**Exhibit 10.26**

 

 

**AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT**

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**By and Between**

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**Segue Software, Inc.**

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**and**

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**The Investors**

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**as defined herein**

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**Dated as of October 21, 2003**

 

 

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**AMENDEDAND RESTATED REGISTRATION RIGHTS AGREEMENT**

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THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”)is dated as of October 21, 2003, by and among Segue Software, Inc., aDelaware corporation (the “Company”), S-7 Associates, LLC (the “Series BInvestor”) and Dr. Howard L. Morgan (the “Additional Investor” and together withthe Series B Investor, the “Investors”).

 

WHEREAS, the Company and the Series B Investor enteredinto a registration rights agreement (the “Original Agreement”), dated as ofMarch 22, 2002, in connection with the Series B Investor’s purchase of666,667 shares of Series B Preferred Stock of the Company for an aggregatepurchase price of $2,000,000;

 

WHEREAS, the parties to this Agreement aresimultaneously entering into a certain Series C Stock Purchase Agreement, datedas of the date hereof (the “Purchase Agreement”), whereby the Investors haveagreed to purchase securities from the Company for an aggregate purchase priceof $500,001;

 

WHEREAS, the Company and the Series B Investor desireto amend and restate the Original Agreement in connection with the transactionscontemplated by the Purchase Agreement; and

 

WHEREAS, the execution of this Agreement is acondition precedent to the purchase by the Investors of the securities underthe Purchase Agreement;

 

NOW, THEREFORE, in consideration of the premises, asan inducement to the Investors to consummate the transactions contemplated bythe Purchase Agreement, and for other good and valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, the Company and theSeries B Investor hereby amend and restate the Original Agreement in itsentirety and the Investors and the Company agree with each other as follows:

 

1.**                                       CertainDefinitions.**

 

As used in this Agreement, the following terms shallhave the following respective meanings:

 

“Commission” means the United States Securitiesand Exchange Commission, or any other federal agency administering theSecurities Act and the Exchange Act at the time.

 

“Common Stock” means the Common Stock and anyother common equity securities issued by the Company, and any other shares ofstock issued or issuable with respect thereto (whether by way of a stockdividend or stock split or in exchange for or upon conversion of such shares orotherwise in connection with a combination of shares, recapitalization, merger,consolidation or other corporate reorganization).

 

“Exchange Act” means the Securities ExchangeAct of 1934, as amended, or any similar successor federal statute, and therules and regulations of the Commission thereunder, all as the same shall be ineffect at the time.

 

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“Person” means an individual, a corporation, apartnership, a joint venture, a trust, an unincorporated organization, alimited liability company or partnership, a government and any agency orpolitical subdivision thereof.

 

“RegistrableSecurities” means (i) any shares of Common Stock issued or issuable uponconversion of the Company’s Series C Preferred Stock or Series B PreferredStock, and (ii) any other securities issued and issuable with respect to theshares described in clause (i) above by way of a stock dividend or stock splitor in connection with a combination of shares, recapitalization, merger,consolidation or other reorganization; provided, that any such shares shallcease to be Registrable Securities when (i) such Registrable Securitieshave been disposed of by the holder thereof pursuant to an effectiveregistration statement under the Securities Act, (ii) such RegistrableSecurities are transferred by the holder thereof to any Person pursuant toRule 144 (or any successor rule or similar provision then in effect) underthe Securities Act, including a sale pursuant to the provisions of Rule 144(k),or (iii) such Securities shall have ceased to be outstanding.

 

“Securities Act” means the Securities Act of1933, as amended, or any similar successor federal statute, and the rules andregulations of the Commission thereunder, all as the same shall be in effect atthe time.

 

All other capitalized terms not defined herein shallhave the meaning set forth in the Purchase Agreement unless otherwiseindicated.

