will do the following:
3.1 FILING. Prepare and file with the Commission a registration
statement with respect to such securities, and use its best efforts to cause
such registration statement to become and remain effective for such period as
may be reasonably necessary to effect the sale of such securities, but not to
exceed the lesser of (i) six (6) months or (ii) until the distribution described
in the registration statement has been completed.
3.2 PERIOD OF EFFECTIVENESS. Prepare and file with the Commission such
amendments to such registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration statement
effective for the period described in Section 3.1.
3.3 COPIES. Furnish to the Holders participating in such registration
and, if applicable, to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such Holders and, if
applicable, such underwriters may reasonably request in order to facilitate the
public offering of such securities.
3.4 BLUE SKY. Use its best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such participating Holders may reasonably
request in writing within twenty (20) days following the original filing of such
registration statement, except that the Company will not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified.
3.5 NOTIFICATION. Notify the Holders participating in such
registration, promptly after it receives notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed.
3.6 AMENDMENT NOTICE. Notify the Holders participating in such
registration promptly of any request by the Commission for the amending or
supplementing of such registration statement or prospectus or for additional
information.
3.7 AMENDMENT. Prepare and file with the Commission, promptly upon the
request of any Holders participating in such registration, any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for such Holders (and concurred in by counsel for the Company), is
required under the Securities Act in connection with the distribution of the
Registrable Common by such Holders.
3.8 UPDATE. Prepare and promptly file with the Commission and promptly
notify the Holders participating in such registration of the filing of such
amendment or supplement to such
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registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event has
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading.
3.9 STOP ORDERS. Advise the Holders participating in such registration,
promptly after it receives notice or obtains knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
3.10 COMPLIANCE ISSUES. Not file any amendment or supplement to such
registration statement or prospectus to which a majority in interest of the
Holders participating in such registration have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act, after having been
furnished with a copy thereof at least two (2) business days prior to the filing
thereof, unless in the opinion of counsel for the Company the filing of such
amendment or supplement is reasonably necessary to protect the Company from any
liabilities under any applicable federal or state law and such filing will not
violate applicable law.
3.11 OPINION OF COUNSEL, CONFLICT LETTER. At the request of any Holder
participating in such registration, furnish: (i) an opinion, dated as of the
closing date of the offering, of the counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, and to any
Holder making such request; and (ii) letters, dated as of the effective date of
the registration statement and as of the closing date of the offering, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to any Holder making such request, in each case in
form and substance as is customary in an underwritten public offering.
SECTION 4. EXPENSES. With respect to each registration requested
pursuant to Section 2.1 hereof (except as otherwise provided in such Section)
and with respect to each inclusion of Registrable Common in a registration
statement pursuant to Section 2.2 hereof (except as otherwise provided in such
Section), the Company will bear the following fees, costs and expenses: all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if the Company and/or
selling Holders are required to bear such fees and disbursements), fees and
disbursements of one special counsel for the selling Holders, all internal
Company expenses, all legal fees and disbursements and other expenses of
complying with state securities or blue sky laws of any jurisdictions in which
the securities to be offered are to be registered or qualified, and the premiums
and other costs of policies of insurance against liability (if any) arising out
of such public offering. Fees and disbursements of counsel (other than the one
special counsel referenced above) and accountants for the selling Holders,
underwriting discounts and commissions and transfer taxes relating to the
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shares included in the offering by the selling Holders, and any other expenses
incurred by the selling Holders not expressly included above, will be borne by
the selling Holders.
