REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated October 29, 1992, as amended and restated as of June 30,
1993 and as of September 6, 1994, among Datalogix International Inc., a New York
corporation (the "Company"), and certain of the holders (the "Series A
Shareholders") of the shares of the Company's Series A Convertible Preferred
Stock, $1.00 par value per share (the "Series A Stock"), certain of the holders
(the "Series B Shareholders") of shares of the Company's Series B Convertible
Preferred Stock, $1.20 par value per share (the "Series B Stock"), certain of
the holders (the "Series C Shareholders") of shares of the Company's Series C
Convertible Preferred Stock, $2.00 par value per share (the "Series C Stock"),
certain of the holders of the Company's Series D Convertible Preferred Stock,
$1.00 par value per share (the "Series D Stock"), certain of the holders (the
"Series E Shareholders") of shares of the Company's Series E Convertible
Preferred Stock, $.10 par value per share (the "Series E Stock"), certain of the
holders (the "Series F Shareholders") of the shares of the Company's Series F
Convertible Preferred Stock, $.10 par value per share ("Series F Stock") and
certain holders of warrants ("Warrantholders") to acquire shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock").
WHEREAS, the Company has granted to the Series A, Series B, Series C,
Series D and Series E Shareholders and the Warrantholders certain rights to
cause the registration under the Securities Act of 1933 (the "Act") of the
shares of the Common Stock, issuable upon conversion of the Series A, Series B,
Series C, Series D and Series E Stock or exercise of warrants; and
WHEREAS, the parties hereto have agreed to modify and amend the
registration rights previously granted to the Series A, Series B, Series C,
Series D and Series E Shareholders and certain of the Warrantholders and to
grant registration rights to the Series F Shareholders and to holders of certain
newly issued warrants.
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged by each party, the parties hereto agree as follows:
As used herein, the term the "Act" refers to the Securities Act of 1933
(and any successor law), and the rules and regulations thereunder, all as
amended from time to time, and the term "Shares" refers to the shares of Common
Stock, the shares of Series A Stock, the shares of Series B Stock, the shares of
Series C Stock, the shares of Series D Stock, the shares of Series E Stock and
the Shares of Series F Stock owned or hereafter acquired by the signatories
hereto or by persons who shall hereafter join as parties hereto (and any other
shares or equity securities distributed on or in respect of or in substitution
for or upon conversion of such Shares), whether or not they have been sold or
transferred, other than any that shall have been sold or transferred pursuant to
an effective registration statement, or pursuant to Rule 144, under the Act.
1. Registration Upon Request. Promptly upon the written request by (i)
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the holders of 25% of the Shares at the time outstanding (measured based upon
the number of Common Stock equivalents) or (ii) either of J.P. Morgan Investment
Corporation ("Morgan") or Oracle Corporation ("Oracle"), made at any time or
from time to time, and, in any event, within 60 days of such request, the
Company shall file a registration statement under the Act covering all Shares
that any holders of Shares desire to register and shall use its best efforts to
cause such registration statement to become effective as soon as practicable.
The Company shall promptly notify any holders of Shares other than those
requesting the registration and afford them the opportunity of including in the
registration such Shares owned by them as they shall specify in a written notice
delivered to the Company within 30 days after their receipt of the Company's
notice of the proposed filing of the registration statement. No other persons
(including the Company) shall be entitled to include any securities in any
registration pursuant to this Paragraph 1 without the consent of a majority in
interest of the participating holders. Subject to the next sentence of this
paragraph, the Company shall not be required to effect more than four
registrations (exclusive of registrations on Form S-3, or a successor form)
pursuant to this Paragraph 1, and shall not be required to effect more than one
registration during any six month period pursuant to this Paragraph 1; provided,
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however, that unless 90% or more of the Shares which the holders thereof seek to
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register pursuant to this paragraph 1 are registered in a particular
registration, such registration shall not be deemed a registration for purposes
of the limitation set forth in this sentence. The Company shall be required to
effect two registrations demanded by Morgan and two registrations demanded by
Oracle of which three may be counted toward the Company's obligation to effect
four registrations under the previous sentence of this paragraph. In addition,
the Company shall not be required to effect any registration pursuant to this
Paragraph 1 until the earlier to occur of (i) the completion by the Company of
at least one public offering of its securities (other than an offering solely to
employees of the Company and its subsidiaries) or (ii) October 1, 1995, provided
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that the proposed offering price of the Shares to be registered is at least
$1,500,000 (or $500,000 in the case of a registration on Form S-3, or a
successor form).
