Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered into
as of May 17, 2001, by and among: CHORDIANT SOFTWARE, INC., a Delaware
corporation ("Purchaser"); and ACTIONPOINT, INC., a Delaware corporation (the
"Company").
RECITALS
A. Purchaser and the Company have entered into an Asset Purchase Agreement
dated as of May 17, 2001 (the "Purchase Agreement"), pursuant to which the
Company will receive shares of common stock of Purchaser. Capitalized terms used
in this Agreement and not otherwise defined shall have the meanings given to
them in the Purchase Agreement.
B. Purchaser has agreed to provide the Company with certain registration
rights as more fully described herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
SECTION 1: REGISTRATION
1.1 Registrable Shares. As used in this Agreement, "Registrable Shares"
means the shares of the Purchaser's common stock (the "Purchaser Common Stock")
issued to the Company pursuant to the Purchase Agreement and any shares of
Purchaser Common Stock issued in respect thereof as a result of any stock split,
stock dividend, share exchange, merger, consolidation or similar
recapitalization; provided, however, that Registrable Shares shall cease to be
Registrable Shares when (i) a registration statement covering such Registrable
Shares shall have become effective under the Securities Act of 1933, as amended
(the "1933 Act"), and all of such Registrable Shares shall have been disposed of
in accordance with the Registration Statement, or (ii) all of such Registrable
Shares may be transferred pursuant to Rule 144 under the 1933 Act, as such rule
may be amended from time to time, or any successor rule or regulation ("Rule
144") in any single calendar quarter. If the Company desires to sell shares
pursuant to Rule 144, the Company shall provide such Rule 144 representation
letters in usual and customary form as may reasonably be requested by
Purchaser's counsel for the purpose providing any customarily required opinion.
1.2 Registration.
(a) Within fifteen (15) business days following the Closing Date,
Purchaser shall prepare and file with the Securities and Exchange Commission
("SEC") a registration statement or such successor form (the "Registration
Statement"), covering the resale of the Registrable Shares. Purchaser shall use
its best efforts to cause the Registration Statement to be declared effective as
soon as practicable after the filing.
(b) The Company shall furnish such information as Purchaser may
reasonably request in connection with the preparation of the Registration
Statement in order to permit Purchaser to comply with all applicable securities
laws and requirements of the SEC. Upon the effectiveness of the Registration
Statement with the SEC, pursuant to the terms of this
1.
Agreement, the Registrable Shares may be sold in accordance with the
Registration Statement under the 1933 Act. Subject to the terms of this
Agreement, Purchaser shall use best efforts to cause the Registration Statement
to remain effective until the earlier of (i) the date on which all Registrable
Shares covered by the Registration Statement have been sold to the public
pursuant to the Registration Statement or (ii) one hundred twenty (120) days
after the effective date of such Registration Statement (the "Registration
Effective Period"); provided, however, that the Registration Effective Period
shall be increased by one day for each day that the Company is required to
discontinue disposition of Registrable Shares pursuant to the provisions of
Section 2.4 and Section 3.2.
1.3 Other Shares. Purchaser may include in the Registration Statement under
this Section 1 any other shares of the Purchaser's common stock (including
issued and outstanding shares of the Purchaser's common stock as to which the
holders thereof have contracted with Purchaser for "piggyback" registration
rights).
SECTION 2: PURCHASER'S OBLIGATIONS
In connection with the Registration Statement referred to in Section 1.2,
Purchaser shall:
2.1 Registration Statement. Prepare and file with the SEC the Registration
Statement with respect to the Registrable Shares and thereafter use best efforts
to cause the Registration Statement to become and remain effective for the
period set forth in Section 1.2.
2.2 Amendments and Supplements. As promptly as practical prepare and file
with the SEC such amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for the period set forth in Section 1.2 and to
comply with the provisions of the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act") and any applicable state securities laws or
regulations with respect to the sale or other disposition of the shares of
Purchaser Common Stock covered by the Registration Statement.
2.3 Copies of Offering Documents. As promptly as practical furnish to the
Company such numbers of copies of the Registration Statement, prospectus, and
any amendments and supplements thereto, in conformity with the requirements of
the 1933 Act, such documents incorporated by reference in the Registration
Statement and such other documents as the Company reasonably requests, in order
to facilitate the public sale or other disposition of the Registrable Shares.
