{"id":43811,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/investor-rights-agreement-accrue-software-inc-and-marketwave.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"investor-rights-agreement-accrue-software-inc-and-marketwave","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/investor-rights-agreement-accrue-software-inc-and-marketwave.html","title":{"rendered":"Investor Rights Agreement &#8211; Accrue Software Inc. and Marketwave Corp. Holders"},"content":{"rendered":"<pre>                              ACCRUE SOFTWARE, INC.\n\n\n\n                            INVESTOR RIGHTS AGREEMENT\n\n\n\n                               SEPTEMBER 30, 1999\n\n\n\n\n\n\n\n\n                                TABLE OF CONTENTS\n\n                                                                                          Page\n                                                                                          ----     \n                                                                                    \n1.      Amendment..........................................................................1\n        1.1  Procedure.....................................................................1\n        1.2  Rights of Holders.............................................................2\n\n2.      Registration Rights................................................................2\n        2.1  Definitions...................................................................2\n        2.2  Requested Registration........................................................3\n        2.3  Company Registration..........................................................4\n        2.4  Obligations of the Company....................................................4\n        2.5  Furnish Information...........................................................6\n        2.6  Expenses of Demand Registration...............................................6\n        2.7  Expenses of Company Registration..............................................6\n        2.8  Underwriting Requirements.....................................................6\n        2.9  No Delay of Registration......................................................7\n        2.10 Indemnification...............................................................7\n        2.11 Reports Under Securities Exchange Act of 1934.................................9\n        2.12 Form S-3 Registration........................................................10\n        2.13 Assignment of Registration Rights............................................11\n        2.14 Termination of Registration Rights...........................................12\n\n3.      Miscellaneous.....................................................................12\n        3.1  Assignment...................................................................12\n        3.2  Third Parties................................................................12\n        3.3  Governing Law................................................................12\n        3.4  Counterparts.................................................................12\n        3.5  Notices......................................................................12\n        3.6  Severability.................................................................13\n        3.7  Delays or Omissions..........................................................13\n        3.8  Consent and Waiver...........................................................13\n        3.9  Legal Representation.........................................................14\n        3.10 Assumed Option Holders.......................................................13\n\n\n\n\n\n\n                            INVESTOR RIGHTS AGREEMENT\n\n        THIS INVESTOR RIGHTS AGREEMENT (this 'Agreement') is entered into as of\nSeptember 30, 1999, by and among Accrue Software, Inc., a Delaware corporation\n(the 'Company'), and the Marketwave Holders (as defined below).\n\n                                    RECITALS\n\n        A. The Company, Marketwave Corporation, a Washington corporation\n('Marketwave'), and Marketwave Acquisition Corp., a Washington corporation and a\nwholly owned subsidiary of the Company ('Merger Sub'), have entered into an\nAgreement and Plan of Merger and Reorganization dated as of September 14, 1999\n(the 'Merger Agreement') providing for the merger of Merger Sub with and into\nMarketwave (the 'Merger') and the Merger Agreement contemplates that, upon\nconsummation of the Merger, (i) holders of shares of the capital stock of\nMarketwave (collectively with all holders of Assumed Options that become a party\nto this Agreement pursuant to Section 3.10, the 'Marketwave Holders') will\nreceive shares of common stock of the Company ('Common Stock') in exchange for\ntheir shares of capital stock of Marketwave and (ii) Marketwave will become a\nwholly owned subsidiary of the Company;\n\n        B. The execution of this Agreement by the Company is a condition to the\nobligation of Marketwave and the Marketwave Holders to consummate the\ntransactions contemplated by the Merger Agreement; and\n\n        C. The Company wishes to execute this Agreement and grant to the\nMarketwave Holders the rights contained herein in order to fulfill such\ncondition.\n\n        THE PARTIES AGREE AS FOLLOWS:\n\n        1. Amendment.\n\n            1.1 Procedure. Except as expressly provided herein, neither this\nAgreement nor any term hereof may be amended, waived, discharged or terminated\nother than by a written instrument signed by the party against whom enforcement\nof any such amendment, waiver, discharge or termination is sought.\nNotwithstanding the foregoing, any provision of this Agreement may be amended,\nwaived, discharged or terminated upon the written consent of the Company and the\nholders of at least a majority of the outstanding Registrable Securities (as\ndefined below); provided, however, that no such amendment shall be effective\nwith respect to any Holder if such amendment materially adversely affects any of\nthe rights granted pursuant to this Agreement to such Holder (the 'Uniquely\nAffected Holder') in a manner different from the manner in which such amendment\naffects all other Holders, unless such amendment is consented to in writing by\nthe Uniquely Affected Holder. If such Holder does not so consent, then the\namendment shall be effective as to all Holders other than the Uniquely Affected\nHolder.