EXHIBIT 10.27
PERSISTENCE SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
DECEMBER 1, 2003
PERSISTENCE SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "AGREEMENT") is made as of the
1st day of December, 2003, by and among Persistence Software, Inc., a Delaware
corporation (the "COMPANY"), and the individuals and entities listed on the
signature pages hereto (each an "INVESTOR" and collectively the "INVESTORS").
RECITALS
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The Company and the Investors have entered into a Common Stock Purchase
Agreement (the "PURCHASE AGREEMENT") of even date herewith pursuant to which the
Company has agreed to sell to the Investors and the Investors have agreed to
purchase from the Company shares of the Company's Common Stock (the "PURCHASED
SHARES") and warrants (the "INVESTOR Warrants") to purchase shares of the
Company's Common Stock.
All capitalized terms not otherwise defined herein shall have the
meanings ascribed in the Purchase Agreement.
A condition to each Investor's obligations under the Purchase Agreement
is that the Company and the Investors enter into this Agreement in order to
provide the Investor with certain rights to register the Shares (as defined
below). The Company and the Investors each desire to induce the Investors to
purchase the Purchased Shares and the Investor Warrants pursuant to the Purchase
Agreement by agreeing to the terms and conditions set forth herein.
AGREEMENT
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The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investors covenant
and agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1
(terms defined in the singular shall apply to the plural form and vice-versa):
(a) The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
Registration Statement or similar document in compliance with the Securities Act
of 1933, as amended (the "ACT"), and the declaration or ordering of
effectiveness of such Registration Statement or document by the SEC;
(b) The term "REGISTRABLE SECURITIES" means
(i) the shares of Common Stock issued or sold in connection with the Purchase
Agreement and on exercise of the Investor Warrants and the warrant issued to
Security Research Associates, Inc. ("SRA") pursuant to that certain engagement
letter dated November 12, 2003 (collectively with the Investor Warrants, the
"WARRANTS") (such shares of Common Stock are collectively referred to
hereinafter as the "SHARES" or "STOCK"), and (ii) any other shares of Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Stock, PROVIDED, that the foregoing definition shall exclude in all cases any
Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned. Notwithstanding the foregoing, Common
Stock or other securities shall only be treated as Registrable Securities if and
so long as they have not (A) been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (B)
been sold in a transaction exempt from the registration and prospectus delivery
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale or (C) with regard to any individual Holder,
become eligible for sale in any three month period pursuant to Rule 144;
(c) The number of shares of "REGISTRABLE
SECURITIES THEN OUTSTANDING" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities;
(d) The term "HOLDER" means any person
owning or having the right to acquire Registrable Securities or any assignee
thereof in accordance with this Agreement;
(e) The term "FORM S-3" means such form
under the Act as in effect on the date hereof or any successor form under the
Act; and
(f) The term "SEC" means the Securities and
Exchange Commission.
1.2 FORM S-3 REGISTRATION.
(a) REGISTRATION. Subject to the terms and
conditions of this Agreement, on or before the date that is thirty (30) days
after the Closing of the Purchase Agreement (the "FILING DEADLINE"), the Company
will file with the SEC a post-effective amendment (the "POST-EFFECTIVE
AMENDMENT") with regard to the Registration Statement on Form S-3, which is
currently effective (the "REGISTRATION STATEMENT") in order to include the
Shares for registration thereon, and will use its best efforts to keep the
Registration Statement effective, subject to the terms of this Agreement, and
effect any related qualification or compliance with respect to all Registrable
Securities owned by the Holders as soon as practicable thereafter, subject to
the Company's ability to defer filing the Post-Effective Amendment pursuant to
subsection 1.2(b)(ii) below.