 

2.                                       **Demand Registration on Form S-3.**

 

## (a)                                  Atany time after the date hereof and prior to the fifth anniversary of the datehereof, the holders of at least fifty percent (50%) of the RegistrableSecurities may notify the Company that they intend to offer or cause to beoffered for public sale all or any portion of their Registrable Securities inthe manner specified in such request. Upon receipt of such request, the Company shall promptly deliver noticeof such request to all holders of Registrable Securities, who shall then havethirty (30) days to notify the Company in writing of their desire to beincluded in such registration.  If therequest for registration contemplates an underwritten public offering, theCompany shall state such in the written notice and in such event the right ofany Person to participate in such registration shall be conditioned upon suchPerson’s participation in such underwritten public offering and the inclusionof such Person’s Registrable Securities in the underwritten public offering tothe extent provided herein.  The Companywill use its reasonable efforts to effect the registration on Form S-3 (or acomparable successor form) of all Registrable Securities whose holders requestparticipation in such registration under the Securities Act, but only to theextent provided for in this Agreement. The Company shall not be required to effect registration pursuant to arequest under this Section 2 more than one time.  Notwithstanding anything to the contrary contained herein, theCompany shall not be obligated to file a registration statement under thisSection 2:  (a) if Form S-3 is notthen available for the proposed offering; (b) within ninety (90) days after theeffective date of a registration statement filed by the Company covering a firmcommitment underwritten public offering in which the holders of RegistrableSecurities shall have been entitled to join pursuant to Section 4; or (c)during a Suspension Period (as defined in Section 8(a)).  A registration will not count as a

 

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requested registration under this section 2(a) unless and untilthe registration statement relating to such registration has been declaredeffective by the Commission.

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## (b)                                 Ifa requested registration involves an underwritten public offering and themanaging underwriter of such offering determines in good faith that the numberof securities sought to be offered should be limited due to market conditions,then the number of securities to be included in such underwritten publicoffering shall be reduced to a number deemed satisfactory by such managingunderwriter; provided, that the shares to be excluded shall be determined inthe following order of priority:  (i)persons not having any contractual or other right to include such securities inthe registration statement, (ii) securities held by any other Persons (otherthan the holders of Registrable Securities) having a contractual, incidental“piggy back” right to include such securities in the registration statement,(iii) securities to be registered by the Company pursuant to such registrationstatement, (iv) Registrable Securities of holders who did not make the originalrequest for registration and, if necessary, (v) Registrable Securities ofholders who requested such registration pursuant to Section 2(a).  If there is a reduction of the number ofRegistrable Securities pursuant to clauses (iv) or (v), such reduction shall bemade on a pro rata basis (based upon the aggregate number of RegistrableSecurities held by such holders).

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## (c)                                  Withrespect to a request for registration pursuant to Section 2(a) which isfor an underwritten public offering, the managing underwriter shall be chosenby the holders of a majority of the Registrable Securities to be sold in suchoffering (which approval will not be unreasonably withheld or delayed).  The Company may not cause any otherregistration of securities for sale for its own account (other than aregistration effected solely to implement an employee benefit plan or atransaction to which Rule 145 of the Securities Act is applicable) to becomeeffective within ninety (90) days following the effective date of anyregistration required pursuant to this Section 2.

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3.                                       **Piggyback Registration.**

 

If the Company at any time proposes to register any ofits securities under the Securities Act for sale to the public (except withrespect to registration statements on Forms S-4, S-8 or another form notavailable for registering the Registrable Securities for sale to the public),each such time it will give written notice at the applicable address of recordto each holder of Registrable Securities of its intention to do so.  Upon the written request of any of suchholders, given within twenty (20) days after receipt by such Person of suchnotice, the Company will, subject to the limits contained in thisSection 3, use its reasonable efforts to cause all such RegistrableSecurities of said requesting holders to be registered under the Securities Actand qualified for sale under any state blue sky law, all to the extent requiredto permit such sale or other disposition of said Registrable Securities;provided, however, that if the Company is advised in writing by any managingunderwriter of the Company’s securities being offered in a public offeringpursuant to such registration statement that the amount to be sold by personsother than the Company (collectively, “Selling Stockholders”) is greater thanthe amount which can be offered without adversely affecting the offering, theCompany may reduce the amount offered for the accounts of Selling Stockholders(including such holders of Registrable Securities) to a number deemedsatisfactory by such managing underwriter; and provided further, that anyshares to be excluded shall be determined in the following order ofpriority:  (i)

