Exhibit 4.5


 


AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT


 


THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
(this “Agreement”), is entered
into as April 5, 2005, by and among BroadVision, Inc., a Delaware corporation,
with headquarters located at 585 Broadway, Redwood City, CA 94063 (the “Company”), and the undersigned buyers
(each, a “Buyer”, and
collectively, the “Buyers”).


 


The Company
and the Buyers entered into that certain Registration Rights Agreement dated as
of November 10, 2004 (the “Original Agreement”).


 


The Company
and each Buyer desires to amend and restate the terms of the Original Agreement
to reflect the modifications to the terms thereof.


 


NOW,
THEREFORE, THE ORIGINAL AGREEMENT IS AMENDED AND RESTATED IN ITS ENTIRETY AS
FOLLOWS:


 


WHEREAS:


 


A.                                   In
connection with the Securities Purchase Agreement by and among the parties
hereto dated as of November 10, 2004 (the “Securities
Purchase Agreement”), the Company has agreed, upon the terms and
subject to the conditions set forth in the Securities Purchase Agreement, to
issue and sell to each Buyer (i) senior subordinated secured convertible
notes of the Company (the “Initial Notes”),
which will, among other things, be convertible into the Company’s common stock,
$.0001 par value per share (the ”Common
Stock”, as converted, the “Initial
Conversion Shares”) in accordance with the terms of the Notes, and
(ii) warrants (the “Warrants”),
which will be exercisable to purchase shares of Common Stock (as exercised
collectively, the “Warrant Shares”).


 


B.                                     In
connection with the Securities Purchase Agreement, the Company has agreed, upon
the terms and subject to the conditions set forth in the Securities Purchase
Agreement, to issue and sell to each Buyer certain additional investment rights
(the “Additional Investment Rights”)
which will be exercisable to purchase additional senior subordinated secured
convertible notes of the Company (the “Additional
Notes”, and collectively with the Initial Notes, the “Notes”), which will be convertible into
shares of Common Stock (as converted, the “Additional
Conversion Shares”, and collectively with the Initial Conversion
Shares, the “Conversion Shares”)
in accordance with the terms of the Additional Notes.


 


C.                                     The
Notes bear interest, which at the option of the Company, subject to certain
conditions, may be paid in shares of Common Stock (the “Interest Shares”).


 


D.                                    To
induce the Buyers to execute and deliver the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the “1933
Act”), and applicable state securities laws.


 





















 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and each of the Buyers hereby agree as
follows:


 


1.                                       Definitions.


 


Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Securities Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


a.                                       “Additional  Effectiveness Deadline” means the date that is 60 days after the
applicable Exercise Date (as defined in the Additional Investment Rights).


 


b.                                      “Additional Filing Deadline” means 30 days
after the earlier of (x) each Exercise Date at which an aggregate of at least
$375,000 in principal amount of
Additional Notes are purchased by one or more Buyers or their successors or
assigns or after which there is an aggregate of at least $375,000 in principal amount of Additional Notes
that have been purchased by one or more Buyers or their successors or assigns
that have not had their related Additional Registrable Securities previously
registered hereunder or (y) such time after any Additional Notes are purchased
that no additional Additional Notes are available or are permitted to be
purchased pursuant to the Additional Investment Rights.


 


c.                                       “Additional Registrable Securities” means
(i) the Additional Conversion Shares issued or issuable upon conversion or
redemption of all of the Additional Notes actually purchased, (ii) the Interest
Shares issued or issuable under the Additional Notes and (iii) any share
capital of the Company issued or issuable with respect to the Additional Notes
or the Additional Conversion Shares as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitations on conversions of the Additional Notes.


 


d.                                      “Additional Registration Statement” means a
registration statement or registration statements of the Company filed under
the 1933 Act covering any Additional Registrable Securities.


 


e.                                       “Business Day” means any day other than
Saturday, Sunday or any other day on which commercial banks in The City of New
York are authorized or required by law to remain closed.


 


f.                                         “Closing Date” shall have the meaning set
forth in the Securities Purchase Agreement.


 


g.                                      “Effective Date” means the date a
Registration Statement has been declared effective by the SEC.


 


h.                                      “Effectiveness Deadline” means the Initial
Effectiveness Deadline and the Additional Effectiveness Deadline, as
applicable.


 


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i.                                          “Filing Deadline” means the Initial Filing
Deadline and the Additional Filing Deadline, as applicable.


 


j.                                          “Initial Effectiveness Deadline” means the
date that is 120 days after the Closing Date.


 


k.                                       “Initial Filing Deadline” means the date
that is 60 days after the Closing Date.


 


l.                                          “Initial Registrable Securities” means (i)
the Initial Conversion Shares issued or issuable upon conversion or redemption
of the Initial Notes, (ii) the Warrant Shares issued or issuable upon exercise
of the Warrants, (iii) the Interest Shares issued or issuable under the Initial
Notes and (iv) any share capital of the Company issued or issuable with
respect to the Initial Conversion Shares, the Initial Notes, the Warrant Shares,
or the Warrants as a result of any share split, share dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitations on conversions of the Initial Notes or exercises of the Warrants.


 


m.                                    “Initial Registration Statement” means a
registration statement or registration statements of the Company filed under
the 1933 Act covering the Initial Registrable Securities.


 


n.                                      “Investor” means a Buyer or any transferee
or assignee thereof to whom a Buyer assigns its rights under this Agreement and
who agrees to become bound by the provisions of this Agreement in accordance
with Section 9 and any transferee or assignee thereof to whom a transferee or
assignee assigns its rights under this Agreement and who agrees to become bound
by the provisions of this Agreement in accordance with Section 9.


 


o.                                      “register,” “registered,” and “registration” refer to a registration
effected by preparing and filing one or more Registration Statements (as
defined below) in compliance with the 1933 Act and pursuant to Rule 415 and the
declaration or ordering of effectiveness of such Registration Statement(s) by
the SEC.


 


p.                                      “Registrable Securities” means the Initial
Registrable Securities and the Additional Registrable Securities, as
applicable; provided, however, that for purposes of determining whether the AIR
Equity Conditions (as defined in the Additional Investment Rights) shall have
been satisfied pursuant to Section 3(a) of the Additional Investment Rights,
the Registrable Securities shall mean the Initial Registrable Securities and
any Additional Registrable Securities that is registered or required to be
registered pursuant to the Additional Registration Statements referred to in
the proviso to the definition of “Registration Statement.”


 


q.                                      “Registration Statement” means the Initial
Registration Statement, any Additional Registration Statement and any
registration statement filed pursuant to Section 2(f) hereof; provided,
however, that for purposes of determining whether the AIR Equity Conditions
shall have been satisfied pursuant to Section 3(a) of the Additional Investment
Rights, the Registration Statement shall mean the Initial Registration
Statement and any Additional Registration Statement that either has been
declared effective or its Effectiveness 


 


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Deadline has
occurred on or prior to the date that is one (1) month prior to the applicable
date of determination in the Additional Investment Right.