2.4 Misleading Prospectus. Promptly notify the Company in writing, at any
time when a prospectus relating thereto covered by the Registration Statement is
required to be delivered under the 1933 Act, upon the occurrence of an event as
a result of which, in the reasonable judgement of the Board of Directors of
Purchaser acting in good faith after consultation with outside legal counsel to
Purchaser, such Registration Statement or the related prospectus contains or may
contain 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. Immediately
thereafter Purchaser shall use commercially reasonable efforts to prepare and
file with the SEC and furnish to the Company as promptly as possible a
reasonable number of copies of a supplement to or an amendment of such
prospectus
2.
as may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus shall not include an untrue statement of a
material fact or omit 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 under which they are made.
2.5 Rule 144. Use commercially reasonable efforts to file in a timely
manner any reports required to be filed by it under the 1933 Act and the 1934
Act and the rules and regulations promulgated thereunder, and take such further
action as the Company may reasonably request, all from time to time to enable
the Company to sell the Registrable Shares owned by it without registration
under the 1933 Act pursuant to the exemption provided by Rule 144.
2.6 Blue Sky Filings. Use commercially reasonable efforts to register and
qualify the securities covered by the Registration Statement under the Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Company,
provided that Purchaser 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.
2.7 Nasdaq Filing. Use commercially reasonable efforts to cause the
securities covered by the Registration Statement to be included for quotation on
the Nasdaq National Market.
SECTION 3: THE COMPANY'S OBLIGATIONS
In connection with the Registration Statement referred to in Section 1.2,
the Company shall:
3.1 Other Documents and Information. Complete, execute, acknowledge and/or
deliver such questionnaires, custody agreements and other documents,
certificates and instruments as are reasonably required by Purchaser or any
underwriter(s) or are otherwise necessary in connection with the registration
and offering. The Company shall promptly provide to Purchaser such information
concerning it, the Company's ownership of Purchaser's securities, the intended
method of distribution and such other information as may be required by
applicable law or regulation or as may be reasonably requested by Purchaser.
3.2 Cessation of Offering. Upon receipt of any written notice from
Purchaser of the happening of any event of the kind described in Section 2.4,
immediately discontinue disposition of the Registrable Shares pursuant to the
Registration Statement covering such Registrable Shares until the Company's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 2.4, and, if so directed by Purchaser, deliver to Purchaser all copies
of the prospectus covering such Registrable Shares in the Company's possession
at the time of receipt of such notice. Any such cessation of offering pursuant
to this Section 3.2 shall be deemed to be a suspension of Company's rights to
make sales for purposes of Section 4.1 hereof.
3.3 No Preliminary Prospectus. Neither the Company nor any Person acting on
the Company's behalf (other than an underwriter selected by Purchaser or
approved by Purchaser) shall offer any Registrable Shares by means of any
preliminary prospectus.
3.
SECTION 4: LIMITATIONS
4.1 Other Transactions. Notwithstanding anything to the contrary contained
in Section 2.4 or elsewhere in this Agreement, if, in the reasonable judgment of
the Board of Directors of Purchaser acting in good faith after consultation with
outside legal counsel to Purchaser, (a) one or more confidential events occur or
circumstances exist that would (absent disclosure) result in a registration
statement of Purchaser containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, (b) sales of the Registrable Securities would result in a
material adverse effect on any plan or proposal by Purchaser with respect to any
material transaction, or (c) sales of the Registrable Securities would render
Purchaser unable to comply with applicable securities law or SEC requirements or
regulations, Purchaser shall not be obligated to file a registration statement
or any amendment or supplement thereto, and Purchaser may suspend the Company's
rights to make sales pursuant to an effective registration pursuant to Section
1, for a period of not more than 30 consecutive days, provided that in any given
37 day-period, there shall be at least 7 consecutive days during which time
Purchaser has not suspended the Company's rights to make such sales; provided,
further, that Purchaser shall not utilize the right described in this Section
4.1 more than in the aggregate 60 days in any 12-month period.
