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EXHIBIT 4.2
Registration Rights Agreement
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REGISTRATION RIGHTS AGREEMENT
among
XXXXXXX.XXX, INC.,
GENERAL ATLANTIC PARTNERS 74, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAPSTAR, LLC,
ARDARA INC.,
INTERNATIONAL CAPITAL PARTNERS, INC.,
PROFIT SHARING TRUST
and
THE OTHER PARTIES NAMED HEREIN
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Dated: June 21, 2001
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TABLE OF CONTENTS
Page
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1. Definitions............................................................. 1
2. General; Securities Subject to this Agreement........................... 5
(a) Grant of Rights..................................................... 5
(b) Registrable Securities.............................................. 5
(c) Holders of Registrable Securities................................... 6
3. Demand Registration..................................................... 6
(a) Request for Demand Registration..................................... 6
(b) Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration............................................... 7
(c) Effective Demand Registration....................................... 7
(d) Expenses............................................................ 7
(e) Additional Demand Registration...................................... 7
(f) Underwriting Procedures............................................. 8
(g) Selection of Underwriters........................................... 8
4. Incidental or "Piggy-Back" Registration................................. 8
(a) Request for Incidental Registration................................. 9
(b) Expenses............................................................ 9
5. Shelf Registration...................................................... 9
(a) Request for a Form S-3 Shelf Registration........................... 9
(b) Form S-3 Underwriting Procedures.................................... 10
(c) Limitations on Form S-3 Registrations............................... 11
(d) Expenses............................................................ 11
(e) No Demand Registration.............................................. 11
6. Holdback Agreements..................................................... 11
(a) Restrictions on Public Sale by Designated Holders................... 11
(b) Restrictions on Public Sale by the Company.......................... 12
7. Registration Procedures................................................. 12
(a) Obligations of the Company.......................................... 12
(b) Seller Information.................................................. 15
(c) Notice to Discontinue............................................... 15
(d) Registration Expenses............................................... 16
8. Indemnification; Contribution........................................... 16
(a) Indemnification by the Company...................................... 16
(b) Indemnification by Designated Holders............................... 17
(c) Conduct of Indemnification Proceedings.............................. 17
(d) Contribution........................................................ 18
9. Rule 144................................................................ 19
10. Miscellaneous........................................................... 19
(a) Recapitalizations, Exchanges, etc................................... 19
(b) No Inconsistent Agreements.......................................... 19
(c) Remedies............................................................ 19
(d) Amendments and Waivers.............................................. 20
(e) Notices............................................................. 20
(f) Successors and Assigns; Third Party Beneficiaries................... 22
(g) Counterparts........................................................ 22
(h) Headings............................................................ 23
(i) GOVERNING LAW....................................................... 23
(j) Severability........................................................ 23
(k) Rules of Construction............................................... 23
(l) Entire Agreement.................................................... 23
(m) Further Assurances.................................................. 23
(n) Other Agreements.................................................... 23
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 21, 2001 (as amended,
modified and/or supplemented from time to time, this "Agreement"), by and among
Xxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), General Atlantic
Partners 74, L.P., a Delaware limited partnership ("GAP LP"), GAP Coinvestment
Partners II, L.P., a Delaware limited partnership ("GAP Coinvestment"), GapStar,
LLC, a Delaware limited liability company ("GapStar"), Ardara Inc., a British
Virgin Islands corporation ("Ardara"), International Capital Partners, Inc.,
Profit Sharing Trust, a Connecticut corporation ("ICP"), and the other Purchaser
parties set forth on Schedule I attached hereto (the "Other Investors").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of May 1,
2001 (the "Original Agreement"), by and among the Company, GAP LP, GAP
Coinvestment, GapStar and ICP, as amended by (i) Amendment No. 1 to Stock
Purchase Agreement, dated as of June 21, 2001 ("Amendment No. 1"), by and among
the Company, GAP LP, GAP Coinvestment, GapStar and ICP and (ii) Amendment No. 2
to Stock Purchase Agreement, dated as of June 21, 2001 ("Amendment No. 2" and
collectively with Amendment No. 1, the "Stock Purchase Agreement"), by and among
the Company, GAP LP, GAP Coinvestment, GapStar, ICP and the other parties named
therein, the Company has agreed to issue and sell to GAP LP, GAP Coinvestment,
GapStar, ICP, Ardara and the other parties named therein, an aggregate of
28,333,333 shares of Series F Senior Cumulative Redeemable Preferred Stock, par
value $0.000225 per share, of the Company (the "Preferred Stock"); and
WHEREAS, in order to induce each of GAP LP, GAP Coinvestment, GapStar,
ICP, Ardara and the Other Investors to purchase its shares of Preferred Stock,
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 covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, and unless the context
requires a different meaning, 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. In
addition, the following shall be deemed to be Affiliates of GAP LP, GapStar and
GAP Coinvestment: (a) GAP LLC, the members of GAP LLC, the limited partners of
GAP Coinvestment and the limited partners of GAP LP; (b) any Affiliate of GAP
LLC, the members of GAP LLC, the limited partners of GAP Coinvestment and the
limited partners of GAP LP; and (c) any limited liability company or partnership
a majority of whose members or partners, as the case may be, are members or
former members of GAP LLC or consultants or key employees of General Atlantic
Service Corporation, a Delaware corporation and an Affiliate of GAP LLC. In
addition, GAP LP, GapStar and GAP Coinvestment shall be deemed to be Affiliates
of one another. In addition, with respect to the Other Investors, the term
"Affiliate" is intended to refer to affiliates of the persons listed under the
column "Purchasers" on Schedule I.