\n\n\n\n            1.2 Rights of Holders. Each Holder (as defined below) shall have the\nabsolute right to exercise or refrain from exercising any right or rights that\nsuch Holder may have by reason of this Agreement, including, without limitation,\nthe right to consent to the waiver or modification of any obligation under this\nAgreement, and such Holder shall not incur any liability to any other Holder of\nany securities of the Company as a result of exercising or refraining from\nexercising any such right or rights.\n\n        2. Registration Rights.\n\n            2.1 Definitions. As used in this Agreement:\n\n                (a) The terms 'register,' 'registered,' and 'registration' refer\nto a registration effected by preparing and filing a registration statement in\ncompliance with the Securities Act of 1933, as amended (the 'Securities Act'),\nand the subsequent declaration or ordering of the effectiveness of such\nregistration statement.\n\n                (b) The term 'Registrable Securities' means:\n\n                    (i) The shares of Common Stock issued or issuable to the\nMarketwave Holders pursuant to the terms of the Merger Agreement; provided,\nhowever, that the Registrable Securities shall not include the Holdback Shares\n(as defined in the Merger Agreement) until and unless such shares are released\nfrom the Escrow Agreement (as defined in the Merger Agreement) and provided\nfurther that the Registrable Securities shall not include shares of Common Stock\nissued to Marketwave Holders upon the exercise of Assumed Options if such shares\nare registered under a registration statement on Form S-8 (the shares of Common\nStock referred to in this clause (i) are collectively referred to hereafter as\nthe 'Stock'); and\n\n                    (ii) Any other shares of Common Stock issued as (or issuable\nupon the conversion or exercise of any warrant, right or other security which is\nissued as) a dividend or other distribution with respect to, or in exchange for\nor in replacement of, the Stock, excluding in all cases, however, any\nRegistrable Securities sold by a person in a transaction in which his or her\nrights under this Agreement are not assigned; provided, however, that Common\nStock or other securities shall only be treated as Registrable Securities if and\nso long as they have not been (A) sold to or through a broker or dealer or\nunderwriter in a public distribution or a public securities transaction, or (B)\nsold in a transaction exempt from the registration and prospectus delivery\nrequirements of the Securities Act under Section 4(1) thereof so that all\ntransfer restrictions, and restrictive legends with respect thereto, if any, are\nremoved upon the consummation of such sale.\n\n                (c) The number of shares of 'Registrable Securities then\noutstanding' shall be determined by the number of shares of Common Stock or\nother securities outstanding which are, and the number of shares of Common Stock\nor other securities issuable pursuant to then exercisable or convertible\nsecurities which are, Registrable Securities.\n\n                (d) The term 'Holder' means any holder of outstanding\nRegistrable Securities who, subject to the limitations set forth in Section 2.13\nbelow, acquired such \n\n\n                                      -2-\n\n\nRegistrable Securities in a transaction or series of transactions not involving\nany registered public offering.\n\n                (e) The term 'Form S-3' means such form under the Securities Act\nas in effect on the date hereof or any registration form under the Securities\nAct subsequently adopted by the Securities and Exchange Commission (the 'SEC')\nwhich permits inclusion or incorporation of substantial information by reference\nto other documents filed by the Company with the SEC.\n\n            2.2 Requested Registration.\n\n                (a) If, at any time after December 1, 1999, the Company shall\nreceive a written request from any Holder that the Company file a registration\nstatement under the Securities Act covering the registration of that number of\nshares of Registrable Securities whose anticipated aggregate offering price, net\nof underwriting discounts and commissions, would equal at least $10,000,000,\nthen the Company shall, within ten (10) days of the receipt thereof, give\nwritten notice of such request to all Holders and shall, subject to the\nlimitations of subsection 2.2(b), effect as soon as practicable, and in any\nevent within ninety (90) days of the receipt of such request, or, with respect\nto any request received by the Company between December 1, 1999 and December 15,\n1999, on or prior to February 1, 2000, the registration under the Securities Act\nof all Registrable Securities which the Holders request to be registered within\ntwenty (20) days of the mailing of such notice by the Company in accordance with\nSection 3.5.\n\n                (b) If the Holder or Holders initiating the registration request\nhereunder ('Initiating Holders') intend to distribute the Registrable Securities\ncovered by their request by means of an underwriting, they shall so advise the\nCompany as a part of their request made pursuant to this Section 2.2 and the\nCompany shall include such information in the written notice referred to in\nsubsection 2.2(a). The underwriter will be selected by the Company and shall be\nreasonably acceptable to a majority in interest of the Initiating Holders. In\nsuch event, the right of any Holder to include his Registrable Securities in\nsuch registration shall be conditioned upon such Holder's participation in such\nunderwriting and the inclusion of such Holder's Registrable Securities in the\nunderwriting (unless otherwise mutually agreed by a majority in interest of the\nInitiating Holders and such Holder) to the extent provided herein. All Holders\nproposing to distribute their securities through such underwriting shall\n(together with the Company as provided in subsection 2.4(e)) enter into an\nunderwriting agreement in customary form with the underwriter or underwriters\nselected for such underwriting by a majority in interest of the Initiating\nHolders. Notwithstanding any other provision of this Section 2.2, if the\nunderwriter advises the Initiating Holders in writing that marketing factors\nrequire a limitation of the number of shares to be underwritten, then the\nInitiating Holders shall so advise all Holders of Registrable Securities which\nwould otherwise be underwritten pursuant hereto, and the number of shares of\nRegistrable Securities that may be included in the underwriting shall be\nallocated among all Holders thereof, including the Initiating Holders, in\nproportion (as nearly as practicable) to the amount of Registrable Securities of\nthe Company owned by each Holder; provided, however, that the number of shares\nof Registrable Securities to be included in such \n\n\n                                      -3-\n\n\nunderwriting shall not be reduced unless all other securities proposed to be\nsold by persons other than the Holders are first entirely excluded from the\nunderwriting.