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EXHIBIT 10.8
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FOURTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
among
ADVANTIX, INC.
and
THE STOCKHOLDERS NAMED HEREIN
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Dated May 17, 1999
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TABLE OF CONTENTS
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1. Definitions..........................................................................2
2. General; Securities Subject to this Agreement........................................7
(a) Grant of Rights...............................................................7
(b) Registrable Securities........................................................7
(c) Holders of Registrable Securities.............................................7
3. Demand Registration..................................................................8
(a) Request for Demand Registration...............................................8
(b) Limitations on Demand Registrations...........................................8
(c) Effective Demand Registration.................................................9
(d) Expenses......................................................................9
(e) Underwriting Procedures......................................................10
(f) Selection of Underwriters....................................................10
4. Incidental or "Piggy-Back" Registration.............................................10
(a) Request for Incidental Registration..........................................10
(b) Expenses.....................................................................11
(c) Right to Terminate Registration..............................................11
5. Form S-3 Registration...............................................................11
(a) Request for a Form S-3 Registration..........................................12
(b) Form S-3 Underwriting Procedures.............................................13
(c) Limitations on Form S-3 Registrations........................................13
(d) Expenses.....................................................................14
(e) No Demand Registration.......................................................14
6. Termination.........................................................................14
7. Holdback Agreements.................................................................14
(a) Restrictions on Public Sale by Designated Holders............................14
(b) Restrictions on Public Sale by the Company...................................15
8. Registration Procedures.............................................................15
(a) Obligations of the Company...................................................15
(b) Seller Information...........................................................15
(c) Notice to Discontinue........................................................18
(d) Registration Expenses........................................................18
9. Indemnification; Contribution.......................................................19
(a) Indemnification by the Company...............................................19
(b) Indemnification by Designated Holders........................................19
(c) Conduct of Indemnification Proceedings.......................................19
(d) Contribution.................................................................20
10. Rule 144............................................................................21
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11. Miscellaneous.......................................................................21
(a) Recapitalizations, Exchanges, etc............................................21
(b) No Inconsistent Agreements...................................................21
(c) Remedies.....................................................................22
(d) Amendments and Waivers.......................................................22
(e) Notices......................................................................22
(f) Successors and Assigns; Third Party Beneficiaries............................25
(g) Counterparts.................................................................26
(h) Headings.....................................................................26
(i) Governing Law................................................................26
(j) Severability.................................................................26
(k) Entire Agreement.............................................................26
(l) Further Assurances...........................................................26
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FOURTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
"Agreement"), is made and entered into this 17 day of May 1999, among Advantix,
Inc., a Delaware corporation (the "Company"), and the parties set forth on
Schedule I annexed hereto.
RECITALS
WHEREAS, pursuant to an Amended and Restated Investor Rights
Agreement (the "Amended Agreement"), dated May 26, 1998, among the Company,
General Atlantic Partners 46, L.P., a Delaware limited partnership ("GAP LP"),
GAP Coinvestment Partners, L.P., a New York limited partnership ("GAP
Coinvestment"), and the persons set forth on Schedule A thereto (the "Existing
Stockholders"), GAP LP, GAP Coinvestment and the Existing Stockholders possess
registration rights and other rights;
WHEREAS, in connection with the sale and issuance of its Series D
Preferred Stock, the Existing Stockholders and General Atlantic Partners 54,
L.P., a Delaware limited partnership ("GAP 54"), GAP Coinvestment Partners II,
L.P. , a Delaware limited partnership ("GAP Coinvestment II"), Bayview
Investors, Ltd. ("Bayview") and certain New Stockholders (as hereinafter defined
and, together with GAP 54, GAP Coinvestment II and Bayview, the "Purchasers")
entered into a Second Amended and Restated Investor Rights Agreement (the
"Second Agreement"), dated March 19, 1999 pursuant to which the which the
Company granted the parties thereto; certain registration rights with respect to
the Registrable Securities (as hereinafter defined);
WHEREAS, The Provident Bank ("Provident") was made a party to the
Second Agreement to provide it with certain registration rights previously set
forth in Section 7 of that certain Warrant Agreement, dated September 26, 1997
(the "Provident Warrant");
WHEREAS, in connection with the merger of TicketsLive Corporation
("TicketsLive") with and into Advantix Acquisition II Corp., a Delaware
corporation and a wholly-owned subsidiary of the Company pursuant to an
Agreement and Plan of Merger and Reorganization, dated March 18, 1999, by and
among the Company, the Merger Sub, TicketsLive, CMGI @ Ventures II, LLC
("CMGI"), Liberty Ventures I, L.P. ("Liberty"), Intel Corporation ("Intel"),
Xxxxx X. Xxxxx ("KGoetz"), Xxxxxx X. Xxxxxxxxx ("Hellstedt"), Xxx X. Xxxxx
("LGoetz"), Xxxxxxxxxxx X. Xxxxx ("Xxxxx"), and Xxx Xxxxxx ("Pinsky") (CMGI,
Liberty, Intel, KGoetz, Hellstedt, LGoetz, Xxxxx and Xxxxxx are collectively
referred to as the "Merger Stockholders") entered into a Third Amended and
Restated Investor Rights Agreement (the "Third Agreement") with the Company and
the other parties to the Second Agreement, dated April 10, 1999 pursuant to
which the which the Company granted the parties thereto; certain registration
rights with respect to the Registrable Securities (as hereinafter defined);
WHEREAS, the Company, Advantix Acquisition Corp., a Delaware
corporation, Xxxxxxx.xxx, Inc., a Delaware corporation ("TCI"), and certain
stockholders of TCI have entered
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into that Certain Agreement and Plan of Merger and Reorganization, dated January