SECTION 5. INDEMNIFICATION. In the event that any Registrable Common is
included in a registration statement under Section 2.1 or 2.2 hereof:
5.1 INDEMNIFICATION BY COMPANY. To the fullest extent permitted by law,
the Company will indemnify and hold harmless each Holder which has Registrable
Common included in a registration statement pursuant to the provisions hereof,
its directors and officers, and any underwriter (as defined in the Securities
Act) for such Holder and each Person, if any, who controls such Holder or such
underwriter within the meaning of the Securities Act, from and against, and will
reimburse such Holder and each such underwriter and controlling Person with
respect to, any and all loss, damage and liability (collectively, "LOSSES") to
which such Holder or any such underwriter or controlling Person may become
subject under the Securities Act, state securities laws or otherwise, and the
Company will pay to each such Holder, underwriter or controlling person any
legal or other costs or expenses reasonably incurred by such person in
connection with investigating or defending any such Loss, insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by such Holder, such underwriter or such controlling
Person in writing specifically for use in the preparation thereof; provided
further, however, that the indemnity agreement in this Section 5.1 will not
apply to amounts paid in settlement of any such Loss if such settlement is
effected without the consent of the Company, which consent will not be
unreasonably withheld, and that the foregoing indemnity obligation with respect
to any preliminary prospectus or final prospectus (if such final prospectus has
been amended or supplemented and such amendments or supplements have been
furnished to such Holder prior to the written confirmation of the sale involved)
will not inure to the benefit of any Holder on account of any Loss whatsoever
arising from the sale of Registrable Common by such Holder to any person if (A)
a copy of the final prospectus (as amended or supplemented if such amendments or
supplements have been furnished to such Holder prior to the written confirmation
of the sale involved) has not been sent or given by or on behalf of such Holder
to such person, if required by law, with or prior to the written confirmation of
the sale involved, and (B) the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such preliminary
prospectus or final prospectus from which such Loss arose was corrected in the
final prospectus (as amended or supplemented if such amendments or supplements
thereto have been furnished as aforesaid).
5.2 INDEMNIFICATION BY HOLDERS. Each Holder which has Registrable
Common included in a registration statement pursuant to the provisions hereof
will severally, but not jointly, indemnify and hold harmless the Company, its
directors and officers, each Person, if any,
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who controls the Company within the meaning of the Securities Act, any other
Holder selling securities pursuant to such registration statement, any
controlling Person of any such selling Holder, any underwriter and any
controlling Person of any such underwriter (each, an "INDEMNITEE") from and
against, and will reimburse any Indemnitee with respect to, any and all Losses
to which such Indemnitee may become subject under the Securities Act, state
securities laws or otherwise, and such Holder will pay to each Indemnitee any
legal or other costs or expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such Loss, insofar as such Losses
are caused by any untrue or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
conformity with written information furnished by such Holder specifically for
use in the preparation thereof; provided, however, that the indemnity agreement
in this Section 5.2 will not apply to amounts paid in settlement of any such
Loss if such settlement is effected without the consent of the indemnifying
Holder, which consent will not be unreasonably withheld, and that the foregoing
indemnity obligation with respect to any preliminary prospectus or final
prospectus (if such final prospectus has been amended or supplemented and such
amendments or supplements have been furnished to such Indemnitee prior to the
written confirmation of the sale involved) will not inure to the benefit of any
Indemnitee on account of any Loss whatsoever arising from the sale of any
Registrable Common by the Holder to any person if (A) a copy of the final
prospectus (as amended or supplemented if such amendments or supplements have
been furnished to such Indemnitee prior to the written confirmation of the sale
involved) has not been sent or given by or on behalf of such Indemnitee to such
person, if required by law, with or prior to the written confirmation of the
sale involved, and (B) the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such preliminary
prospectus or final prospectus from which such Loss arose was corrected in the
final prospectus (as amended or supplemented if such amendments or supplements
thereto have been furnished as aforesaid); provided further, however, that the
obligations of each Holder under this Section 5.2 will be limited to an amount
equal to the net proceeds to such Holder from the sale of Registrable Common as
contemplated herein, unless such claim, loss, damage, liability or action
resulted from such Holder's fraudulent misconduct.
