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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 20, 1999
by and among
VERIO INC.
and
XXXXXXX XXXXX XXXXXX INC.,
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION,
CREDIT SUISSE FIRST BOSTON CORPORATION,
DEUTSCHE BANK SECURITIES INC.
and
FIRST UNION CAPITAL MARKETS CORP.,
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 20, 1999 (the "Closing Date") by and among VERIO INC., a
Delaware corporation (the "Company"), and XXXXXXX XXXXX BARNEY INC., XXXXXXXXX,
XXXXXX & XXXXXXXX SECURITIES CORPORATION (together with Xxxxxxx Xxxxx Barney
Inc., the "Representatives"), CREDIT SUISSE FIRST BOSTON CORPORATION, DEUTSCHE
BANK SECURITIES INC. and FIRST UNION CAPITAL MARKETS CORP. (collectively with
the Representatives, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
as of July 14, 1999 by and among the Company and the Initial Purchasers (the
"Purchase Agreement"), that provides for, among other things, the sale by the
Company to the Initial Purchasers of up to 7,200,000 shares of its 6.75% Series
A Convertible Preferred Stock (liquidation preference $50.00 per share) (the
"Preferred Stock"). Holders of the Preferred Stock are also entitled to the
benefits of a deposit agreement (the "Deposit Agreement") of even date herewith
by and between the Company and Norwest Bank Minnesota, N.A., as Deposit Agent.
The Preferred Stock will be convertible into shares of Common
Stock, par value $0.001 per share, of the Company (the "Common Stock") as set
forth in the Certificate of Designations of the Powers, Preferences and
Relative, Participating, Optional and other Special Rights of the Convertible
Preferred Stock to the Company's Certificate of Incorporation relating to the
Preferred Stock (the "Certificate"). The Preferred Stock and the Common Stock
issuable upon conversion of the Preferred Stock, or paid or payable as dividends
thereon or sold by us to the Deposit Agent pursuant to the Deposit Agreement,
are collectively herein referred to as the "Securities" and each of them as held
singularly is herein referred to as a "Security". In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees and
the holders of the Securities from time to time (each of the foregoing, a
"Holder" and together the "Holders"), the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Shelf Registration. So long as any Transfer Restricted
Security (as defined in Section 5(e) hereof) exists, the Company shall take the
following actions:
(a) The Company shall, at its cost, prepare and, on or before the
date that is 120 days after the Closing Date, file with the Securities and
Exchange Commission (the "Commission") and thereafter shall use its
reasonable best efforts to cause to be
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declared effective on or prior to the date that is 210 days after the
Closing Date, a registration statement on the appropriate form (the "Shelf
Registration Statement") covering issuance by the Company and the offer and
sale from time to time by the Holders thereof of the maximum amount of
Transfer Restricted Securities issuable pursuant to the terms of the
Certificate and this Agreement, as described in Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act") (hereinafter, the
"Shelf Registration").
(b) The Company shall keep the Shelf Registration Statement
continuously effective and usable under the Securities Act, in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, until such time as all the Securities
covered by the Shelf Registration Statement may be freely sold by such
Holders without restriction pursuant to Rule 144(k) under the Securities
Act, or any successor provision promulgated by the Commission or otherwise,
assuming for this purpose that the Holders thereof are not affiliates of
the Company (such period being called the "Shelf Registration Period").
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders pursuant to this Agreement) (i) the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any
amendment thereto not to contain, when it becomes effective, any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any prospectus forming a part of the Shelf
Registration Statement, and any amendment or supplement to such prospectus,
not to contain, as of the date of such prospectus or amendment or
supplement, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Notwithstanding any other provisions of this Agreement to the
contrary, if (i) the Company determines, in its good faith judgment, that
the disclosure of an event or development, or the filing of a required
filing with the Commission would have a material adverse impact on the
Company, or (ii) the disclosure of an event or development, or the filing
of a required filing with the Commission is otherwise related to a material
business transaction that has not yet been publicly disclosed, (each of the
foregoing is referred to herein as a "Suspension Period"), the Company
shall be entitled to suspend any registration referred to in this Section
1, provided, however, that a Suspension Period shall not prevent the
accrual of Additional Dividends as set
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forth in the Certificate from occurring or continuing to the extent it
exceeds 60 days in any 90-day period or to the extent multiple Suspension
Periods exceed 90 days in the aggregate in any 12-month period.
(e) The Company shall declare and pay all Additional Dividends (as
defined in the Certificate) required in the Certificate upon failure to
meet its obligations pursuant to this Agreement. No Additional Dividends in
cash will be required to the extent a declaration of such Additional
Dividends would conflict with the debt instruments of the Company in place
at the time of such declaration.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply so long
as any Transfer Restricted Security exists:
(a) The Company shall (i) furnish, without charge, to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement and each amendment thereto and each amendment
or supplement, if any, to the prospectus included therein and, in the event
that the Initial Purchasers (with respect to any portion of an unsold
allotment from the original offering) are participating in the Shelf
Registration Statement, shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Initial
Purchasers reasonably may propose, (ii) include in each such document the
names of the Holders who propose to sell Transfer Restricted Securities
pursuant to the Shelf Registration Statement as selling security holders
and (iii) file pursuant to Rule 424(b) under the Securities Act an
amendment to the Shelf Registration Statement or amend the prospectus to
cover new Holders of Securities upon written notice by such new Holders to
the effect.