(b) MECHANICS. Pursuant to its obligations
under Section 1.2(a) above, the Company will:
(i) promptly give written notice of
the registration, and any related qualification or compliance, to the Investors;
(ii) use its best efforts to
maintain the effectiveness of such registration and all such qualifications and
compliances as may be necessary and as would permit or facilitate the sale and
distribution of all of the Investors' Registrable Securities; provided, however,
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that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.2 if the Company shall
furnish to the Investors a certificate signed by the President of the Company
stating that in the good faith reasonable judgment of the Board of Directors of
the Company (with the concurrence of the managing underwriter, if any), the
filing of the Post-Effective Amendment would adversely affect, or require
premature disclosure of, any filing, financing, acquisition or reorganization
involving the Company, in which event the Company shall have the right to defer
the filing of the Post-Effective Amendment for a reasonable period of time,
which shall not exceed thirty (30) days after the Filing Deadline under this
Section 1.2; and
(iii) any and all expenses incurred
in connection with the Post-Effective Amendment filed pursuant to this Section
1.2 shall be borne by the Company, including all registration, filing,
qualification, printers' and accounting fees but excluding any underwriters'
discounts or commissions or fees and disbursements for counsel to the Investors,
provided however that the Company shall reimburse the Holders for up to $10,000
in fees and disbursements for a single counsel for the Investors.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required
under this Section 1 to effect the registration of any Registrable Securities,
the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC the
Post-Effective Amendment with respect to such Registrable Securities and use its
best efforts to keep the Registration Statement effective until the earlier of:
(i) 18 months after the date that the Post-Effective Amendment is declared
effective by the SEC; (ii) the date when all of the Registrable Securities
covered by the Registration Statement are sold; or (iii) the date when Rule
144(k) is available with respect to all of the securities covered by such
Registration Statement.
(b) Prepare and file with the SEC such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement.
(c) Furnish to the Holders such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(d) Use its best efforts to register and
qualify the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
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(e) Notify each Holder of Registrable
Securities covered by such Registration Statement at any time when a prospectus
relating thereto is required to be delivered under the Act of the happening of
any event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement 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 the light of the circumstances
then existing. In such circumstance, the Company will use reasonable commercial
efforts to promptly update such prospectus to correct such untrue statement or
disclose the necessary material facts within the period of time the Company may
delay sales under Section 1.4(a)(iii) below.
1.4 RESTRICTIONS ON AND PROCEDURE FOR SALES PURSUANT
TO A REGISTRATION STATEMENT.
(a) Each Holder agrees to the following:
(i) NOTICE TO COMPANY. If any
Holder shall propose to sell any Shares, the Holder shall notify the Company of
its intent to do so on or before one (1) business day prior to the date of such
sale (the "NOTICE OF SALE"), and the provision of the Notice of Sale to the
Company shall conclusively be deemed to establish an agreement by such Holder to
comply with the registration provisions herein described. The Notice of Sale
shall be deemed to constitute a representation that any information previously
supplied by such Holder is accurate as of the date of such Notice of Sale.
(ii) NOTICE OF SALE. The Notice of
Sale in substantially the form attached as EXHIBIT A shall be given in
accordance with the provisions of Section 3.5 hereof. However, the Holder may
give the Notice of Sale orally by telephoning the current Chief Financial
Officer at the Company at 650-372-3647. An oral Notice of Sale shall be deemed
to have been received only at such time as the selling Holder speaks directly
with the current Chief Financial Officer. In addition, an oral Notice of Sale
shall only be deemed effective if it is followed by a written Notice of Sale
received by the Company by personal delivery or facsimile within twenty-four
(24) hours after giving the oral Notice of Sale.
(iii) DELAY OF SALE. The Company
may refuse to permit the Holder to resell any Shares for a period of time not to
exceed 30 days; provided, however, that in order to exercise this right, the
Company must deliver a certificate in writing to the Holder to the effect that
the Registration Statement in its then current form contains an untrue statement
of material fact or omits to state a material fact necessary in order to make
the statements made therein, in light of the circumstances under which they were
made, not misleading. During any suspension period as contemplated by this
Section 1.4 (a)(iii), of which there shall be no more than two (2) in any twelve
(12) month period, the Company will not allow any of its officers or directors
to buy or sell shares of the Company's securities.
