EXHIBIT 10.4
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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AGREEMENT made as of the 30th day of April, 1999, by and among eDocs, Inc., a
Delaware corporation (the "Company"), Xxxxx Xxxxxxx, Xxxx Xxxxxxxxxxx and Xxxxx
Xxxxx (each, a "Founder" and together, the "Founders"); Xxxxxxx River
Partnership VIII, a Limited Partnership, SIGMA Partners IV, L.P., SIGMA
Associates IV, L.P. and SIGMA Investors IV, L.P. (each, a "Series A Holder") and
the additional persons or entities listed as Purchasers on Exhibit 2.01A to the
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Series B Convertible Preferred Stock Purchase Agreement of even date herewith
(the "Series B Purchase Agreement") by and among such Purchasers, the Company
and the Series A Holders (the "Series B Investors"; the Series A Holders
together with the Series B Investors are hereinafter referred to individually as
an "Investor" and collectively as the "Investors").
WHEREAS, the Company, the Founders and the Series A Holders are parties to a
Registration Rights Agreement dated May 22, 1998 (the "Original Agreement");
WHEREAS, the Series A Holders purchased, and the Company issued to the Series
A Holders, pursuant to a Series A Convertible Preferred Stock Purchase Agreement
(the "Series A Purchase Agreement") dated May 22, 1998, by and among the
Company, certain founders of the Company and the Series A Holders, shares of the
Company's Series A Convertible Preferred Stock, $0.001 par value (the "Series A
Preferred Stock"), all of which are convertible into shares of the Company's
common stock, $0.001 par value;
WHEREAS, the Investors have on this date purchased, and the Company has issued
to the Investors, pursuant to the Series B Purchase Agreement the number of
shares of the Company's Series B Convertible Preferred Stock, $0.001 par value
(the "Series B Preferred Stock"), as set forth opposite such Investor's name on
Exhibit 2.01A to the Series B Purchase Agreement, all of which shares are
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convertible into shares of Common Stock; and
WHEREAS, it is a condition precedent to the obligations of the Investors under
the Series B Purchase Agreement that the Company and the Series A Holders amend
and restate the Original Agreement to admit the Series B Investors as parties to
this Agreement, and that this Agreement be executed by the parties hereto;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and in the Series B Purchase Agreement and pursuant
to Section 13 of the Original Agreement, the Company and the Holders (as defined
in the Original Agreement) holding at least sixty percent (60%) of the
Registrable Stock (as defined in the Original Agreement) and the securities
convertible into, exchangeable for or exercisable for Registrable Stock, do
hereby amend the Original Agreement so that such agreement is hereby restated in
its entirety to read as follows:
1. Definitions. The following terms shall be used in this Agreement with the
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following respective meanings:
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"Affiliate" means (i) any Person directly or indirectly controlling,
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controlled by or under common control with another Person; (ii) any Person
owning or controlling ten (10%) percent or more of the outstanding voting
securities of such other Person; (iii) any officer, director or partner of such
Person; and (iv) if such Person is an officer, director or partner, any such
company for which such Person acts in such capacity.
"Commission" means the Securities and Exchange Commission, or any other
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federal agency at the time administering the Securities Act.
"Common Stock" means and includes (a) the Company's Common Stock, $0.001 par
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value per share, as authorized on the date of this Agreement and (b) any other
securities into which or for which the securities described in (a) above may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, or any successor
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Federal statute, and the rules and regulations of the Commission (or of any
other Federal agency then administering the Exchange Act) thereunder, all as the
same shall be in effect at the time.
"Founder Registrable Stock" means (a) all Common Stock now or hereafter owned
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by the Founder or any Affiliate of the Founder (other than the Company), and (b)
any other shares of Common Stock issued in respect of such shares by way of a
stock dividend, or stock split or in connection with a combination of shares,
recapitalization, merger or consolidation or reorganization; provided, however,
that shares of Common Stock shall only be treated as Founder Registrable Stock
if and so long as they have not been (i) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, or
(ii) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(l) thereof so that all
transfer restrictions and restrictive legends with respect to such Common Stock
are removed upon the consummation of such sale.
"Holder" means any holder of Registrable Stock and, except for purposes of
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Sections 2 and 4, any holder of Founder Registrable Stock.
"Initial Public Offering" means the effective date for the Company's first
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registration statement covering a public offering of securities of the Company
under the Securities Act.
"Investors" has the meaning set forth in the first paragraph hereof.
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"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means any natural person, partnership, corporation or other legal
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entity.
"Preferred Stock" means the Series A Preferred Stock and the Series B
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Preferred Stock.
