Exhibit 10.39
Annex A
PERITUS SOFTWARE SERVICES, INC.
Registration Rights Agreement
This Registration Rights Agreement (this "Agreement") dated as of March
27, 2000 is entered into between Peritus Software Services, Inc., a
Massachusetts corporation (the "Company"), and Rocket Software, Inc. (the
"Purchaser"). The Company and the Purchaser are sometimes referred to herein
each as a "Party" and together as the "Parties".
Recitals:
A. The Company and the Purchaser have entered into a Common Stock Purchase
Agreement dated as of the date hereof (the "Purchase Agreement"); and
B. The Company and the Purchaser desire to provide for certain
arrangements with respect to the registration under the Securities Act of 1933,
as amended, of certain shares of capital stock of the Company issued to the
Purchaser pursuant to the Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the Parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, $.01 par value per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 6 of
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means (a) the shares of Common Stock issued and sold to the
Purchaser pursuant to the Purchase Agreement and (b) any other shares of Common
Stock of the Company issued in respect of such shares (because of stock splits,
stock dividends, reclassifications, recapitalizations or similar events);
provided, that, shares of Common Stock which are Shares shall cease to be Shares
(i) upon any sale pursuant to a Registration Statement or Rule 144 under the
Securities Act ("Rule 144"), (ii) at such time as all of the Shares then held by
the Purchaser may be sold without restriction as to volume under Rule 144, or
(iii) at such time as all such Shares may be sold by the Purchaser under Rule
144(k).
2. Demand Registration.
(a) At any time during the period commencing on the date six months
subsequent to the date hereof and ending on the date two years after the date
hereof, the Purchaser may request, in writing, that the Company effect the
registration of at least 20% of the total Shares originally issued (or any
lesser percentage if the reasonably anticipated aggregate price to the public of
such public offering would exceed $1,000,000). If the Purchaser intends to
distribute the Shares covered by its request by means of an underwriting, it
shall so advise the Company as a part of its request made pursuant to this
Section 2(a). Upon receipt of the Purchaser's request, the Company shall, as
soon as practicable, use its reasonable best efforts to effect the registration
(on a registration Form determined in accordance with Section 2(f) of this
Agreement) of all Shares which the Company has been requested to so register.
The Registration Statement filed pursuant to the Purchaser's request may,
subject to the provisions of Section 2(b) of this Agreement, include other
securities of the Company (i) which are held by officers or directors of the
Company, (ii) which are held by persons who, by virtue of agreements with the
Company, are entitled to include their securities in any such registration (the
"Other Holders") and (iii) which are included in such registration by the
Company.
(b) If the Company desires to include any securities described in
clauses (i), (ii) or (iii) of Section 2(a) of this Agreement (the "Additional
Securities") in any registration for an underwritten offering requested pursuant
to said Section 2(a), the Company may include such securities in such
registration and underwriting on the terms set forth herein. The Company shall
(together with the Purchaser and all officers, directors and Other Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form (including, without limitation,
customary indemnification and contribution provisions on the part of the
Company) with the managing underwriter. Notwithstanding any other provision of
this Section 2(b), if the managing underwriter advises the Company that the
inclusion of all shares requested to be registered would materially and
adversely affect the offering and if a limitation of the number of Additional
Securities is required, the number of Additional Securities that may be included
in such registration and underwriting shall, except as otherwise provided in any
contract to which the Company is a party, be allocated among all holders of
Additional Securities pro rata, based upon the total number of Additional
Securities requested to be registered. If the Company or any officer, director,
or Other Holder who has requested inclusion in such registration as provided
above disapproves of the terms of the underwriting, such person or entity may
elect to withdraw therefrom by written notice to the Company, and the securities
so withdrawn shall also be withdrawn from registration.
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(c) The Purchaser shall have the right to select the managing
underwriter(s) for any underwritten offering requested pursuant to Section 2(a)
of this Agreement, subject to the approval of the Company, which approval will
not be unreasonably withheld or delayed.