(b) REPRESENTATIONS OF HOLDERS. Each Holder
hereby represents to and covenants with the Company that, during the period in
which any Registration Statement effected pursuant to Section 1.2 remains
effective, such Holder will:
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(i) not engage in any stabilization
activity in connection with any of the Company's securities;
(ii) cause to be furnished to any
purchaser of the Shares and to the broker-dealer, if any, through whom Shares
may be offered, a copy of the Prospectus; and
(iii) not bid for or purchase any
securities of the Company or any rights to acquire the Company's securities, or
attempt to induce any person to purchase any of the Company's securities or any
rights to acquire the Company's securities, in each case, other than as
permitted under the Exchange Act.
(c) INFORMATION FOR USE IN REGISTRATION
STATEMENT. Each Holder covenants to the Company that such Holder will complete
the information requested by the Selling Holder's Questionnaire attached as
EXHIBIT B hereto (the "QUESTIONNAIRE"), and further covenants to the Company
that all information provided by such Holder in the Questionnaire will be true,
accurate and complete as of the date provided. Each Holder understands that the
written information in the Questionnaire and all written representations made in
this Agreement are being provided to the Company specifically for use in, or in
connection with, the Registration Statement and the Prospectus, and has executed
this Agreement with such knowledge.
1.5 FURNISH INFORMATION. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of any selling Holder that
such Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.6 DELAY OF REGISTRATION. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any dispute that might arise with respect to the
interpretation or implementation of this Section 1.
1.7 INDEMNIFICATION. In the event any Registrable
Securities are included in a Registration Statement under this Section 1:
(a) To the extent permitted by law, the
Company will indemnify and hold harmless each Holder, each Holder's affiliates,
and their respective officers, directors, employees, representatives and agents,
any underwriter (as defined in the Act) for such Holder and each person, if any,
who controls such Holder or underwriter within the meaning of the Act or the
Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
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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,
or (iii) any violation or alleged violation by the Company of the Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Act, the Exchange Act or any state securities law; and the Company
will pay to each such Holder, underwriter or controlling person, as incurred,
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each
selling Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such Registration Statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.7(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.7(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.7(b) exceed the net proceeds from the offering received by such Holder, except
in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified
party under this Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1.7, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the reasonable fees and expenses to be paid by the indemnifying
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party, 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 such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.7.
(d) If the indemnification provided for in
this Section 1.7 is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations; provided, that, in no event shall any contribution by
a Holder under this Subsection 1.7(d) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) The obligations of the Company and
Holders under this Section 1.7 shall survive the completion of any offering of
Registrable Securities in a Registration Statement under this Section 1.
1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.
With a view to making available to the Holders the benefits of Rule 144 and any
other rule or regulation of the SEC that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees, for so long as it remains subject
to the periodic reporting requirements under Section 13 or 15(d) of the Exchange
Act, to:
(a) make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the
Exchange Act; and
(c) furnish to any Holder, so long as the
Holder owns any Registrable Securities, forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
the Exchange Act and the rules and regulations promulgated thereunder, or that
it qualifies as a registrant whose securities may be resold pursuant to Form
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S-3, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing any Holder of any
rule or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
1.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register Registrable Securities pursuant to this Section 1
may be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of at least 100,000 shares of such securities (subject to
adjustment for stock splits, stock dividends, reclassification or the like);
PROVIDED that the Company is furnished with written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration rights are being assigned; and PROVIDED, FURTHER, that such
assignment shall be effective only if the transferee agrees to be bound by this
Agreement and such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act. For the purposes of determining the number
of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who would
not qualify individually for assignment of registration rights shall have a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under Section 1.
2. MISCELLANEOUS.
2.1 SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.2 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
2.3 COUNTERPARTS. This Agreement may be executed in
two counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
2.4 TITLES AND SUBTITLES. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
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2.5 NOTICES. Unless otherwise provided herein, any
notice required or permitted by this Agreement shall be in writing and shall be
deemed duly given upon delivery, when delivered personally or by overnight
courier or confirmed facsimile and addressed to a Holder to be notified at such
party's address as set forth on the signature page hereto or to the Company at
its address on its signature page hereto, or as subsequently modified by written
notice. In the event that any date provided for in this Agreement falls on a
Saturday, Sunday or legal holiday, such date shall be deemed extended to the
next business day. Notwithstanding the foregoing, any notice delivered pursuant
to Section 1.3(e) or Section 1.4 hereto must be made by personal delivery or
confirmed facsimile transmission.