5.3 INDEMNIFICATION PROCEDURES. Promptly after receipt by a party
entitled to indemnification pursuant to this Section 5 (each, an "INDEMNIFIED
PARTY") of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions such Indemnified Party will, if a claim is
to be made against the party obligated to provide indemnification pursuant to
this section (each, an "INDEMNIFYING PARTY"), promptly notify the Indemnifying
Party of the commencement thereof; but the omission to provide such notice will
not relieve the Indemnifying Party from any liability hereunder, except to the
extent that the delay in giving, or failing to give, such notice has a material
adverse effect upon the ability of the Indemnifying Party to defend against the
claim. In case such action is brought against an Indemnified Party, the
Indemnifying Party will have the right to participate in and, at the
11
Indemnifying Party's option, to assume the defense thereof, singly or jointly
with any other Indemnifying Party similarly notified, with counsel reasonably
satisfactory to the Indemnified Party; provided, however, that if the defendants
in any action include both the Indemnified Party and the Indemnifying Party and
the Indemnified Party reasonably concludes that there may be legal defenses
available to any Indemnified Parties that are different from or additional to
those available to the Indemnifying Party, or if there is a conflict of interest
which would prevent counsel for the Indemnifying Party from also representing
the Indemnified Party, the Indemnified Party will have the right to select
counsel to participate in the defense of such action on behalf of such
Indemnified Party at the expense of the Indemnifying Party; provided further,
however, that the Indemnifying Party will be responsible for the expense of only
one such special counsel (and one local counsel if necessary for jurisdictional
purposes) selected jointly by the Indemnified Parties, if there is more than one
Indemnified Party. After notice from an Indemnifying Party to any Indemnified
Party of such Indemnifying Party's election to assume the defense of the action,
the Indemnifying Party will not be liable to such Indemnified Party pursuant to
this Section 5 for any legal or other expense subsequently incurred by such
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the Indemnified Party has employed counsel in
accordance with the proviso of the preceding sentence or (ii) the Indemnifying
Party has not employed counsel reasonably satisfactory to the Indemnified Party
to represent the Indemnified Party within a reasonable time after the notice of
the commencement of the action, or (iii) the Indemnifying Party has authorized
the employment of counsel for the Indemnified Party at the expense of the
Indemnifying Party.
5.4 CONTRIBUTION. If the indemnification provided for in this Section 5
is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an Indemnified Party in respect of any Losses, then as between the
Company and the Selling Holders, each Indemnifying Party shall contribute to the
aggregate amount paid or payable by such Indemnified Party, as incurred, as a
result of any Losses, (i) in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and the Selling Holders, on the
other hand, in connection with any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or arising out of or
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading. As between
the Company and the Selling Holders, on the one hand, and any underwriter(s) and
any controlling Person of any such underwriters, on the other hand, each
Indemnifying Party shall contribute to the aggregate amount paid or payable by
such Indemnifying Party as incurred, as a result of any Losses, (x) in such
proportion as is appropriate to reflect the relative benefits received from the
offering of Registrable Common included in a registration statement pursuant to
the terms of this Agreement or (y) if the allocation provided by clause (x)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (x) above, but
also the relative fault of the Company and the Selling Holders, on the one hand,
and the underwriter(s) and any controlling person of any such underwriter, on
the other hand, in connection with any untrue statement or alleged untrue
statement of any material fact contained in such registration statement, any
prospectus contained therein or any amendment or supplement
12
thereto, or arising out of or based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading. As used in this Section 5.4, the relative benefits received by
an Indemnifying Party in connection with the offering of Registrable Common
pursuant to the terms of this Agreement shall be deemed to be the same
respective proportions as the total net proceeds from the offering of the
Registrable Common pursuant to the terms of this Agreement (before deducting
expenses) received by the Company and the Selling Holders (should any one of
them be the Indemnifying Party), and any compensation paid to the underwriter(s)
(should the underwriter(s) be the Indemnifying Party); provided further, that
the obligations of each party under this Section 5.4 will be limited to an
amount equal to the net proceeds to such party from the sale of Registrable
Common as contemplated herein, unless such claim, loss, damage, liability or
action resulted from such Party's fraudulent misconduct.
The amount paid or payable by a party as a result of the Losses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 5.3, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The provisions set forth in Section 5.3 with respect to notice of commencement
of any action shall apply if a claim for contribution is to be made under this
Section 5.4; PROVIDED, HOWEVER, that no additional notice shall be required with
respect to any action for which notice has been given under Section 5.3 hereof
for purposes of indemnification.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 5.4.