 


r.                                         “Required Holders” means the holders of at
least a majority of the Registrable Securities.


 


s.                                       “Required Registration Amount” means 150% of
the sum of (i) the number of Interest Shares issued and issuable pursuant to
the terms of the applicable Notes as of the trading date immediately preceding
the applicable date of determination, (ii) the number of Conversion Shares
issued and issuable pursuant to the applicable Notes as of the trading day
immediately preceding the applicable date of determination, and (iii) the
number of Warrant Shares issued and issuable pursuant to the Warrants as of the
trading day immediately preceding the applicable date of determination, all
subject to adjustment as provided in Section 2(f).


 


t.                                         “Rule 415” means Rule 415 under the 1933 Act
or any successor rule providing for offering securities on a continuous or
delayed basis.


 


u.                                      “SEC” means the United States Securities and
Exchange Commission.


 


2.                                       Registration.


 


a.                                       Initial
Mandatory Registration.  The Company
shall prepare, and, as soon as practicable but in no event later than the
Initial Filing Deadline, file with the SEC the Initial Registration Statement
on Form S-3 covering the resale of all of the Initial Registrable
Securities.  In the event that Form S-3
is unavailable for such a registration, the Company shall use such other form
as is available for such a registration, subject to the provisions of Section
2(e).  The Initial Registration Statement
prepared pursuant hereto shall register for resale at least the number of
shares of Common Stock equal to the Required Registration Amount as to the
Initial Registrable Securities as of the date the Initial Registration
Statement is initially filed with the SEC. 
The Initial Registration Statement shall contain (except if otherwise
directed by the Required Holders) the “Selling Stockholders” and “Plan
of Distribution” sections in substantially the form attached hereto as Exhibit
B.  The Company shall use its best
efforts to have the Initial Registration Statement declared effective by the
SEC as soon as practicable, but in no event later than the Initial
Effectiveness Deadline.


 


b.                                      Additional
Mandatory Registration.  The Company
shall prepare, and, as soon as practicable but in no event later than the
Additional Filing Deadline, file with the SEC an Additional Registration Statement
on Form S-3 covering the resale of all of the Additional Registrable Securities
not previously registered on an Additional Registration Statement
hereunder.  In the event that Form S-3 is
unavailable for such a registration, the Company shall use such other form as
is available for such a registration, subject to the provisions of Section
2(e).  Each Additional Registration
Statement prepared pursuant hereto shall register for resale at least the
number of Shares of Common Stock equal to the Required Registration Amount as
to the Additional Registrable Securities not previously registered hereunder as
of the date such Additional Registration Statement is initially filed with the
SEC.  Each Additional Registration Statement
shall contain (except if otherwise directed by the 


 


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Required
Holders) the “Selling Shareholders” and “Plan of Distribution”
sections in substantially the form attached hereto as Exhibit B.  The Company shall use its best efforts to have
the Additional Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Additional Effectiveness Deadline.


 


c.                                       Allocation
of Registrable Securities.  The
initial number of Registrable Securities included in any Registration Statement
and any increase in the number of Registrable Securities included therein shall
be allocated pro rata among the Investors based on the number of Registrable
Securities held by each Investor at the time the Registration Statement
covering such initial number of Registrable Securities or increase thereof is
declared effective by the SEC.  In the
event that an Investor sells or otherwise transfers any of such Investor’s
Registrable Securities, each transferee shall be allocated a pro rata portion
of the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. 
Any shares of Common Stock included in a Registration Statement and
which remain allocated to any Person which ceases to hold any Registrable
Securities covered by such Registration Statement shall be allocated to the
remaining Investors, pro rata based on the number of Registrable Securities
then held by such Investors which are covered by such Registration Statement.  In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Required Holders.


 


d.                                      Legal
Counsel.  Subject to Section 5
hereof, the Required Holders shall have the right to select one legal counsel
to review and oversee any registration pursuant to this Section 2 (“Legal Counsel”), which shall be Schulte
Roth & Zabel LLP or such other counsel as thereafter designated by the
Required Holders.  The Company and Legal Counsel
shall reasonably cooperate with each other in performing the Company’s
obligations under this Agreement.


 


e.                                       Ineligibility
for Form S-3.  In the event that Form
S-3 is not available for the registration of the resale of Registrable
Securities hereunder, the Company shall (i) register the resale of the
Registrable Securities on another appropriate form reasonably acceptable to the
Required Holders and (ii) undertake to register the Registrable Securities on
Form S-3 as soon as such form is available, provided that the Company shall
maintain the effectiveness of the Registration Statement then in effect until
such time as a Registration Statement on Form S-3 covering the Registrable
Securities has been declared effective by the SEC.


 


f.                                         Sufficient
Number of Shares Registered.  In the
event the number of shares available under a Registration Statement filed
pursuant to Section 2(a) or Section 2(b) is insufficient to cover all of the
Registrable Securities required to be covered by such Registration Statement or
an Investor’s allocated portion of the Registrable Securities pursuant to
Section 2(c), the Company shall amend the applicable Registration Statement, or
file a new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover at least the Required Registration Amount
as of the trading day immediately preceding the date of the filing of such
amendment or new Registration Statement, in each case, as soon as practicable,
but in any event not later than fifteen (15) days after the necessity therefor
arises.  The Company shall use its best
efforts to cause such amendment and/or new Registration 


 


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Statement to
become effective as soon as practicable following the filing thereof.  For purposes of the foregoing provision, the
number of shares available under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time the number of shares
of Common Stock available for resale under the Registration Statement is less
than the product determined by multiplying (i) the Required Registration Amount
as of such time by (ii) 0.67.  The
calculation set forth in the foregoing sentence shall be made without regard to
any limitations on the conversion of the Notes or the exercise of the Warrants
or the Additional Investment Rights and such calculation shall assume that the
Notes are then convertible into shares of Common Stock at the then prevailing
Conversion Rate (as defined in the Notes) and that the Warrants and Additional
Investment Rights are then exercisable for shares of Common Stock at the then
prevailing Exercise Price (as defined in the Warrants and Additional Investment
Rights, respectively).