(d) The Company shall not be required to effect more than two
registrations pursuant to this Section 2; provided, that, in no event shall the
Company be required to effect more than one registration pursuant to this
Section 2 after it has already effected a registration on a Registration
Statement on Form S-1 or Form S-2 (or any successor forms) pursuant to this
Section 2. In addition, the Company shall not be required to effect any
registration within six months after the effective date of any other
Registration Statement of the Company. For purposes of this Section 2(d), a
Registration Statement shall not be counted until such time as such Registration
Statement has been declared effective by the Commission (unless the Purchaser
withdraws its request for such registration (other than as a result of
information concerning the business or financial condition of the Company which
is made known to the Purchaser after the date on which such registration was
requested) and elects not to pay the Registration Expenses therefor).
(e) If at the time of any request to register Shares by the
Purchaser pursuant to Section 2(a) of this Agreement, the Company is engaged or
has plans to engage in a registered public offering or is engaged in any other
activity which, in the good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration, then the
Company may at its option direct that such request be delayed for a period not
in excess of six months from the date of such request, such right to delay a
request to be exercised by the Company not more than once in any 12-month
period.
(f) The Parties hereby acknowledge that as of the date hereof, the
Company is not permitted under the Commission's rules and regulations to use a
Registration Statement on Form S-3 to effect a registration requested pursuant
to Section 2(a) of this Agreement. In the event at the time of a request for
registration under Section 2(a) of this Agreement the Company is permitted under
the Commission's rules and regulations to use a Registration Statement on Form
S-3 (or any successor form relating to secondary offerings) (an "S-3
Registration Statement") to effect a registration requested pursuant to Section
2(a) of this Agreement, the Company shall use an S-3 Registration Statement in
effecting the requested registration and shall use its reasonable best efforts
to cause such S-3 Registration Statement to remain effective for a period ending
on the earlier of (i) the date two years subsequent to the date hereof and (ii)
until all shares registered thereunder are sold. In the event at the time of a
request for registration under Section 2(a) of this Agreement the Company is not
permitted under the Commission's rules and regulations to use an S-3
Registration Statement to effect a registration requested pursuant to Section
2(a) of this Agreement, the Company shall use a Registration Statement on Form
S-1 or Form S-2 (or any successor forms) in effecting the requested registration
and shall use its reasonable best efforts to cause such Registration Statement
to remain effective until the earlier of (I) the date two months subsequent to
the date such Registration Statement is declared effective and (II) until all
shares registered thereunder are sold.
3. Incidental Registration.
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(a) If the Company proposes to file a Registration Statement during
the period commencing on the date six months subsequent to the date hereof and
ending on the date four years subsequent to the date hereof, it will, prior to
such filing, give written notice to the Purchaser of its intention to do so and,
upon the written request of the Purchaser given within 10 days after the Company
provides such notice (which request shall state the intended method of
disposition of such Shares), the Company shall use its best efforts to cause up
to 2,000,000 Shares held by the Purchaser to be registered under the Securities
Act to the extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified in the request of
the Purchaser; provided, that, the Company shall have the right to postpone or
withdraw any registration effected pursuant to this Section 3(a) without
obligation to the Purchaser.
(b) In connection with any registration under this Section 3
involving an underwriting, the Company shall not be required to include any
Shares in such registration unless the Purchaser accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it. If, in the opinion of the managing underwriter(s) of such offering, the
registration of all, or part of, the shares of Common Stock which the Purchaser
has requested to be included pursuant to this Section 3 and/or which other
holders of shares of Common Stock or other securities of the Company entitled to
include shares of Common Stock in such registration (the "Incidental Shares")
have requested to be included would materially and adversely affect such public
offering, the Company shall be required to include in the underwriting only that
number of such Incidental Shares, if any, which the managing underwriter(s)
believe(s) may be sold without causing such adverse effect. If the number of
Shares to be included in the underwriting in accordance with the foregoing is
less than the total number of Shares which the Purchaser has requested to be
included, then the maximum number of Incidental Shares which the underwriters
have determined may be included in such registration shall be included in the
following order: first, the number of Shares which the Purchaser has requested
to be included in such registration shall be included, and second, the number of
shares entitled to be included by any other holder of securities of the Company
shall be included.
4. Term of Registration Rights. Notwithstanding anything contained within
this Agreement, the rights created in the Purchaser by this Agreement to
register Shares under the Securities Act shall terminate on the second
anniversary of the Closing Date.
5. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Shares under the Securities Act, the Company shall:
(a) prepare and file with the Commission a Registration Statement on
the appropriate Form determined in accordance with Section 2(f) of this
Agreement with respect to such Shares and use its best efforts to cause such
Registration Statement to become and remain effective for the period specified
in Section 2(f) of this Agreement;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to such Registration Statement and the
prospectus included in such Registration Statement as may be necessary to keep
such Registration Statement effective;
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(c) as expeditiously as possible furnish to the Purchaser and each
underwriter, if any, such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such person may reasonably request
in writing, in order to facilitate the public sale or other disposition of the
Shares owned by the Purchaser; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Shares covered by the Registration Statement under the securities or
Blue Sky laws of such states as the Purchaser shall reasonably request, and do
any and all other acts and things that may be necessary or desirable to enable
the Purchaser to consummate the public sale or other disposition in such states
of the Shares owned by the Purchaser; provided, that, the Company shall not be
required in connection with this Subsection 5(d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
(e) use its best efforts to list the Shares covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) as expeditiously as possible notify the Purchaser and each
underwriter under 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 of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(g) make available for inspection by the Purchaser, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company and all other relevant information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; provided, that, such Purchaser and underwriter enter
into a confidentiality agreement with respect to the records, documents,
properties and other information subject to such inspection.
If the Company has delivered preliminary or final prospectuses to the
Purchaser and after having done so the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall reasonably promptly notify
the Purchaser and, if requested, the Purchaser shall immediately cease making
offers of Shares and return all prospectuses to the Company. The Company shall
reasonably promptly provide the Purchaser with revised prospectuses and,
following receipt of the revised prospectuses, the Purchaser shall be free to
resume making offers of the Shares.
In the event that, in the judgment of the Company, it is advisable to
suspend use of a prospectus included in a Registration Statement due to pending
material developments or other events that have not yet been publicly disclosed
and as to which the Company believes public disclosure would be detrimental to
the Company, the Company shall notify the Purchaser in writing to such effect,
and, upon receipt of such notice, the Purchaser shall immediately
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discontinue any sales of Shares pursuant to such Registration Statement until
the Purchaser has received copies of a supplemented or amended prospectus or
until the Purchaser is advised in writing by the Company that the then current
prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
prospectus; provided, that, that no such suspension may exceed 180 days during
any 24-month period. The Company, as expeditiously as reasonably possible, shall
advise the Purchaser that use of the then current prospectus may be resumed or
deliver copies of a supplemented or amended prospectus.
6. Allocation of Expenses. The Company will pay all Registration Expenses
(as defined below) of any registration under Section 2(a) of this Agreement and
any registration under Section 3 of this Agreement; provided, that, the Company
and the Purchaser will share equally all Registration Expenses of any
registration under Section 2(a) of this Agreement on a Registration Statement
other than an S-3 Registration Statement. For purposes of this Section 6, the
term "Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, state Blue Sky fees and expenses, the expense of any
special audits or other procedures incident to or required by any such
registration, and the reasonable fees and expenses of one counsel to the
Purchaser, but excluding underwriting discounts and selling commissions.
7. Indemnification.
(a) In the event of any registration of any of the Shares under the
Securities Act pursuant to this Agreement, the Company will indemnify and hold
harmless the Purchaser, each underwriter of such Shares, and each other person,
if any, who controls the Purchaser or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which the Purchaser, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in such Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse the Purchaser, underwriter and each such controlling
person for any legal or any other expenses reasonably incurred by the Purchaser,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, that, the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
omission made in such Registration Statement, preliminary prospectus or final
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of the Purchaser, underwriter or controlling person specifically for use
in the preparation thereof.