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"Agreement" has the meaning set forth in the preamble to this Agreement.
"Approved Underwriter" has the meaning set forth in Section 3(g) of this
Agreement.
"Ardara" has the meaning set forth in the preamble to this Agreement.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"Closing Price" means, with respect to the Registrable Securities, as of
the date of determination, (a) if the Registrable Securities are listed on a
national securities exchange, the closing price per share of a Registrable
Security on such date published in The Wall Street Journal (National Edition)
or, if no such closing price on such date is published in The Wall Street
Journal (National Edition), the average of the closing bid and asked prices on
such date, as officially reported on the principal national securities exchange
on which the Registrable Securities are then listed or admitted to trading; or
(b) if the Registrable Securities are not then listed or admitted to trading on
any national securities exchange but are designated as national market system
securities by the NASD, the last trading price per share of a Registrable
Security on such date; or (c) if there shall have been no trading on such date
or if the Registrable Securities are not designated as national market system
securities by the NASD, the average of the reported closing bid and asked prices
of the Registrable Securities on such date as shown by The Nasdaq Stock Market,
Inc. (or its successor) and reported by any member firm of The New York Stock
Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c) is
applicable, a market price per share determined in good faith by the Board of
Directors or, if such determination is not satisfactory to the Designated Holder
for whom such determination is being made, by a nationally recognized investment
banking firm selected by the Company and such Designated Holder, the expenses
for which shall be borne equally by the Company and such Designated Holder. If
trading is conducted on a continuous basis on any exchange, then the closing
price shall be at 4:00 P.M. New York City time.
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Common Stock, par value $0.000225 per share, of
the Company or any other capital stock of the Company into which such stock is
reclassified or reconstituted and any other common stock of the Company.
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"Company" has the meaning set forth in the preamble 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 General Atlantic Stockholders, the
Major Stockholders and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with Section 10(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 (or any successor rule
thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"Fifth Amended and Restated Investor Rights Agreement" means the Fifth
Amended and Restated Investor Rights Agreement, dated August 4, 1999, among the
Company and the other Persons named therein.
"GAP Coinvestment" has the meaning set forth in the preamble to this
Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP LP and the managing member of
GapStar, and any successor to such entity.
"GAP LP" has the meaning set forth in the preamble to this Agreement.
"GapStar" has the meaning set forth in the preamble to this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP Coinvestment, GapStar
and any transferee thereof to whom Registrable Securities are transferred in
accordance with Section 10(f) of this Agreement.
"Holders' Counsel" has the meaning set forth in Section 7(a)(i) of this
Agreement.
"ICP" has the meaning set forth in the preamble to this Agreement.
"Incidental Registration" has the meaning set forth in Section 4(a) of
this Agreement.
"Indemnified Party" has the meaning set forth in Section 8(c) of this
Agreement.
"Indemnifying Party" has the meaning set forth in Section 8(c) of this
Agreement.
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"Initiating Holders" has the meaning set forth in Section 3(a) of this
Agreement.
"Inspector" has the meaning set forth in Section 7(a)(vii) of this
Agreement.
"Liability" has the meaning set forth in Section 8(a) of this Agreement.
"Major Stockholders" means Ardara, ICP, the Other Investors and any
transferee thereof to whom Registrable Securities are transferred in accordance
with Section 10(f) of this Agreement.