 

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securities held by any Persons not having any such contractual,incidental registration rights, (ii) securities held by any Persons havingcontractual, incidental registration rights pursuant to an agreement which isnot this Agreement and (iii) the Registrable Securities sought to beincluded by the holders thereof as determined on a pro rata basis (based uponthe aggregate number of Registrable Securities held by such holders).

 

4.                                       **Registration Procedures.**

 

If and whenever the Company is required by theprovisions of this Agreement to use its reasonable efforts to promptly effectthe registration of any of its securities under the Securities Act, the Companywill:

 

## (a)                                  useits reasonable efforts to prepare and file with the Commission a registrationstatement on the appropriate form under the Securities Act with respect to suchsecurities, which form shall comply as to form in all material respects withthe requirements of the applicable form and include all financial statementsrequired by the Commission to be filed therewith, and use its reasonableefforts to cause such registration statement to become and remain effective for90 days or until the completion of the proposed offering, whichever is earlier;provided, that such 90-day period shall be extended for a period of time equalto the period the selling holders refrain from selling Registrable Securitiespursuant to Section 8.

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## (b)                                 useits reasonable best efforts to prepare and file with the Commission suchamendments and supplements to such registration statement and the prospectusused in connection therewith as may be necessary to keep such registrationstatement effective for the period as specified in Section 4(b) and tocomply with the provisions of the Securities Act with respect to the sale orother disposition of all securities covered by such registration statementwhenever the seller or sellers of such securities shall desire to sell orotherwise dispose of the same, but only to the extent provided in thisAgreement;

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## (c)                                  furnishto each selling holder and the underwriters, if any, such number of copies ofsuch registration statement, any amendments thereto, any documents incorporatedby reference therein, the prospectus, including a preliminary prospectus, inconformity with the requirements of the Securities Act, and such otherdocuments as such selling holder may reasonably request in order to facilitatethe public sale or other disposition of the securities owned by such sellingholder;

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## (d)                                 useits reasonable efforts to register or qualify the securities covered by suchregistration statement under such other securities or state blue sky laws ofsuch jurisdictions as each selling holder shall request, and to do any and allother acts and things which may be necessary under such securities or blue skylaws to enable such selling holder to consummate the public sale or otherdisposition in such jurisdictions of the securities owned by such sellingholder, except that the Company shall not for any such purpose be required toqualify to do business as a foreign corporation in any jurisdiction wherein itis not so qualified;

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## (e)                                  withina reasonable time before the filing of the registration statement or prospectusor amendments or supplements thereto with the Commission, furnish to counselselected by the holders of Registrable Securities copies of such documentsproposed to be filed;

 

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## (f)                                    promptlynotify each selling holder of Registrable Securities, such selling holder’scounsel and any underwriter of the happening of any event which makes anystatement made in the registration statement or related prospectus untrue orwhich requires the making of any changes in such registration statement orprospectus so that they will not contain any untrue statement of a materialfact or omit to state any material fact required to be stated therein ornecessary to make the statements therein in the light of the circumstancesunder which they were made not misleading; and, subject to Section 8, aspromptly as practicable thereafter, prepare and file with the Commission andfurnish a supplement or amendment to such prospectus so that, as thereafterdeliverable to the purchasers of such Registrable Securities, such prospectuswill not contain any untrue statement of a material fact or omit to state amaterial fact necessary to make the statements therein, in the light of thecircumstances under which they were made, not misleading;

