EXHIBIT 10.9
EXECUTION COPY
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THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT dated as of May 8,
2000 (the "Agreement") by and among (i) InFlow, Inc., a Delaware corporation
(the "Company"), and (ii) the investors listed on the signature pages attached
hereto, together with those investors listed on Schedule A attached hereto or
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that subsequently execute a counterpart signature page hereto, each of which is
herein referred to as an "Investor." The Second Amended and Restated Investors'
Rights Agreement dated November 30, 1999 between the Company and certain of the
Investors is hereby amended and restated in its entirety.
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "Holder" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 1.13 hereof.
(d) The term "Initiating Holders" means one or more holders of
Registrable Securities representing, in the case of a registration other than a
registration on Form S-3, not less than 25% of the Registrable Securities then
outstanding and, in the case of a registration on Form S-3, not less than 10% of
the Registrable Securities then outstanding.
(e) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(f) The term "Person" shall mean a natural person, partnership,
limited liability company, corporation, trust, or unincorporated organization or
association, company, firm, joint venture or other business entity, or a
government or governmental agency or instrumentality or political subdivision
thereof.
(g) The term "Preferred Stock" shall mean, collectively, the
Company's Series A Preferred Stock, $.001 par value, the Series B Preferred
Stock, $.001 par value, and the Series C Preferred Stock, $.001 par value.
(h) The term "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(i) The term "Registrable Securities" means (i) the shares of the
Company's Common Stock, $.001 par value ("Common Stock"), issuable or issued
upon conversion of the Preferred Stock, (ii) the 3,060,000 shares of Common
Stock (the "Management Stock") issued to Art Zeile, Xxxx Xxxx and Xxxxxxx Xxxxx;
provided, however, that such shares of Management Stock shall not be deemed
Registrable Securities and such Persons shall not be deemed Holders for the
purposes of Section 1.2, 1.3 and 3.7 hereof or for purposes of the definition of
Initiating Holders, and (iii) any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) and (ii) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which his rights under this Section 1 are not assigned.
(j) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities (including the Preferred
Stock) which are, Registrable Securities.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier
of (i) April 1, 2006 or (ii) six (6) months after the effective date of the
first registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or a SEC Rule 145 transaction), a written request from the
Initiating Holders that the Company file a registration statement under the Act
covering the registration of at least twenty percent (20%) of the Registrable
Securities then outstanding (or a lesser percentage if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed
$10,000,000) then the Company shall:
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Holders; and
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(ii) file as soon as practicable, and in any event within
60 days of the receipt of such request, a registration statement in
form and scope sufficient to permit under the Act and any other
applicable law and regulations the disposition of all Registrable
Securities which the Holders request to be registered in accordance
with the method or methods of distribution specified in such request,
subject to the limitations of Section 1.2(b), within twenty (20) days
of the mailing of such notice by the Company in accordance with Section
3.5.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to Section 1.2(a)
and the Company shall include such information in the written notice referred to
in Section 1.2(a). The underwriter will be selected by a majority in interest
of the Initiating Holders and shall be reasonably acceptable to the Company. In
such event, the right of any Holder to include Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in Section 1.4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
in its good faith view marketing factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the Company will exclude from such registration (i) first, securities held
by any Person who does not have any contractual rights to cause the Company to
register such securities, (ii) second, securities held by any Person with such
contractual rights other than those granted in this Agreement and (iii) third,
shares held by all Holders, including the Initiating Holders, of Registrable
Securities with such contractual rights granted in this Agreement, pro rata
among the Holders of such shares on the basis of the respective numbers of
shares of Common Stock requested to be included in such registration. If at
least eighty percent (80%) of the Registrable Securities requested to be
registered by the Initiating Holders are not included in such registration, then
the Initiating Holders may request that the Company effect an additional
registration under the Securities Act of all or part of the Initiating Holders'
Registrable Securities in accordance with the provisions of this Section 1.2,
and the Company shall effect such additional registration at its sole expense.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would
(because of the existence of, or in anticipation of, any acquisition, financing
activity, or other transaction involving the Company, or the unavailability for
reasons beyond the Company's control of any required financial statements,
disclosure of information which is in its best interest not to publicly
disclose, or any other event or condition of similar significance to the
Company) be seriously detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
taking action with
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respect to such filing for a period of not more than 90 days after receipt of
the request of the Initiating Holders; provided, however, that the Company may
not utilize this right more than once in any twelve-month period.