\n\n                (c) The Company is obligated to effect only two (2) such\nregistrations pursuant to this Section 2.2.\n\n                (d) Notwithstanding the foregoing, if the Company shall furnish\nto Holders requesting a registration statement pursuant to this Section 2.2 a\ncertificate signed by the President of the Company stating that in the good\nfaith judgment of the Board of Directors of the Company it would be seriously\ndetrimental to the Company and its stockholders for such registration statement\nto be filed and it is therefore essential to defer the filing of such\nregistration statement, the Company shall have the right to defer such filing\nfor a period of not more than ninety (90) days after receipt of the request of\nthe Initiating Holders; provided, however, that the Company may not utilize this\nright more than once in any twelve month period.\n\n            2.3 Company Registration. If (but without any obligation to do so)\nthe Company proposes to register (including for this purpose a registration\neffected by the Company for stockholders other than the Holders) any of its\nCommon Stock or other securities under the Securities Act in connection with the\npublic offering of such securities solely for cash (other than a registration\nrelating either to the sale of securities to participants in a Company stock\noption, stock purchase or similar plan or to an SEC Rule 145 transaction, or a\nregistration on any form which does not include substantially similar\ninformation as would be required to be included in a registration statement\ncovering the sale of the Registrable Securities), the Company shall, at such\ntime, promptly give each Holder written notice of such registration. Upon the\nwritten request of each Holder given within fifteen (15) days from receipt of\nsuch notice by the Company in accordance with Section 3.5, the Company shall,\nsubject to the provisions of Section 2.8, cause to be registered under the\nSecurities Act all of the Registrable Securities that each such Holder has\nrequested to be registered.\n\n            2.4 Obligations of the Company. Whenever required under this Section\n2 to effect the registration of any Registrable Securities, the Company shall,\nas expeditiously as reasonably possible:\n\n                (a) Prepare and file with the SEC a registration statement with\nrespect to such Registrable Securities and use its best efforts to cause such\nregistration statement to become effective, and keep such registration statement\neffective for one hundred twenty (120) days, or until the distribution\ncontemplated in the Registration Statement has been completed; provided,\nhowever, that (i) such 120-day period shall be extended for a period of time\nequal to the period the Holder refrains from selling any securities included in\nsuch registration at the request of an underwriter of Common Stock (or other\nsecurities) of the Company; and (ii) in the case of any registration of\nRegistrable Securities on Form S-3 which are intended to be offered on a\ncontinuous or delayed basis, such 120-day period shall be extended, if\nnecessary, to keep the registration statement effective until all such\nRegistrable Securities are sold, provided that Rule 415, or any successor rule\nunder the Securities Act, permits an offering on a continuous or delayed basis,\nand provided further that applicable rules under the Securities Act governing\n the\n\n\n                                      -4-\n\n\nobligation to file a post-effective amendment permit, in lieu of filing a\npost-effective amendment which (i) includes any prospectus required by Section\n10(a)(3) of the Securities Act or (ii) reflects facts or events representing a\nmaterial or fundamental change in the information set forth in the registration\nstatement, the incorporation by reference of information required to be included\nin (i) and (ii) above to be contained in periodic reports filed pursuant to\nSection 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the\n'1934 Act'), in the registration statement.\n\n                (b) Prepare and file with the SEC such amendments and\nsupplements to such registration statement and the prospectus used in connection\nwith such registration statement as may be necessary to comply with the\nprovisions of the Securities Act with respect to the disposition of all\nsecurities covered by such registration statement.\n\n                (c) Furnish to the Holders such reasonable numbers of copies of\na prospectus, including a preliminary prospectus, in conformity with the\nrequirements of the Securities Act, and such other documents as they may\nreasonably request in order to facilitate the disposition of Registrable\nSecurities owned by them.\n\n                (d) Use its best efforts to register and qualify the securities\ncovered by such registration statement under such other securities or Blue Sky\nlaws of such jurisdictions as shall be reasonably requested by the Holders,\nprovided that the Company shall not be required in connection therewith or as a\ncondition thereto to qualify to do business or to file a general consent to\nservice of process in any such states or jurisdictions.\n\n                (e) In the event of any underwritten public offering, enter into\nand perform its obligations under an underwriting agreement, in usual and\ncustomary form, with the managing underwriter of such offering. Each Holder\nparticipating in such underwriting shall also enter into and perform its\nobligations under such an agreement.