"Registrable Stock" means (a) the Common Stock issued or issuable upon
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conversion of the Preferred Stock, whether or not such Common Stock is owned by
any Investors, (b) all
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Common Stock now or hereafter owned by any Investor which is acquired otherwise
than upon conversion of the Preferred Stock, so long as it is held by any
Investor or an Affiliate of any Investor, (c) any shares of Common Stock, and
any shares of Common Stock issued or issuable upon the conversion or exercise of
any other securities, acquired by the Investors pursuant to the Amended and
Restated Stockholders Agreement of even date herewith and (d) any other shares
of Common Stock issued in respect of such shares by way of a stock dividend, or
stock split or in connection with a combination of shares, recapitalization,
merger or consolidation or reorganization; provided, however, that shares of
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Common Stock issued or issuable upon conversion of the Series A Preferred Stock
acquired by Comdisco, Inc. ("Comdisco") pursuant to that certain Master Lease
Agreement dated as of March 31, 1999 between the Company and Comdisco and that
certain Subordinated Loan and Security Agreement dated as of March 31, 1999
between the Company and Comdisco, shall not be treated as Registrable Stock;
provided, further, that shares of Common Stock shall only be treated as
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Registrable Stock if and so long as they are not eligible for sale without
restriction under Rule 144 of the Securities Act, or any similar rule
promulgated by the Commission permitting the resale of restricted securities
without the necessity of a registration statement under the Securities Act under
the Securities Act or have not been (i) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (ii)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect to such Common Stock
are removed upon the consummation of such sale.
"Registration Statement" means a registration statement filed by the Company
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with the Commission for a public offering and sale of securities of the Company
(other than a registration statement on Form X-0, Xxxx X-0, or successor forms,
or any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, or any successor Federal
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statute, and the rules and regulations of the Commission (or of any other
Federal agency then administering the Securities Act) thereunder, all as the
same shall be in effect at the time.
2. Required Registration.
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(a) At any time after the earlier of (i) 90 days after any Registration
Statement covering a public offering of securities of the Company under the
Securities Act having become effective and (ii) May 22, 2003, the Holder or
Holders of at least thirty (30%) percent of all Registrable Stock then
outstanding (the "Initiating Holders") may by notice in writing to the Company
request the Company to register under the Securities Act all or any portion of
shares of Registrable Stock held by such Initiating Holder or Holders for sale
in the manner specified in such notice, provided that the reasonably
anticipated aggregate price to the public of all shares of Registrable Stock
requested to be included in such public offering shall exceed $10,000,000.
Notwithstanding anything to the contrary contained herein, the Company shall
not be required to seek to cause a Registration Statement to become effective
pursuant to this Section 2: (A) within a period of 180 days after the
effective
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date of a Registration Statement filed by the Company, provided that the
Company shall use its best efforts to cause a registration requested hereunder
to be declared effective promptly following such period if such request is
made during such period; (B) if the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be materially detrimental to
the Company or its stockholders for a Registration Statement to be filed at
such time, or that it would require disclosure of material non-public
information relating to the Company which, in the reasonable opinion of the
Board of Directors, should not be disclosed, then the Company's obligation to
use all reasonable efforts to register, qualify or comply under this Section 2
shall be deferred for a period not to exceed ninety (90) days from the date of
receipt of written request from such Holders; provided, however, that the
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Company may not utilize this deferral right more than twice in any twelve-
month period.
(b) Following receipt of any notice given under this Section 2 by the
Initiating Holders, the Company shall immediately notify in writing all
Holders that such registration is to be effected and shall use its best
efforts to register under the Securities Act, for public sale in accordance
with the method of disposition specified in such notice from requesting
Holders, the number of shares of Registrable Stock, specified in such notice
(and in all notices received by the Company pursuant hereto). Holders, other
than the Initiating Holders, shall notify the Company of their desire to
participate in the registration within twenty (20) days of the Company's
notice to them. The Company shall designate the managing underwriter of such
offering, subject to the approval of the Holders of a majority of the shares
of Registrable Stock to be sold in such offering, which approval shall not be
unreasonably withheld or delayed. The Company shall be obligated to register
Registrable Stock pursuant to this Section 2 on one occasion only; provided,
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however, that such obligation shall be deemed satisfied only when a
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Registration Statement covering all shares of Registrable Stock, specified in
notices received as aforesaid and which have not been withdrawn by the Holder
thereof, for sale in accordance with the method of disposition specified by
the Initiating Holders, shall have become effective. A registration which does
not become effective after the Company has filed a Registration Statement with
respect thereto solely by reason of the refusal of the Initiating Holders to
proceed shall be deemed to have been effected by the Company at the request of
such Initiating Holders unless the registration was withdrawn at the request
of the Holders of a majority of the Registrable Stock to be sold in such
offering upon learning of a material adverse change in the condition, business
or prospects of the Company (other than a change in market demand for its
securities or in the market price thereof) from that known to such Holders
(and any knowledge of any Director appointed by such Holder shall be deemed
knowledge of such Holder for purposes of this provision) at the time of their
request (or of which the Company advised them in writing within 20 days
thereafter) that makes the proposed offering unreasonable in the good faith
judgment of a majority in interest of such Holders.