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(b) In the event of any registration of any of the Shares under the
Securities Act pursuant to this Agreement, the Purchaser 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 losses, claims, damages or liabilities, joint or several, to which
the Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities or Blue
Sky laws or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in such
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to the Purchaser
furnished in writing to the Company by or on behalf of the Purchaser
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; provided, that, the obligations
of the Purchaser hereunder shall be limited to an amount equal to the proceeds
to the Purchaser of Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that, counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7(c). The Indemnified Party may participate in
such defense at such party's reasonable expense; provided, that, the
Indemnifying Party shall pay such reasonable expense if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding; provided, further, that in no event shall the Indemnifying Party be
required to pay the expenses of more than one law firm per jurisdiction as
counsel for the Indemnified Party. No Indemnifying Party, in the defense of any
such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) the
Purchaser, or any controlling person of the Purchaser, makes a claim for
indemnification pursuant to this Section 7 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification
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may not be enforced in such case notwithstanding the fact that this Section 7
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the Purchaser or any such
controlling person in circumstances for which indemnification is provided under
this Section 7; then, in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportions so that the
Purchaser is responsible for the portion represented by the percentage that the
public offering price of its Shares offered by the Registration Statement bears
to the public offering price of all securities offered by such Registration
Statement, and the Company is responsible for the remaining portion; provided,
however, that, in any such case, (A) the Purchaser will not be required to
contribute any amount in excess of the proceeds to it of all Shares sold by it
pursuant to such Registration Statement, and (B) 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 or entity who
is not guilty of such fraudulent misrepresentation.
8. Indemnification with Respect to Underwritten Offering. In the event
that Shares are sold pursuant to a Registration Statement in an underwritten
offering pursuant to Section 2 of this Agreement, the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering.
9. Information by Holder. The Purchaser in including Shares in any
registration shall furnish to the Company such information regarding the
Purchaser and the distribution proposed by the Purchaser as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
10. "Stand-Off" Agreement. If the Purchaser elects to register any of its
Shares in a Registration Statement in accordance with the terms of Section 3(b)
of this Agreement, the Purchaser, if requested by the Company and the managing
underwriter(s) of such an offering, shall agree not to sell publicly or
otherwise transfer or dispose of any Shares or other securities of the Company
held by the Purchaser for a specified period of time (not to exceed 180 days)
following the effective date of such Registration Statement; provided, that all
officers and directors of Company participating in such offering enter into
similar agreements.
11. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Shares to the public without registration, at all times during which
the Company is subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
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(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Shares forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Shares without registration.
12. General.
(a) Notices. All notices, requests, demands, claims, or other
communication under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid, or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery (unless the courier's receipt evidences a later
date), in each case to the intended recipient as set forth below:
To the Company: Copy to:
Peritus Software Services, Inc. Hale and Dorr LLP
Suite 111 60 State Street
112 Turnpike Road Boston, Massachusetts 02109
Westborough, Massachusetts 01581 Attention: Peter B. Tarr, Esq.
Attention: General Counsel
To the Purchaser: Copy to:
Rocket Software, Inc. Lucash, Gesmer & Updegrove, LLP
Two Apple Hill Drive 40 Broad Street
Natick, Massachusetts 01760 Boston, Massachusetts 02109
Attention: Johan Magnusson Attention: Jill Swaim
Either Party may give any notice, request, demand, claim or other
communication under this Agreement using any other means (including, without
limitation, personal delivery, messenger service, telecopy, first class mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it is
actually received by the party for whom it is intended. Either Party may change
the address to which notices, requests, demands, claims, and other
communications under this Agreement are to be delivered by giving the other
Party notice in the manner set forth in this Section 12(a).
(b) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
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(c) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Purchaser. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
(d) Transfer of Rights. This Agreement, and the rights and
obligations of the Purchaser hereunder, may be assigned by the Purchaser to any
person or entity to which Shares are transferred by the Purchaser, and such
transferee (together with the Purchaser and any such other transferees) shall be
deemed to be the "Purchaser" for purposes of this Agreement; provided, that, the
Purchaser and any transferee each provide written notice to the Company (i) of
such assignment and (ii) of the transferee's specific acceptance of the terms
hereof and; provided, further, that the registration rights set forth in
Sections 2 and 3 of this Agreement may only be assigned to a person or entity to
which at least 20% of the Shares originally issued by the Company are
transferred by the Purchaser.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
(f) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
* * * * *
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Executed as of the date first above written.
COMPANY:
PERITUS SOFTWARE SERVICES, INC.
By: _____________________________________
Name: John Giordano
Title: President and
Chief Executive Officer
PURCHASER:
ROCKET SOFTWARE, INC.
By: _____________________________________
Name:
Title:
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