No person 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. For purposes of
this Section 5.4, each officer and employee of a Holder and each person, if any,
who controls a Holder within the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as such Holder, and each director
of the Company, each officer of the Company who signed the registration
statement and each person, if any, who controls the Company within the meaning
of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
SECTION 6. EXCEPTIONS TO AND TERMINATION OF AGREEMENT. The Company will
not be obligated to effect a registration (i) during the ninety (90) day period
commencing with the closing date of the Company's initial public offering or
(ii) if the Company delivers to the Holders within thirty (30) days of any
Registration Request notice of the Company's intent to file a registration
statement with respect to such initial public offering within ninety (90) days
and so files within such period. This Agreement, and the registration rights set
forth herein, will terminate as to any Holder on the date on which such Holder
no longer owns any shares of Registrable Common subject to this Agreement.
13
SECTION 7. COOPERATION. Any Holder whose Registrable Common is to be
included in a Registration Statement either filed pursuant to a demand or as
part of a Company registration agrees to cooperate with all reasonable requests
by the Company necessary to effectuate the purposes of this Agreement, including
by timely providing the Company with all information necessary to prepare and
file a registration statement.
SECTION 8. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that, following the effective date of a registration statement covering the sale
of the Company's securities under the Securities Act, for the period of time and
to the extent reasonably requested by the underwriter(s) and the Company, such
Holder will not sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of any securities of the Company held, directly or indirectly, by
such Holder immediately prior to the Company's initial public offering, except
for securities covered by the registration statement and transfers to donees or
Affiliates who agree to be similarly bound; provided, however, that (i) the
executive officers and directors of the Company, as well as any holder of at
least five percent (5%) of the Company's Preferred Stock or Common Stock and all
other holders of registration rights, have agreed to be bound by substantially
the same terms and conditions, (ii) such agreement may be required only in
connection with the Company's initial public offering and any public offering
made within two (2) years thereafter, (iii) the time period requested for such
market stand-off will not exceed one hundred eighty (180) days in connection
with an initial public offering and ninety (90) days for any other public
offering within the aforementioned two (2) year period and (iv) the restriction
will not apply to a registration relating solely to employee, consultant or
advisor benefit plans on Form S-1 or Form S-8 (or similar special purpose form
promulgated after the date hereof) or a registration relating solely to a
transaction pursuant to Rule 145 promulgated under the Securities Act on Form
S-4 (or similar forms promulgated after the date hereof). The Company may impose
stop-transfer instructions during such stand-off period with respect to the
securities of each Holder subject to this restriction if necessary to enforce
such restrictions. The Company shall not request a market stand-off provision
which is more restrictive than what the underwriter(s) deem reasonable and
necessary.
SECTION 9. LIMITATIONS ON ADDITIONAL REGISTRATION RIGHTS. From and
after the date of this Agreement, unless holders of at least a majority of the
Registrable Common have consented, the Company will not enter into any agreement
granting any security holder or prospective security holder of any securities of
the Company registration rights with respect to such securities or otherwise
register securities of such security holder or prospective security holder,
except that the Company may enter into agreements granting new registration
rights which are subordinate to the registration rights granted to the Holders
herein.
SECTION 10. MISCELLANEOUS.
10.1 WAIVERS, AMENDMENTS AND APPROVALS. In each case in which the
approval of the Holders is required by the terms of this Agreement, such
requirement will be satisfied by a vote or the written action of Holders of at
least a majority of the Registrable Common held by all of the Holders, unless a
higher percentage is specifically required by the terms of this Agreement.
14
Any term or provision of this Agreement requiring performance by or binding upon
the Company or the Holders 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 by a writing signed by the Company
and the Holders of at least a majority of the Registrable Common held by all of
the Holders. Any amendment or waiver effected in accordance with this Section
will be binding upon all of the Holders (including permitted assigns pursuant to
Section 10.8 hereof). The waiver by a party of any breach hereof or default in
payment of any amount due hereunder or default in the performance hereof will
not be deemed to constitute a waiver of any other default or succeeding breach
or default. Written notice of any such waiver, consent or agreement of
amendment, modification or supplement will be given to the record Holders who
did not give written consent thereto.
10.2 NOTICES. All notices, requests, consents and other communications
required or permitted hereunder will be in writing and will be delivered either
by (i) personal delivery, (ii) registered or certified airmail, postage prepaid
or (iii) facsimile, as follows
10.2.1 to a Holder, addressed to such Holder at the
address(es) set forth on SCHEDULE 1
10.2.2 to the Company, to:
Adaytum Software, Inc.