(b) The Company shall give written notice to the Initial Purchasers
and the Holders (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction, if applicable, to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
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(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf Registration Statement and the prospectus do not
contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus, in light
of the circumstances under which they were made) not misleading, which
written notice need not provide any detail as to the nature of such
event.
(c) The Company shall use its best efforts to obtain the withdrawal as
soon as practicable, of any order suspending the effectiveness of the Shelf
Registration Statement.
(d) The Company shall furnish to each Holder of Transfer Restricted
Securities included within the coverage of the Shelf Registration, if the
Holder so requests in writing, without charge, one copy of the Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (other than exhibits to documents
incorporated by reference). The Company shall furnish exhibits to documents
incorporated by reference for a reasonable fee to Holders who request in
writing.
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities included within the
coverage of the Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included
in the Shelf Registration Statement and any amendment or supplement thereto
as such person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the then current prospectus or
any amendment thereto, together with any supplement thereto, by each of the
selling Holders in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
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(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Transfer Restricted Securities included
therein and their respective counsel in connection with the registration or
qualification of such Securities for offer and sale under the securities or
"blue sky" laws of such states of the United States as any such Holder
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the Securities covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required to (i) qualify generally to
do business in any jurisdiction where it is not then otherwise required to
be so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then
so subject.
(g) The Company shall cooperate with the Holders of the Transfer
Restricted Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may reasonably
request in writing at least two Business Days prior to the closing of any
sale of Registrable Securities. For purposes of this Section 2(g),
"Business Day" means any day, other than a Saturday or Sunday, on which
banks in New York are open for business.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the
Company shall use its best efforts to prepare and file as promptly as
practicable a post-effective amendment to the Shelf Registration Statement
or an amendment or supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders or purchasers
of Securities, the prospectus will 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. If an Initial
Purchaser or a Holder receives actual notice from the Company, in
accordance with paragraphs (ii) through (v) of Section 2(b) above, to
suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then such person shall suspend use of such
prospectus.
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act)
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of
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a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter commencing after
the effective date of the Shelf Registration Statement, which statement
shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities by
such Holder as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement and to provide comments on
the Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such
information.
(k) The Company shall (i) make reasonably available for inspection by
the Holders of the Transfer Restricted Securities and any attorney,
accountant or other agent retained by the Holders of the Securities all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders of the Securities or any such attorney,
accountant or agent in connection with the Shelf Registration Statement, in
each case, as shall be reasonably necessary to enable such persons to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering (i) shall be coordinated by the Representatives and,
on behalf of the other parties, by one counsel (the "Designated Counsel")
designated by the Holders of a majority in principal amount of the Transfer
Restricted Securities covered by the Shelf Registration Statement (provided
that Holders of Common Stock issued upon the conversion of the Preferred
Stock shall be deemed to be Holders of the aggregate number of shares of
Preferred Stock from which such Common Stock was converted) and (ii) shall
not be available for any such Holder that is a competitor of the Company.
Such Holders shall keep the information so received confidential.
(l) The Company shall use its commercially reasonable best efforts to
cause the Common Stock relating to such Shelf Registration Statement to be
listed on the Nasdaq National Market.
(m) The Company shall use its commercially reasonable best efforts to
take all other steps necessary to effect the registration of the Transfer
Restricted Securities covered by the Shelf Registration Statement
contemplated hereby.
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3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 through 2 hereof, whether or not the Shelf Registration Statement is
filed or becomes effective.
4. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Initial Purchaser, each Holder, each
broker-dealer (a "Participating Broker-Dealer") that holds Transfer Restricted
Securities acquired for its own account as a result of market-making activities
or other trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of Securities, each underwriter who participates in an offering of
Transfer Restricted Securities, their respective affiliates, and each person, if
any, who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement (or any amendment or
supplement thereto), covering the Securities, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Sections 4(c) and
4(d) below) any such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel (in
addition to any local counsel) chosen by the Representatives, such
Holder, such Participating Broker-Dealer or any underwriter (except to
the extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
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omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of such Initial Purchaser, such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Initial Purchaser, Holder, Participating
Broker-Dealer or underwriter, as the case may be, expressly for use in the Shelf
Registration Statement (or any amendment or supplement thereto) or any
prospectus (or any amendment or supplement thereto) or (ii) contained in any
preliminary prospectus if such Initial Purchaser, such Holder, such
Participating Broker-Dealer or such underwriter failed to send or deliver a copy
of the prospectus (in the form it was first provided to such parties for
confirmation of sales) to the person asserting such losses, claims, damages or
liabilities on or prior to the delivery of written confirmation of any sale of
securities covered thereby to such person in any case where the Company shall
have previously furnished copies hereof to such Initial Purchaser, such Holder,
such Participating Broker-Dealer or such underwriter, as the case may be, in
accordance with this Agreement, at or prior to the written confirmation of the
sale of such Securities to such person and the untrue statement or omission of a
material fact contained in or omitted from the preliminary prospectus that was
corrected in the final prospectus (or any amendment or supplement thereto). Any
amounts advanced by the Company to an indemnified party pursuant to this Section
4 as a result of such losses shall be returned to the Company if it shall be
finally determined by a court of competent jurisdiction in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each Initial Purchaser, each underwriter who
participates in an offering of Transfer Restricted Securities and the other
selling Holders and each of their respective directors and each person, if any,
who controls any of the Company, any Initial Purchaser, any underwriter or any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment or supplement thereto) or any
prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such selling Holder with respect to such Holder expressly for use in the Shelf
Registration Statement (or any supplement thereto), or any such prospectus (or
any amendment thereto); provided, however, that no such Holder shall be liable
for any claims hereunder in excess of the amount of net proceeds
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received by such Holder from the sale of Transfer Restricted Securities pursuant
to the Shelf Registration Statement; provided, further, however, that for
purposes of Section 4(a)(iii), such counsel shall (subject to Section 4(c)
hereof) be chosen by the Company.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability that it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 4(a) above, one counsel to all the
indemnified parties shall be selected by the Representatives, and, in the case
of parties indemnified pursuant to Section 4(b) above, counsel to all the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes a full and unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
the offer and sale of any Securities and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel
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pursuant to Section 4(a)(iii) above, then such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, the Initial
Purchasers and the Holders, as applicable, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company, the Initial Purchasers and the
Holders; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the Initial Purchasers
and the Holders, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company on the one hand and of the Holder of Transfer
Restricted Securities, the Participating Broker-Dealer or Initial Purchaser, as
the case may be, on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holder
of Transfer Restricted Securities, the Participating Broker-Dealer or the
Initial Purchasers, as the case may be, on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, or by the Holder of Transfer
Restricted Securities, the Participating Broker-Dealer or the Initial
Purchasers, as the case may be, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Holders of the Transfer Restricted Securities
and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4.
For purposes of this Section 4, each affiliate of any person, if
any, who controls a Holder of Transfer Restricted Securities, an Initial
Purchaser or a Participating
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Broker-Dealer within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such other
person, and each director of the Company, each affiliate of the Company, each
executive officer of the Company who signed the Shelf Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
(f) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
(g) "Transfer Restricted Securities" means each Security until
the date on which such Security (i) has been transferred pursuant to the Shelf
Registration Statement or another registration statement covering such Security
which has been filed with the Commission pursuant to the Securities Act, in
either case after such registration statement has become effective under the
Securities Act, (ii) has been transferred pursuant to Rule 144 under the
Securities Act, or any similar provision then in force, (iii) may be freely sold
or transferred pursuant to Rule 144(k) under the Securities Act, or any similar
provision then in force or (iv) in the opinion of counsel to the Company may be
freely sold without restriction under the Securities Act by the Holder thereof.
5. Miscellaneous.
(a) Rule 144 and Rule 144A. So long as any Transfer Restricted
Security exists, the Company shall use its commercially reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Transfer
Restricted Securities, make publicly available other information so long as
necessary to permit sales of its securities pursuant to Rules 144 and 144A. The
Company covenants that, if in the event the Company is no longer subject to
Sections 13 or 15(d) of the Exchange Act, it will take such further action as
any Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell such Holder's
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)) or any similar rules or
regulations adopted by the Commission. The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchasers upon request.
(b) No Inconsistent Agreements. The rights granted to the Holders
hereunder do not, and will not for the term of this Agreement in any way
conflict with and are
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not, and will not during the term of this Agreement be inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any other agreements entered into by the Company.
(c) Amendments and Waivers. The provisions of this Agreement,
including provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the Company
and the Holders of a majority of the Transfer Restricted Securities affected by
such amendment, modification, supplement, waiver or consents; provided, however,
that Holders of Common Stock issued upon conversion of Convertible Preferred
Stock shall be deemed to be Holders of the aggregate number of Convertible
Preferred Stock from which such Common Stock was converted. No amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective against any Holder of
Transfer Restricted Securities or the Company unless consented to in writing by
such Holder of Transfer Restricted Securities or the Company, as the case may
be.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 5(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Transfer Restricted Securities in violation of the terms of the Purchase
Agreement. If any transferee of any Holder shall acquire Transfer Restricted
Securities, in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities, such
person shall be conclusively deemed to have agreed to be
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bound by and to perform all of the terms and provisions of this Agreement and
such person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each of the Initial Purchasers and
each Holder shall be a third party beneficiary of the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights or the
rights of Holders 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 NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times of day
refer to New York City time.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or Any of Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Securities held by the
Company or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
VERIO INC.
By: /s/ Xxxxx Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxx Xxxxxxxx
Title: Vice President General
Counsel and Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX XXXXXX INC.,
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
FIRST UNION CAPITAL MARKETS CORP.
By: Xxxxxxx Xxxxx Barney Inc.
as Representative of the
Initial Purchasers
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
as Representative of the
Initial Purchasers
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
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