 


g.                                      Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement.  If (i) a Registration
Statement covering all of the Registrable Securities required to be covered
thereby and required to be filed by the Company pursuant to this Agreement is
(A) not filed with the SEC on or before the Filing Deadline (a “Filing Failure”) or (B) not declared
effective by the SEC on or before the respective Effectiveness Deadline (an “Effectiveness Failure”) or (ii) on any day
after the applicable Effective Date sales of all of the Registrable Securities
required to be included on such Registration Statement cannot be made (other
than during an Allowable Grace Period (as defined in Section 3(r)) pursuant to
such Registration Statement (including, without limitation, because of a
failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of shares of Common Stock) (a “Maintenance Failure”) then, as partial
relief for the damages to any holder by reason of any such delay in or
reduction of its ability to sell the underlying shares of Common Stock (which
remedy shall not be exclusive of any other remedies available at law or in
equity), the Company shall pay to each holder of Registrable Securities
relating to such Registration Statement an amount in cash equal to one percent
(1%) of the aggregate Purchase Price (as such term is defined in the Securities
Purchase Agreement) of such Investor’s Registrable Securities included in such
Registration Statement on each of the following dates: (i) the day of a Filing
Failure and on every thirtieth day (pro rated for periods totaling less than
thirty days) thereafter until such Filing Failure is cured; (ii) on the
thirtieth day after an Effectiveness Failure and on every thirtieth day (pro
rated for periods totaling less than thirty days) thereafter until such
Effectiveness Failure is cured; (iii) the initial day of a Maintenance Failure
and on every thirtieth day (pro rated for periods totaling less than thirty
days) thereafter until such Maintenance Failure is cured.  The payments to which a holder shall be
entitled pursuant to this Section 2(g) are referred to herein as “Registration Delay Payments.”  Registration Delay Payments shall be paid on
the earlier of (I) the last day of the calendar month during which such
Registration Delay Payments are incurred and (II) the third Business Day after
the event or failure giving rise to the Registration Delay Payments is
cured.  In the event the Company fails to
make Registration Delay Payments in a timely manner, such Registration Delay
Payments shall bear interest at the rate of 1.0% per month (prorated for
partial months) until paid in full.


 


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3.                                       Related
Obligations.


 


At such time
as the Company is obligated to file a Registration Statement with the SEC
pursuant to Section 2(a), 2(b), 2(e) or 2(f), the Company will use its best
efforts to effect the registration of the Registrable Securities in accordance
with the intended method of disposition thereof and, pursuant thereto, the
Company shall have the following obligations:


 


a.                                       The
Company shall submit to the SEC, within two (2) Business Days after the Company
learns that no review of a particular Registration Statement will be made by
the staff of the SEC or that the staff has no further comments on a particular
Registration Statement, as the case may be, a request for acceleration of
effectiveness of such Registration Statement to a time and date not later than
48 hours after the submission of such request. 
The Company shall keep each Registration Statement effective pursuant to
Rule 415 at all times until the earlier of (i) the date as of which the
Investors may sell all of the Registrable Securities covered by such
Registration Statement without restriction pursuant to Rule 144(k) (or any
successor thereto) promulgated under the 1933 Act or (ii) the date on which the
Investors shall have disposed of all of the Registrable Securities covered by
such Registration Statement (the “Registration
Period”).  The Company shall
ensure that each Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the case of
prospectuses, in the light of the circumstances in which they were made) not
misleading.


 


b.                                      The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the
prospectus used in connection with such Registration Statement, which
prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act,
as may be necessary to keep such Registration Statement effective at all times
during the Registration Period, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement until such
time as all of such Registrable Securities shall have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in such Registration Statement.  In the case of amendments and supplements to
a Registration Statement which are required to be filed pursuant to this
Agreement (including pursuant to this Section 3(b)) by reason of the Company
filing a report on Form 10-Q, Form 10-K, Form 8-K or any analogous report under
the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC on the
same day on which the 1934 Act report is filed which created the requirement
for the Company to amend or supplement such Registration Statement.


 


c.                                       The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least five (5) Business Days prior to its filing with
the SEC and (ii) all amendments and supplements to all Registration Statements
(except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current
Reports on Form 8-K and any similar or successor reports) within a reasonable
amount of time prior to their filing with the SEC, and (B) not file any
Registration Statement or amendment or supplement thereto in a 


 


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form
to which Legal Counsel reasonably and timely objects.  The Company shall not submit a request for
acceleration of the effectiveness of a Registration Statement or any amendment
or supplement thereto without the prior approval of Legal Counsel, which
consent shall not be unreasonably withheld or delayed.  The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff of
the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC, one
copy of any Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, and all exhibits and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus
included in such Registration Statement and all amendments and supplements
thereto.  The Company and Legal Counsel
shall reasonably cooperate with respect to the obligations contained in this
Section 3.


 


d.                                      The
Company shall furnish to each Investor whose Registrable Securities are
included in any Registration Statement, without charge,  (i) promptly after the same is prepared and filed
with the SEC, at least one copy of such Registration Statement and any
amendment(s) thereto, including financial statements and schedules, all
documents, including exhibits, incorporated therein by reference, if requested
by an Investor and not otherwise available on the EDGAR system, and each
preliminary prospectus, (ii) upon the effectiveness of any Registration
Statement (but in no event later than two Business Days after the Effective
Date), ten (10) copies of the prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other number of
copies as such Investor may reasonably request) and (iii) such other documents,
including copies of any preliminary or final prospectus, as such Investor may
reasonably request from time to time in order to facilitate the disposition of
the Registrable Securities owned by such Investor.


 


e.                                       The
Company shall use its best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by Investors
of the Registrable Securities covered by a Registration Statement under such
other securities or “blue sky” laws of such jurisdictions in the United States
as the Investor may reasonably request, (ii) prepare and file in those jurisdictions,
such amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be required in connection therewith or as a condition thereto to (x) qualify to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(e), (y) subject itself to general taxation in
any such jurisdiction, or (z) file a general consent to service of process in
any such jurisdiction.  The Company shall
promptly notify Legal Counsel and each Investor who holds Registrable
Securities of the receipt by the Company of any notification with respect to
the suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or “blue sky” laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or threatening
of any proceeding for such purpose.


 


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f.                                         The
Company shall notify Legal Counsel and each Investor in writing of the
happening of any event, as promptly as practicable after becoming aware of such
event, as a result of which the prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omission to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (provided that in no event shall such notice
contain any material, nonpublic information), and, subject to Section 3(r),
promptly prepare a supplement or amendment to such Registration Statement to
correct such untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to Legal Counsel and each Investor (or such other
number of copies as Legal Counsel or such Investor may reasonably request).  The Company shall also promptly notify Legal
Counsel and each Investor in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (notification of
such effectiveness shall be delivered to Legal Counsel and each Investor by
facsimile on the same day of such effectiveness and by overnight mail), (ii) of
any request by the SEC for amendments or supplements to a Registration Statement
or related prospectus or related information, and (iii) of the Company’s
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.


 


g.                                      The
Company shall use its reasonable best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of a Registration Statement, or
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest practicable
moment and to notify Legal Counsel and each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.