"Market Price" means, on any date of determination, the average of the
daily Closing Price of the Registrable Securities for the immediately preceding
thirty (30) days on which the national securities exchanges are open for
trading.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Investors" has the meaning set forth in the preamble to this
Agreement.
"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.
"Preferred Stock" has the meaning set forth in the recitals to this
Agreement.
"Records" has the meaning set forth in Section 7(a)(vii) of this
Agreement.
"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 and any shares of Common Stock
issued or issuable upon conversion of any shares of preferred stock or exercise
of any warrants 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 after the date hereof if such Designated Holder is an Affiliate of the
Company and (c) any shares of Common Stock issued or issuable to any of the
Designated Holders with respect to the Registrable Securities 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
any shares of Common Stock or voting common stock issuable upon conversion,
exercise or exchange thereof.
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"Registration Expenses" has the meaning set forth in Section 7(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.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Stock Purchase Agreement" has the meaning set forth in the recitals to
this Agreement.
"Valid Business Reason" has the meaning set forth in Section 3(a) of
this Agreement.
"Xxxxxxx" means Xxxxxxx Capital Group LLC, a New York limited liability
company.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration rights
to the Designated Holders upon the terms and conditions set forth in this
Agreement.
(b) Registrable Securities. For the purposes of this Agreement, with
respect to each Designated Holder, 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 Commission and such Registrable Securities have been disposed of pursuant to
such effective Registration Statement, (ii) (x) the entire amount of the
Registrable Securities may be sold in a single sale, in the opinion of counsel
satisfactory to the Company and the Designated Holder, each in their reasonable
judgment, without any limitation as to volume pursuant to Rule 144 (or any
successor provision then in effect) under the Securities Act and (y) the
Designated Holder owning such Registrable Securities owns less than one percent
(1%) of the outstanding shares of Common Stock on a fully diluted basis, 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.
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(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. If the Company receives
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. At any time after the date
hereof, one or more of the General Atlantic Stockholders as a group, acting
through GAP LLC or its written designee (the "Initiating Holders"), may make a
written request to the Company to register, and the Company shall register,
under the Securities Act (other than pursuant to a Registration Statement on
Form S-4 or S-8 or any successor thereto) (a "Demand Registration"), the number
of Registrable Securities stated in such request; provided, however, that (x)
subject to Section 3(e), the Company shall not be obligated to effect more than
one such Demand Registration for the General Atlantic Stockholders and (y) the
Company shall not be obligated to effect a registration pursuant to this Section
3(a) during such time as the Company has an "evergreen" shelf registration with
respect to all such Registrable Securities pursuant to Rule 415 under the
Securities Act on form S-3 (or any successor form) and such shelf registration
has been declared, and remains, effective. For purposes of the preceding
sentence, two or more Registration Statements filed in response to one demand
shall be counted as one Demand Registration. If the Board of Directors, in its
good faith judgment, determines that any registration of Registrable Securities
should not be made or continued because it would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
material transaction involving the Company (a "Valid Business Reason"), the
Company may (x) postpone filing a Registration Statement relating to a Demand
Registration until such Valid Business Reason no longer exists, but in no event
for more than ninety (90) days, and (y) in case a Registration Statement has
been filed relating to a Demand Registration, if the Valid Business Reason has
not resulted from actions taken by the Company, the Company, upon the approval
of a majority of the Board of Directors, such majority to include at least one
director elected by the holders of the Series F Preferred Stock, may cause such
Registration Statement to be withdrawn and its effectiveness terminated or may
postpone amending or supplementing such Registration Statement. The Company
shall give written notice of its determination to postpone or withdraw a
Registration Statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof. Notwithstanding anything to the contrary contained herein,
the Company may not postpone or withdraw a filing under this Section 3(a) more
than once in any twelve (12) month period. Each request for a Demand
Registration by the Initiating Holders shall state the amount of the Registrable
Securities proposed to be sold and the intended method of disposition thereof.