\n\n                (f) Notify each Holder of Registrable Securities covered by such\nregistration statement at any time when a prospectus relating thereto is\nrequired to be delivered under the Securities Act of the happening of any event\nas a result of which the prospectus included in such registration statement, as\nthen in effect, includes an untrue statement of a material fact or omits to\nstate a material fact required to be stated therein or necessary to make the\nstatements therein not misleading in the light of the circumstances then\nexisting.\n\n                (g) Furnish, at the request of any Holder requesting\nregistration of Registrable Securities pursuant to this Section 2, on the date\nthat such Registrable Securities are delivered to the underwriters for sale in\nconnection with a registration pursuant to this Section 2, if such securities\nare being sold through underwriters, or, if such securities are not being sold\nthrough underwriters, on the date that the registration statement with respect\nto such securities becomes effective, (i) an opinion, dated such date, of the\ncounsel representing the Company for the purposes of such registration, in form\nand substance as is customarily given to underwriters in an underwritten public\noffering, addressed to the underwriters, if any, and to the Holders requesting\nregistration of Registrable Securities and (ii) a letter dated such date, from\nthe independent public accountants of the Company, in form and substance as is\ncustomarily given \n\n\n                                      -5-\n\n\nby independent certified public accountants to underwriters in an underwritten\npublic offering, addressed to the underwriters, if any, and to the Holders\nrequesting registration of Registrable Securities.\n\n                (h) Cause all such Registrable Securities registered pursuant\nhereunder to be listed on each securities exchange or automated quotation system\non which similar securities issued by the Company are then listed.\n\n            2.5 Furnish Information. It shall be a condition precedent to the\nobligations of the Company to take any action pursuant to this Section 2 with\nrespect to the Registrable Securities of any selling Holder that such Holder\nshall furnish to the Company such information regarding itself, the Registrable\nSecurities held by it, and the intended method of disposition of such securities\nas shall be required to effect the registration of such Holder's Registrable\nSecurities.\n\n            2.6 Expenses of Demand Registration. All expenses other than stock\ntransfer taxes, the fees and disbursements of special counsel for individual\nHolders, underwriting discounts and commissions incurred in connection with\nregistrations, filings or qualifications pursuant to Section 2.2, including\n(without limitation), all registration, filing and qualification fees, printers\nand accounting fees, fees and disbursements of counsel for the Company, and the\nreasonable fees and disbursements of one counsel for the selling Holders (not to\nexceed $15,000) shall be borne by the Company; provided, however, that the\nCompany shall not be required to pay for any expenses of any registration\nproceeding begun pursuant to Section 2.2 if the registration request is\nsubsequently withdrawn at the request of the Holders of a majority of the\nRegistrable Securities to be registered (in which case all Participating Holders\nshall bear such expenses), unless the Holders of a majority of the Registrable\nSecurities agree to forfeit their right to one demand registration pursuant to\nSection 2.2; provided further, however, that if at the time of such withdrawal,\nthe Holders have learned of a material adverse change in the condition,\nbusiness, or prospects of the Company from that known to the Holders at the time\nof their request, then the Holders shall not be required to pay any of such\nexpenses and shall retain their rights pursuant to Section 2.2.\n\n            2.7 Expenses of Company Registration. All expenses, other than stock\ntransfer taxes, the fees and disbursements of special counsel of individual\nHolders, underwriting discounts and commissions incurred in connection with\nregistrations, filings or qualifications pursuant to Section 2.3, including\n(without limitation), all registration, filing and qualification fees, printers\nand accounting fees, fees and disbursements of counsel for the Company, and the\nreasonable fees and disbursements of one special counsel for all of the\nparticipating Holders (not to exceed $15,000) shall be paid by the Company.\n\n            2.8 Underwriting Requirements. In connection with any offering\ninvolving an underwriting of shares being issued by the Company, the Company\nshall not be required under Section 2.3 to include any of the Holders'\nsecurities in such underwriting unless they accept the terms of the underwriting\nas agreed upon between the Company and the underwriters selected by it, and then\nonly in such quantity as will not, in the opinion of the underwriters, adversely\naffect the success of the offering by the Company. If the total amount of\nsecurities, \n\n\n                                      -6-\n\n\nincluding Registrable Securities, requested by Holders to be included in such\noffering exceeds the amount of securities sold other than by the Company that\nthe underwriters reasonably believe would not adversely affect the success of\nthe offering, then the Company shall be required to include in the offering only\nthat number of such securities, including Registrable Securities, which the\nunderwriters believe will not adversely affect the success of the offering (the\nsecurities so included to be apportioned first to the Company, then pro rata\namong the selling Holders and the selling holders participating in such\nregistration pursuant to the terms of the Second Amended and Restated\nRegistration Rights Agreement dated as of August 13, 1998 (the 'Existing Rights\nAgreement') among the Company and the parties listed on the signature pages\nthereto according to the total amount of Registrable Securities (including\nRegistrable Securities as defined in the Existing Rights Agreement) entitled to\nbe included therein owned by each selling Holder and then to all other selling\nstockholders, or in such other