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## (g)                                 useits reasonable efforts to prevent the issuance of any order suspending theeffectiveness of the registration statement, and if one is issued use itsreasonable efforts to obtain the withdrawal of any such order;

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## (h)                                 ifrequested by the managing underwriter or underwriters (if any), any sellingholder, or such selling holder’s counsel, promptly incorporate in a prospectussupplement or post-effective amendment such information as such Person requeststo be included therein with respect to the securities being sold by suchselling holder to such underwriter or underwriters, the purchase price beingpaid therefor by such underwriter or underwriters and with respect to any otherterms of an underwritten offering of the securities to be sold in suchoffering, and promptly make all required filings of such prospectus supplementor post-effective amendment;

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## (i)                                     makeavailable to each selling holder, any underwriter participating in anydisposition pursuant to a registration statement, and any attorney, accountantor other agent or representative retained by any such selling holder orunderwriter (collectively, the “Inspectors”), all financial and other records,pertinent corporate documents and properties of the Company, as shall bereasonably necessary to enable them to exercise their due diligenceresponsibility, and cause the Company’s officers, directors and employees tosupply all information reasonably requested by any such Inspector in connectionwith such registration statement;

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## (j)                                     enterinto any reasonable underwriting agreement required by the proposedunderwriter(s) for the selling holders, if any;

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## (k)                                  causethe securities covered by such registration statement to be listed on thesecurities exchange or quoted on the quotation system on which the Common Stockof the Company is then listed or quoted; and

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## (l)                                     duringthe period when the prospectus is required to be delivered under the SecuritiesAct, file all documents required to be filed with the Commission pursuant toSections 13(a), 13(c), 14, or 15(d) of the Exchange Act.

 

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5.                                       **Expenses.**

 

All expenses incurred by the Company or the holders ofRegistrable Securities in effecting the registrations provided for in Sections2 and 3, including, without limitation, all registration and filing fees,printing expenses, fees and disbursements of counsel for the Company, and onecounsel for the holders participating in such registration as a group (selectedby a majority in interest of the holders of Registrable Securities whoparticipate in the registration), underwriting expenses (other than fees,commissions or discounts), expenses of any audits incident to or required byany such registration and expenses of complying with the securities or blue skylaws of any jurisdictions (all of such expenses referred to as “RegistrationExpenses”), shall be paid by the Company.

 

6.                                       **Indemnification.**

 

## (a)                                  TheCompany shall indemnify and hold harmless each selling holder of RegistrableSecurities, each underwriter (as defined in the Securities Act), and directors,officers, employees and agents of any of them, and each other Person whoparticipates in the offering of such securities and each other Person, if any,who controls (within the meaning of the Securities Act) such seller,underwriter or participating Person (individually and collectively, the“Indemnified Person”) against any losses, claims, damages, expenses orliabilities (collectively, the “liability”), joint or several, to which suchIndemnified Person may become subject under the Securities Act or any otherstatute or at common law, insofar as such liability (or action in respectthereof) arises out of or is based upon (i) any untrue statement or allegeduntrue statement of any material fact contained, on the effective date thereof,in any registration statement under which such securities were registered underthe Securities Act, any preliminary prospectus or final prospectus containedtherein, or any amendment or supplement thereto, or (ii) any omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein not misleading, or (iii) anyviolation by the Company of the Securities Act, any state securities or “bluesky” laws or any sale or regulation thereunder in connection with suchregistration.  Except as otherwiseprovided in Section 6(d), the Company shall reimburse each suchIndemnified Person in connection with investigating or defending any suchliability; provided, however, that the Company shall not beliable to any Indemnified Person in any such case to the extent that any suchliability arises out of or is based upon any untrue statement or alleged untruestatement or omission or alleged omission made in such registration statement,preliminary or final prospectus, or amendment or supplement thereto in relianceupon and in conformity with information furnished in writing to the Company bysuch Person specifically for use therein; and providedfurther,that the Company shall not be required to indemnify any Person against anyliability arising from any untrue or misleading statement or omission containedin any preliminary prospectus if such deficiency is corrected in the finalprospectus or for any liability which arises out of the failure of any Personto deliver a prospectus as required by the Securities Act regardless of anyinvestigation made by or on behalf of such Indemnified Person and shall survivetransfer of such securities by such seller.