 


h.                                      If
an Investor can demonstrate reasonable necessity, at the reasonable request of
any Investor, the Company shall use its reasonable best efforts to furnish to
such Investor, on the date of the effectiveness of the Registration Statement
and thereafter from time to time on such dates as an Investor may reasonably
request (i) a letter, dated such date, from the Company’s independent certified
public accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the Investors, and (ii) an opinion, dated as of such
date, of counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in an
underwritten public offering, addressed to the Investors.


 


i.                                          In
connection with the Investors’ due diligence efforts, the Company shall make
available for inspection during business hours and upon reasonable advance
request by (i) any Investor, (ii) Legal Counsel and (iii) one firm of
accountants or other agents retained by the Investors (collectively, the “Inspectors”), all pertinent financial and
other records, and pertinent corporate documents and properties of the Company
(collectively, the “Records”), as
shall be reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree in
writing to hold in strict confidence and shall not make any disclosure (except
to an Investor) or use of any Record or other information which the Company
determines in good faith to be confidential, and of which 


 


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determination
the Inspectors are so notified, unless (a) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or order from a
court or government body of competent jurisdiction, or (c) the information in
such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement of which the Inspector
has knowledge.  Each Investor agrees that
it shall, upon learning that disclosure of such Records is sought in or by a
court or governmental body of competent jurisdiction or through other means,
give prompt notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential.  Nothing herein (or in any other
confidentiality agreement between the Company and any Investor) shall be deemed
to limit the Investors’ ability to sell Registrable Securities in a manner
which is otherwise consistent with applicable laws and regulations.


 


j.                                          The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws or
applicable rules and regulations of the Principal Market, (ii) the disclosure
of such information is necessary to avoid or correct a misstatement or omission
in any Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or
governmental body of competent jurisdiction, or (iv) such information has been
made generally available to the public other than by disclosure in violation of
this Agreement or any other agreement. 
The Company agrees that it shall, upon learning that disclosure of such
information concerning an Investor is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt written
notice to such Investor and allow such Investor, at the Investor’s expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.


 


k.                                       The
Company shall use its best efforts either to (i) cause all of the Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange on which securities of the same class or series issued by the Company
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) secure designation and
quotation of all of the Registrable Securities covered by a Registration
Statement on the Nasdaq National Market or (iii) if, despite the Company’s best
efforts to satisfy, the preceding clauses (i) and (ii) the Company is
unsuccessful in satisfying the preceding clauses (i) and (ii), to secure the
inclusion for quotation on The Nasdaq SmallCap Market for such Registrable
Securities and, without limiting the generality of the foregoing, to use its
best efforts to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. (“NASD”) as such with respect to such Registrable
Securities.  The Company shall pay all
fees and expenses in connection with satisfying its obligation under this
Section 3(k).


 


l.                                          The
Company shall cooperate with the Investors who hold Registrable Securities
being offered and, to the extent applicable, facilitate the timely preparation
and delivery of certificates representing the Registrable Securities to be
offered pursuant to a Registration Statement and enable such certificates to be
in such denominations or amounts, as 


 


10





















 


the
case may be, as the Investors may reasonably request and registered in such
names as the Investors may request.


 


m.                                    If
requested by an Investor, the Company shall (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as an Investor reasonably requests to be included therein relating
to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such
offering; (ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being notified of the
matters to be incorporated in such prospectus supplement or post-effective amendment;
and (iii) as soon as practicable, supplement or make amendments to any
Registration Statement if reasonably requested by an Investor holding any
Registrable Securities.


 


n.                                      The
Company shall use its best efforts to cause the Registrable Securities covered
by a Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to consummate the
disposition of such Registrable Securities.


 


o.                                      The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with, and in the
manner provided by, the provisions of Rule 158 under the 1933 Act) covering a
twelve-month period beginning not later than the first day of the Company’s
fiscal quarter next following the effective date of a Registration Statement.


 


p.                                      The
Company shall otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC in connection with any registration hereunder.


 


q.                                      Within
two (2) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent for
such Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC in the form
attached hereto as Exhibit A.


 


r.                                         Notwithstanding
anything to the contrary herein, at any time after the Registration Statement
has been declared effective by the SEC, the Company may delay the disclosure of
material, non-public information concerning the Company the disclosure of which
at the time is not, in the good faith opinion of the Board of Directors of the
Company and its counsel, in the best interest of the Company and, in the
opinion of counsel to the Company, otherwise required (a “Grace Period”); provided, that the Company
shall promptly (i) notify the Investors in writing of the existence of
material, non-public information giving rise to a Grace Period (provided that
in each notice the Company will not disclose the content of such material,
non-public information to the Investors) and the date on which the Grace Period
will begin, and (ii) notify the Investors in writing of the date on which the
Grace Period ends; and, provided 


 


11





















 


further,
that during any three hundred sixty five (365) day period such Grace Periods
shall not exceed an aggregate of thirty-five (35) days (each, an “Allowable Grace Period”).  For purposes of determining the length of a
Grace Period above, the Grace Period shall begin on and include the date the
Investors receive the notice referred to in clause (i) and shall end on and
include the later of the date the Investors receive the notice referred to in
clause (ii) and the date referred to in such notice.  The provisions of Section 3(g) hereof shall
not be applicable during the period of any Allowable Grace Period.  Upon expiration of the Grace Period, the
Company shall again be bound by the first sentence of Section 3(f) with respect
to the information giving rise thereto unless such material, non-public
information is no longer applicable. 
Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of
an Investor in accordance with the terms of the Securities Purchase Agreement
in connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale, and delivered a copy of the
prospectus included as part of the applicable Registration Statement, prior to
the Investor’s receipt of the notice of a Grace Period and for which the
Investor has not yet settled.


 


4.                                       Obligations
of the Investors.


 


a.                                       At
least five (5) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing of
the information the Company requires from each such Investor if such Investor
elects to have any of such Investor’s Registrable Securities included in such
Registration Statement.  It shall be a
condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Investor that such Investor shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it and the intended method of disposition of the Registrable Securities held by
it as shall be reasonably required to effect the effectiveness of the
registration of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably request.


 


b.                                      Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees
to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration Statement
hereunder, unless such Investor has notified the Company in writing of such
Investor’s election to exclude all of such Investor’s Registrable Securities
from such Registration Statement.


 


c.                                       Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or the first
sentence of 3(f), such Investor will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until such Investor’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first
sentence of 3(f) or receipt of notice that no supplement or amendment is
required.  Notwithstanding anything to
the contrary, the Company shall cause its transfer agent to deliver unlegended
shares of Common Stock to a transferee of an Investor in accordance with the
terms of the Securities Purchase Agreement in connection with any sale of
Registrable Securities with respect to which an Investor has entered into a
contract for sale prior to the Investor’s 


 


12





















 


receipt
of a notice from the Company of the happening of any event of the kind
described in Section 3(g) or the first sentence of 3(f) and for which the
Investor has not yet settled.