26, 1999, pursuant to which TCI will merge with and into Acquisition Corp. TCI
(the "Merger");
WHEREAS, pursuant to that certain Registration Rights Agreement
(the "TCI Agreement"), dated May 18, 1998, among TCI and the TCI Stockholders
(as hereinafter defined), the TCI Stockholders possess registration rights and
certain other rights with respect to the shares of TCI's capital stock held by
them;
WHEREAS, in connection with the Merger, the shares of TCI's
capital stock held by the TCI Stockholders will be converted into and exchange
for shares of the Company's capital stock;
WHEREAS, upon consummation of the Merger, TCI and the TCI
Stockholders desire to terminate the TCI Agreement in its entirety and for the
TCI Stockholders to become parties hereto;
WHEREAS, pursuant to Section 11(d) of the Third Agreement, the
parties to the Third Agreement desire to amend and restate the Third Agreement
to bring the TCI Stockholders within the terms of the Third Agreement, as so
amended and restated;
Whereas, in order to induce (i) the TCI Stockholders to terminate
the TCI Agreement and (ii) the parties to the Third Agreement to amend and
restate the Third Agreement, the Company has agreed to grant registration rights
with respect to the Registrable Securities (as hereinafter defined) as set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements set forth herein, the Third Agreement is hereby amended
and restated to read in its entirety as follows:
1. Definitions. As used in this agreement the following terms
have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act and, with respect to any Person that is a limited liability company, any
member of such limited liability company. The following shall be deemed to be
Affiliates of GAP LP and GAP 54: (a) GAP LLC, the members of GAP LLC, the
limited partners of GAP LP and the limited partners of GAP 54; (b) any Affiliate
of GAP LLC, the members of GAP LLC, the limited partners of GAP LP and the
limited partners of GAP 54; and (c) any limited liability company or partnership
a majority of whose members or partners, as the case may be, are members, former
members, consultants or key employees of GAP LLC. GAP LP, GAP 54, GAP
Coinvestment and GAP Coinvestment II shall be deemed to be Affiliates of one
another. Each of the Attractor Entities and their respective members shall be
deemed to be Affiliates of one another. Each of the idealab! Entities shall be
deemed to be Affiliates of one another. Each of the Xxxxx Entities shall be
deemed to be Affiliates of one another. SCT and any entity in which IMG
Chase/Sports Capital LLC (or its successor) is the managing member or general
partner and shall be deemed to be Affiliates of one another.
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"Amended Agreement" has the meaning set forth in the recitals to
this Agreement.
"Approved Underwriter" has the meaning set forth in Section 3(f)
of this Agreement.
"Attractor Entities" means (a) Attractor Institutional LP, a
Delaware limited partnership, (b) Attractor LP, a Delaware limited partnership,
(c) Attractor Ventures LLC, a Delaware limited liability company, and (d) any
successor to any of the entities listed in (a)-(c). For the purposes of the
definition of Registerable Securities, the term Attractor Entities shall include
and refer to the Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation.
"Business Day" means any other day other than a Saturday, Sunday
or other day on which commercial banks in the State of California are authorized
or required by law or executive order to close.
"Xxxxxxx" shall mean Xxxxx X. Xxxxxxx.
"CMGI" has the meaning set forth in the recitals to this
Agreement.
"Common Stock" means the Common Stock, par value $.0001 per
share, of the Company or any other equity securities of the Company into which
such securities are converted, reclassified, reconstituted or exchanged.
"Company" has the meaning set forth in the recitals to this
Agreement.
"Company Underwriter" has the meaning set forth in Section 4(a)
of this Agreement.
"Demand Registration" has the meaning set forth in Section 3(a)
of this Agreement.
"Designated Holder" means each of the Existing Stockholders, the
General Atlantic Stockholders, the New Stockholders, the Merger Stockholders and
the TCI Stockholders and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with the provisions of the
Stockholders Agreement and Section 11(f) of this Agreement, other than a
transferee to whom Registrable Securities have been transferred pursuant to a
Registration Statement under the Securities Act or Rule 144 or Regulation S
under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Stockholders" has the meaning set forth in the recitals
to this Agreement.
"GAP Coinvestment" has the meaning set forth in the recitals to
this Agreement.
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"GAP Coinvestment II" has the meaning set forth in the recitals
to this Agreement.
"GAP 54" has the meaning set forth in the recitals to this
Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP and GAP 54, and any
successor to such entity.
"GAP LP" has the meaning set forth in the recitals to this
Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 54, GAP
Coinvestment GAP Coinvestment II and any Permitted Transferee (as defined in the
Stockholders Agreement) of any of them to which Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Hellstedt" has the meaning set forth in the recitals to this
Agreement.
"Holders' Counsel" has the meaning set forth in Section 8(a)(i)
of this Agreement.
"idealab! Entities" means idealab! Capital Partners I-A LP, a
Delaware limited partnership, idealab! Capital Partners I-B LP, a Delaware
limited partnership, and any successor entity to either of them.
"Incidental Registration" has the meaning set forth in Section
4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in Section 9(c) of
this Agreement.
"Indemnifying Party" has the meaning set forth in Section 9(c) of
this Agreement.
"Initial Company Underwriter" has the meaning set forth in
Section 4(d) of this Agreement.
"Initial Incidental Registration" has the meaning set forth in
Section 4(d) of this Agreement.
"Initial Public Offering" means an underwritten initial public
offering pursuant to an effective Registration Statement filed under the
Securities Act.
"Initial Requested Shares" has the meaning set forth in Section
4(d) of this Agreement.
"Initiating Holders" has the meaning set forth in Section 3(a) of
this Agreement.
"Inspector" has the meaning set forth in Section 8(a)(viii) of
this Agreement.
"Intel" has the meaning set forth in the recitals to this
Agreement.
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"IPO Effectiveness Date" means the date upon which the Company
consummates its Initial Public Offering.
"KGoetz" has the meaning set forth in the recitals to this
Agreement.
"LGoetz" has the meaning set forth in the recitals to this
Agreement.
"Liberty" has the meaning set forth in the recitals to this
Agreement.
"Merger" means the merger of Advantix Acquisition Corp., a
Delaware corporation, with and into TCI, pursuant to that certain Agreement and
Plan of Merger and Reorganization, dated as of January 26, 1999, among the
Company, Advantix Acquisition Corp., TCI , the TCI Stockholders and the certain
other parties named therein.
"Merger Stockholders" has the meaning set forth in the recitals
to this Agreement.
"Xxxxx Entities" means (a) Xxxxx Global Investments, Ltd., a
Bahamas corporation, (b) Remington Investments Strategies, L.P., a Delaware
limited partnership, (c) Multi-Strategies Fund, L.P., a Delaware limited
partnership, (d) Multi-Strategies Fund Ltd., a Bahamas corporation, and (e) any
successor to any of the entities listed in (a)-(d).