(d) A demand registration requested pursuant to this Section 1.2 shall
not be deemed to have been effected unless the registration statement relating
thereto (i) has become effective under the Act and any of the Registrable
Securities of the Initiating Holders included in such registration have actually
been sold thereunder, and (ii) has remained effective for a period of at least
120 days (or such shorter period in which all Registrable Securities included in
such registration have actually been sold thereunder); provided that if after
any registration statement requested pursuant to this Section 1.2 becomes
effective (i) such registration statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court solely due to the actions or omissions to act of the Company and
(ii) less than fifty percent (50%) of the Registrable Securities included in
such registration have been sold thereunder, such registration statement shall
not be included as a registration which may be requested pursuant to this
Section 1.2 and shall be at the sole expense of the Company.
(e) In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has effected four registrations pursuant to
this Section 1.2 and such registrations have been declared or ordered
effective and have remained effective for at least 120 consecutive
days; or
(ii) During the period starting with the date 90 days prior to
the Company's good faith estimate of the date of filing of, and ending
on a date 180 days after the effective date of, a Company-initiated
registration statement in connection with a bona fide firm commitment
underwritten registration for securities to be offered for the
Company's own account (the "Intended Registration") ; provided that the
Company is actively employing in good faith all reasonable efforts to
cause the Intended Registration to become effective and provided
further that the Company gives notice to all Holders upon commencement
of such period. The Holders shall be entitled to exercise their rights
pursuant to Section 1.4 hereof with respect to an Intended
Registration. An Intended Registration shall not be deemed to be a
demand registration of the Holders pursuant to this Section 1.2.
1.3 S-3 Registration. In case the Company shall receive from the Initiating
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Holders a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
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(b) as soon as practicable, and in any event within 30 days of the
receipt of such notice, file a registration statement on Form S-3, or a post-
effective amendment thereto and effect all other qualifications and compliances
as may be so requested and as would permit or facilitate the sale and
distribution (through market transactions using brokers, in a firm commitment
underwriting, in negotiated transactions or otherwise) of all or such portion of
such Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written
request given within 15 days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
1.3: (i) if Form S-3 is not available for such offering by the Holders; (ii) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$2,500,000; (iii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be (because of the existence
of, or in anticipation of, any acquisition, financing activity, or other
transaction involving the Company, or the unavailability for reasons beyond the
Company's control of any required financial statements, disclosure of
information which is in its best interest not to publicly disclose, or any other
event or condition of similar significance to the Company) seriously detrimental
to the Company and its shareholders for such Form S-3 Registration to be
effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 registration statement for a period of not more than
60 days after receipt of the request of the Holder or Holders under this Section
1.3; provided, however, that the Company shall not exercise this right more than
once in any twelve month period; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two
registrations on Form S-3 for the Holders pursuant to this Section 1.3; or (v)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders and shall keep it continuously effective for a period of not less
than 120 days or, if shorter, until such Registrable Securities have been sold
pursuant thereto.
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1.4 Company Registration. If (but without any obligation to do so) the
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Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any of its stock or
other securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, a registration on
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.9, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered. Notwithstanding
the foregoing, the Company has no obligation to register any shares pursuant to
this Section 1.4 and may withdraw any such registration at any time.
1.5 Obligations of the Company. Whenever required under this Section 1 to
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effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that (i) such 120-day period shall be
extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a post-
effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Act or (II) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (I) and
(II) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments, supplements and
post-effective amendments to such registration statement and the prospectus used
in connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
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(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and do any and all other
acts and things which may be necessary or advisable to enable such Holders or
underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities.