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## (b)                                 Eachholder of any securities included in such registration being effected shallindemnify and hold harmless each other selling holder of any securities, theCompany, its directors and officers, each underwriter and each other Person, ifany, who controls (within the meaning of the Securities Act) the Company orsuch underwriter (individually and collectively

 

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also the “Indemnified Person”), against any liability, joint orseveral, to which any such Indemnified Person may become subject under theSecurities Act or any other statute or at common law, insofar as such liability(or actions in respect thereof) arises out of or is based upon (i) any untruestatement or alleged untrue statement of any material fact contained, on theeffective date thereof, in any registration statement under which securitieswere registered under the Securities Act at the request of such selling holder,any preliminary prospectus or final prospectus contained therein, or anyamendment or supplement thereto, or (ii) any omission or alleged omission bysuch selling holder to state therein a material fact required to be statedtherein or necessary to make the statements therein not misleading, in the caseof (i) and (ii) to the extent, but only to the extent, that such untruestatement or alleged untrue statement or omission or alleged omission was madein such registration statement, preliminary or final prospectus, amendment orsupplement thereto in reliance upon and in conformity with informationfurnished in writing to the Company by such selling holder specifically for usetherein.  Such selling holder shallreimburse any Indemnified Person for any legal fees incurred in investigatingor defending any such liability; provided, however, that in noevent shall the liability of any holder for indemnification under thisSection 6 in its capacity as a seller of Registrable Securities exceed thelesser of (i) that proportion of the total of such losses, claims, damages, expensesor liabilities indemnified against equal to the proportion of the totalsecurities sold under such registration statement which are being sold by suchholder, or (ii) an amount equal to the proceeds to such holder of thesecurities sold in any such registration; and providedfurther,however, that no selling holder shall be required to indemnify any Personagainst any liability arising from any untrue or misleading statement oromission contained in any preliminary prospectus if such deficiency is correctedin the final prospectus or for any liability which arises out of the failure ofany Person to deliver a prospectus as required by the Securities Act.

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## (c)                                  Inthe event the Company, any selling holder or other Person receives a complaint,claim or other notice of any liability or action, giving rise to a claim forindemnification under Sections 6(a) or (b) above, the Person claimingindemnification under such paragraphs shall promptly notify the Person againstwhom indemnification is sought of such complaint, notice, claim or action, andsuch indemnifying Person shall have the right to investigate and defend anysuch loss, claim, damage, liability or action.

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## (d)                                 Ifthe indemnification provided for in this Section 6 for any reason is heldby a court of competent jurisdiction to be unavailable to an Indemnified Personin respect of any liability referred to therein, then each indemnifying partyunder this Section 6, in lieu of indemnifying such indemnified partythereunder, shall contribute to the amount paid or payable by such indemnifiedparty as a result of such liability (i) in such proportion as is appropriate toreflect the relative benefits received by the Company, the selling holders andthe underwriters from the offering of Registrable Securities or (ii) if theallocation provided by clause (i) above is not permitted by applicable law, insuch proportion as is appropriate to reflect not only the relative benefitsreferred to in clause (i) above but also the relative fault of the Company, theselling holders and the underwriters in connection with the statements oromissions which resulted in such liability, as well as any other relevantequitable considerations.  The relativebenefits received by the Company, the selling holders and the underwritersshall be deemed to be in the same respective proportions that the net proceedsfrom the offering (before deducting expenses) received by the Company and theselling holders and the underwriting discount

 

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received by the underwriters, in each case as set forth in the table onthe cover page of the applicable prospectus, bear to the aggregate publicoffering price of the securities.  Therelative fault of the Company, the selling holders and the underwriters shallbe determined by reference to, among other things, whether the untrue oralleged untrue statement of a material fact or the omission or alleged omissionto state a material fact relates to information supplied by the Company, theselling holders, or the underwriters and the parties’ relative intent,knowledge, access to information and opportunity to correct or prevent suchstatement or omission.