2051 Killebrew Drive, Suite 400
Minneapolis, MN 55425
and such notices and other communications will for all purposes of this
Agreement be treated as being effective or having been given (x) on the date of
personal delivery, (y) the fifth day after the date of deposit with the U. S. or
relevant postal service, if delivered by airmail, or (z) upon electronic
confirmation of receipt, if delivered by facsimile. Any party may change its
address for such communications by giving notice thereof to the other parties in
conformity with this Section.
10.3 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any party under
this Agreement will impair any such right, power or remedy of such party nor
will it be construed to be a waiver of any such breach or default, or an
acquiescence thereto, or of a similar breach or default thereafter occurring;
nor will any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party hereto of
any breach or default under the Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement must be in writing and
will be effective only to the extent specifically set forth in such writing.
10.4 OTHER REMEDIES. Any and all remedies herein expressly conferred
upon a party will be deemed cumulative with, and not exclusive of, any other
remedy conferred hereby or by
15
law on such party, and the exercise of any one remedy will not preclude the
exercise of any other.
10.5 ATTORNEYS' FEES. Should suit be brought to enforce or interpret
any part of this Agreement, the prevailing party will be entitled to recover, as
an element of the costs of suit and not as damages, reasonable attorneys' fees
to be fixed by the court (including, without limitation, costs, expenses and
fees on any appeal). The prevailing party will be the party entitled to recover
its costs of suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs will not be entitled to recover
attorneys' fees. No sum for attorneys' fees will be counted in calculating the
amount of a judgment for purposes of determining if a party is entitled to
recover costs or attorneys' fees.
10.6 ENTIRE AGREEMENT. This Agreement, the schedules hereto, the
documents referenced herein and the exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or conditions, express or implied, written or
oral, between the parties with respect hereto and thereto, including, without
limitation, the Existing Agreement. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
10.7 SEVERABILITY. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
will be given effect separately from the provision or provisions determined to
be illegal or unenforceable and will not be affected thereby.
10.8 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon and be enforceable by the
respective heirs, successors and assigns of the parties hereto; provided,
however, that the rights of a Holder hereunder may be assigned only (i) to a
partner or retired partner of the assigning Holder, if such assigning Holder is
a partnership, (ii) to any Affiliate of the assigning Holder, (iii) to any
family member of, or any trust for the benefit of a family member of the
assigning Holder or (iv) concurrent with the sale or transfer to such assignee
of at least 80,000 shares of Registrable Common (subject to adjustment for any
stock dividend, stock split, subdivision, combination or other recapitalization
of the Company) then held by the assigning Holder; provided, however, that the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of the assignee and the securities with respect
to which such registration rights are being assigned and such transferee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement. Any Holder making an assignment in connection with the sale or
transfer of only a portion of its shares will retain its rights under this
Agreement for the shares not sold or transferred. Nothing in this Agreement,
express or implied, is intended to confer upon any party, other than the parties
hereto or their permitted successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. Notwithstanding any provision contained
elsewhere in this Agreement, upon the transfer of shares by any of the parties
hereto, no claims or causes of action
16
arising out of or related to this Agreement existing as of the transfer date
will be transferred by such party to any heir, successor, assign or permitted
transferee, provided that the transfer of shares will not be deemed a waiver by
the transferring party of any such claim or cause of action.
10.9 GOVERNING LAW. This Agreement will be governed by and construed
under the laws of the State of Minnesota, without regard to the conflict of laws
principles thereof.
10.10 COUNTERPARTS. This Agreement may be executed concurrently in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
17
IN WITNESS WHEREOF, this Agreement is hereby executed as of
the date first written above.
COMPANY: ADAYTUM SOFTWARE, INC.
