REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of October 16, 2000, by and among Wit SoundView Group, Inc.,
a Delaware corporation (together with its permitted successors and assigns, "we"
or the "Company"), and the persons whose signatures appear on the execution
pages of this Agreement (the "Stockholders").
WHEREAS, the Company has agreed to use its commercially
reasonable efforts to effect and maintain the registration under the Securities
Act of 1933, as amended (the "Act") of certain shares of its common stock, par
value $0.01 per share, which are set forth opposite the name of each Stockholder
on Schedule A and are being issued pursuant to the Agreement and Plan of Merger,
by and among the Company, Wit SoundView Corporation and E*OFFERING Corp., dated
as of May 15, 2000, as amended on September 26, 2000 (the "Merger Agreement"),
along with the associated rights to purchase shares of the Company's Series A
Junior Participating Preferred Stock and any securities paid, issued or
distributed in respect of such shares by way of stock dividends or distribution
or stock split or in connection with a combination of shares, recapitalization,
reorganization, merger or otherwise (collectively, the "Registrable Shares"),
WHEREAS, certain of the Stockholders are parties to an
agreement or agreements which in one or more ways restrict or restricts the
rights of such Stockholders to sell or otherwise transfer the Registrable Shares
for specified periods of time and until certain conditions are no longer
applicable, and notwithstanding the rights granted to such Stockholders
hereunder, such transfer restrictions are independent of the provisions of this
Agreement, and
WHEREAS, the Company has registered under the Act the resale
of the Registrable Shares by the Stockholders on a Registration Statement on
Form S-4 (No. 333- 42062), which was originally declared effective by the staff
of the Securities and Exchange Commission (the "Staff") on August 8, 2000, as
amended by a post-effective amendment dated October 6, 2000 (as may be amended
from time to time, the "Current Registration Statement").
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, intending to be bound
hereby the parties agree as follows:
1. REGISTRATION.
(a) With respect to the Registrable Shares,
immediately after the Closing of the Merger, or as soon thereafter as reasonably
practicable, the Company hereby agrees to use its reasonable best efforts to
either (i) maintain the effectiveness of the Current Registration Statement,
through post-effective amendments, if, and as necessary, on Form S-3 (or any
successor form), for the sale by the Stockholders of Registrable Shares from
time to time on a delayed or continuous basis pursuant to Rule 415 under the Act
or (ii) prepare and file a new registration statement on Form S-3 (or any
successor form) (a "New Registration Statement") with the Staff and to maintain
the effectiveness of the New Registration Statement, through post-effective
amendments, as necessary, for the sale by the Stockholders of Registrable Shares
from time to time on a delayed or continuous basis pursuant to Rule 415 under
the Act. As used herein, the term "Registration Statement" refers to either the
Current Registration Statement or the New Registration Statement, as applicable.
(b) With respect to each Stockholder, the Company
further agrees to maintain the effectiveness of the Registration Statement until
such time as the earlier of (i) all Registrable Shares have been sold by such
Stockholder, (ii) the lapse, if applicable to such Stockholder, of selling
restrictions provided by Rule 144(k) under the Act (or any successor provision)
applicable to such Stockholder, (iii) or November 15, 2003.
(c) The Company shall have no obligation to engage in
underwriting to effect or facilitate the sale of any Registrable Shares and this
Agreement shall not confer any piggyback or other rights on the holders of
Registrable Shares, other than as expressly set forth herein.
2. DELAY PERIODS. Notwithstanding the provisions of
Section 1 above, the Company shall have the right to suspend the filing,
effectiveness or use of the Registration Statement for a reasonable length of
time not to exceed 90 calendar days (a "Delay Period") from time to time if the
Company determines in good faith that (A) it is in possession of material,
non-public information concerning an acquisition, merger, recapitalization,
consolidation, reorganization or other material transaction by or of the Company
or concerning pending or threatened litigation and (B) disclosure of such
information would jeopardize any such transaction or litigation or otherwise
materially harm the Company, provided, that the Company may not exercise such
deferral right pursuant to this Section 2 more than once in any twelve month
period. The Company shall provide written notice at or prior to commencement of
a Delay Period and promptly upon the end of any Delay Period to each holder of
Registrable Shares covered by the Registration Statement and such holders shall
cease all disposition efforts with respect to Registrable Shares held by them
immediately upon the beginning of any Delay Period until notified of the end of
such Delay Period.