"NASD" has the meaning set forth in Section 8(a)(xiv) of this
Agreement.
"New Stockholders" means each of the TCI Stockholders and Other
New Stockholders and any Permitted Transferee (as defined in the Stockholders
Agreement) of any of them to whom Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"Other New Stockholders" means each of Xxxxxxx International,
LLC, a Delaware limited liability company, and SCT and any successor entity to
either of them.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Pinsky" has the meaning set forth in the recitals to this
Agreement.
"Preferred Stock" means the Series A Preferred Stock, the Series
B Preferred Stock, the Series C Preferred Stock and the Series D Preferred
Stock.
"Provident" has the meaning set forth in the recitals to this
Agreement.
"Provident Warrant" has the meaning set forth in the recitals to
this Agreement.
"Purchasers" has the meaning set forth in the recitals to this
Agreement.
"Records" has the meaning set forth in Section 8(a)(viii) of this
Agreement.
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"Registrable Securities" means each of the following: (a) any and
all shares of Common Stock owned by the Designated Holders or issued or issuable
upon conversion of shares of Preferred Stock, including, without limitation, any
shares of Common Stock issued or issuable upon conversion of any shares of
preferred stock of the Company acquired by any of the Designated Holders after
the date hereof, (b) any other shares of Common Stock acquired or owned by any
of the Designated Holders prior to the IPO Effectiveness Date (including Common
Stock issued to any Designated Holder upon conversion of convertible securities
of the Company or upon exercise of warrants or options granted by the Company to
such Designated Holder), or acquired or owned by any of the Designated Holders
(other than an Attractor Entity) after the IPO Effectiveness Date if such
Designated Holder is an Affiliate of the Company and (c) any shares of Common
Stock or voting common stock issued or issuable to any of the Designated Holders
with respect to shares of Common Stock or Preferred Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise and
shares of Common Stock or voting common stock issuable upon conversion, exercise
or exchange thereof. The foregoing notwithstanding, any shares of Common Stock
acquired by any Attractor Entity on the IPO Effectiveness Date shall be deemed
not to be Registrable Securities.
"Registration Expenses" has the meaning set forth in Section 8(d)
of this Agreement.
"Registration Statement" means a Registration Statement filed
pursuant to the Securities Act.
"S-3 Initiating Holders" has the meaning set forth in Section
5(a) of this Agreement.
"S-3 Registration" has the meaning set forth in Section 5(a) of
this Agreement.
"SCT" means Sports Capital Tickets LLC, a limited liability
company, and any successor entity thereto.
"SEC" means the Securities and Exchange Commission.
"Second Agreement" has the meaning set forth in the recitals to
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Series A Preferred Stock" means Series A Preferred Stock of the
Company, par value $.0001 per share.
"Series A1 Preferred Stock" means Series A1 Preferred Stock of
the Company, par value $.0001 per share.
"Series B Preferred Stock" means Series B Preferred Stock of the
Company, par value $.0001 per share.
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"Series C Preferred Stock" means Series C Preferred Stock of the
Company, par value $.0001 per share.
"Series D Preferred Stock" means Series D Preferred Stock of the
Company, par value $.0001 per share.
"Xxxxx" has the meaning set forth in the recitals to this
Agreement.
"Stockholders Agreement" means the Third Amended and Restated
Stockholders Agreement, dated of even date herewith, by and among the Company
and the parities identified therein.
"TCI" has the meaning set forth in the recitals to this
Agreement.
"TCI Stockholders" means (a) each of the Attractor Entities, (b)
each of the idealab! Entities, (c) each of the Xxxxx Entities, (d) X.X.X. Trust,
(e) Xxxx Xxxxx' idealab!, a California corporation, (f) Xxxxx X. Xxxxxxx
("Xxxxxxx"); (g) The Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation and (h) any
Permitted Transferee (as defined in the Stockholders Agreement) of the Persons
listed in (a)-(h) above to which Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"Third Agreement" has the meaning set forth in the recitals to
this Agreement.
"TicketsLive" has the meaning set forth in the recitals to this
Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants
registration rights to the Existing Stockholders, the General Atlantic
Stockholders, the New Stockholders, the Merger Stockholders and the TCI
Stockholders upon the terms and conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective Registration
Statement, (ii) the entire amount of Registrable Securities held by a Designated
Holder are eligible, in the opinion of counsel satisfactory to the Company and
the Designated Holder, each in their reasonable judgment, to be distributed to
the public pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act during any 90-day period or (iii) the Registrable
Securities are proposed to be sold or distributed by a Person not entitled to
the registration rights granted by this Agreement.
(c) Holders of Registrable Securities. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected and
disregarding any legal restrictions upon the exercise of such rights. If the
Company receives
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conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
3. Demand Registration.
(a) Request for Demand Registration. On any date following
the IPO Effectiveness Date, if the Company shall receive from (i) any one or
more of the General Atlantic Stockholders as a group, acting through GAP LLC or
its written designees, (ii) any one or more Existing Stockholders holding at
least a majority of the Registrable Securities then held by all Existing
Stockholders or (iii) any one or more TCI Stockholders holding at least a
majority of the Registrable Securities then held by all TCI Stockholders (in
each case, the "Initiating Holders") a written request that the Company effect
any registration, qualification or compliance with respect to the Registrable
Securities (a "Demand Registration"), the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Designated Holders; and
(ii) as soon as practicable, use its best efforts
to effect such registration, qualification or compliance (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Designated Holder or Designated Holders joining in such request as are specified
in a written request received by the Company within twenty (20) days after
mailing of such written notice from the Company.