SECTION 5: EXPENSES AND INDEMNIFICATION
5.1 Certain Fees and Commissions. Purchaser shall pay its own general legal
and accounting fees, "blue sky" expenses and all printing fees in connection
with the Registration Statement. The Company shall pay any fees and costs of its
counsel and all underwriting discounts, commissions and expenses of underwriters
or brokers incurred in connection with the offering and sale of the Registrable
Shares.
5.2 Other Expenses. Purchaser shall pay all registration and filing fees
attributable to the Registrable Shares and the listing fee payable to the Nasdaq
National Market.
5.3 Indemnification. In the event any Registrable Shares are included in a
registration statement under Section 1:
(a) Indemnification by Purchaser. To the extent permitted by law,
Purchaser will indemnify and hold harmless the Company, the Company's officer,
directors, stockholders, successors and assigns, any underwriter (as defined in
the 1933 Act) for the Company (if selected by Purchaser or approved by
Purchaser), and each person, if any, who controls the Company or underwriter
within the meaning of the 1933 Act or the 1934 Act, against any losses, claims,
damages, liabilities or actions (joint or several) to which they may become
subject under the 1933 Act, the 1934 Act or other federal or state law or common
law, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, including
any preliminary prospectus (not prohibited by Section 3.3) or final prospectus
contained therein or any amendments or supplements 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
the context in which made, not misleading; and Purchaser will reimburse as
incurred the Company, the Company's successors and assigns, underwriter (if
selected by Purchaser or approved by Purchaser) or controlling person for 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,
4.
that the indemnification and other rights provided for in this Section 5.3(a)
shall not apply (i) to any such loss, claim, damage, liability, or action
insofar as it arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, preliminary prospectus or final prospectus or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by the Company
or (ii) if the person asserting any such loss, claim, damage, liability or
action who purchased the Registrable Shares which are the subject thereof did
not receive a copy of the final prospectus as amended or supplemented at or
prior to the written confirmation of the sale of such Registrable Shares to such
person because of the failure of the Company or underwriter to so provide, if
required by law so to have been delivered, such amended preliminary or final
prospectus and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such preliminary prospectus was
corrected in the final prospectus as amended and supplemented. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company, its underwriter or its controlling person and shall
survive the transfer of the Registrable Shares by the Company. Notwithstanding
the foregoing, the indemnity agreement contained in this Section 5.3(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
Purchaser (which consent shall not be unreasonably withheld), and in no event
shall the Purchaser be liable pursuant to this Section 5.3(a) for an amount in
excess of the net proceeds received by the Company from the sale of Registrable
Shares pursuant to the Registration Statement.
(b) Indemnification by the Company. To the extent permitted by law,
the Company will indemnify and hold harmless Purchaser, its successors and
assigns, its officers, directors, stockholders, any underwriter (as defined in
the 1933 Act) with respect to the Registrable Shares, and each person, if any,
who controls Purchaser or any such underwriter within the meaning of the 1933
Act or the 1934 Act, against any losses, claims, damages, liabilities or actions
(joint or several) to which they may become subject under the 1933 Act, the 1934
Act or other federal or state law or common law, arising out of or based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements 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 the context in which made, not misleading; provided that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished by the
Company or its Representatives expressly for use in such registration by the
Company, or (ii) the failure of the Company or any underwriter with respect to
the Registrable Shares held by the Company at or prior to the written
confirmation of the sale of the Registrable Shares held by the Company, if so
required by law so to have been delivered, to send or arrange delivery of a copy
of the final prospectus as amended or supplemented to the person asserting any
such loss, claim, damage, liability or action who purchased the Registrable
Shares which is the subject thereof and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact made in such
preliminary prospectus was corrected in the final prospectus as amended and
supplemented. The Company will reimburse Purchaser, its successors and assigns,
officers and directors and any such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action. Such
5.
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Purchaser or any such officer, director, underwriter or
controlling person and shall survive the transfer of the Registrable Shares by
the Company. Notwithstanding the foregoing, the indemnity agreement contained in
this Section 5.3(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 Company (which consent shall not be unreasonably withheld),
and in no event shall the Company be liable pursuant to this Section 5.3(b) for
an amount in excess of the net proceeds received by the Company from the sale of
Registrable Shares pursuant to the Registration Statement.