 


d.                                      To
the extent required by applicable law, each Investor shall promptly notify the
Company of any change in any information regarding such Investor furnished by
such Investor to the Company for inclusion in a Registration Statement.  Each Investor covenants and agrees that it
will comply with the prospectus delivery requirements of the 1933 Act as applicable
to it in connection with sales of Registrable Securities pursuant to the
Registration Statement.


 


 


5.                                       Expenses
of Registration.


 


All reasonable
expenses, other than underwriting discounts and commissions, incurred in
connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements
of counsel for the Company shall be paid by the Company.  The Company shall also reimburse the
Investors for the fees and disbursements of Legal Counsel in connection with
registration, filing or qualification pursuant to Sections 2 and 3 of this
Agreement which amount shall be limited to $15,000 for the Initial Registration
Statement and $5,000 for each Additional Registration Statement.


 


6.                                       Indemnification.


 


In the event
any Registrable Securities are included in a Registration Statement under this
Agreement:


 


a.                                       To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor, the directors, officers,
members, partners, employees, agents, representatives of, and each Person, if
any, who controls any Investor within the meaning of the 1933 Act or the 1934 Act
(each, an “Indemnified Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several, (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: 
(i) any untrue statement or alleged untrue statement of a material fact
in a Registration Statement or any post-effective amendment thereto or in any
filing made in connection with the qualification of the offering under the
securities or other “blue sky” laws of any jurisdiction in which Registrable
Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged 


 


13





















 


omission to
state therein any material fact necessary to make the statements made therein,
in the light of the circumstances under which the statements therein were made,
not misleading, (iii) any violation or alleged violation by the Company of the
1933 Act, the 1934 Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities pursuant to a Registration Statement or (iv)
any violation of this Agreement (the matters in the foregoing clauses (i)
through (iv) being, collectively, “Violations”).  Subject to Section 6(c), the Company shall
reimburse the Indemnified Persons, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. 
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a):  (i) shall not apply to a Claim by an
Indemnified Person arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by such Indemnified Person for such Indemnified Person expressly for
use in connection with the preparation of the Registration Statement or any
such amendment thereof or supplement thereto, if such prospectus was timely
made available by the Company pursuant to Section 3(d); (ii) with respect to
any preliminary prospectus, shall not inure to the benefit of any such Person
from whom the Person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any Person
controlling such Person) if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected in the prospectus, as
then amended or supplemented and if such prospectus was timely made available
by the Company pursuant to Section 3(d), and the Indemnified Person was
promptly advised in writing not to use the incorrect prospectus prior to the
use giving rise to a violation and such Indemnified Person, notwithstanding
such advice, used it or failed to deliver the correct prospectus as required by
the 1933 Act; (iii) shall not be available to the extent such Claim is based on
a failure of the Investor to deliver or to cause to be delivered the prospectus
made available by the Company, including a corrected prospectus, if such
prospectus or corrected prospectus was timely made available by the Company
pursuant to Section 3(d); and (iv) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld or delayed.  Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9.


 


b.                                      In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly
indemnify, hold harmless and defend, to the same extent and in the same manner
as is set forth in Section 6(a), the Company, each of its directors, each of
its officers who signs the Registration Statement and each Person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act (each,
an “Indemnified Party”), against
any Claim or Indemnified Damages to which any of them may become subject, under
the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case to the extent, and
only to the extent, that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such Investor
expressly for use in connection with such Registration Statement or any
post-effective amendment thereof; and, subject to Section 6(c), such Investor
promptly will reimburse any legal or other expenses reasonably incurred by an
Indemnified Party in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(b)
and the agreement with 


 


14





















 


respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent shall not be unreasonably
withheld or delayed; provided, further, however, that the Investor shall be
liable under this Section 6(b) for only that amount of a Claim or Indemnified
Damages as does not exceed the net proceeds to such Investor as a result of the
sale of Registrable Securities pursuant to such Registration Statement.  Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9. 
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected on a timely basis in the prospectus, as then amended
or supplemented.


 


c.                                       Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6 of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or Indemnified Party shall, if a Claim in respect thereof is to be made against
any indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses of not
more than one counsel for such Indemnified Person or Indemnified Party to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding.  In the case
of an Indemnified Person, legal counsel referred to in the immediately
preceding sentence shall be selected by the Investors holding a majority in interest of the Registrable Securities
included in the Registration Statement to which the Claim relates.  The Indemnified Party or Indemnified Person
shall cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action or Claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available
to the Indemnified Party or Indemnified Person which relates to such action or
Claim.  The indemnifying party shall keep
the Indemnified Party or Indemnified Person reasonably apprised at all times as
to the status of the defense or any settlement negotiations with respect
thereto.  No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected
without its prior written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its consent.  No indemnifying party shall, without the
prior written consent of the Indemnified Party or Indemnified Person, consent
to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party or Indemnified Person of a release from all
liability in respect to such Claim or litigation.  Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified


 


15





















 


Person with
respect to all third parties, firms or corporations relating to the matter for
which indemnification has been made.  The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under
this Section 6, except to the extent that the indemnifying party is prejudiced
in its ability to defend such action.


 


d.                                      The
indemnification required by this Section 6 shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as and
when bills are received or Indemnified Damages are incurred.


 


e.                                       The
indemnity agreements contained herein shall be in addition to  (i) any cause of action or similar
right of the Indemnified Party or Indemnified Person against the indemnifying
party or others, and (ii) any liabilities the indemnifying party may be subject
to pursuant to the law.


 


7.                                       Contribution.


 


To the extent
any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to
any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that:  (i) no Person involved in the sale of Registrable
Securities which Person is guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) in connection with such sale shall be
entitled to contribution from any Person involved in such sale of Registrable
Securities who was not guilty of fraudulent misrepresentation; and (ii)
contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities pursuant to such Registration Statement.


 


8.                                       Reports
Under the 1934 Act.


 


With a view to
making available to the Investors the benefits of Rule 144 promulgated under
the 1933 Act or any other similar rule or regulation of the SEC that may at any
time permit the Investors to sell securities of the Company to the public
without registration (“Rule 144”),
the Company agrees to:


 


a.                                       make
and keep public information available, as those terms are understood and
defined in Rule 144;


 


b.                                      file
with the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents
is required for the applicable provisions of Rule 144; and


 


c.                                       furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company, if true, that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the 1934
Act, (ii) a copy of the most recent annual report of the Company and such other
reports and documents so filed 


 


16





















 


by the Company
(other than any correspondence filed by the Company with the SEC, including,
without limitation, any confidential treatment requests), and (iii) such other
information as may be reasonably requested to permit the Investors to sell such
securities pursuant to Rule 144 without registration.