(b) Limitations on Demand Registrations. Notwithstanding
the foregoing, the Company shall not be obligated to take any action to effect
any such registration, qualification or compliance pursuant to this Section 3:
(i) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(ii) (A) With respect to a request initiated by a
General Atlantic Stockholder after the Company has effected two (2) such
registrations for the General Atlantic Stockholders pursuant to this Section 3,
each such registration has been declared or ordered effective and the securities
offered pursuant to each such registration have been sold; (B) with respect to a
request initiated by an Existing Stockholder, after the Company has effected two
(2) such registrations for the Existing Stockholders pursuant to this Section 3,
each such registration has been declared or ordered effective and the securities
offered pursuant to each
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such registration have been sold; and (C) with respect to a request initiated by
a TCI Stockholder, after the Company has effected one (1) such registration for
the TCI Stockholders pursuant to this Section 3, such registration has been
declared or ordered effective and the securities offered pursuant to each such
registration have been sold;
(iii) During the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of (which date
the Company shall notify the Designated Holders of not less that sixty (60) days
prior thereto), and ending on the date one hundred eighty (180) days immediately
following the effective date of, any Registration Statement pertaining to
securities of the Company (other than a registration of securities in a
transaction under Rule 145 (or any successor provision then in effect) under the
Securities Act or with respect to an employee stock option, stock purchase or
similar plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such Registration Statement to become effective and
that the Company's estimate of the date of filing such Registration Statement is
made in good faith;
(iv) If the Company shall furnish to the Initiating
Holders a certificate, signed by the Chief Executive Officer or Chief Financial
Officer of the Company, stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its stockholders
for a Registration Statement to be filed in the near future, then the Company's
obligation to use its best efforts to register, qualify or comply under this
Section 3 shall be deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
(c) Effective Demand Registration. Subject to the
provisions of Section 3(b), the Company shall use its best efforts to cause any
such Demand Registration to become and remain effective within ninety (90) days
after it receives a request under Section 3(a) hereof. A registration shall not
constitute a Demand Registration until it has become effective and remains
continuously effective for the lesser of (i) the period during which all
Registrable Securities registered in the Demand Registration are sold and (ii)
120 days; provided, however, that a registration shall not constitute a Demand
Registration if (x) after such Demand Registration has become effective, such
registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the Initiating Holders and such interference is not
thereafter eliminated or (y) the conditions specified in the underwriting
agreement, if any, entered into in connection with such Demand Registration are
not satisfied or waived, other than by reason of a failure by the Initiating
Holders.
(d) Expenses. In any registration initiated as a Demand
Registration, the Company shall pay all reasonable Registration Expenses (other
than underwriter's discounts and commissions) in connection therewith, whether
or not such Demand Registration becomes effective, provided, however, that the
Company shall not be required to pay for any expenses of any Demand Registration
begun pursuant to Section 3 if the Demand Registration request is subsequently
withdrawn at the request of the Initiating Holders who requested such Demand
Registration (in which case all of such Initiating Holders shall bear such
expenses), unless such
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Initiating Holders agree to forfeit their right to one demand registration
pursuant to Section 3; provided further, however, that if at the time of such
withdrawal, such Initiating Holders reasonably determine in good faith that
there is, or is pending, a material adverse change in the condition, business,
or prospects of the Company from that known to such Initiating Holders at the
time of their request and have withdrawn the request with reasonable promptness
following their determination of such material adverse change or disclosure by
the Company of such material adverse change, then such Initiating Holders shall
not be required to pay any of such expenses and shall retain their rights
pursuant to Section 3.
(e) Underwriting Procedures. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders to which the requested Demand Registration relates so elect, the
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter selected in accordance with Section 3(f). In connection with any
Demand Registration under this Section 3 involving an underwritten offering,
none of the Registrable Securities held by any Designated Holder making a
request for inclusion of such Registrable Securities pursuant to Section 3(a)
hereof shall be included in such underwritten offering unless such Designated
Holder accepts the terms of the underwritten offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter and enters into an
underwriting agreement in customary form with the Approved Underwriter, and then
only in such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriter advises the Company in writing that in its opinion
marketing factors require a limitation on the number of shares to be
underwritten, then the Company shall so advise all Designated Holders and the
number of Registrable Securities to be included in the Demand Registration and
underwriting shall be reduced, first as to the Designated Holders (who are not
Initiating Holders and who requested to participate in such registration
pursuant to Section 3(b) hereof) as a group, if any, and second as to the
Initiating Holders as a group, pro rata within each group based on the number of
Registrable Securities owned by each member of such group at the time of the
filing of the Registration Statement.
(f) Selection of Underwriters. If any Demand Registration
or S-3 Registration, as the case may be, of Registrable Securities is in the
form of an underwritten offering, the Initiating Holders or S-3 Initiating
Holders, as the case may be, holding a majority of the Registrable Securities
held by all such Initiating Holders or S-3 Initiating Holders shall select and
obtain an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "Approved Underwriter"); provided, however,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after
the Initial Public Offering, if the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the Company
for its own account or for the account of another person entitled to
registration rights not governed by this Agreement (other than a Registration
Statement on Form S-4 or S-8 or any successor thereto), then the Company shall
promptly give written notice of such proposed filing to each of the Designated
Holders, and such notice shall
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describe the proposed registration and distribution and offer such Designated
Holders the opportunity to register the number of Registrable Securities as each
such holder may request (an "Incidental Registration"). The Company shall, and
shall use its best efforts to cause the managing underwriter or underwriters
selected by the Company for such proposed underwritten offering (the "Company
Underwriter") to permit each of the Designated Holders who have requested in
writing within twenty (20) calendar days after mailing of the notice provided
for in the preceding sentence by the Company, to participate in the Incidental
Registration to include its or his Registrable Securities in such offering on
the same terms and conditions as the securities of the Company included therein.
In connection with any Incidental Registration under this Section 4(a) involving
an underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the holders thereof
accept the terms of the underwritten offering as agreed upon between the Company
and the Company Underwriter, and then only in such quantity as will not, in the
opinion of the Company Underwriter, jeopardize the success of the offering by
the Company, and enter into an underwriting agreement in customary form with the
Company Underwriter. If the Company Underwriter determines that marketing
factors require a limitation on the number of shares that may be underwritten,
then the Company Underwriter may limit the number of securities to be included
in the registration and underwriting. The Company shall also advise all
Designated Holders who have requested to participate in the Incidental
Registration and the securities entitled to inclusion in such registration will
include, first, all of the securities to be offered for the account of the
Company; second, the Registrable Securities to be offered for the account of the
Designated Holders pursuant to this Section 4, pro rata based on the number of
Registrable Securities owned by each such Designated Holder; and third, any
other securities requested to be included in such underwritten offering.