2. Incidental Registration. If the Company at any time proposes to
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register any of its securities under the Act for its own account or the account
of any security-holders (other than any registration pursuant to Paragraph 1 or
any registration of an offering solely to employees of the Company and its
subsidiaries or any registration on Form S-4 or a successor form), it shall
promptly give written notice to each holder of Shares of its intention to do so,
and the Company shall include in such registration all Shares that the holders
thereof shall specify in a written notice delivered to the Company within 30
days after their receipt of the Company's notice of the proposed filing of the
registration statement. However, if the proposed registration is to be
underwritten (whether on a "best efforts" or a "firm commitment" basis), the
managing underwriter shall have the right to limit the Shares to be included in
such registration to not less than 30% of the total number of securities
included therein if the underwriter advises the Company in writing that such
exclusion is necessary to avoid interfering with the successful marketing of the
underwritten portion of the public offering (unless such registration is the
initial public offering of the Company's securities, in which case the
underwriter may limit or exclude the Shares entirely), provided that such
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exclusion applies first to those securities which the Company proposes to
register for the account of any of its officers or employees and then on a
proportional basis to all other securities proposed to be included in any such
registration (including the Shares) other than those for which the Company
initiated such registration and which are being sold by the Company. Any
exclusions of the Shares shall be made pro rata among the affected holders in
proportion to the respective numbers of Shares for which they have requested
registration.
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3. Conditions Relating to Registration of Shares. Registrations of Shares
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pursuant to Paragraph 1 or 2 shall be subject to the following:
(a) Filing of Amendments. The Company shall file such amendments and
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supplements to the registration statement and the related prospectus and take
such other action as may be necessary to keep the registration statement
effective and to comply with the Act for such period, not exceeding six months
from the original effective date of the registration statement, as a majority in
interest of the participating holders of Shares may request.
(b) Blue Sky. The Company shall take such action under the securities
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laws of such states as any participating holder of Shares shall reasonably
request; provided, however, that the Company shall not be required to qualify to
do business as a foreign corporation, or to file any general consent to service
of process, in any state unless the Company is already subject to service in
such jurisdiction and except as may be required by the Act.
(c) Expenses. The Company shall bear the cost of all registrations,
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including, but not limited to, all registration and filing fees, printing
expenses, and fees, expenses and disbursements of counsel and accountants for
the Company (subject, however, to subparagraph (d) below), and reasonable fees
and disbursements of one counsel for selling shareholders, except that each
holder of Shares shall pay the fees and disbursements of any additional counsel
and the underwriting fees and selling commissions applicable to its Shares.
(d) Audits. The Company shall not be required to furnish any audited
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financial statements at the request of any holder of Shares other than those
statements customarily prepared at the end of its fiscal year, unless (i) the
requesting holders shall agree to reimburse the Company for the out-of-pocket
costs incurred by the Company in the preparation of such other audited financial
statements shall be required by the Securities and Exchange Commission as a
condition to ordering a registration statement effective under the Act. The
Company shall, however, furnish without charge copies of all such unaudited
financial statements as any holder of Shares shall reasonably request for use in
any registration.
(e) Indemnification. The Company shall indemnify and hold harmless
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each seller of Shares, each person who under the Act is deemed a controlling
person of such seller, and each underwriter for such seller against any losses,
claims, damages or liabilities to which any such seller, controlling person or
underwriter may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) shall
arise out of or be based upon any untrue or allegedly untrue statement of any
material fact contained in the registration statement, any related prospectus or
preliminary prospectus or any amendment or supplement to the registration
statement or any prospectus or preliminary prospectus or upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, any shall reimburse
any legal or other expenses reasonably incurred by any such seller, controlling
person or underwriter in connection with investigating or defending against any
such loss, claim, damage, liability or action; provided, however, that the
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Company shall not be liable to any such seller, controlling person or
underwriter for any losses, claims, damages, liabilities or actions insofar as
the same shall arise out of or be based upon any such untrue statement or
omission made in reliance upon and in conformity with
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written information furnished by such seller, controlling person or underwriter
seeking indemnification hereunder to the Company for use in the registration
statement, prospectus, preliminary prospectus, amendment or supplement. Each
seller of Shares and each underwriter for such seller shall similarly indemnify
and hold harmless the Company and its controlling persons against any such
losses, claims, damages, liabilities or actions but only insofar as the same
shall arise out of or be based upon any untrue statement or omission made in
reliance upon and in conformity with written information furnished by such
indemnifying person to the Company for use in the registration statement,
prospectus, preliminary prospectus, amendment or supplement; provided that in no
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event shall any indemnity by a seller of Shares or any underwriter for such
Seller exceed the gross proceeds from the offering received by such Seller.