 


9.                                       Assignment
of Registration Rights.


 


The rights
under this Agreement shall be automatically assignable by the Investors to any
transferee of all or any portion of such Investor’s Registrable Securities
if:  (i) the Investor agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time after such
assignment; (ii) the Company is, within a reasonable time after such transfer
or assignment, furnished with written notice of (a) the name and address of
such transferee or assignee, and (b) the securities with respect to which such
registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act and
applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein; and (v) such transfer shall have been made in
accordance with the applicable requirements of the Securities Purchase
Agreement.


 


10.                                 Amendment
of Registration Rights.


 


Provisions of
this Agreement 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 Required
Holders.  Any amendment or waiver effected in accordance with this Section 10 shall be binding
upon each Investor and the Company.  No
such amendment shall be effective to the extent that it applies to less than
all of the holders of the Registrable Securities.  No consideration shall be offered or paid to
any Person to amend or consent to a waiver or modification of any provision of
any of this Agreement unless the same consideration also is offered to all of
the parties to this Agreement.


 


11.                                 Termination
of Obligations.


 


The
obligations of the Company pursuant to Section 3 hereof shall cease and
terminate upon the earlier to occur of (a) such time as all of the Registrable
Securities have been resold, or (b) such time as all of the Registrable
Securities may be resold pursuant to Rule 144(k).


 


12.                                 Miscellaneous.


 


a.                                       A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities.  If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the such
record owner of such Registrable Securities.


 


17





















 


b.                                      Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed
to have been delivered:  (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Business Day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same.  The addresses and facsimile numbers for such
communications shall be:


 


	
   

  	
  If to the Company:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BroadVision, Inc.

  	
   

  
	
   

  	
  585 Broadway

  	
   

  
	
   

  	
  Redwood City, California 94063

  
	
   

  	
  Telephone:

  	
  (650) 261-5100

  
	
   

  	
  Facsimile:

  	
  (650) 261-5900

  
	
   

  	
  Attention:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Cooley Godward LLP

  	
   

  
	
   

  	
  One Maritime Plaza, 20th Floor

  	
   

  
	
   

  	
  San Francisco, California 94111

  
	
   

  	
  Telephone:

  	
  (415) 693-2000

  
	
   

  	
  Facsimile:

  	
  (415) 951-3699

  
	
   

  	
  Attention:

  	
  Kenneth L. Guernsey, Esq.

  
	
   

  	
   

  
	
   

  	
  If to Legal Counsel:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Schulte Roth & Zabel LLP

  	
   

  
	
   

  	
  919 Third Avenue

  	
   

  
	
   

  	
  New York, New York 10022

  	
   

  
	
   

  	
  Telephone: (212) 756-2000

  	
   

  
	
   

  	
  Facsimile: (212) 593-5955

  	
   

  
	
   

  	
  Attention: Eleazer N. Klein, Esq.

  	
   

  
							



 


If to a Buyer,
to its address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer’s representatives as set forth on
the Schedule of Buyers, or to such other address and/or facsimile number and/or
to the attention of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change.  Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by a
courier or overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a


 


18





















 


nationally
recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.


 


c.                                       Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.


 


d.                                      All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the
State of New York.  Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper.  Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by
law.  If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.


 


e.                                       This
Agreement, the other Transaction Documents (as defined in the Securities
Purchase Agreement) and the instruments referenced herein and therein
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof.  There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. 
This Agreement, the other Transaction Documents and the instruments
referenced herein and therein supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and thereof.


 


f.                                         Subject
to the requirements of Section 9, this Agreement shall inure to the benefit of
and be binding upon the permitted successors and assigns of each of the parties
hereto.


 


g.                                      The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


 


19





















 


h.                                      This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement.  This Agreement, once executed
by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.


 


i.                                          Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.


 


j.                                          All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders.


 


k.                                       The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction will
be applied against any party.


 


l.                                          This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.


 


m.                                    The
obligations of each Buyer hereunder are several and not joint with the
obligations of any other Buyer, and no provision of this Agreement is intended
to confer any obligations on any Buyer vis-à-vis any other Buyer.  Nothing contained herein, and no action taken
by any Buyer pursuant hereto, shall be deemed to constitute the Buyers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Buyers are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated herein.


 


* * * * * *


 


20





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  BROADVISION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pehong Chen

  	
   

  
	
   

  	
   

  	
  Name:  Pehong Chen

  
	
   

  	
   

  	
  Title:  President and CEO

  
					



 





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  BUYERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  PORTSIDE GROWTH & OPPORTUNITY

  FUND

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Solomon

  	
   

  
	
   

  	
   

  	
  Name:   Jeffrey Solomon

  
	
   

  	
   

  	
  Title:   Managing Member

  
					



 





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  SF CAPITAL PARTNERS LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel J. McNally

  	
   

  
	
   

  	
   

  	
  Name:  Daniel J. McNally

  
	
   

  	
   

  	
  Title:    Associate General Counsel

  



 





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  MANCHESTER SECURITIES CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elliot Greenberg 

  	
   

  
	
   

  	
   

  	
  Name:  Elliot Greenberg

  
	
   

  	
   

  	
  Title:    Vice-President

  



 





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  KINGS ROAD INVESTMENTS LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brandon L. Jones 

  	
   

  
	
   

  	
   

  	
  Name:  Brandon L. Jones

  
	
   

  	
   

  	
  Title:    Authorized Signatory

  



 





















 


IN
WITNESS WHEREOF, each Buyer and the Company have
caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the date first written above.


 


	
   

  	
  PROVIDENT PREMIER MASTER FUND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven W. Winters

  	
   

  
	
   

  	
   

  	
  Name:   Steven W. Winters

  
	
   

  	
   

  	
  Title:    Attorney-In-Fact

  



 





















 


SCHEDULE OF BUYERS


 


 


	
  Buyer

  	
   

  	
  Buyer’s Address

  and Facsimile Number

  	
   

  	
  Buyer’s Representative’s Address

  and Facsimile Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Portside
  Growth & Opportunity Fund

  	
   

  	
  c/o
  Ramius Capital Group, L.L.C.

  666 Third Avenue, 26th Floor

  New York, New York 10017

  Attention: Jeffrey Smith

  Nancy
  Wu

  Facsimile:
  (212) 845-7999

  Telephone: (212) 845-7955

  	
   

  	
  Schulte Roth & Zabel LLP

  919 Third Avenue

  New York, New York 10022

  Attn: Eleazer Klein, Esq.

  Facsimile: (212) 593-5955

  Telephone: (212) 756-2000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SF
  Capital Partners Ltd.