(b) Expenses. The Company shall bear all reasonable
Registration Expenses (other than underwriter's discounts and commissions
relating to the Registrable Securities) in connection with any Incidental
Registration pursuant to this Section 4, whether or not such Incidental
Registration becomes effective.
(c) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 4 prior to the effectiveness of such registration whether or not
any Designated Holder has elected to include Registrable Securities in such
registration.
(d) Initial Incidental Registration. If the Company
proposes to file a Registration Statement under the Securities Act with respect
to an Initial Public Offering by the Company, then the Company shall promptly
give written notice of such proposed filing to KGoetz, and such notice shall
describe the proposed registration and distribution and offer KGoetz the
opportunity to register up to a maximum of one million (1,000,000) shares of
Common Stock (an "Initial Incidental Registration"). The Company shall, and
shall use its best efforts to cause the managing underwriter or underwriters
selected by the Company for such proposed underwritten offering (the "Initial
Company Underwriter") to permit KGoetz, upon request in writing within twenty
(20) calendar days after mailing of the notice provided for in the preceding
sentence by the Company, to participate in the Initial Incidental Registration
to include up to one million (1,000,000) shares of her Common Stock (the
"Initial Requested Shares") in such offering on the same terms and conditions as
the securities of the Company included
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therein. In connection with any Initial Incidental Registration under this
Section 4(d) involving an underwritten offering, the Company shall not be
required to include any Common Stock owned by KGoetz in such underwritten
offering unless KGoetz (i) accepts the terms of the underwritten offering as
agreed upon between the Company and the Initial Company Underwriter, and then
only in such quantity as will not, in the opinion of the Initial Company
Underwriter, jeopardize the success of the offering by the Company, and (ii)
enters into an underwriting agreement in customary form with the Initial Company
Underwriter. If the Initial Company Underwriter determines that marketing
factors require a limitation on the number of shares that may be underwritten,
then the Initial Company Underwriter may limit the number of securities to be
included in the registration and underwriting. The Company shall also advise
KGoetz and the securities entitled to inclusion in such registration will
include, first, all of the securities to be offered for the account of the
Company; second, the Common Stock to be offered for the account of KGoetz
pursuant to this Section 4; and third, any other securities requested to be
included in such underwritten offering.
(e) Expenses Relating to Initial Incidental Registration.
The Company shall bear all reasonable Registration Expenses (other than
underwriter's discounts and commissions relating to the Common Stock being
registered by KGoetz) in connection with any Initial Incidental Registration
pursuant to this Section 4, whether or not such Initial Incidental Registration
becomes effective.
(f) Right to Terminate Initial Incidental Registration.
The Company shall have the right to terminate or withdraw any registration
initiated by it under this Section 4 prior to the effectiveness of such
registration whether or not KGoetz has elected to include Common Stock in such
registration.
5. Form S-3 Registration.
(a) Request for a Form S-3 Registration. At any time after
the Company is eligible to register the Registrable Securities on Form S-3 (or
any successor form thereto), (i) one or more of the General Atlantic
Stockholders as a group, acting through GAP LLC or its written designee, (ii)
one or more of the Existing Stockholders holding at least a majority of the
Registrable Securities then held by all Existing Stockholders, or (iii) one or
more TCI Stockholders (in each case, the "S-3 Initiating Holders") may make a
written request to the Company to file a Registration Statement, on Form S-3 for
a public offering of shares of Registrable Securities the reasonably anticipated
aggregate price to the public of which would exceed $2,500,000 (or any successor
form then in effect) (an "S-3 Registration"). The Company shall promptly give
written notice of a request for an S-3 Registration to all of the Designated
Holders (other than the S-3 Initiating Holders who have requested an S-3
Registration under this Section 5(a)), which notice shall describe the proposed
registration and offer such Designated Holders the opportunity to register the
number of Registrable Securities as each such Designated Holder may request in
writing to the Company, given within ten (10) days of its receipt from the
Company of such written notice. The Company shall (i) take such steps as are
necessary or appropriate to prepare for the registration of the Registrable
Securities to be registered and (ii) use its best efforts to (x) cause such
registration pursuant to this Section 5(a) to become and remain effective as
soon as practicable, and (y) include in such offering the Registrable
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Securities of the Initiating Holders and the Designated Holders who have
requested in writing to participate in such registration on the same terms and
conditions as the Registrable Securities of the S-3 Initiating Holders included
therein.
(b) Form S-3 Underwriting Procedures. If the S-3
Initiating Holders holding a majority of the Registrable Securities held by all
of the S-3 Initiating Holders to which the requested S-3 Registration relates so
elect, the Company shall use its reasonable efforts to cause such S-3
Registration pursuant to this Section 5 to be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter selected in accordance with
Section 3(f). In connection with any S-3 Registration under Section 5(a)
involving an underwritten offering, the Company shall not be required to include
any Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwriting as agreed upon between the
Company, the Approved Underwriter and the S-3 Initiating Holders and enter into
an underwriting agreement in customary form with the Approved Underwriter, and
then only in such quantity as will not, in the opinion of such underwriter,
jeopardize the success of such offering by the S-3 Initiating Holders. If the
Approved Underwriter determines that marketing factors require a limitation on
the number of shares that may be underwritten, then the Approved Underwriter may
limit the number of securities to be included in the registration and
underwriting. The Company shall so advise all Designated Holders who have
requested to participate in the S-3 Registration and the securities entitled to
inclusion in such registration will include, first, all of the Registrable
Securities to be offered for the account of the S-3 Initiating Holders; second,
the Registrable Securities to be offered for the account of the other Designated
Holders who requested inclusion of their Registrable Securities pursuant to
Section 5(a), pro rata based on the number of Registrable Securities owned by
such Designated Holders, and third, any other securities requested to be
included in such underwritten offering.