(e) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Holder or Holders thereof
to consummate the disposition of such Registrable Securities;
(f) immediately notify the managing underwriter, if any, and each
Holder of such Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event which comes to the Company's attention if as a result of such event
the prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
the Company shall promptly prepare and furnish to such Holder a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
(g) use its best efforts to cause all such Registrable Securities
covered by the registration statement to be listed on a national securities
exchange and on each securities exchange on which similar securities issued by
the Company are then listed, and enter into such customary agreements including
a listing application and indemnification agreement in customary form (provided
that the applicable listing requirements are satisfied), and to provide a
transfer agent and registrar for such Registrable Securities covered by such
registration statement no later than the effective date of such registration
statement;
(h) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Initiating
Holders or the underwriters retained by such Holders, if any, reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities, including customary indemnification;
(i) make available for inspection during normal business hours by any
Holder of Registrable Securities covered by such registration statement, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other
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agent retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries (collectively, "Records"), if
any, as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's and its subsidiaries'
officers, directors and employees to supply all information and respond to all
inquiries reasonably requested by any such Inspector in connection with such
registration statement. Notwithstanding the foregoing, the Company shall have no
obligation to disclose any Records to the Inspectors in the event the Company
determines that such disclosure is reasonably likely to have an adverse effect
on the Company's ability to assert the existence of an attorney-client privilege
with respect thereto;
(j) use its best efforts to obtain a "comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "comfort" letters as the Holders of a
majority (by number of shares) of the Registrable Securities being sold
reasonably request, and provided that such request is reasonable in the
underwriter's point of view;
(k) use its best efforts to obtain an obtain an opinion of counsel
from the Company's counsel in customary form and covering such matters of the
type customarily covered in opinions of counsel in connection with such
transactions; and
(l) comply, and continue to comply during the period that such
registration statement is effective under the Securities Act, in all material
respects with the Securities Act and the Securities Exchange Act of 1934 and
with all applicable rules and regulations of the Commission with respect to the
disposition of all securities covered by such registration statement, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act,
and not file any amendment or supplement to such registration statement or
prospectus to which Holder shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects with the
requirements of the Securities Act, having been furnished with a copy thereof at
least five (5) business days prior to the filing thereof.
Each Holder of Registrable Securities agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
1.5(f) hereof, such Holder shall discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 1.5(f) hereof, and, if so directed by
the Company, such Holder shall deliver to the Company (at the Company's expense)
all copies (including, without limitation, any and all drafts), other than
permanent file copies, then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in Section 1.5(a) hereof shall be extended by the greater of (i) ten
(10) business days or (ii) the number of days during the period from and
including the date of the giving of such notice
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pursuant to Section 1.5(f) hereof to and including the date when each Holder of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 1.5(f) hereof.
1.6 Furnish Information.
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(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.3 if, due to the
operation of Section 1.6(a), the number of shares or the anticipated aggregate
offering price of the Registrable Securities to be included in the registration
does not equal or exceed the number of shares or the anticipated aggregate
offering price required to originally trigger the Company's obligation to
initiate such registration as specified in Section 1.2(a) or Section 1.3(b), as
applicable.
1.7 Expenses of Demand Registration. All expenses (other than underwriting
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discounts and commissions) incurred in connection with up to two registrations,
filings or qualifications pursuant to Section 1.2 hereof, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, and fees and
disbursements of one counsel for the selling Holders, shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2.
1.8 Expenses of Company Registration and Form S-3 Registrations. The
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Company xxxxx bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Sections 1.3 and 1.4 for each Holder, including
(without limitation) all registration, filing, and qualification fees, printers
and accounting fees relating or apportionable thereto and the fees and
disbursements of counsel for the Company in its capacity as counsel to the
selling Holders hereunder; if Company counsel does not make itself available for
this purpose, the Company will pay the reasonable fees and disbursements of one
counsel for the selling Holders selected by them, but excluding underwriting
discounts and commissions relating to Registrable Securities.