proportions as shall mutually be agreed to by\nsuch selling stockholders); it being understood that with respect to any\noffering, no exclusion may reduce the total number of Registrable Securities\nplus Registrable Securities under the Existing Rights Agreement to less than\ntwenty-five percent (25%) of the total number of securities subject to the\nregistration. For purposes of the first parenthetical in the preceding sentence\nconcerning apportionment, for any selling stockholder which is a holder of\nRegistrable Securities and which is a partnership or corporation, the partners,\nretired partners and stockholders of such holder, or the estates and family\nmembers of any such partners and retired partners and any trusts for the benefit\nof any of the foregoing persons shall be deemed to be a single 'selling\nstockholder,' and any pro rata reduction with respect to such 'selling\nstockholder' shall be based upon the aggregate amount of shares carrying\nregistration rights owned by all entities and individuals included in such\n'selling stockholder,' as defined in this sentence.\n\n            2.9 No Delay of Registration. No Holder shall have any right to\nobtain or seek an injunction restraining or otherwise delaying any such\nregistration as the result of any controversy that might arise with respect to\nthe interpretation or implementation of this Section 2.\n\n            2.10 Indemnification. In the event any Registrable Securities are\nincluded in a registration statement under this Section 2:\n\n                (a) To the extent permitted by law, the Company will indemnify\nand hold harmless each Holder, any underwriter (as defined in the Securities\nAct) for such Holder and each person, if any, who controls such Holder or\nunderwriter within the meaning of the Securities Act or the 1934 Act, against\nany losses, claims, damages, or liabilities (joint or several) to which they may\nbecome subject under the Securities Act, the 1934 Act or other federal or state\nlaw, insofar as such losses, claims, damages, or liabilities (or actions in\nrespect thereof) arise out of or are based upon any of the following statements,\nomissions or violations (collectively a 'Violation'): (i) any untrue statement\nor alleged untrue statement of a material fact contained in such registration\nstatement, including any preliminary prospectus or final prospectus contained\ntherein or any amendments or supplements thereto, (ii) the omission or alleged\nomission to state therein a material fact required to be stated therein, or\nnecessary to make the statements therein not misleading, or (iii) any violation\nor alleged violation by the Company of the Securities Act, the 1934 Act, any\nstate securities law or any rule or regulation \n\n\n                                      -7-\n\n\npromulgated under the Securities Act, the 1934 Act or any state securities law;\nand the Company will pay, as incurred, to each such Holder, underwriter or\ncontrolling person, any legal or other expenses reasonably incurred by them in\nconnection with defending any such loss, claim, damage, liability, or action;\nprovided, however, that the indemnity agreement contained in this subsection\n2.10(a) shall not apply to amounts paid in settlement of any such loss, claim,\ndamage, liability, or action if such settlement is effected without the consent\nof the Company (such consent not to be unreasonably withheld), nor shall the\nCompany be liable in any such case for any such loss, claim, damage, liability,\nor action to the extent that it arises out of or is based upon a Violation which\noccurs in reliance upon and in conformity with written information furnished\nexpressly for use in connection with such registration by any such Holder,\nunderwriter or controlling person.\n\n                (b) To the extent permitted by law, each selling Holder will\nindemnify and hold harmless the Company, each of its directors, each of its\nofficers who has signed the registration statement, each person, if any, who\ncontrols the Company within the meaning of the Securities Act, any underwriter,\nany other Holder selling securities in such registration statement and any\ncontrolling person of any such underwriter or other Holder, against any losses,\nclaims, damages, or liabilities (joint or several) to which any of the foregoing\npersons may become subject, under the Securities Act, the 1934 Act or other\nfederal or state law, insofar as such losses, claims, damages, or liabilities\n(or actions in respect thereto) arise out of or are based upon any Violation, in\neach case to the extent (and only to the extent) that such Violation occurs in\nreliance upon and in conformity with written information furnished by such\nHolder expressly for use in connection with such registration; and each such\nHolder will pay, as incurred, any legal or other expenses reasonably incurred by\nany person intended to be indemnified pursuant to this subsection 2.10(b) in\nconnection with defending any such loss, claim, damage, liability, or action;\nprovided, however, that the indemnity agreement contained in this subsection\n2.10(b) shall not apply to amounts paid in settlement of any such loss, claim,\ndamage, liability or action if such settlement is effected without the consent\nof the Holder (such consent not to be unreasonably withheld); provided further,\nthat in no event shall any indemnity under this Section 2.10(b) exceed the net\nproceeds from the offering received by such Holder, except in the case of\nwillful fraud by such Holder.\n\n                (c) Promptly after receipt by an indemnified party under this\nSection 2.10 of notice of the commencement of any action (including any\ngovernmental action), such indemnified party will, if a claim in respect thereof\nis to be made against any indemnifying party under this Section 2.10, deliver to\nthe indemnifying party a written notice of the commencement thereof and the\nindemnifying party shall have the right to participate in, and, to the extent\nthe indemnifying party so desires, jointly with any other indemnifying party\nsimilarly noticed, to assume the defense thereof with counsel mutually\nsatisfactory to the parties; provided, however, that an indemnified party shall\nhave the right to retain its own counsel, with the fees and expenses to be paid\nby the indemnifying party, if representation of such indemnified party by the\ncounsel retained by the indemnifying party would be inappropriate due to actual\nor potential differing interests between such indemnified party and any other\nparty represented by such counsel in such proceeding. The failure to deliver\nwritten notice to the indemnifying party within a reasonable time of the\ncommencement of any such action, if prejudicial to its ability to \n\n\n                                      -8-\n\n\ndefend such action, shall relieve such indemnifying party of any liability to\nthe indemnified party under this Section 2.10 (to the extent of such prejudicial\neffect), but the omission so to deliver written notice to the indemnifying party\nwill not relieve it of any liability that it may have to any indemnified party\notherwise than under this Section 2.10.