2.6 EXPENSES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
2.7 AMENDMENTS AND WAIVERS. Any term of this
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future Holder of any
such Registrable Securities, and the Company.
2.8 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
2.9 ENTIRE AGREEMENT. This Agreement, and the
Warrant, and the Purchase Agreement all dated as of the date hereof, and the
other documents delivered pursuant hereto or contemplated hereby constitute the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof and thereof and supersede all prior agreements and
understandings among the parties relating to the subject matter hereof.
2.10 ADJUSTMENT TO WARRANT EXERCISE PRICE; LIQUIDATED
DAMAGES. The Company and Investors agree that Investors will suffer damages if
the Company fails to fulfill its obligations pursuant to Section 1 hereof and
that it would not be possible to ascertain the extent of such damages with
precision. Accordingly, (A) if the Post-Effective Amendment is not declared
effective by the SEC on or prior to 120 days after the Filing Deadline, the
Company agrees that the per share Exercise Price of the Warrants shall be
reduced by five percent (5%) from the Exercise Price then in effect as
liquidated damages in connection therewith, PROVIDED HOWEVER that such 120 day
period shall be extended by any period in which the filing of the Post-Effective
Amendment is deferred pursuant to Section 1.2(b)(ii).
[SIGNATURE PAGES FOLLOW]
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The parties have executed this Registration Rights Agreement as of the
date first written above.
COMPANY:
PERSISTENCE SOFTWARE, INC.
By: /S/ Christopher T. Keene
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Title: President and Chief Executive Officer
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
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The parties have executed this Registration Rights Agreement as of the
date first written above.
/s/ Clarion Capital Corporation
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By: Montel A. Cohen, Chairman
/s/ Roy Rogers ttee UTD 9/28/89 FBO Roy &
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Ruth Rogers Unit Trust
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By: Roy L. Rogers, Trustee
/s/ Roy Rogers ttee UTD 1/21/81 FBO The
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Rogers Family Trust
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By: Roy L. Rogers, Trustee
/s/ Gerald S Casilli & Jeanne L Casilli
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ttees UTD 10/15/96 FBO The Casilli
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Revocable Trust
By: Gerald S. Casilli, Trustee
/s/ John Lee
-------------------------
Howard Miller & Barbara Miller ttees UTD
9/30/87 FBO The Miller Trust
/s/ Howard Miller
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Title: Trustee
/s/ Barbara Miller
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Title: Trustee
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EXHIBIT A
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PERSISTENCE SOFTWARE, INC.
NOTICE OF SALE
Pursuant to the Registration Rights Agreement dated as of December 1,
2003 by and between Persistence Software, Inc. (the "COMPANY") and the
undersigned and other entities, the undersigned hereby gives notice to the
Company of the undersigned's intent to sell [_______] shares of the Company's
Common Stock registered pursuant to the Registration Statement on (File
No._____).
Dated: ______________, 200__ By:
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(signature)
Name:
-----------------------------
(print)
Title:
----------------------------
(if applicable)
[NOTE: THIS NOTICE OF SALE MUST BE COMPLETED AND DELIVERED (VIA
PERSONAL DELIVERY OR FACSIMILE) TO THE CHIEF FINANCIAL OFFICER OF THE
COMPANY ON OR BEFORE ONE (1) BUSINESS DAY BEFORE THE DATE OF SALE OF
THE SHARES OF THE COMPANY'S COMMON STOCK REGISTERED PURSUANT TO THE
REGISTRATION STATEMENT.]
EXHIBIT B
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PERSISTENCE SOFTWARE, INC.
SELLING STOCKHOLDER'S QUESTIONNAIRE AND COVENANTS