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(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3(a)) may offer its or his
Registrable Securities under any Demand Registration pursuant to this Section
3(b). Within seven (7) days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3(a)) and (ii) subject to
Section 3(f), include in such registration all of the Registrable Securities
held by such Designated Holders from whom the Company has received a written
request for inclusion therein within ten (10) days of the receipt by such
Designated Holders of such written notice referred to in clause (i) above. Each
such request by such Designated Holders shall specify the number of Registrable
Securities proposed to be registered. The failure of any Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be
deemed to be a waiver of such Designated Holder's rights under this Section 3
with respect to such Demand Registration. Any Designated Holder may waive its
rights under this Section 3 prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holders. If
a Designated Holder sends the Company a written request for inclusion of part or
all of such Designated Holder's Registrable Securities in a registration, such
Designated Holder shall not be entitled to withdraw or revoke such request
without the prior written consent of the Company in its sole discretion unless,
as a result of facts or circumstances arising after the date on which such
request was made relating to the Company or to market conditions, such
Designated Holder reasonably determines that participation in such registration
would have a material adverse effect on such Designated Holder.
(c) Effective Demand Registration. The Company shall use its
commercially reasonable efforts to cause any such Demand Registration to become
and remain effective not later than sixty (60) 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 Commission 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 Holder.
(d) Expenses. The Company shall pay all Registration Expenses in
connection with a Demand Registration, whether or not such Demand Registration
becomes effective.
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(e) Additional Demand Registration. If at least seventy-five percent
(75%) of the Registrable Securities proposed to be registered in such Demand
Registration are not included in such Demand Registration, then the General
Atlantic Stockholders as a group shall have the right to require the Company to
effect an additional registration under the Securities Act of all or part of the
Registrable Securities held by such General Atlantic Stockholders in accordance
with the provisions of this Section 3, and the Company shall pay the
Registration Expenses in connection with such additional registration.
(f) Underwriting Procedures. If the Initiating Holders holding a
majority of the Registrable Securities held by all of the Initiating Holders so
elect, the Company shall use its commercially reasonable efforts to cause such
Demand Registration 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(g). 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(b) hereof shall be included in such underwritten offering unless such
Designated Holder accepts the terms of the offering as agreed upon by the
Company, the other Initiating Holders and the Approved Underwriter, and then,
subject to the immediately following sentence, 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 that the aggregate amount of such Registrable Securities requested to be
included in such offering is sufficiently large to have a material adverse
effect on the success of such offering, then the Company shall include in such
registration only the aggregate amount of Registrable Securities that the
Approved underwriter believes may be sold without any such material adverse
effect and shall reduce the amount of Registrable Securities to be included in
such registration, first, as to the Company, second, as to any other
stockholders of the Company who hold similar registration rights to the
Designated Holders hereunder pursuant to other registration rights agreements as
a group, pro rata within each group based upon the number of Registrable
Securities or other similar securities owned by each such other stockholder of
the Company as a group, if any, and third, as to the (i) Designated Holders and
(ii) any other stockholders of the Company who hold and have exercised similar
registration rights as the Initiating Holders hereunder pursuant to other
registration rights agreements as a group, pro rata within each group based on
the number of Registrable Securities or other similar securities owned by each
such Designated Holder or each such other stockholder of the Company.
(g) 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 Company 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, also be approved by the Initiating Holders or S-3 Initiating
Holders, as the case may be, such approval not to be unreasonably withheld.
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4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. 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 (other than a Registration Statement
on Form S-4 or S-8 or any successor thereto) or for the account of any
stockholder of the Company other than the Designated Holders, then the Company
shall give written notice of such proposed filing to each of the Designated
Holders at least twenty (20) days before the anticipated filing date, and such
notice shall describe the proposed registration and distribution and offer such
Designated Holders the opportunity to register the number of Registrable
Securities as each such Designated Holder may request (an "Incidental
Registration"). The Company shall use its commercially reasonable efforts
(within twenty (20) days of the notice provided for in the preceding sentence)
to cause the managing underwriter or underwriters in the case of a proposed
underwritten offering (the "Company Underwriter") to permit each of the
Designated Holders who have requested in writing 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 or
the account of such other stockholder, as the case may be, 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 Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
between the Company, such other stockholders, if any, and the Company
Underwriter, and then, subject to the immediately following sentence, only in
such quantity as the Company Underwriter believes will not jeopardize the
success of the offering by the Company. If the Company Underwriter determines
that the registration of all or part of the Registrable Securities which the
Designated Holders have requested to be included would materially adversely
affect the success of such offering, then the Company shall be required to
include in such Incidental Registration, to the extent of the amount that the
Company Underwriter believes may be sold without causing such adverse effect,
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 or securities to be offered for
the account of other stockholders of the Company having similar "piggy-back"
registration rights to the Designated Holders hereunder pursuant to other
similar registration rights agreements, as a group pro rata based on the number
of Registrable Securities or similar securities owned by each such Designated
Holder or each such other stockholder of the Company, and third, any other
securities requested to be included in such offering.