1.9 Underwriting Requirements. In connection with any offering involving
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an underwriting of shares of the Company's capital stock, the Company shall not
be required under Sections 1.3 and 1.4 to include any of the Holders' securities
in such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters), and then only in such
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quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering pursuant to Sections 1.3 and 1.4 exceeds the amount of
securities sold (other than by the Company in the case of a registration under
Section 1.4) that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall exclude from
such registration (i) first, securities held by any Person who does not have any
contractual rights to cause the Company to register such securities, (ii)
second, securities held by any Person with such contractual rights other than
those granted in this Agreement, (iii) third, any Management Stock included in
the underwriting, and (iv) fourth, shares held by any Person with such
contractual rights granted in this Agreement, pro rata among the Holders of such
shares on the basis of the respective numbers of shares of Common Stock
requested to be included in such registration, but in no event shall the amount
of securities of the selling Holders included in the offering be reduced below
twenty percent (20%) of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities.
1.10 Delay of Registration. No Holder shall have any right to obtain or seek
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an injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.11 Indemnification. In the event any Registrable Securities are included
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in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, its directors, officers and partners, any underwriter
(as defined in the Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Act or the 1934 Act,
against any losses, claims, damages, liabilities (joint or several) or expenses
to which they may become subject under the Act or the 1934 Act, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, or any rule or regulation
promulgated under the Act or the 1934 Act; and the Company will pay to each such
Holder, director, officer, partner, underwriter or controlling person, any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 1.11(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder,
underwriter or controlling person.
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(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act or the 1934 Act, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) 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 by such Holder expressly for use in connection with such registration;
and each such Holder will pay any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this Section 1.11(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 1.11(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this Section
1.11(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.11 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.11, 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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.11, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.11.
(d) If the indemnification provided for in this Section 1.11 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that
11
resulted in such loss, liability, claim, damage, or expense as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this Section 1.11
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.12 Reports Under Securities Exchange Act of 1934. With a view to making
---------------------------------------------
available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration or pursuant to
a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC (including Rule 144A)
which permits the selling of any such securities without registration or
pursuant to such form.
1.13 Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Section 1 may be assigned (but
only with all related obligations) by a Holder to a transferee or assignee of
such securities, provided: (a) the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be
12
bound by and subject to the terms and conditions of this Agreement, including
without limitation the provisions of Section 1.15 below; and (c) such assignment
shall be effective only if immediately following such transfer either (x) the
Common Stock is neither listed on a national securities exchange nor traded in
the NASDAQ National Market System or (y) the further disposition of such
securities by the transferee or assignee is restricted under the Act.
1.14 Limitations on Subsequent Registration Rights. From and after the date
---------------------------------------------
of this Agreement, the Company shall not, without the prior written consent of
the Holders of a majority of the outstanding Registrable Securities, enter into
any agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder (a) registration
rights which are superior to the registration rights granted pursuant to this
Agreement, (b) registration rights which are pari passu with the registration
rights granted pursuant to Sections 1.2, 1.3 and 1.4 of this Agreement, (c) to
include such securities in any registration filed under Section 1.2 or Section
1.3, unless under the terms of such agreement, such holder or prospective holder
may include such securities in any such registration only to the extent that the
inclusion of such securities will not reduce the amount of the Registrable
Securities included by the Holders in such registration, or (d) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of six months after either of the dates set forth
in Section 1.2(a) or within one hundred eighty (180) days of the effective date
of any registration effected pursuant to Section 1.2.
1.15 "Market Stand-Off" Agreement. Each Investor hereby agrees that, during
----------------------------
the period of duration specified by the managing underwriter of Common Stock or
other equity securities of the Company, following the date of the first sale of
such securities to the public pursuant to a registration statement of the
Company filed under the Act, it shall not, to the extent requested by such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration; provided, however, that such
market stand-off time period shall not exceed 180 days in the case of the
Company's initial public offering or 90 days in any subsequent registration and
in any event shall not exceed the stand-off period applicable to holders of
Management Stock. In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period. Notwithstanding the
foregoing, the obligations described in this Section 1.15 shall not apply to a
registration relating solely to employee benefit plans on Form S-l or Form S-8
or similar forms which may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms which may be promulgated in the future.
1.16 Termination of Registration Rights.
----------------------------------
(a) No Holder shall be entitled to exercise any right provided for in
this Section 1 (other than Section 1.3) after five (5) years following the
consummation of the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection
13
with the initial firm commitment underwritten offering of its Common Stock to
the general public.