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The Company, each selling holder and the underwritersagree that it would not be just and equitable if contribution to thisSection 6 were determined by pro rata or per capita allocation or by anyother method of allocation which does not take account the equitableconsiderations referred to in the immediately preceding paragraph.  In no event, however, shall a selling holderbe required to contribute under this Section 6(d) in excess of the lesserof (i) that proportion of the total of such liability indemnified against equalto the proportion of the total Registrable Securities sold under such registrationstatement which are being sold by such holder or (ii) the net proceeds receivedby such holder from its sale of Registrable Securities under such registrationstatement.  No Person found guilty offraudulent representation (within the meaning of Section 11(f) of theSecurities Act) shall be entitled to contribution from any person who was notfound guilty of such fraudulent misrepresentation.

 

## (e)                                  Theamount paid by an indemnifying party or payable to an Indemnified Person as aresult of the losses, claims, damages, expenses and liabilities referred to inthis Section 6 shall be deemed to include, subject to limitations setforth above, any legal or other expenses reasonably incurred by suchindemnified party in connection with investigating or defending any such actionor claim, payable as the same are incurred. The indemnification and contribution provided for in this Section 6will remain in full force and effect regardless of any investigation made by oron behalf of the indemnified parties or any other officer, director, employee,agent or controlling person of the indemnified parties.  No indemnifying party, in the defense of anysuch claim or litigation, shall enter into a consent or entry of any judgmentor enter into a settlement without the consent of the Indemnified Person, whichconsent will not be unreasonably withheld or delayed.

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7.**                                       Amendments.**

 

The provisions of this Agreement may be amended, andthe Company may take any action herein prohibited or omit to perform any actherein required to be performed by it, only if the Company has obtained thewritten consent of the holders of at least a majority of the RegistrableSecurities. For the purposes of this Agreement and all agreements executedpursuant hereto, no course of dealing between or among any of the partieshereto and no delay on the part of any party hereto in exercising any rightshereunder or thereunder shall operate as a waiver of the rights hereof andthereof.

 

8.**                                       SuspensionPeriod.**

 

## (a)                                  Notwithstandinganything to the contrary set forth in this Agreement, the Company’s obligationunder this Agreement to use reasonable efforts to cause a registrationstatement to be made or to become effective or to amend or supplement aregistration statement

 

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shall be suspended during any period in which a transaction oroccurrence (a “Suspension Event”) would require additional disclosure ofmaterial information by the Company in the registration statement (such periodbeing hereinafter referred to as a “Suspension Period”) that would make itinadvisable to cause the registration statement to be made or to becomeeffective or to amend or supplement the registration statement, but in no eventwill the Suspension Period exceed ninety (90) days.  In the event any holder of Registrable Securities requestsregistration during a Suspension Event, the Company shall notify the Holder ofthe existence of such Suspension Event.

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## (b)                                 Followingthe effectiveness of a Company registration statement, the holders ofRegistrable Securities agree that they will not effect any sales of theRegistrable Securities pursuant to the registration statement at any time afterthey have received notice from the Company to suspend sales (i) as a result ofand during a Suspension Period or (ii) for a reasonable time so that theCompany may correct or update the registration statement pursuant toSection 4(f).  The holders ofRegistrable Securities may recommence effecting sales of the RegistrableSecurities pursuant to the registration statement following further notice tosuch effect from the Company.