  	
   

  	
  3600
  South Lake Drive

  St. Francis, WI 53235

  Attention: Brian Davidson

  Facsimile: (414) 294-7700

  Telephone: (414) 294-7000

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manchester
  Securities Corp.

  	
   

  	
  712
  Fifth Avenue

  New York, NY 10019

  Attention: Sundar Srinivasan

  Facsimile: (212) 586-9461

  Telephone: (212) 506-2999

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kings
  Road Investments Ltd.

  	
   

  	
  M
  & C Corporate Services Limited

  P.O. Box 309GT, Ugland House

  South Church Street, George Town

  Grand Cayman, Cayman Islands

  Attention: James Piachaud

  Facsimile: (212) 359-7304

  Telephone: (212) 359-7336

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Provident
  Premier Master Fund, Ltd.

  	
   

  	
  c/o
  Gemini Investment Strategies, LLC

  35 Waterview Boulevard

  Parsippany, NJ 07054

  Attention: Steven Winters

  Facsimile: (973) 404-1360

  Telephone: (973) 404-1350

  	
   

  	
   

  



 





















 


EXHIBIT A


 


FORM OF NOTICE OF EFFECTIVENESS

OF REGISTRATION STATEMENT


 


Computershare Trust Company


350 Indiana Street, Suite 800


Golden, CO  80401


Attention:  Ms. Tiffany Skiles


 


Re:                               BroadVision,
Inc.


 


Ladies and Gentlemen:


 


[We are][I am]
counsel to BroadVision, Inc., a Delaware corporation (the “Company”), and have represented the Company
in connection with that certain Securities Purchase Agreement (the “Securities Purchase
Agreement”) entered into by and among the Company and the buyers
named therein (collectively, the “Holders”)
pursuant to which the Company issued to the Holders senior secured convertible
notes (the “Initial Notes”)
convertible into the Company’s common stock, $.0001 par value per share
(the ”Common Stock”),
warrants exercisable for shares of Common Stock (the “Warrants”) and additional investment rights
exercisable for additional senior secured convertible notes of the Company (the
“Additional Notes”, and
collectively with the Initial Notes, the “Notes”)
which will be convertible into shares of Common Stock.  Pursuant to the Securities Purchase Agreement,
the Company also has entered into an Amended and Restated Registration Rights
Agreement with the Holders (the “Registration
Rights Agreement”) pursuant to which the Company agreed, among other
things, to register the Registrable Securities (as defined in the Registration
Rights Agreement), including the shares of Common Stock issuable upon
conversion of the Notes, the shares of Common Stock issuable as interest on the
Notes and the shares of Common Stock issuable upon exercise of the Warrants,
under the Securities Act of 1933, as amended (the “1933 Act”).  In
connection with the Company’s obligations under the Registration Rights
Agreement, on                        
        , 200  , the Company
filed a Registration Statement on Form S-3 (File No. 333-                          )
(the “Registration Statement”)
with the Securities and Exchange Commission (the “SEC”) relating to the Registrable Securities that names each
of the Holders as a selling stockholder thereunder.


 


In connection
with the foregoing, [we][I] advise you that a member of the SEC’s staff has
advised [us][me] by telephone that the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER
DATE OF EFFECTIVENESS] and [we][I]
have no knowledge, after telephonic inquiry of a member of the SEC’s staff,
that any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC and
the Registrable Securities are available for resale under the 1933 Act pursuant
to the Registration Statement.


 


This letter
shall serve as our standing opinion to you that the shares of Common Stock are
freely transferable by the Holders pursuant to the Registration Statement.  You need 


 


1





















 


not require
further letters from us to effect any future legend-free issuance or reissuance
of shares of Common Stock to the Holders as contemplated by the Company’s
Irrevocable Transfer Agent Instructions dated                      
      , 2004. 
This letter shall serve as our standing opinion with regard to this
matter.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [ISSUER’S COUNSEL]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  CC:    [LIST
  NAMES OF HOLDERS]

  	
   

  



 


2





















 


EXHIBIT B


 


SELLING STOCKHOLDERS


 


The shares of Common Stock being offered by the selling stockholders
are issuable upon conversion of the convertible notes, as interest on the
convertible notes [and upon exercise of the warrants].  For additional information regarding the
issuance of those convertible notes [and warrants], see “Private Placement of
Shares of Common Stock, Convertible Notes, Warrants and Additional Investment
Rights” above.  We are registering the
shares of Common Stock in order to permit the selling stockholders to offer the
shares for resale from time to time. 
Except for the ownership of the Convertible Notes, the Warrants and the
Additional Investment Rights issued pursuant to the Securities Purchase Agreement,
the selling stockholders have not had any material relationship with us within
the past three years.


 


The table below lists the selling stockholders and information
regarding the beneficial ownership of the shares of Common Stock by each of the
selling stockholders.  The second column
lists the number of shares of Common Stock beneficially owned by each selling
stockholder, based on its ownership of the convertible notes and warrants, as
of                ,
200  , assuming conversion of all
convertible notes and exercise of the warrants held by the selling stockholders
on that date, without regard to any limitations on conversions or exercise.


 


The third column lists the shares of Common Stock being offered by this
prospectus by each selling stockholder.


 


In accordance with the terms of a registration rights agreement among
the Company and the selling stockholders, this prospectus generally covers the
resale of at least 150% of the sum of (i) the number of shares of Common Stock
issuable as interest on the convertible notes, (ii) the number of shares of
Common Stock issuable upon conversion of the convertible notes as of the
trading day immediately preceding the date the registration statement is
initially filed with the SEC [and (iii) the number of shares of Common Stock
issuable upon exercise of the related warrants as of the trading day
immediately preceding the date the registration statement is initially filed
with the SEC].  Because the conversion price of
the convertible notes, the interest payable on the convertible notes may be
adjusted [and the exercise price of the warrants may be adjusted], the number
of shares that will actually be issued may be more or less than the number of
shares being offered by this prospectus. 
The fourth column assumes the sale of all of the shares offered by the
selling stockholders pursuant to this prospectus.


 


Under the terms of the convertible notes [and the warrants], a selling
stockholder may not convert the convertible notes [or exercise the warrants] to
the extent such conversion or exercise would cause such selling stockholder,
together with its affiliates, to beneficially own a number of shares of Common
Stock which would exceed 4.99% of our then outstanding shares of Common Stock
following such conversion or exercise, excluding for purposes of such
determination shares of Common Stock issuable upon conversion of the
convertible notes that have not been converted [and upon exercise of the
warrants that have not been exercised]. 
The number of shares in the second column does not reflect this
limitation.  The selling stockholders may
sell all, some or none of their shares in this offering.  See “Plan of Distribution.”