By: /s/ J. D. G. Haddleton
---------------------------------------
Its:
---------------------------------------
EXISTING SHAREHOLDERS: /s/ Ronald Howie
-------------------------------------------
Ronald Howie
/s/ J. D. G. Haddleton
-------------------------------------------
John David "Guy" Haddleton
/s/ George Kunzle
-------------------------------------------
George Kunzle
/s/ Valerie Kunzle
-------------------------------------------
Valerie Kunzle
/s/ Adrian Kunzle
-------------------------------------------
Adrian Kunzle
/s/ Robert E. Switz
-------------------------------------------
Robert E. Switz
/s/ Neal Bastick
-------------------------------------------
Neal Bastick
/s/ Keri Jackson
-------------------------------------------
Keri Jackson, as Trustee under the Alexandra
Kunzle Trust Agreement dated April 13, 2000
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
/s/ Adrian Kunzle
-------------------------------------------
Adrian Kunzle, as Trustee under the Adrian
Kunzle 2000 Grantor Retained Annuity Trust
Agreement, dated July 15, 2000
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
INVESTORS: ST. PAUL VENTURE CAPITAL IV, LLC
By: /s/ Michael B. Gorman
-------------------------------------------
Its: General Partner
ST. PAUL VENTURE CAPITAL V, LLC
By: /s/ Michael B. Gorman
-------------------------------------------
Its: General Partner
ST. PAUL VENTURE CAPITAL
AFFILIATES FUND I, LLC
By: St. Paul Venture Capital, Inc.
-------------------------------------------
Its: Manager
By: /s/ Michael B. Gorman
-------------------------------------------
Its: Executive Vice President
H & Q ADAYTUM INVESTORS, L.P.
By: /s/ Thomas Szymoniak
-------------------------------------------
Its: Vice President
Hambrecht & Quist Management
Corp.
HAMBRECHT & QUIST CALIFORNIA
By: /s/ Thomas Szymoniak
-------------------------------------------
Its: Attorney-in-Fact
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
HAMBRECHT & QUIST EMPLOYEE VENTURE
FUND, L.P. II
BY: H&Q VENTURE MANAGEMENT L.L.C
ITS: GENERAL PARTNER
By: /s/ Thomas Szymoniak
-------------------------------------------
Its: Attorney-in-Fact
HAMBRECHT & QUIST EMPLOYEE VENTURE
FUND, L.P.
BY: H&Q VENTURE MANAGEMENT L.L.C
ITS: GENERAL PARTNER
By: /s/ Thomas Szymoniak
-------------------------------------------
Its: Attorney-in-Fact
HAMBRECHT & QUIST EMPLOYEE VENTURE
FUND 2000, L.P.
BY: H&Q VENTURE MANAGEMENT L.L.C.
ITS GENERAL PARTNER
By: /s/ Thomas Szymoniak
-------------------------------------------
Its: Attorney-in-Fact
3i GROUP PLC
By: /s/ Michael Reid
-------------------------------------------
Its:
--------------------------------
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
D & W VENTURES I, LLC
By: /s/ William H. Hippee, Jr.
-------------------------------------------
Its: Manager
ANDERSEN CONSULTING LLP
By: /s/ C. Scott Killips
-------------------------------------------
Its: Partner
WORLD TECHNOLOGIES PORTFOLIO,
A SERIES OF WORLD TRUST
By: /s/ Frederick C. Quirsfeld
-------------------------------------------
Its: Vice President, World Trust
EQUITY PORTFOLIO, A SERIES OF IDS LIFE
SERIES FUND, INC.
By: /s/ Frederick C. Quirsfeld
-------------------------------------------
Its: Vice President, IDS Life Series
Fund, Inc.
AXP STRATEGY AGGRESSIVE FUND,
A SERIES OF AXP STRATEGY SERIES, INC.
By: /s/ Frederick C. Quirsfeld
-------------------------------------------
Its: Vice President, AXP Strategy
Series, Inc.
AXP VARIABLE PORTFOLIO - STRATEGY
AGGRESSIVE FUND, A SERIES OF AXP
PORTFOLIO INVESTMENT SERIES, INC.
By: /s/ Frederick C. Quirsfeld
-------------------------------------------
Its: Vice President, AXP Variable
Portfolio Investment
Series, Inc.
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT)
SCHEDULE 1
LIST OF HOLDERS
St. Paul Venture Capital IV, LLC
c/o St. Paul Venture Capital, Inc.
10400 Viking Drive, Suite 550
Eden Prairie, MN 55344
Attn: Michael Gorman
St. Paul Venture Capital V, LLC
c/o St. Paul Venture Capital, Inc.