(b) Expenses. The Company shall bear all Registration Expenses in
connection with any Incidental Registration pursuant to this Section 4, whether
or not such Incidental Registration becomes effective.
5. Shelf Registration.
(a) Request for a Form S-3 Shelf Registration. In the event that the
Company shall receive from the Designated Holders of at least 66 2/3% of the
Registrable Securities (the "S-3 Initiating Holders"), a written request that
the Company register for an offering to be made on a continuous basis pursuant
to Rule 415 under the Securities Act on Form S-3 (or any successor form then in
effect) (an "S-3 Registration"),
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all or a portion of the Registrable Securities owned by such S-3 Initiating
Holders, the Company shall give written notice of such request to all of the
Designated Holders (other than S-3 Initiating Holders which have requested an
S-3 Registration under this Section 5(a)) at least ten (10) days before the
anticipated filing date of such Form S-3, and such 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 after their
receipt from the Company of the written notice of such registration. With
respect to each S-3 Registration, the Company shall subject to Section 5(b) (i)
include in such offering the Registrable Securities of the S-3 Initiating
Holders and (ii) use its reasonable best efforts to (x) cause such registration
pursuant to this Section 5(a) to become and remain effective as soon as
practicable, but in any event not later than forty-five (45) days after it
receives a request therefor and (y) include in such offering the Registrable
Securities of the Designated Holders (other than S-3 Initiating Holders which
have requested an S-3 Registration under this Section 5(a)) 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.
The Company shall use its best efforts to keep the S-3 Registration continuously
effective under the Securities Act until all the Registrable Securities are
disposed of in accordance with the plan of distribution for such S-3
Registration.
(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 so elect, the Company shall use its commercially 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(g). 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
underwritten offering as agreed upon between the Company, the Approved
Underwriter and the S-3 Initiating Holders, and then only in such quantity as
such underwriter believes will not jeopardize the success of such offering by
the S-3 Initiating Holders. If the Approved Underwriter believes that the
registration of all or part of the Registrable Securities which the S-3
Initiating Holders and the other Designated Holders have requested to be
included would materially adversely affect the success of such public offering,
then the Company shall be required to include in the underwritten offering, to
the extent of the amount that the Approved Underwriter believes may be sold
without causing such adverse effect, first, all of the Registrable Securities to
be offered for the account of the S-3 Initiating Holders, 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),
and any other stockholder of the Company having similar shelf registration
rights as the S-3 Initiating Holders hereunder pursuant to other similar
registration rights agreements, as a group pro rata based on the number of
Registrable Securities or other similar securities owned by such S-3 Initiating
Holders, Designated Holders or other stockholders of the Company, second, the
Registrable Securities to be offered for the account of any other stockholders
of the Company who
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are entitled to registration of securities of the Company based upon similar
rights to those in Section 5(a), pro rata based upon the number of registrable
securities owned by such other stockholders, and third, any other securities
requested to be included in such offering.
(c) Limitations on Form S-3 Registrations. If the Board of Directors
has a Valid Business Reason, the Company may (x) postpone filing a Registration
Statement relating to a S-3 Registration until such Valid Business Reason no
longer exists, but in no event for more than ninety (90) days, and (y) in case a
Registration Statement has been filed relating to a S-3 Registration, if the
Valid Business Reason has not resulted from actions taken by the Company, the
Company, upon the approval of a majority of the Board of Directors, such
majority to include at least one director elected by the holders of the Series F
Preferred Stock, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
Registration Statement. The Company shall give written notice of its
determination to postpone or withdraw a Registration Statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the Company may not postpone or
withdraw a filing due to a Valid Business Reason more than once in any twelve
(12) month period. In addition, the Company shall not be required to effect any
registration pursuant to Section 5(a), (i) within ninety (90) days after the
effective date of any other Registration Statement of the Company, (ii) if
within the twelve (12) month period preceding the date of such request, the
Company has effected two (2) registrations on Form S-3 pursuant to Section 5(a),
and (iii) if Form S-3 is not available for such offering by the S-3 Initiating
Holders.
(d) Expenses. The Company shall bear all Registration Expenses in
connection with any S-3 Registration pursuant to this Section 5, whether or not
such S-3 Registration become effective.