 


1





















 


	
  Name of
  Selling Shareholder

  	
   

  	
  Number of Shares Owned

  Prior to Offering

  	
   

  	
  Maximum Number of Shares

  to be Sold Pursuant to this

  Prospectus

  	
   

  	
  Number of Shares Owned

  After Offering

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Portside
  Growth & Opportunity Fund(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SF
  Capital Partners Ltd.(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manchester
  Securities Corp.(3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kings
  Road Investments Ltd.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Provident
  Premier Master Fund(4)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  0

  



 










(1)                                  Ramius
Capital Group, LLC (“Ramius Capital”) is the investment adviser of Portside
Growth and Opportunity Fund (“Portside”) and consequently has voting control
and investment discretion over securities held by Portside.  Ramius Capital disclaims beneficial ownership
of the shares held by Portside.  Peter A.
Cohen, Morgan B. Stark, Thomas W. Strauss and Jeffrey M. Solomon are the sole
managing members of C4S& Co., LLC, the sole
managing member of Ramius Capital.  As a
result, Messrs. Cohen, Stark, Strauss and Solomon may be considered beneficial
owners of any shares deemed to be beneficially owned by Ramius Capital.  Messrs. Cohen, Stark, Strauss and Solomon
disclaim beneficial ownership of these shares.


 


(2)                                  Michael
A. Roth and Brian J. Stark possess voting and dispositive power over all of the
shares owned by SF Capital Partners Ltd.


 


(3)                                  Manchester
Securities Corp. is a wholly-owned subsidiary of Elliott Associates, L.P. Paul
E. Singer and Elliott Capital Advisors, L.P., which is controlled by Mr.
Singer, are the general partners of Elliott Associates, L.P.


 


(4)                                  The
Investment Advisor to Provident Premier Master Fund, Ltd. is Gemini Investment
Strategies, LLC. The Managing Members of Gemini Investment Strategies, LLC are
Messrs. Steven W. Winters and Mr. Richard S. Yakomin. As such, Messrs. Winters
and Yakomin may be deemed beneficial owners of the shares. Messrs. Winters and
Yakomin, however, disclaim beneficial ownership of such shares.


 


2





















 


PLAN OF DISTRIBUTION


 


We are registering the shares of Common Stock issuable upon conversion
of the convertible notes, [upon exercise of the warrants and] in payment of
interest on the convertible notes to permit the resale of these shares of
Common Stock by the holders of the convertible notes [and warrants] from time
to time after the date of this prospectus. 
We will not receive any of the proceeds from the sale by the selling
stockholders of the shares of Common Stock. 
We will bear all fees and expenses incident to our obligation to
register the shares of Common Stock.


 


The selling stockholders may sell all or a portion of the shares of
Common Stock beneficially owned by them and offered hereby from time to time
directly or through one or more underwriters, broker-dealers or agents.  If the shares of Common Stock are sold
through underwriters or broker-dealers, the selling stockholders will be
responsible for underwriting discounts or commissions or agent’s
commissions.  The shares of Common Stock
may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of the sale, at varying prices determined at the time of
sale, or at negotiated prices.  These
sales may be effected in transactions, which may
involve crosses or block transactions,


 


•                  on any national securities exchange or quotation service on
which the securities may be listed or quoted at the time of sale;


 


•                  in the over-the-counter market;


 


•                  in transactions otherwise than on these exchanges or systems
or in the over-the-counter market;


 


•                  through the writing of options, whether such options are
listed on an options exchange or otherwise;


 


•                  ordinary brokerage transactions and transactions in which
the broker-dealer solicits purchasers;


 


•                  block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;


 


•                  purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;


 


•                  an exchange distribution in accordance with the rules of the
applicable exchange;


 


•                  privately negotiated transactions;


 


•                  short sales;


 


•                  sales pursuant to Rule 144;


 


•                  broker-dealers may agree with the selling securityholders to
sell a specified number of such shares at a stipulated price per share;


 


1





















 


•                  a combination of any such methods of sale; and


 


•                  any other method permitted pursuant to applicable law.


 


If the selling stockholders effect such transactions by selling shares
of Common Stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of Common Stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved).  In connection with sales of the shares of
Common Stock or otherwise, the selling stockholders may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the shares of
Common Stock in the course of hedging in positions they assume.  The selling stockholders may also sell shares
of Common Stock short and deliver shares of Common Stock covered by this
prospectus to close out short positions and to return borrowed shares in
connection with such short sales.  The
selling stockholders may also loan or pledge shares of Common Stock to
broker-dealers that in turn may sell such shares.


 


The selling stockholders may pledge or grant a security interest in
some or all of the convertible notes, [warrants,] or shares of Common Stock
owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the shares of
Common Stock from time to time pursuant to this prospectus or any amendment to
this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act of 1933, as amended, amending, if necessary, the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus. 
The selling stockholders also may transfer and donate the shares of
Common Stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.


 


The selling stockholders and any broker-dealer participating in the
distribution of the shares of Common Stock may be deemed to be “underwriters”
within the meaning of the Securities Act, and any commission paid, or any
discounts or concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act.  At the time a particular offering of the
shares of Common Stock is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares of Common Stock
being offered and the terms of the offering, including the name or names of any
broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers.


 


Under the securities laws of some states, the shares of Common Stock
may be sold in such states only through registered or licensed brokers or
dealers.  In addition, in some states the
shares of Common Stock may not be sold unless such shares have been registered
or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.


 


2





















 


There can be no assurance that any selling stockholder will sell any or
all of the shares of Common Stock registered pursuant to the registration
statement, of which this prospectus forms a part.


 


The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder,
including, without limitation, Regulation M of the Exchange Act, which may
limit the timing of purchases and sales of any of the shares of Common Stock by
the selling stockholders and any other participating person.  Regulation M may also restrict the ability of
any person engaged in the distribution of the shares of Common Stock to engage
in market-making activities with respect to the shares of Common Stock.  All of the foregoing may affect the marketability
of the shares of Common Stock and the ability of any person or entity to engage
in market-making activities with respect to the shares of Common Stock.


 


We will pay all expenses of the registration of the shares of Common
Stock pursuant to the registration rights agreement; provided, however, that a
selling stockholder will pay all underwriting discounts and selling
commissions, if any.  We will indemnify
the selling stockholders against liabilities, including some liabilities under
the Securities Act, in accordance with the registration rights agreements, or
the selling stockholders will be entitled to contribution.  We may be indemnified by the selling
stockholders against liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by
the selling stockholder specifically for use in this prospectus, in accordance
with the related registration rights agreement, or we may be entitled to
contribution.


 


Once sold under the shelf registration statement, of which this
prospectus forms a part, the shares of Common Stock will be freely tradable in
the hands of persons other than our affiliates.


 


3