(c) Indemnification Procedures. Promptly after receipt by a person who
may be entitled to indemnification under this Section 5.3 (an "indemnified
party") of notice of the commencement of any action (including any governmental
action) for which indemnification may be available under this Section 5.3, such
indemnified party will, if a claim in respect thereof is to be made against any
person who must provide indemnification under this Section 5.3 (an "indemnifying
party"), 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 notified, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel (and the
reasonable fees of such counsel shall be paid by the indemnifying party) and
assume its own defense if (i) the retention of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party has failed to promptly assume the defense and employ
experienced counsel reasonably acceptable to the indemnified party after the
indemnifying party has received the notice of the indemnification matter from
the indemnified party, or (iii) the named parties to any such action include
both the indemnified party and the indemnifying party, and the representation of
both parties by the same counsel would be inappropriate due to a conflict of
interest between them. It is understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
indemnified parties unless the indemnified parties in good faith conclude and
are advised by their counsel that there is an actual or potential conflict of
interest among the indemnified parties. No indemnification provided for in
Section 5.3(a) or Section 5.3(b) shall be available to any party who shall fail
to give notice as provided in this Section 5.3(c) to the extent that the party
to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such
notice. Each indemnified party shall furnish such information regarding itself
or the claim in question as an indemnifying party may reasonably request in
writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) To the extent that the indemnification provided for in Section
5.3(a) and (b) 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 herein, 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 which resulted in such loss,
liability, claim, damage or expense, as well as any other
6.
relevant equitable considerations. The relative fault of the indemnifying party
on the one hand 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 omission or alleged omission to state a material fact related
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.
SECTION 6: OTHER PROVISIONS
6.1 Attorneys' Fees. If any Legal Proceeding relating to this Agreement or
the enforcement of any provision of this Agreement is brought against any party
hereto, the prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
6.2 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered by hand, or (b)
two business days after sent by registered mail, by courier or express delivery
service or by facsimile to the address or facsimile telephone number set forth
in Section 6.4 of the Purchase Agreement (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other parties hereto).
6.3 Headings. The bold-faced headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.4 Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
6.5 Governing Law; Venue. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
California (without giving effect to principles of conflicts of laws). In any
action between any of the parties arising out of or relating to this Agreement
or any of the transactions contemplated by this Agreement: (a) each of the
parties irrevocably and unconditionally consents to and submits to the exclusive
jurisdiction and venue of the state and federal courts located in Santa Clara
County, California; (b) if any such action is commenced in a state court, then,
subject to applicable law, no party shall object to the removal of such action
to any federal court located in the Northern District of California; and (c)
each of the parties irrevocably consents to service of process by first class
certified mail, return receipt requested, postage prepaid, to the address at
which such party is to receive notice in accordance with Section 6.4 of the
Purchase Agreement.
6.6 Successors and Assigns. This Agreement shall be binding upon each of
the parties hereto and each of their respective permitted successors and
assigns, if any. The Company may not assign its rights under this Agreement
without the express prior written consent of the Purchaser. Nothing in this
Agreement is intended to confer, or shall be deemed to confer, any rights or
remedies upon any person or entity other than the parties hereto and their
permitted
7.
successors and assigns. This Agreement shall inure to the benefit of: the
Company; the Purchaser; and the respective successors and assigns, if any, of
the foregoing.
6.7 Waiver. No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
6.8 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto.
6.9 Severability. In the event that any provision of this Agreement, or the
application of any such provision to any Person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
6.10 Parties in Interest. Except for the provisions of Section 5.3, none of
the provisions of this Agreement is intended to provide any rights or remedies
to any Person other than the parties hereto and their respective successors and
assigns, if any.
6.11 Entire Agreement. This Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
6.12 Waiver of Jury Trial. Each of the parties hereto hereby irrevocably
waives any and all right to trial by jury in any Legal Proceeding arising out of
or related to this Agreement or the transactions contemplated hereby.
6.13 Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include the
masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
8.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
9.
The parties hereto have caused this Agreement to be executed and delivered
as of the date first written above.
CHORDIANT SOFTWARE, INC.
By:
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Name:
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Title:
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ACTIONPOINT, INC.
By:
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Name:
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Title:
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10.