(e) No Demand Registration. No registration requested by any
Designated Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. To the extent
(i) requested by the Approved Underwriter or the Company Underwriter, as the
case may be, in the case of an underwritten public offering and (ii) all of the
Company's officers, directors and holders in excess of two percent (2%) of its
outstanding capital stock execute agreements identical to those referred to in
this Section 6(a), each Designated Holder agrees (x) not to effect any public
sale or distribution 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, or offer to
sell, contract to sell (including without limitation any short sale), grant any
option to purchase or enter into any hedging or similar transaction with the
same
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economic effect as a sale any Registrable Securities and (y) not to make any
request for a Demand Registration or S-3 Registration under this Agreement,
during the ninety (90) day period or such shorter period, if any, mutually
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). No Designated Holder of Registrable Securities subject to this
Section 6(a) shall be released from any obligation under any agreement,
arrangement or understanding entered into pursuant to this Section 6(a) unless
all other Designated Holders of Registrable Securities subject to the same
obligation are also released.
(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).
7. 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 commercially reasonable 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 Commission 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 cause such Registration Statement to become effective;
provided, however, that (x) before filing a Registration Statement or prospectus
or any amendments or supplements thereto, the Company shall provide 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 review and
comment on such Registration Statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the Commission, subject
to such documents being under the Company's control, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities of any
stop order issued or threatened by the Commission and take all 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 Commission 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) furnish to each seller of Registrable Securities, prior to
filing a Registration Statement, at least one copy 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), and the prospectus included in such
Registration Statement (including each preliminary prospectus) and any
prospectus filed under Rule 424 under the Securities Act 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 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) 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, in
light of the circumstances under which they were made, not misleading and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller of Registrable Securities a reasonable number of copies
of such supplement to or an 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, in light of the circumstances under which they were made,
not misleading;
(vi) enter into and perform customary agreements (including an
underwriting agreement in form requested by the Approved Underwriter or Company
Underwriter, if any, selected as provided in Section 3, Section 4 or Section 5,
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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, including causing its officers to participate in "road shows" and
other information meetings organized by the Approved Underwriter or Company
Underwriter;
(vii) make available at reasonable times 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 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 (and the
Inspectors shall confirm their agreement in writing in advance to the Company if
the Company shall so request) unless (x) the disclosure of such Records is
necessary, in the Company's judgment, 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 after exhaustion of all appeals therefrom 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;
(viii) if such sale is pursuant to an underwritten offering,
obtain a "cold comfort" letter dated the effective date of the Registration
Statement and the date of the closing under the underwriting agreement from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as Holders'
Counsel or the managing underwriter reasonably requests;
(ix) 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 the underwriters, if any, and such seller may reasonably request
and are customarily included in such opinions;
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(x) comply with all applicable rules and regulations of the
Commission, 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;
(xi) 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;
(xii) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Section 3, Section 4 or
Section 5 hereunder;
(xiii) 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 NASD; and
(xiv) take all other steps reasonably 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, and such seller shall 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 agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 7(a)(v), 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
7(a)(v) 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 7(a)(ii)) by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 7(a)(v) to
and including the date when 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
7(a)(v).
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(d) Registration Expenses. The Company shall pay all expenses
arising from or incident to its performance of, or compliance with, this
Agreement, including, without limitation, (i) Commission, 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 to any underwriter incurred in connection with
"blue sky" qualifications of the Registrable Securities as may be set forth in
any underwriting agreement), (iii) all printing, messenger and delivery
expenses, (iv) the fees, charges and expenses of one counsel to the Company and
of its independent public accountants and any other 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 Demand
Registration or an S-3 Registration, any legal fees, charges and expenses of one
special counsel selected by the Initiating Holders or the S-3 Initiating
Holders, as the case may be, (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 and (vi) fees and disbursements of underwriters, selling
brokers, dealers, managers and similar securities industry professionals
relating to distribution of Registrable Securities. All of the expenses
described in the preceding sentence of this Section 7(d) are referred to herein
as "Registration Expenses." The Designated Holders of Registrable Securities
sold pursuant to a Registration Statement shall bear the expense of any broker's
commission or underwriter's discount or commission relating to registration and
sale of such Designated Holders' Registrable Securities in proportion to the
number of Registrable Securities that each Designated Holder shall have
registered pursuant to such Registration Statement and, subject to clause (iv)
above, shall bear the fees and expenses of their own counsel.
8. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Designated Holder, its partners, directors, officers,
affiliates and each Person who controls (within the meaning of Section 15 of the
Securities Act) such Designated Holder from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a "Liability" and collectively, "Liabilities"), 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 under the circumstances such statements were made, except
insofar as such Liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission contained in such
Registration Statement, preliminary prospectus or final prospectus in reliance
and in conformity with information concerning such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use therein,
including, without limitation, the
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information furnished to the Company pursuant to Section 8(b). 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 Section 15 of the Securities 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
promptly 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
all information required to be disclosed in order to make the information
previously furnished to the Company by such Designated Holder not materially
misleading or necessary to cause such Registration Statement not to omit a
material fact with respect to such Designated Holder necessary in order to make
the statements therein not misleading. Each Designated Holder agrees to
indemnify and hold harmless the Company, any underwriter retained by the Company
and each Person who controls the Company or such underwriter (within the meaning
of Section 15 of the Securities Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only if such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with information with respect to such Designated Holder
furnished in writing to the Company by such Designated Holder expressly for use
in such Registration Statement or prospectus, including, without limitation, the
information furnished to the Company pursuant to this Section 8(b); provided,
however, that the total amount to be indemnified by such Designated Holder
pursuant to this Section 8(b) shall be limited to the net proceeds received by
such Designated Holder in the offering to which the Registration Statement or
prospectus relates.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the 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 so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any Liability
that it may have to the Indemnified Party hereunder (except to the extent that
the Indemnifying Party is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). 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 reasonably 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 shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume
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the defense of such action with counsel reasonably satisfactory to the
Indemnified Party or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and such parties have been advised by such counsel that 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, it being understood, however, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties. 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 a party and indemnity has 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 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Liabilities referred to herein, 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 Liabilities 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 Liabilities, 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 Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(a), 8(b)
and 8(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 contributed by such Designated Holder shall be limited to the
net proceeds received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(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.
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9. 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 may reasonably request (including providing any
information necessary to comply with Rule 144 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) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or Regulation S under the
Securities Act or (ii) any similar rules or regulations hereafter adopted by the
Commission. The Company shall, upon the request of any Designated Holder,
deliver to such Designated Holder a written statement as to whether it has
complied with such requirements.
10. 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 merger, consolidation, sale of
assets 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. Except for the Fifth Amended and
Restated Investor Rights Agreement, 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, 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 this Agreement or grant any additional registration
rights to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement; provided that the Company may grant to Sports Capital (as
defined in the Stock Purchase Agreement) registration rights similar to those
held by the Major Stockholders pursuant to this Agreement.
(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.
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(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless consented to in writing by each of (i) the Company, (ii) the General
Atlantic Stockholders and (iii) ICP; provided, however, that any such amendment,
modification, supplement or waiver that adversely affects any Major Stockholder
(except ICP) in a manner different than any other Designated Holder shall
require the written consent of such adversely affected Major Stockholder;
provided, further, that the Company may add Sports Capital (as defined in the
Stock Purchase Agreement) as a party to this Agreement as a Major Stockholder
without the consent of the General Atlantic Stockholders, ICP or the Major
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 or personal delivery:
(i) if to the Company:
Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: W. Xxxxxx Xxxxxx
with a copy to:
Xxxxxxx Phleger & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
if to GAP LP, GapStar or GAP Coinvestment:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
(ii) if to ICP:
International Capital Partners, Inc.,
Profit Sharing Trust
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
with copy to:
Xxxxxxxx & Xxxxxxxx
Four Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
(iii) if to Ardara:
c/o Lombard, Odier & Co.
00 xxx xx xx Xxxxxxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
Telecopy: (000) 00 00 000 0000
Attention: Xxxxx Xxxxxx Bastaroli
with copy to:
International Capital Partners, Inc.,
Profit Sharing Trust
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
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(iv) if to the Other Investors
c/o Zesiger Capital Group LLC
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
with copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service, seven (7) days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 10(e) designate another address or Person for
receipt of notices hereunder.
(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 the parties hereto as hereinafter provided. The Demand
Registration rights and the S-3 Registration rights and related rights of the
General Atlantic Stockholders or the Major Stockholders contained in Sections 3
and 5 hereof, shall be (i) with respect to any Registrable Security that is
transferred to an Affiliate of a General Atlantic Stockholder or an Affiliate of
a Major Stockholder, automatically transferred to such Affiliate, (ii) with
respect to any Registrable Security that is transferred to any Person who has an
investment advisory agreement and who has granted a power of attorney to
Xxxxxxx, automatically transferred to such Person and (iii) with respect to any
Registrable Security that is transferred in all cases to a non-Affiliate,
transferred only with the consent of the Company which consent shall not be
unreasonably withheld. The incidental or "piggy-back" registration rights of the
Designated Holders contained in Sections 3(b), 4 and 5 hereof and the other
rights of each of the Designated Holders with respect thereto shall be, with
respect to any Registrable Security, automatically transferred to any Person who
is the transferee of such Registrable Security. All of the obligations of the
Company hereunder shall survive any such transfer. Except as provided in Section
8, no Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of this Agreement.