\n\n                (d) No indemnifying party, in the defense of any claim arising\nout of a Violation, shall, except with the consent of each indemnified party,\nconsent to entry of any judgment or enter into any settlement which does not\ninclude as an unconditional term thereof the giving by the claimant or plaintiff\nto such indemnified party of a release from all liability in respect to such\nclaim or litigation and, in the event the terms of such judgment or settlement\ninclude any term other than the payment by the indemnifying party of money\ndamages, the indemnifying party shall not so consent or enter into such a\nsettlement without the consent of each indemnified party (which will not be\nunreasonably withheld) whether or not the terms thereof include such a release.\n\n                (e) The obligations of the Company and Holders under this\nSection 2.10 shall survive the completion of any offering of Registrable\nSecurities in a registration statement under this Section 2, and otherwise.\n\n                (f) Notwithstanding the foregoing, to the extent that the\nprovisions on indemnification and contribution contained in the underwriting\nagreement entered into in connection with the underwritten public offering are\nin conflict with the foregoing provisions, the provisions in the underwriting\nagreement shall control.\n\n            2.11 Reports Under Securities Exchange Act of 1934. With a view to\nmaking available to the Holders the benefits of Rule 144 promulgated under the\nSecurities Act and any other rule or regulation of the SEC that may at any time\npermit a Holder to sell securities of the Company to the public without\nregistration or pursuant to a registration on Form S-3, the Company agrees to:\n\n                (a) Make and keep public information available, as those terms\nare understood and defined in SEC Rule 144, at all times after ninety (90) days\nafter the effective date of the first registration statement filed by the\nCompany for the offering of its securities to the public;\n\n                (b) take such action, including the voluntary registration of\nits Common Stock under Section 12 of the 1934 Act, as is necessary to enable the\nHolders to utilize Form S-3 for the sale of their Registrable Securities, such\naction to be taken as soon as practicable after the end of the fiscal year in\nwhich the first registration statement filed by the Company for the offering of\nits securities to the general public is declared effective;\n\n                (c) File with the SEC in a timely manner all reports and other\ndocuments required of the Company under the Securities Act and the 1934 Act; and\n\n                (d) Furnish to any Holder, so long as the Holder owns any\nRegistrable Securities, forthwith upon request (i) a written statement by the\nCompany that it has complied \n\n\n                                      -9-\n\n\nwith the reporting requirements of SEC Rule 144 (at any time after ninety (90)\ndays after the effective date of the first registration statement filed by the\nCompany), the Securities Act and the 1934 Act (at any time after it has become\nsubject to such reporting requirements), or that it qualifies as a registrant\nwhose securities may be resold pursuant to Form S-3 (at any time after it so\nqualifies), (ii) a copy of the most recent annual or quarterly report of the\nCompany and such other reports and documents so filed by the Company, and (iii)\nsuch other information as may be reasonably requested in availing any Holder of\nany rule or regulation of the SEC which permits the selling of any such\nsecurities without registration.\n\n            2.12 Form S-3 Registration. In case the Company shall receive from\nany Holder or Holders (the 'S-3 Initiating Holders') a written request or\nrequests that the Company effect a registration on Form S-3 and any related\nqualification or compliance with respect to all or a part of the Registrable\nSecurities owned by such Holder or Holders, the Company will:\n\n                (a) promptly give written notice of the proposed registration,\nand any related qualification or compliance, to all other Holders; and\n\n                (b) as soon as practicable, effect such registration and all\nsuch qualifications and compliances as may be so requested and as would permit\nor facilitate the sale and distribution of all or such portion of such Holder's\nor Holders' Registrable Securities as are specified in such request, together\nwith all or such portion of the Registrable Securities of any other Holder or\nHolders joining in such request as are specified in a written request given\nwithin fifteen (15) days after receipt of such written notice from the Company;\nprovided, however, that the Company shall not be obligated to effect any such\nregistration, qualification or compliance pursuant to this Section 2.12 (1) if\nForm S-3 is not available for such offering by the Holders; (2) if the Holders,\ntogether with the holders of any other securities of the Company entitled to\ninclusion in such registration, propose to sell Registrable Securities and such\nother securities (if any) at an aggregate price to the public (net of any\nunderwriters' discounts or commissions) of less than $1,500,000; (3) if the\nCompany shall furnish to the Holders a certificate signed by the President of\nthe Company stating that in the good faith judgment of the Board of Directors of\nthe Company it would be seriously detrimental to the Company and its\nstockholders for such Form S-3 Registration to be effected at such time, in\nwhich event the Company shall have the right to defer the filing of the Form S-3\nregistration statement for a period of not more than sixty (60) days after\nreceipt of the request of the Holder or Holders under this Section 2.12;\nprovided, however, that the Company shall not utilize this right more than once\nin any twelve month period; (4) at any time during the twelve (12) month period\nfollowing the Company's July 30, 1999 initial public offering; (5) if the\nCompany has, within the twelve (12) month period preceding the date of such\nrequest, already effected one registration on Form S-3 for the Holders pursuant\nto this Section 2.12; or (6) in any particular jurisdiction in which the Company\nwould be required to qualify to do business or to execute a general consent to\nservice of process in effecting such registration, qualification or compliance.