4. Reports Under Securities Exchange Act of 1934. With a view to making
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available to holders of the Shares the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
a holder of Shares to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public,
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Securities and Exchange Act of 1934 (the
"1934 Act"), as is necessary to enable the holders of the Shares to utilize Form
S-3 for the sale of their Shares, such action to be taken as soon as practicable
after the end of the fiscal year in which the first registration statement filed
by the Company for the offering of its securities to the general public is
declared effective,
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any holder of Shares forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of SEC Rule 144 (at any time after 90 days after the effective date
of the first registration statement filed by the Company), the Act and the 1934
Act (at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (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 such holder of any rule or regulation of the SEC which
permits the selling of any such securities of without registration or pursuant
to such form.
5. Form S-3 Registration. In case the Company receives from any holder of
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Shares a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance, with respect to all or a
part of the Shares owned by such holder, the Company will:
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(a) promptly give written notice of the proposed registration, and any
related qualification or compliance to all other holders of Shares;
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such holder's
Shares as are specified in such request, together with all or such portion of
the Shares of any holder or holders joining in such request as are specified in
a written request given within 15 days after receipt of written notice from the
Company as set forth in clause (a) of this Paragraph 5; provided, however, that
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the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Paragraph 5: (1) if Form S-3 is
not available for such offering; (2) if the holders, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Shares and such other securities (if any) at an
aggregate price to the public (net of any underwriters, discounts or commission)
of less than $250,000; or (3) if the Company has, within the twelve-month period
preceding the date of such request, already effected two registrations on Form
S-3 for the holders of Shares pursuant to this Paragraph 5; and
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Shares and other securities so requested to be registered
as soon as practicable after receipt of the request or requests of the holders.
All expenses incurred in connection with up to two registrations requested
pursuant to Paragraph 5, including (without limitation) all registration,
filing, qualification, printer's and accounting fees and the reasonable fees and
disbursements of counsel for the selling holder or holders and counsel for the
Company, shall be borne by the Company, and all other such expenses incurred in
connection with any other registration requested pursuant to this paragraph 5
shall be borne pro rata by the holder or holders participating in such
registration. Registrations effected pursuant to this Paragraph 5 shall not be
counted as demands for registration or registrations effected pursuant to
Paragraph 1.
6. Assignment of Registration Rights. The rights to cause the Company to
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register the Shares may be assigned to a transferee or assignee of such
securities provided the Company is, within a reasonable time after such
transfer, 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
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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.
7. Limitations on Subsequent Registration Rights. From and after the date
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of this Agreement, the Company shall not, without the prior written consent of
the holders of a majority of the Shares, enter into any agreement with any
holder or prospective holder of any securities of the Company which would allow
such holder or prospective holder (a) to include such securities in any
registration filed under Paragraph 1, or (b) to make a demand registration which
could result in such registration statement being declared effective prior to
the earlier of either of the dates set forth in Paragraph 1, or within 120 days
of the effective date of any registration effective pursuant to Paragraph 1.
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8. Amendment of Registration Rights; Additional Parties. Any provision of
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these registration rights may be amended and the observance thereof 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
two-thirds (66 2/3%) of the Shares (measured based upon the number of common
stock equivalents); provided, however, that no amendment which adversely impacts
any holder of Shares in a manner different than all other holders of Shares may
not be made without the written consent of such holder. Any amendment of waiver
affected in accordance with this paragraph shall be binding upon each holder of
Shares at the time outstanding (including securities into which such securities
are convertible), each future holder of all such securities, and the Company.
The Company may permit additional holders of the capital stock of the Company to
become parties hereto upon execution of a joinder agreement; provided that all
such additional parties shall be granted rights hereunder with respect to no
more than 2,000,000 Shares (measured based upon the number of common stock
equivalents).
9. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of New York.
(b) Entire Agreement. This Agreement constitutes the full and entire
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understanding and agreement among the parties with regard to the subject matter
hereof.