(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.
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(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 NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(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, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(k) Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
(l) 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,
representations, warranties or undertakings, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
(m) 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.
(n) Other Agreements. Nothing contained in this Agreement shall be
deemed to be a waiver of, or release from, any obligations any party hereto may
have under, or any restrictions on the transfer of Registrable Securities or
other securities of the Company imposed by, any other agreement including, but
not limited to, the Stock Purchase 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 Registration Rights Agreement on the date first written above.
XXXXXXX.XXX, INC.
By: /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Exec. Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Member
INTERNATIONAL CAPITAL PARTNERS,
INC., PROFIT SHARING TRUST
By: /s/ N. E. XXXXXXXX
--------------------------------
Name: N. E. Xxxxxxxx
Title: Trustee
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ARDARA INC.
By:
--------------------------------
Name:
Title:
THE OTHER INVESTORS LISTED ON
SCHEDULE I
By: XXXXXXX CAPITAL GROUP, LLC,
attorney-in-fact for the Parties
set forth on Schedule 1
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
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SCHEDULE 1
PURCHASER: RECORD HOLDER:
---------- --------------
1 NFIB Corporate Account HULAND & CO.
2 Public Employee Retirement System of Idaho MELLON BANK NA CUSTODIAN FOR XXXXX-XXXXXXX CAPITAL
3 City of Stamford Firemen's Pension Fund CITY OF STAMFORD FIREMEN'S PENSION FUND
4 The Xxxxxxx Xxxxxx Foundation BATRUS & CO.
5 Xxxxx Foundation HARE & CO.
6 Roanoke College FIRSTUNION & CO.
7 Xxxxxx Family LLC XXXX & CO.
8 Xxxxxxxx X. Xxxxxxxxx XXXXXXXX X. XXXXXXXXX
9 HBL Charitable Unitrust HBL CHARITABLE XXXXXXXX
00 Xxxxxx Xxxxxxxx XXXXXX XXXXXXXX
11 Xxxxx Xxxx XXXX & CO.
12 Xxxxxx X. Xxxxxxx XXXXXX X. XXXXXXX
13 Psychology Associates PSYCHOLOGY ASSOCIATES
14 Xxxxx Xxxxxx XXXXX XXXXXX
15 Xxxx X. Xxxxxxxx XXXX X. XXXXXXXX
16 Xxxxxx Capital, LLC XXXXXX CAPITAL, LLC
17 Xxxxxx Foundation XXXXXX FOUNDATION
18 The Xxxxxx Investment Partnership I, L.P. THE XXXXXX INVESTMENT PARTNERSHIP I, L.P.
19 Xxxxxxx X. Xxxxx XXXXXXX X. XXXXX
20 Xxxxxx Trust Co. of the Bahamas Ltd. as Trustee XXXXXX TRUST CO.OF THE BAHAMAS LTD. AS TRUSTEE U/A/D
U/A/D 11/30/93 11/30/93
21 Xxxxx Xxxx Xxxxxxx HARE & CO.
22 Theeuwes Family Trust, Xxxxx Xxxxxxxx Trustee THEEUWES FAMILY TRUST, XXXXX XXXXXXXX TRUSTEE
23 Xxxxxxx X. Xxxxx XXXXXXX X. XXXXX
24 Xxxxxx X. Xxxxxxx XXXXXX X. XXXXXXX
25 Xxxxxx Xxxxxx Xxxxxxx XXXXXX XXXXXX XXXXXXX
26 Xxxxxx and Xxx-Xxxxx Xxxxxx XXXXXX AND XXX-XXXXX XXXXXX
27 Xxxx X. & Xxxxxxxxx X. Xxxxxx XXXX X. & XXXXXXXXX X. XXXXXX
28 Xxxx X. Xxxxxxx XXXX XXXXXXX
29 Xxxxxxx Investment Partners XX XXXXXXX INVESTMENT PARTNERS LP
i