\nNotwithstanding any other provision of this Section 2.12, if the Company or an\nunderwriter advising the Company advises the S-3 Initiating Holders in writing\nthat marketing factors require a limitation of the number of shares to be\nincluded in any registration on Form S-3, then the S-3 Initiating Holders shall\nso advise all Holders of Registrable Securities which would otherwise be\nincluded in such registration on \n\n\n                                      -10-\n\n\nForm S-3 hereunder, and the number of shares of Registrable Securities that may\nbe included in the registration shall be allocated among all Holders thereof,\nincluding the S-3 Initiating Holders, in proportion (as nearly as practicable)\nto the amount of Registrable Securities of the Company owned by each Holder;\nprovided, however, that the number of shares of Registrable Securities to be\nincluded in such registration shall not be reduced unless all other securities\nproposed to be sold by persons other than the Holders are first entirely\nexcluded from the registration.\n\n                (c) Subject to the foregoing, the Company shall file a\nregistration statement covering the Registrable Securities and other securities\nso requested to be registered as soon as practicable after receipt of the\nrequest or requests of the Holders. All expenses other than stock transfer\ntaxes, the fees and disbursements of special counsel for individual Holders,\nunderwriting discounts and commissions incurred in connection with a\nregistration requested pursuant to Section 2.12, including (without limitation)\nall registration, filing, qualification, printer's and accounting fees and the\nreasonable fees and disbursements of counsel for the selling Holder or Holders\n(not to exceed $15,000) and counsel for the Company, shall be borne by the\nCompany; provided, however, that the Company shall not be required to pay for\nany expenses of any registration proceeding begun pursuant to this Section 2.12\nif the registration request is subsequently withdrawn at the request of the\nHolders of a majority of the Registrable Securities to be registered (in which\ncase all Participating Holders shall bear such expenses); provided further,\nhowever, that if at the time of such withdrawal, the Holders have learned of a\nmaterial adverse change in the condition, business, or prospects of the Company\nfrom that known to the Holders at the time of their request, then the Holders\nshall not be required to pay any of such expenses and shall retain their rights\npursuant to this Section 2.12. Registrations effected pursuant to this Section\n2.12 shall not be counted as demands for registration or registrations effected\npursuant to Section 2.2 or 2.3.\n\n                (d) The Company is obligated to effect only five (5) such\nregistrations on Form S-3 pursuant to this Section 2.12.\n\n            2.13 Assignment of Registration Rights. The rights to cause the\nCompany to register Registrable Securities pursuant to this Section 2 may only\nbe assigned by a Holder to a transferee who acquires at least 250,000 shares of\nRegistrable Securities (subject to appropriate adjustment for any stock split,\nreverse stock split, stock dividend, recapitalization or similar transaction),\nprovided the Company is, prior to such transfer, furnished with written notice\nof the name and address of such transferee; and provided, further, that such\nassignment shall be effective only if immediately following such transfer the\nfurther disposition of such securities by the transferee or assignee is\nrestricted under the Securities Act. The foregoing 250,000 share requirement\nshall not apply, however, to any transferee which is a partner, retired partner\nor affiliated or constituent partnership of any Holder which is a partnership,\n(including spouses and ancestors, lineal descendants and siblings of such\npartners or spouses who acquire Registrable Securities by gift, will or\nintestate succession) or which is a family member (including a spouse, ancestor,\nlineal descendant or sibling) or a trust for the benefit of any individual\nHolder, if all such transferees or assignees agree in writing to be bound by the\nterms of this Agreement and appoint a single representative as their attorney in\nfact for the purpose of receiving any notices and exercising their rights under\nthis Section 2.\n\n\n                                      -11-\n\n\n            2.14 Termination of Registration Rights. No Holder shall be entitled\nto exercise any right provided for in this Agreement (a) after August 4, 2004 or\n(b) at such time as such Holder may sell all of such Holder's Registrable\nSecurities in any single three (3) month period pursuant to Rule 144 (or such\nsuccessor rule as may be adopted).\n\n        3. Miscellaneous.\n\n            3.1 Assignment. Subject to the provisions of Section 2.13 hereof,\nthe terms and conditions of this Agreement shall inure to the benefit of and be\nbinding upon the respective successors and assigns of the parties hereto.\n\n            3.2 Third Parties. Nothing in this Agreement, express or implied, is\nintended to confer upon any party, other than the parties hereto, and their\nrespective successors and assigns, any rights, remedies, obligations or\nliabilities under this Agreement, except as expressly provided herein.\n\n            3.3 Governing Law. This Agreement shall be governed by and construed\nunder the laws of the State of California as applied to agreements among\nCalifornia residents entered into and to be performed entirely within\nCalifornia.