(b) In addition, the right of any Holder to request registration or
inclusion in any registration pursuant to Section 1.4 shall terminate on the
first date following the Company's initial public offering of Common Stock on
which both (i) all shares of Registrable Securities held or entitled to be held
upon conversion by such Holder may immediately be sold under Rule 144 during the
following 90-day period, and (ii) the Common Stock is either listed on a
national securities exchange or traded in the NASDAQ National Market System.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver to each
--------------------------------
Investor (or, in the case of items referred to in clauses (e) and (f) of this
Section 2.1, to each Investor holding securities representing 10.0% or more of
the fully-diluted Common Stock determined on an as-converted basis (a "Qualified
Holder"); Notwithstanding the foregoing, as long as First Union Capital
Partners, Inc., Meritage Private Equity Fund, L.P., Meritage Private Equity
Parallel Fund, L.P., Meritage Entrepreneurs Fund, L.P., X.X. Xxxxxx Investment
Corporation, Sixty Wall Street SBIC Fund, L.P., General Electric Capital
Corporation or Xxxxxxxx, Xxxxxx & Xxxxx II, L.P. own securities representing at
least fifty percent (50%) of the securities of the Company held by such
Investors as of the date of this Agreement, the Company shall deliver to such
Investors the items referred to in clauses 2.1(e) and (f)):
(a) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, an income statement for such
fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such fiscal year, and a statement of cash flows for such
fiscal year, such year-end financial reports to be in reasonable detail,
prepared in accordance with generally accepted accounting principles ("GAAP"),
and audited and certified by independent public accountants of nationally
recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45)
days after the end of each of the first three (3) quarters of each fiscal year
of the Company, an unaudited balance sheet and statements of income and cash
flows for and as of the end of such fiscal quarter;
(c) within thirty (30) days of the end of each month, an unaudited
balance sheet and statements of income and cash flows for and as of the end of
such month, in reasonable detail; and
(d) with respect to the financial statements called for in subsections
(b) and (c) of this Section 2.1, an instrument executed by the Chief Financial
Officer or President of the Company and certifying that such financial
statements were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to normal year-end
audit adjustment.
14
(e) as soon as practicable, but in any event thirty (30) days prior to
the end of each fiscal year, a budget and business plan for the next fiscal
year, prepared on a monthly basis, including balance sheets and statements of
income and cash flows for such months and, as soon as prepared, any other
budgets or revised budgets prepared by the Company; and
(f) such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as such Investor may
from time to time reasonably request; provided, however, that the Company shall
be allowed a reasonable time to process such request and shall not be obligated
under this or any other provision of Section 2.1 to provide information which it
deems in good faith to be a trade secret or similar confidential information.
2.2 Inspection. The Company shall permit each Qualified Holder, at such
----------
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information which it
reasonably considers to be a trade secret or similar confidential information.
2.3 Termination of Information and Inspection Covenants. The covenants set
---------------------------------------------------
forth in Sections 2.1 and Section 2.2 shall terminate as to Investors and be of
no further force or effect when the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
firm commitment underwritten offering of its securities to the general public is
consummated or when the Company first becomes subject to the periodic reporting
requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall
first occur.