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3. HOLD-BACK AGREEMENT.
Each holder of Registrable Shares agrees, if such
holder is requested by an underwriter in an underwritten offering for the
Company (whether for the account of the Company or otherwise), not to effect any
public sale or distribution of any of the Company's equity securities pursuant
to the Registration Statement, including (in the case of an offering for the
account of the Company) a sale pursuant to Rule 144 (except as part of such
underwritten registration), during the 3-day period prior to the offering date,
and during the 30-day period beginning on the closing date of such underwritten
offering.
4. NOTICES. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally against written receipt or by facsimile
transmission against facsimile confirmation or mailed (by registered or
certified mail, postage prepaid, return receipt requested) or delivered by
reputable overnight courier, fee prepaid, to the parties at the following
addresses or facsimile numbers:
(1) If to the Company, to:
Wit SoundView Group, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn.: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: 000-000-0000
Attn.: Xxxxxxx X. Xxxxx
(2) If to any Stockholder, to:
The last known address of such Stockholder
on the books and records of the Company;
5.
EXPENSES. The Company will pay all expenses to
register the Registrable Shares and maintain the effectiveness of the
Registration Statement for the period set forth in Section 2 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, expenses of any audits incident to
or required by any such registration and expenses of complying with the
securities and "blue-sky" laws. Stockholders shall bear all other expenses in
proportion
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to the number of Registrable Shares held by such Stockholder and included in
such registration, including underwriting expenses, the expense of any broker's
commission or underwriter's discount or commission relating to registration and
sale of such Stockholder's Registrable Shares.
6. GOVERNING LAW. This letter agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflict of laws principles thereof.
7. WAIVER OF JURY TRIAL. Each of the parties hereto
hereby waives its respective rights to a jury trial of any claim or cause of
action based upon or arising out of this agreement. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this agreement, including
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each of the parties hereto further warrants and represents
that it has reviewed this waiver with its legal counsel, and that it knowingly
and voluntarily waives its jury trial rights following consultation with legal
counsel. This waiver is irrevocable, meaning that it may not be modified either
orally or in writing, and this waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this agreement. In the event of
litigation, this agreement may be filed as a written consent to a trial by the
court.
8. ASSIGNMENT. The rights granted pursuant to this
Agreement may not be assigned or otherwise conveyed by any Stockholder or by any
subsequent transferee of any of such rights without the written consent of the
Company, which consent shall not unreasonably be withheld; provided, however,
that no such written consent shall be required and such Registrable Shares will
be Registrable Shares upon transfer to such transferee if (a) the transfer is to
any affiliate or partner of any Stockholder or if such transferee acquires at
least a majority of the capital stock of the Company owned by such Stockholder
or (b) the transfer of the Registrable Shares to such transferee is expressly
permitted by any agreement between the Company and any Stockholder (each, a
"Permitted Transferee"); provided further, however, that any such purchaser or
transferee shall, as a condition to the effectiveness of such transfer and/or
assignment, be required to execute a counterpart to this Agreement agreeing to
become a party to this Agreement and to be treated as a Stockholder hereunder,
whereupon such purchaser or transferee shall have the benefits of, and shall be
subject to the restrictions contained in this Agreement. The rights granted
pursuant to this Agreement with respect to any Stockholder's Registrable Shares
shall be deemed to be assigned subject to the provisions of this Section 9 (with
respect to such Registrable Shares) to any Permitted Transferee of such
Registrable Shares, unless the documentation executed by the Stockholder to
effect the transfer of such Registrable Shares provides that rights under this
Agreement are not being assigned to such transferee. The term "Stockholder"
shall be deemed to include any party to whom a Stockholder's rights with respect
to a particular Registrable Shares have been assigned in accordance with this
Section 9.