\n\n            3.4 Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n            3.5 Notices.\n\n                (a) All notices, requests, demands and other communications\nunder this Agreement or in connection herewith shall be given to or made upon\nthe respective parties as follows:\n\n        To the Company:      Accrue Software, Inc.\n                             48634 Milmont Drive\n                             Fremont, CA  94538\n\n                             Telephone:  (408) 542-8900\n                             Telecopy:  (408) 541-1874\n                             Attention:  President\n\n\n                                      -12-\n\n\n                             with a copy (not constituting notice) to:\n\n                             Venture Law Group\n                             A Professional Corporation\n                             2800 Sand Hill Road\n                             Menlo Park, CA  94025\n                             Telephone:  (650) 854-4488\n                             Telecopy:  (650) 233-8386\n                             Attention:  John V. Bautista\n\n        To a Holder:         At such Holder's address as set forth on the \n                             signature page hereto.\n\n                (b) All notices, requests, demands and other communications\ngiven or made in accordance with the provisions of this Agreement shall be in\nwriting, and shall be sent by airmail, return receipt requested, or by telex or\ntelecopy (facsimile) with confirmation of receipt, and shall be deemed to be\ngiven or made when receipt is so confirmed.\n\n                (c) Any party may, by written notice (in accordance with this\nSection 3.5) to the other, alter its address or respondent.\n\n            3.6 Severability. If one or more provisions of this Agreement are\nheld to be unenforceable under applicable law, portions of such provisions, or\nsuch provisions in their entirety, to the extent necessary, shall be severed\nfrom this Agreement, and the balance of this Agreement shall be enforceable in\naccordance with its terms.\n\n            3.7 Delays or Omissions. No delay or omission to exercise any right,\npower or remedy accruing to any party to this Agreement, upon any breach or\ndefault of the other party, shall impair any such right, power or remedy of such\nnon-breaching party nor shall it be construed to be a waiver of any such breach\nor default, or an acquiescence therein, or of or in any similar breach or\ndefault thereafter occurring; nor shall any waiver of any single breach or\ndefault be deemed a waiver of any other breach or default theretofore or\nthereafter occurring. Any waiver, permit, consent or approval of any kind or\ncharacter on the part of any party of any breach or default under this\nAgreement, or any waiver on the part of any party of any provisions or\nconditions of this Agreement, must be made in writing and shall be effective\nonly to the extent specifically set forth in such writing. All remedies, either\nunder this Agreement or by law or otherwise afforded to any Holder, shall be\ncumulative and not alternative.\n\n            3.8 Consent and Waiver. In connection with the issuance and sale of\nthe shares of Common Stock by the Company to the shareholders of Marketwave\npursuant to the terms of the Merger Agreement, the Existing Rights Holders,\nseverally, hereby consent to amend the Prior Rights Agreement in the manner set\nforth herein.\n\n            3.9 Legal Representation. The Company and the Holders acknowledge\nthat: (a) they have read this Agreement; (b) they have been represented in the\npreparation, negotiation, and execution of this Agreement by legal counsel of\ntheir own choice or have voluntarily \n\n\n                                      -13-\n\n\ndeclined to seek such counsel; and (c) they understand the terms and\nconsequences of this Agreement and are fully aware of its legal and binding\neffect.\n\n            3.10 Assumed Option Holders. Any holder of an Assumed Option that\nexercises such option on or prior to the date of a request for registration of\nRegistrable Securities held by the Marketwave Holders (the 'Request Date')\npursuant to Section 2.2 (the 'Marketwave Demand Registration') may elect by\ndelivering a written notice to the Company within thirty (30) days after the\nRequest Date to become a party to this Agreement by execution of a counterpart\nsignature page hereto and to include shares of Common Stock issued upon exercise\nof such Assumed Option in the Marketwave Demand Registration and,\nnotwithstanding anything to the contrary in Section 1 of this Agreement, each\nHolder hereby consents to the inclusion of such holders of Assumed Options as\nparties to this Agreement, provided, however, that, notwithstanding the\nforegoing, the right of holders to include shares of Common Stock issued upon\nexercise of Assumed Options in the Marketwave Demand Registration shall\nterminate once such shares are registered by the Company pursuant to the filing\nof a registration statement on Form S-8.\n\n                            [SIGNATURE PAGES FOLLOW]\n\n\n\n                                      -14-\n\n\n\n               IN WITNESS WHEREOF, the parties have executed this Investor\nRights Agreement as of the date first written above.\n\n\n\n\n\nACCRUE SOFTWARE, INC.                       MARKETWAVE HOLDERS:                 \n\nBy:                                         Name:                               \n   -------------------------------------         -------------------------------\n\nTitle:                                      Title:                              \n      ----------------------------------          ------------------------------\n                                            Address:\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9630,9629],"class_list":["post-43811","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-securities__invest","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43811","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43811"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43811"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43811"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43811"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}