(c) Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or delivered either by hand or by messenger, addressed to a
holder of Shares at the address maintained by the Company for such purposes or
as otherwise shall have furnished to the Company in writing.
(d) Titles and Subtitles. The titles of the Paragraphs and
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subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
(e) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, all of which together shall
constitute one instrument.
(f) Facsimile. This Agreement may be executed and thereafter
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transmitted by facsimile and the facsimile receipt shall constitute an original.
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IN WITNESS WHEREOF, we have set our hands as of the date first above
written.
DATALOGIX INTERNATIONAL INC.
By: /s/ R. GIORDANELLA
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VENROCK ASSOCIATES
By: /s/ VENROCK ASSOCIATES
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ABS VENTURES III
LIMITED PARTNERSHIP
By: /s/ ABS VENTURES III LIMITED
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PARTNERSHIP
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IBJ SCHRODER BANKING CORPORATION
By: /s/ PAUL J. ECHAUSSE
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Vice President
IBJS Capital Corporation, beneficial owner via
Plan of Merger
ATLAS VENTURE FUND L.P.
By: Atlas Venture Associates L.P.
as General Partner
By: /s/ ATLAS VENTURE ASSOCIATES, L.P.
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ATLAS PARTICIPATIE II C.V.
By: /s/ MICHIEL A. DE HAAN
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PARIBAS EUROPE INVESTMENT VOF
By:
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PARQUEST VENTURE PARTNERSHIP
By: /s/ PARQUEST VENTURE PARTNERSHIP
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PARVEST EUROPE INVESTMENT CV
By:
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AEXCEL CORPORATION
By: /s/ AEXCEL CORPORATION
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/s/ GERALD F. O'CONNELL
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Gerald F. O'Connell
/s/ EDWARD HEDAYA
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Edward Hedaya
KENNETH ARNOLD ROLLOVER IRA
By:
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Kenneth Arnold
/s/ BARBARA ARNOLD
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Barbara Arnold
/s/ RICHARD GIORDANELLA
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Richard Giordanella
/s/ THOMAS PALLANTE
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Thomas Pallante
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DUNEDIN BERKELEY DEVELOPMENT
CAPITAL LIMITED
By: /s/ KLEINWORT BENSON (JERSEY)
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LIMITED, AS CUSTODIAN
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Manager
SPI BERKELEY DEVELOPMENT
CAPITAL LIMITED
By: /s/ KLEINWORT BENSON (JERSEY)
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LIMITED, AS CUSTODIAN
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Manager
KB BERKELEY JAPAN DEVELOPMENT
CAPITAL LIMITED
By: /s/ KLEINWORT BENSON (JERSEY)
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LIMITED, AS CUSTODIAN
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Manager
SEQUOIA CAPITAL GROWTH FUND
By: /s/ SEQUOIA CAPITAL GROWTH FUND
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General Partner
SEQUOIA TECHNOLOGY PARTNERS III
By: /s/ SEQUOIA TECHNOLOGY
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PARTNERS III
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General Partner
NEW ENTERPRISE ASSOCIATE V,
LIMITED PARTNERSHIP
By: NEA Partners V, Limited Partnership
Its General Partner
By: /s/ NEA PARTNERS V, LIMITED
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PARTNERSHIP
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Jeanne E. Amster
/s/ JUSTIN B. ARNOLD
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Justin B. Arnold
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George Beitzel,
individually and as trustee
BROWN TECHNOLOGY ASSOCIATES
LIMITED PARTNERSHIP
By:
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MAYFIELD VI
By:
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MAYFIELD ASSOCIATES
By:
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MAYFIELD SOFTWARE TECHNOLOGY
PARTNERS
By:
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TECHNOLOGY FUNDING SECURED
INVESTORS III, AN INCOME AND
GROWTH PARTNERSHIP, L.P., A
CALIFORNIA LIMITED PARTNERSHIP
By: Technology Funding Inc.,
Managing General Partner
By:
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Vice President
By:
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Senior Investment Officer
J.P. MORGAN INVESTMENT CORPORATION
By:
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DAVID A. DUFFIELD TRUST
U/A/D 7/14/88
By:
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MARGARET L. TAYLOR
ORACLE CORPORATION, as a holder of
Series F Stock and as a Warrantholder
By: /s/ JEFFREY O. HENLEY
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Registration Rights Agreement - Datalogix International Inc. and Oracle Corp.
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