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9. INDEMNIFICATION.
(a) In connection with any registration of any
Registrable Shares under the Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the Stockholders, and the officers, directors and
other persons that may be deemed to control any Stockholder within the meaning
of the Securities Exchange Act of 1934 (the "Exchange Act") against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which the Stockholders and such persons may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the registration
statement under which such Registrable Shares were registered under the Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Securities and Exchange Commission (the "Commission"), any amendment
or supplement thereto or any document incident to registration or qualification
of any Registrable Shares, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or, with respect to
any prospectus, necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or any violation by the
Company of the Securities Act or state securities or "blue-sky" laws applicable
to the Company and relating to action or inaction required of the Company in
connection with such registration or qualification under state securities or
"blue-sky" laws; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
strict conformity with written information furnished to the Company by any
Stockholder with respect to information regarding such Stockholder expressly for
inclusion therein.
(b) In connection with any registration of
Registrable Shares under the Act pursuant to this Agreement, any Stockholder
participating in such registration shall, severally and not jointly, indemnify
and hold harmless (in the same manner and to the same extent as set forth in
Section 9(a)) the Company, each director of the Company, each officer of the
Company who shall sign such registration statement, each underwriter, broker or
other person acting on behalf of the Company and each person who controls any of
the foregoing persons within the meaning of the Act with respect to any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Share, if such statement or
omission was made in reliance upon and in strict conformity with written
information furnished to the Company or such underwriter by such Stockholder
expressly for inclusion in such registration statement, preliminary prospectus,
final prospectus, amendment, supplement or document, provided that the liability
of any Stockholder under this Section 9(b) shall not exceed the aggregate
proceeds received by such Stockholder upon the sale of Registrable Shares by
such Stockholder pursuant to such registration.
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(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 9, such indemnified party will, if a claim
in respect thereof is made against an indemnifying party, give written notice to
the latter of the commencement of such action. In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be responsible for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the reasonable fees
and expenses to be paid by the indemnifying party, if such indemnified party
shall have reasonably concluded that representation of such indemnified party or
parties by the counsel retained by the indemnifying party or parties would be
inappropriate due to actual or potential differing interests between such
indemnified party or parties and any other party represented by such counsel in
such proceeding.
(d) If the indemnification provided for in this
Section 9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability or action
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amounts paid or payable by
such indemnified party as a result of such loss, claim, damage, liability or
action 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 which resulted in such loss, claim,
damage, liability or action 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 or alleged 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.
10. MODIFICATIONS; Amendments; Waivers. The terms and
provisions of this Agreement may only be amended or waived either (a) with the
written consent of the (i) Company and (ii) Stockholders holding a majority, by
voting power, of the outstanding Registrable Shares then held by all
Stockholders with respect to all terms and provisions of this Agreement.
11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
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12. ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
WIT SOUNDVIEW GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior V.P. and Co-General Counsel
E*TRADE GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chief Legal Affairs Officer
and Corporate Secretary
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
GENERAL ATLANTIC PARTNERS 61, L.P.
By: General Atlantic Partners, LLC,
Its general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
SOFTBANK TECHNOLOGY VENTURES V L.P.
By:
-----------------------------
Name:
Title:
NEW ENTERPRISE ASSOCIATES 9 L.P.
By:
-----------------------------
Name:
Title:
CRUTTENDEN PARTNERS, LLC
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Member
/s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
/s/ Xxxxxxxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxxxxxxx
E*TRADE ECOMMERCE FUND, L.P.
By: E*TRADE Ventures I, LLC,
Its general partner
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Member
Schedule A
REGISTRABLE SHARES
STOCKHOLDER NO. OF REGISTRABLE SHARES
E*TRADE Group, Inc.
General Atlantic Partners 61, L.P.
GAP Coinvestment Partners II, L.P.
Softbank Technology Ventures V L.P.
New Enterprise Associates 9 L.P.
E*TRADE ecommerce Fund, X.X.
Xxxxxxxxxx Partners, LLC
Xxxxxxx Xxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxxxx
------------
Total
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