10400 Viking Drive, Suite 550
Eden Prairie, MN 55344
Attn: Michael Gorman
St. Paul Venture Capital Affiliate Fund I, LLC
c/o St. Paul Venture Capital, Inc.
10400 Viking Drive, Suite 550
Eden Prairie, MN 55344
Attn: Michael Gorman
H & Q Adaytum Holders, LP
c/o Hambrecht & Quist
1 Bush Street
San Francisco, CA 94104
Attn: Virginia Hull
Hambrecht & Quist California
c/o Hambrecht & Quist
1 Bush Street
San Francisco, CA 94104
Attn: Virginia Hull
Hambrecht & Quist Employee Venture Fund, L.P.
c/o Hambrecht & Quist
1 Bush Street
San Francisco, CA 94104
Attn: Virginia Hull
Hambrecht & Quist Employee Venture Fund, L.P. II
c/o Hambrecht & Quist
1 Bush Street
San Francisco, CA 94104
Attn: Virginia Hull
Hambrecht & Quist Employee Venture Fund 2000, L.P.
c/o Hambrecht & Quist
1 Bush Street
San Francisco, CA 94104
Attn: Virginia Hull
3i Group plc
40 Queen Square
Bristol BS1 4LE
England
Attn: Michael Robinson
D & W Ventures I, LLC
220 South Sixth Street
Minneapolis, MN 55402
Attn: William H. Hippee, Jr.
Andersen Consulting LLP
One Market
Spear Street Tower
38th Floor
San Francisco, CA 94105
Attn: C. Scott Killips
WITH COPIES (WHICH SHALL NOT CONSTITUTE EFFECTIVE NOTICE) TO:
Andersen Consulting LLP
1661 Page Mill Road
Palo Alto, CA 94304
Attn: General Counsel
Andersen Consulting LLP
100 South Wacker Drive, Suite 600
Chicago, Illinois 60606
Attn: Carlisle Kirkpatrick
World Technologies Portfolio, a series ofWorld Trust
25671 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: John Everhart
with a copy to:
World Technologies Portfolio, a series ofWorld Trust
200 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: Terese Wilke
Equity Portfolio, a series of IDS Life Series Fund, Inc.
25671 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: John Everhart
with a copy to:
Equity Portfolio, a series of IDS Life Series Fund, Inc.
200 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: Terese Wilke
AXP Strategy Aggressive Fund, a series of AXP Strategy Series, Inc.
25671 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: John Everhart
with a copy to:
AXP Strategy Aggressive Fund, a series of AXP Strategy Series, Inc.
200 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: Terese Wilke
AXP Variable Portfolio - Strategy Aggressive Fund,
a series of AXP Variable Portfolio Investment Series, Inc.
25671 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: John Everhart
with a copy to:
AXP Variable Portfolio - Strategy Aggressive Fund,
a series of AXP Variable Portfolio Investment Series, Inc.
200 AXP Financial Center
Minneapolis, Minnesota 55474
Attn: Terese Wilke
John David "Guy" Haddleton
740 Mississippi River Boulevard
Apartment 22E
St. Paul, MN 55116-1069
George Kunzle
Suffolk Cottage
School Lane
Denmead
Waterlooville
Hants, P07 6L6
ENGLAND
Valerie Kunzle
c/o George Kunzle
Suffolk Cottage
School Lane
Denmead
Waterlooville
Hants, P07 6L6
ENGLAND
Adrian Kunzle
2200 Delaware Ave.
Wilmington, DE 19806
Keri Jackson, as Trustee
under the Alexandra Kunzle
Trust Agreement dated
April 13, 2000
2200 Delaware Avenue
Wilmington, DE 19806
Adrian Kunzle, as Trustee
under the Adrian Kunzle 2000
Grantor Retained Annuity Trust
Agreement dated July 15, 2000
2200 Delaware Avenue
Wilmington, Delaware 19806
Ronald Howie
Holmhill
9 Greenfield Avenue
Alloway
Ayrshire KA7 4NW
ENGLAND
Robert E. Switz
5930 Boulder Ridge Lane
Shorewood, Minnesota
Neal Bastick
Schepenenstraat 23
4902 B2 Oosterhout
The Netherlands