(c) Limitations on Form S-3 Registrations. Notwithstanding
the foregoing, the Company shall not be obligated to take any action to effect
any such registration, qualification or compliance pursuant to this Section 5:
(i) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
Securities Act;
(ii) If within a twelve (12) month period preceding
the date of such request, the Company has effected two (2) such registrations on
Form S-3 pursuant to this Section 5, each such registration has been declared or
ordered effective and the Registrable Securities offered pursuant to each such
registration have been sold;
(iii) During the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of (which date
the Company shall notify the S-3 Initiating Holders of not less than sixty (60)
days prior thereto), and ending on the date one hundred eighty (180) days
immediately following the effective date of, any Registration Statement
pertaining to securities of the Company (other than a registration of securities
in a transaction under Rule 145 (or any successor provision then in effect)
under the Securities Act or
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with respect to an employee stock option, stock purchase or similar plan),
provided that the Company is actively employing in good faith all reasonable
efforts to cause such Registration Statement to become effective and that the
Company's estimate of the date of filing such Registration Statement is made in
good faith, and provided the Company has, within thirty (30) days of receiving a
request for registration pursuant to this Section 5, provided notice to such S-3
Initiating Holders of its intent to commence a public offering of its
securities;
(iv) If the Company shall furnish to the Designated
Holders a certificate, signed by the Chief Executive Officer or Chief Financial
Officer of the Company, stating that in good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its stockholders
for a Registration Statement to be filed in the near future, then the Company's
obligation to use its best efforts to register, qualify or comply under this
Section 5 shall be deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from the S-3 Initiating Holders;
(v) If Form S-3 is not available for such offering
by the S-3 Initiating Holders.
(d) Expenses. In connection with any registration pursuant
to this Section 5, the Company shall pay all reasonable Registration Expenses
(other than underwriter's discounts and commissions), whether or not such
registration becomes effective.
(e) No Demand Registration. No registration requested by
any S-3 Initiating Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. Termination. This Agreement shall terminate and be of no
further force or effect on such time as there shall no longer be any Registrable
Securities outstanding. This Agreement shall also terminate as to any party that
no longer holds Registrable Securities. The foregoing notwithstanding, Sections
7, 9, 10, 11(c) shall survive the termination of this Agreement
7. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. If
and to the extent requested by the Company, the Initiating Holders or the S-3
Initiating Holders, as the case may be, in the case of a non-underwritten public
offering or if and to the extent requested by the Approved Underwriter or the
Company Underwriter, as the case may be, in the case of an underwritten public
offering, each Designated Holder of Registrable Securities agrees not to effect
any sale, short sale, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Securities Act, during (i) with respect to an
Initial Public Offering, the 180-day period or such shorter period agreed upon
by such Designated Holder and the requesting party or (ii) in any other case,
the 90-day period or such shorter period agreed upon by such Designated Holder
and the requesting party, beginning on the effective date of such Registration
Statement (except as part of such registration). The Company may impose
stop-transfer instructions with respect to such securities
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subject to the foregoing restriction until the end of such period. The
provisions of this Section 7(a) shall terminate eighteen (18) months from the
IPO Effectiveness Date with respect to each Designated Holder who is not an
Affiliate of the Company at that time; provided, however, that in the event that
following the IPO Effectiveness Date (A) one or more Designated Holders has
properly exercised its registration rights pursuant to the Section 3, Section 4
or Section 5 of this Agreement in connection with an underwritten public
offering and (B) the Approved Underwriter or the Company Underwriter, as the
case may be, has determined that marketing factors require that less than 50% of
the Registrable Securities requested to be included in such offering by such
Designated Holders may be so included and has so advised such Designated Holders
in writing, the provisions of this Section 7(a) shall terminate as of the date
the underwriters so advise the Designated Holders.
(b) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
Registration Statement in which the Designated Holders of Registrable Securities
are participating and ending on the earlier of (i) the date on which all
Registrable Securities registered on such Registration Statement are sold and
(ii) 120 days after the effective date of such Registration Statement (except as
part of such registration).
8. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the SEC a Registration
Statement on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof, and use its best efforts to cause such Registration
Statement to become effective; provided, however, that (x) before filing a
Registration Statement or prospectus or any amendments or supplements thereto,
if counsel for the Company does not make itself available to serve as counsel to
the Designated Holders, then the Company shall provide one counsel selected by
the Designated Holders holding a majority of the Registrable Securities being
registered in such registration ("Holders' Counsel") and any other Inspector
with an adequate and appropriate opportunity to participate in the preparation
of such Registration Statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the SEC, which documents shall
be subject to the review of Holders' Counsel, and (y) the Company shall notify
the Holders' Counsel, if any, and each seller of Registrable Securities of any
stop order issued or threatened by the SEC and take all reasonable action
required to prevent the entry of such stop order or to remove it if entered;
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(ii) prepare and file with the SEC such amendments
and supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for the lesser of (x) 120 days and (y) such shorter period which will
terminate when all Registrable Securities covered by such Registration Statement
have been sold, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(iii) as soon as reasonably possible, furnish to
each seller of Registrable Securities, prior to filing a Registration Statement,
copies of such Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller of Registrable Securities may request, and to continue such
qualification in effect in such jurisdiction for as long as permissible pursuant
to the laws of such jurisdiction, or for as long as any such seller requests or
until all of such Registrable Securities are sold, whichever is shortest, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller; provided, however, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 8(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) 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 seller or sellers of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(vi) notify each seller of Registrable Securities
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event as a
result of which, 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 in light of the circumstances under which they were made, and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of such supplement to or
amendment of such prospectus as may be necessary so that, after delivery 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
in light of the circumstances under which they were made;
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(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3,
Section 4 or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(viii) make available for inspection by any seller
of Registrable Securities, any managing underwriter participating in any
disposition of such Registrable Securities pursuant to a Registration Statement,
Holders' Counsel, if any, and any attorney, accountant or other agent retained
by any such seller or any managing underwriter (each, an "Inspector" and
collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") 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, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(x) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (z) the information in such Records was known to the
Inspectors on a non-confidential basis prior to its disclosure by the Company or
has been made generally available to the public. Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters or the
managing underwriter reasonably request;
(x) use its best efforts to furnish, at the request
of any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration
Statement with respect to such securities becomes effective, an opinion, dated
such date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the seller making
such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and are customarily included in such opinions;
(xi) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the Registration Statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
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(xii) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
satisfied;
(xiii) keep Holders' Counsel, if any, advised in
writing as to the initiation and progress of any registration under Section 3,
Section 4 or Section 5 hereunder;
(xiv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(xv) take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) Seller Information. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated 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 8(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 8(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
8(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 8(a)(vi) to and including the date
when the sellers of such Registrable Securities under such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by and meeting the requirements of Section 8(a)(vi).