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9.**                                       MarketStand-Off.**

 

Each holder of Registrable Securities agrees ifrequested by the Company and an underwriter in connection with any publicoffering of the Company, not to directly or indirectly offer, sell, contract tosell, sell any option or contract to purchase, purchase any option or contractto sell, grant any option, right or warrant for the sale of or otherwisedispose of or transfer any shares held by it for such period, not to exceedninety (90) days following the effective date of the relevant registrationstatement, as may be specified by the Company or such underwriter.

 

10.**                                 Transferabilityof Registration Rights.**

 

The registration rights set forth in this Agreement aretransferable to each transferee of Registrable Securities; provided, that eachsubsequent holder of Registrable Securities must consent in writing to be boundby the terms and conditions of this Agreement in order to acquire the rightsgranted pursuant to this Agreement.

 

11.**                                 Grantof Additional Registration Rights.**

 

Other than permitted transferees of RegistrableSecurities under Section 10, the Company shall not, without the priorwritten consent of holders of at least a majority of the Registrable Securities,(a) allow purchasers of the Company’s securities to become a party to thisAgreement or (b) grant any other registration rights other than any incidentalor so called piggyback registration rights to any third parties that are notinconsistent with the terms of this Agreement.

 

12.**                                 Miscellaneous.**

 

## (a)                                  Notices.  All notices, requests, demands and othercommunications provided for hereunder shall be in writing and mailed (by firstclass registered or certified mail, postage prepaid), telegraphed, sent byexpress overnight courier service or electronic facsimile

 

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transmission (with a copy by mail), or delivered to the applicableparty at the addresses indicated in the Purchase Agreement or, in the case of atransferee holder, at the address of such holder as set forth in the books ofthe Company or at such other address as shall be designated by such Person in awritten notice to other parties complying as to delivery with the terms of thissubsection (a).  All such notices,requests, demands and other communications shall, when mailed, telegraphed orsent, respectively, be effective (i) two days after being deposited in themails, (ii) one day after being delivered to the telegraph company or depositedwith the express overnight courier service or (iii) upon receipt, if sent byelectronic facsimile transmission.

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## (b)                                 GoverningLaw.  This Agreement shall begoverned by and construed in accordance with the laws of the State of Delaware,without giving effect to conflict of laws principles thereof.

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## (c)                                  Counterparts.  This Agreement may be executed in two ormore counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

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## (d)                                 Severability.  If any provision of this Agreement shall beheld to be illegal, invalid or unenforceable, such illegality, invalidity orunenforceability shall attach only to such provision and shall not in anymanner affect or render illegal, invalid or unenforceable any other provisionof this Agreement, and this Agreement shall be carried out as if any suchillegal, invalid or unenforceable provision were not contained herein.

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## (e)                                                                                  Integration.  This Agreement, including the exhibits,documents and instruments referred to herein or therein, constitutes the entireagreement among the parties with respect to the subject matter.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Registration Rights Agreement to be duly executed as of the date first setforth above.

 
|   | **COMPANY:**               |
|--------|----------------------------|
|   |                       |
|   | SEGUE SOFTWARE, INC.       |
|   |                       |
|   | By:                        | /s/Joseph Krivickas |   |
|   |                       | Joseph Krivickas |
|   |                       | President and Chief Executive Officer |
|   |                       |
|   |                       |
|   | **INVESTOR:**              |
|   |                       |
|   | S-7 ASSOCIATES, LLC        |
|   |                       |
|   | By:                        | /s/James H. Simons |   |
|   |                       | James H. Simons |
|   |                       | Managing Member |
|   |                       |
|   |                       |
|   |                       |
|   | /s/Dr. Howard L. Morgan    |
|   | Name: Dr. Howard L. Morgan |
|        |                            |  |  |  |

 

 

**[Signature Page to Amended andRestated Registration Rights Agreement]**

 

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