2.4 Regulatory Compliance. In the event that (i) First Union Capital
---------------------
Partners, Inc., (ii) Sixty Wall Street SBIC Fund, L.P. or (iii) X.X. Xxxxxx
Investment Corporation (each, an "SBIC") determines that, by reason of any
future federal or state rule, regulation, guideline, order, interpretive
release, ruling, request or directive relating to Small Business Investment
Companies under the Small Business Investment Act of 1958 (having the force of
law and where the failure to comply therewith would be unlawful)(collectively, a
"Regulatory Requirement"), it is effectively restricted or prohibited from
holding the shares of Series A, Series B or Series C Preferred Stock (or any
capital stock distributable to such SBIC in any merger, reorganization,
readjustment or other reclassification or exchange with respect to the Company
or any successor thereof) or otherwise realize upon or receive the benefits
intended under the Series A, Series B or Series C Agreements, and following such
SBIC's respective exercise of its reasonable best efforts to overcome such
Regulatory Requirement, the Company, the Company's Board of Directors and the
other shareholders of the Company shall make all reasonable efforts to take such
action as such SBIC may reasonably deem necessary to permit such Investor to
comply with such Regulatory Requirement. Such action to be taken may include
the Company's authorization or creation of one or more new classes of interests
and the modification or amendment of the Series A, Series B or Series C
Agreement or the other agreements executed in connection therewith; and, if
compliance with such Regulatory Requirement cannot be satisfied by such efforts,
such SBIC shall be allowed to sell or exchange, convey, dispose or otherwise
transfer (collectively, "Transfer") all or part of its shares of the Company's
capital stock as necessary to comply with such Regulatory Requirement without
such Transfer being subject to
15
any co-sale rights or rights of first refusal by any other shareholder of the
Company or any other Person (including the Company) under the Stockholders'
Agreement of even date herewith among the Company and certain stockholders of
the Company. Each SBIC shall give written notice to the Company of any such
determination and the action or action necessary to comply with such Regulatory
Requirement, and the Company, the Company's Board of Directors and the
shareholders of the Company shall take all steps necessary to comply with such
determination as expeditiously as possible.
2.5 Key Man and Directors and Officers Insurance. The Company agrees to
--------------------------------------------
maintain, as long as such persons serve as executive officers of the Company,
"key man" life insurance on each of Art Zeile and Xxxx Xxxx with the Company as
the sole beneficiary of such insurance, in an amount reasonably acceptable to
the Investors. The Company also agrees to maintain directors and officers
liability insurance in an amount reasonably acceptable to the Investors.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided herein, the terms
----------------------
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including transferees
of any shares of Registrable Securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of Colorado as applied to agreements among Colorado
residents entered into and to be performed entirely within Colorado.
3.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
3.5 Notices. All notices required or permitted hereunder shall be in
-------
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
or (iii) one day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the address as set forth on the signature page
hereof or at such other address as such party may designate by ten days advance
written notice to the other parties hereto.
16
3.6 Expenses. If any action at law or in equity is necessary to enforce
--------
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
3.7 Amendments and Waivers. Any term of this Agreement may be amended and
----------------------
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of at least seventy-five
percent (75%) of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
3.8 Severability. If one or more provisions of this Agreement are held
------------
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held or
--------------------
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
3.10 Entire Agreement; Amendment; Waiver. This Agreement (including the
-----------------------------------
Exhibits hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INFLOW, INC.
By: /s/ Art Zeile
-------------------------------------
President and Chief Executive Officer
Address: 000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
INVESTORS:
First Union Capital Partners, Inc. Meritage Private Equity Fund, L.P.
Meritage Private Equity Parallel Fund, L.P.
Meritage Entrepreneurs Fund, L.P.
By: /s/ X. Xxxxx Xxxxxxx, III By: Meritage Investment Partners, LLC
-------------------------------------
Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx By: /s/ X. Xxxxxxx Xxxxxxxxxx, Jr.
Xxxxxxxxx, XX 00000-0000 --------------------------------------
Managing Member
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
X.X. Xxxxxx Investment Corporation Sixty Wall Street SBIC Fund, L.P.,
By: /s/ Xxxxxxx Xxxxxxxx By: Sixty Wall Street SBIC Corporation, its
------------------------------------- General Partner
Name: ____________________________
Title: ___________________________ By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: _______________________________________
Address: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx Title: ______________________________________
Xxx Xxxxxxxxx, XX 00000
Address: 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
18
(Signature Page to Third Amended and Restated Investors' Rights Agreement
continued)
INVESTORS (continued):
Xxxxxxxx, Xxxxxx and Xxxxx II, L.P.
By: Xxxxxxxx, Xxxxxx & Xxxxx LLC,
General Partner
By: /s/ Xxxxx Van Genderen
-----------------------------
Name: ___________________________
Title: __________________________
Address: Republic Plaza
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
----------------------------------------------
/s/ Xxxx X. Xxxx
----------------------------------------------
/s/ Xxxxxxx X. Xxxxx
----------------------------------------------
19