(d) Registration Expenses. The Company shall pay all
expenses arising from or incident to the performance of, or compliance with,
this Agreement, including, without limitation, (i) SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel in connection with "blue sky" qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and disbursements of counsel to the Company and of the
Company's independent public accountants and any other legal or accounting fees,
charges and expenses incurred by the Company (including, without limitation, any
expenses arising from any "cold comfort" letters or any special audits incident
to or required by any registration or qualification) and, in the case of a
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Demand Registration, subject to the provisions of Section 3(d), any reasonable
charges and expenses incurred by the Initiating Holders, including the
reasonable fees of Holders' counsel, if any, and (v) any liability insurance or
other premiums for insurance obtained in connection with any Demand Registration
or piggy-back registration thereon, Incidental Registration or S-3 Registration
pursuant to the terms of this Agreement, regardless of whether such Registration
Statement is declared effective. All of the expenses described in this Section
8(d) are referred to herein as "Registration Expenses."
9. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection
with any Registration Statement in which a Designated Holder is participating
pursuant to Section 3, Section 4 or Section 5 hereof, each such Designated
Holder shall furnish to the Company in writing such information with respect to
such Designated Holder as the Company may reasonably request or as may be
required by law for use in connection with any such Registration Statement or
prospectus and each Designated Holder agrees to indemnify and hold harmless, to
the fullest extent permitted by law, the Company, any underwriter retained by
the Company and their respective directors, officers, employees and each Person
who controls the Company or such underwriter (within the meaning of the
Securities Act and the Exchange Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only with respect to
any such information with respect to such Designated Holder furnished in writing
to the Company by such Designated Holder expressly for use therein; provided,
however, that the total amount to be indemnified by such Designated Holder
pursuant to this Section 9(b) shall be limited to the net proceeds received by
such Designated Holder in the offering to which the Registration Statement or
prospectus relates unless the obligations of such Designated Holder hereunder
arise out of or are based upon willful misconduct of such Designated Holder.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the
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indemnifying party (the "Indemnifying Party") after the receipt by the
Indemnified Party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the
Indemnified Party intends to claim indemnification or contribution pursuant to
this Agreement; provided, however, that the failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder unless the failure to give
such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be entitled
to participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and satisfactory to such Indemnified
Party. The Indemnified Party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall be
paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay
the same, (ii) the Indemnifying Party fails to assume the defense of such action
with counsel satisfactory to the Indemnified Party in its reasonable judgment or
(iii) in the reasonable opinion of the counsel to the Indemnified Party either
(x) representation of such Indemnified Party and the Indemnifying Party by the
same counsel would be inappropriate under applicable standards of professional
conduct or (y) there may be one or more legal defenses available to the
Indemnified Party which are different from or additional to those available to
the Indemnifying Party. In any of such cases, the Indemnifying Party shall not
have the right to assume the defense of such action on behalf of such
Indemnified Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the consent of such
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which such Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability for claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in
this Section 9 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
faults of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 9(a), 9(b)
and 9(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; provided that the
total amount to be indemnified by a Designated Holder shall be limited to the
net proceeds received
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by such Designated Holder in the offering unless the obligations of such
Designated Holder hereunder arise out of or are based upon willful misconduct of
such Designated Holder.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Notwithstanding the foregoing provisions of this
Section 9, to the extent that the provisions relating to indemnification and
contribution in an underwriting agreement entered into by the Company in
connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
10. Rule 144. The Company covenants that it shall (a) file any
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder of Registrable Securities may
reasonably request (including providing any information necessary to comply with
Rules 144 and 144A under the Securities Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rules 144 and 144A under the Securities Act, as such
rule may be amended from time to time, or (ii) any similar rules or regulations
hereafter adopted by the SEC. The Company shall, upon the request of any
Designated Holder of Registrable Securities, deliver to such Designated Holder a
written statement as to whether it has complied with such requirements.
11. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of
this Agreement shall apply, to the full extent set forth herein with respect to
(i) the shares of Common Stock, (ii) any and all shares of voting common stock
of the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this Agreement as a condition of any such
transaction.
(b) No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, which rights have
not been terminated, other than the rights granted to the Designated Holders
herein. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Designated
Holders in
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this Agreement or grant any additional registration rights which are prior in
right to or inconsistent with the rights granted in this Agreement to any Person
or with respect to any securities that are not Registrable Securities.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, only if consented to in writing by (i) the Company, (ii) the
Existing Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Existing Stockholders and Other New
Stockholders, (iii) the General Atlantic Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by all of the
General Atlantic Stockholders, (iv) the TCI Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by all of the
TCI Stockholders; provided, however, that no amendment or waiver shall be
binding upon a TCI Stockholder that, together with all Affiliates of such TCI
Stockholder, beneficially owns more than 4% of the Registrable Securities owned
by all of the TCI Stockholders unless such TCI Stockholder has consented in
writing to such amendment or waiver, (v) the Other New Stockholders holding
Registrable Securities representing (after giving effect to any adjustments) at
least a majority of the aggregate number of Registrable Securities owned by all
of the Other New Stockholders and (vi) the Merger Stockholders holding
Registrable Securities representing (after giving effect to any adjustments) at
least a majority of the aggregate number of Registrable Securities owned by all
of the Merger Stockholders. Any such written consent shall be binding upon the
Company and all of the Designated Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company:
Advantix, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telecopy: (0000 000-0000
Attention:
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with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(ii) if to any of the General Atlantic
Stockholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(iii) if to a TCI Stockholder, at its address as
it appears on the record books of the
Company
with a copy to:
Xxxxx Xxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
and a copy to:
Buchalter, Nemer, Fields & Younger, A
Professional Corporation
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxx
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(iv) if to CMGI:
CMGI @ Ventures II, LLC
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxxx
Xxxxxx X. Xxxxxxxx III
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(v) If to Liberty:
Liberty Ventures I, L.P.
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Vice President
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(vi) If to Intel:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attn: M & A Portfolio Manager (RN6-46)
(vii) if to a Merger Stockholder, at its address as
it appears on the record books of the Company
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with a copy to:
Xxxxxxx, Xxxxxxxx & Kotel
A Professional Corporation
Tower Forty-Nine
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx
(viii) if to any other Designated Holder, at its
address as it appears on the record books of
the Company.
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied.
(f) Successors and Assigns; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties hereto. The Demand Registration
rights and the S-3 Registration rights of the General Atlantic Stockholders, the
Existing Stockholders and the TCI Stockholders contained in Section 3 and
Section 5 hereof and the other rights of each of the General Atlantic
Stockholders, the Existing Stockholders and the TCI Stockholders with respect
thereto shall be, with respect to any Registrable Security, (i) automatically
transferred (A) in the case of such rights of the General Atlantic Stockholders,
among the General Atlantic Stockholders, (B) in the case of such rights of the
Existing Stockholders, among the Existing Stockholders and (C) in the case of
such rights of the TCI Stockholders, among the TCI Stockholders; and (ii) in all
other cases, transferred only with the consent of the Company. The incidental or
"piggy-back" registration rights of the Designated Holders contained in Sections
3(a) and 4 hereof and the other rights of each of the Designated Holders with
respect thereto shall be, with respect to any Registrable Security,
automatically transferred by such Designated Holder to any Person who is the
transferee of such Registrable Security, provided that such transferee holds at
least $2.5 million of Registrable Securities (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations),
and (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 bound by and
subject to the terms and conditions of this Agreement; and (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act. For the purposes of determining the number of Registrable
Securities held by a transferee or assignee, the holders of transferees and
assignees of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants and siblings of
such partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
provided that
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all assignees and transferees who would not qualify individually for assignment
of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking actions under this Agreement.
All of the obligations of the Company hereunder shall survive any such transfer.
No Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of any of the rights granted hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the Stockholders Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the Existing Agreement. Each of the TCI
Stockholders who is a party to the TCI Agreement hereby agrees that upon
execution of this Agreement, the TCI Agreement, which constitute the only
agreement between such TCI Stockholder, on the one hand, and TCI, on the other
hand, with respect to registration rights shall be terminated in its entirety
and replaced and superseded by this Agreement.
(l) Further Assurances. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed, or have caused
to be executed, this Agreement on the date first written above.
ADVANTIX, INC.
By:
--------------------------------
Name:
Title:
GENERAL ATLANTIC PARTNERS 46, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
--------------------------------
Name:
Title:
GENERAL ATLANTIC PARTNERS 54, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
--------------------------------
Name:
Title:
GAP COINVESTMENT PARTNERS, L.P.
By:
--------------------------------
Name:
Title:
GAP COINVESTMENT PARTNERS II, L.P.
By:
--------------------------------
Name:
Title:
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31
THE PROVIDENT BANK
By:
--------------------------------
Name:
Title:
R4 HOLDINGS L.L.C.
By:
--------------------------------
Name:
Title:
------------------------------------
Xxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx
VENTANA EXPRESS, L.L.C.
By:
--------------------------------
Name:
Title:
HILL INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
PLAYHOUSE SQUARE FOUNDATION
By:
--------------------------------
Name:
Title:
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32
THE SHAREHOLDERS' REPRESENTATIVE, as
representative of certain former
shareholders of Bay Area Seating
Serving, Inc.
By:
--------------------------------
Name: Xxxxxx Xxxxx
Title: Shareholders'
Representative
INDUSTRIFORSIKRING, A.S.
By:
--------------------------------
Name:
Title:
------------------------------------
Xxxxxx X. Kczor, Jr.
XXXXXXXXX INVESTMENTS LTD.
By:
--------------------------------
Name:
Title:
HERITAGE FINANCE & TRUST COMPANY
By:
--------------------------------
Name:
Title:
XXXXXXX CAPITAL GROUP LLC, As Agent
and Attorney-in-Fact for the ZCG
Investors listed on Schedule II
attached hereto
By:
--------------------------------
Name:
Title:
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33
ATTRACTOR INSTITUTIONAL LP
By: Attractor Ventures LLC,
its General Partner
By:
--------------------------------
Name:
Title:
ATTRACTOR VENTURES, LLC
By:
--------------------------------
Name:
Title:
THE XXXX X. AND XXXXXXXXX X.
XXXXXXXXX FOUNDATION
By:
--------------------------------
Name:
Title:
ATTRACTOR LP
By: Attractor Ventures LLC, its
General Partner
By:
--------------------------------
Name:
Title:
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34
IDEALAB! CAPITAL PARTNERS I-A LP
By: idealab! Capital Management I,
LLC, its General Partner
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
IDEALAB! CAPITAL PARTNERS I-B LP
By: idealab! Capital Management I,
LLC, its General Partner
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
XXXXX GLOBAL INVESTMENTS, LTD.
By: Xxxxx Capital Management, Inc.,
its Trading Advisor
By:
--------------------------------
Name:
Title:
REMINGTON INVESTMENTS STRATEGIES,
L.P.
By: Xxxxx Capital Advisors, L.L.C.,
its General Partner
By:
--------------------------------
Name:
Title:
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35
MULTI-STRATEGIES FUND, L.P.
By: Xxxxx Capital Management, Inc.,
its Trading Advisor
By:
--------------------------------
Name:
Title:
MUTLI-STRATEGIES FUND LTD.
By: Xxxxx Capital Advisors, L.L.C.,
its General Partner
By:
--------------------------------
Name:
Title:
X.X.X. TRUST
By:
--------------------------------
Name:
Title:
SPORTS CAPITAL TICKETS, LLC
By:
--------------------------------
Name:
Title:
XXXXXXX INTERNATIONAL, LLC
By:
--------------------------------
Name:
Title:
32
36
------------------------------------
Xxxxx X. Xxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxx
CMG @ VENTURES II, LLC
By:____________, its General Partner
By:
--------------------------------
Name:
Title:
33
37
LIBERTY VENTURES I, L.P.
By:____________, its General Partner
By:
--------------------------------
Name:
Title:
XXXX XXXXX' IDEALAB
By:
--------------------------------
Name:
Title:
34