(c) If the Registration Statement is to cover an underwritten
distribution and in the good faith judgment of the managing underwriter of
such public offering
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the inclusion of all of the Registrable Stock requested for inclusion pursuant
to this Section 2 would interfere with the successful marketing of a smaller
number of shares to be offered, then the number of shares of Registrable Stock
to be included in the offering shall be reduced to the required level with the
participation in such offering to be reduced pro rata among the Holders
requesting to participate in such registration, based upon the number of
shares of Registrable Stock owned by such Holders. The Company shall be
entitled to include in any Registration Statement referred to in this Section
2, for sale in accordance with the method of disposition specified by the
Initiating Holders, shares of Common Stock for the Company's own account,
except as and to the extent that, in the opinion of the managing underwriter,
if any, such inclusion would adversely affect the marketing of the Registrable
Stock to be sold. Except for registration statements on Form X-0, X-0 or any
successors thereto, the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its own
account or that of other stockholders, from the date of receipt of a notice
from the Initiating Holders pursuant to this Section 2 until the completion of
the period of distribution of the registration contemplated thereby.
3. Incidental Registration. Each time the Company shall determine to file a
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Registration Statement in connection with the proposed offer and sale for money
of any of its securities by it or any of its security holders, the Company will
give written notice thereof to all Holders. Upon the written request of one or
more Holder(s) given within twenty (20) days after the giving of any such notice
by the Company, the Company will use its best efforts to cause all such shares
of Registrable Stock and Founder Registrable Stock, the Holders of which have so
requested registration thereof, to be included in such Registration Statement,
all to the extent requisite to permit the sale or other disposition by the
prospective seller or sellers of the Registrable Stock and Founder Registrable
Stock to be so registered. If the Registration Statement is to cover an
underwritten distribution, the Company shall use its best efforts to cause the
Registrable Stock and Founder Registrable Stock requested for inclusion pursuant
to this Section 3 to be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters. If,
in the good faith judgment of the managing underwriter of such public offering,
the inclusion of all of the Registrable Stock and Founder Registrable Stock
requested for inclusion pursuant to this Section 3 and other securities would
interfere with the successful marketing of a smaller number of shares to be
offered, then the number of shares of Registrable Stock, Founder Registrable
Stock and other securities to be included in the offering (except for shares to
be issued (i) by the Company in an offering initiated by the Company or (ii) by
any other party in an offering initiated by such party pursuant to registration
rights granted to such party other than under this Agreement) shall be reduced
to the required level first by reducing (down to zero, if so required) the
participation of the Holders of Founder Registrable Stock and other holders of
securities in such offering (such reduction to be pro rata among the holders
thereof requesting such registration, based upon the number of shares of Founder
Registrable Stock and other securities owned by such holders), and thereafter,
by reducing (down to zero, in the Company's Initial Public Offering, or to not
less than thirty (30%) percent thereafter, if so required) the participation of
the Holders of Registrable Stock in such offering (such
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reduction to be pro rata among the Holders of Registrable Stock requesting such
registration, based upon the number of shares of Registrable Stock owned by such
Holders).
4. Registration on Form S-3.
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(a) If at any time after the date hereof, (i) a Holder or Holders
request that the Company file a registration statement on Form S-3 or any
successor thereto for a public offering of all or any portion of the shares of
Registrable Stock held by such requesting Holder or Holders, the reasonably
anticipated aggregate price to the public of such shares would exceed
$500,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition
specified in such notice, the number of shares of Registrable Stock specified
in such notice. Whenever the Company is required by this Section 4 to use its
best efforts to effect the registration of Registrable Stock, each of the
procedures, requirements and limitations of Section 2 (including but not
limited to the requirement that the Company notify all Holders from whom
notice has not been received and provide them with the opportunity to
participate in the offering and the requirements of subparagraph (b)) shall
apply to such registration; provided, however, that there shall be no
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limitation on the number of registrations on Form S-3 which may be requested
and obtained under this Section 4, except that the Company shall not be
obligated to effect more than two registrations under this Section 4 in any
twelve (12) month period; and provided, further, however, that the $10,000,000
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minimum dollar amount set forth in the first sentence of Section 2(a) shall
not apply to any registration on Form S-3 which may be requested and obtained
under this Section 4.
(b) If the Company is a registrant entitled to use Form S-3 or any
successor thereto to register shares of Registrable Stock, then the Company
shall use its best efforts to register under the Securities Act on Form S-3 or
any successor thereto, for public sale in accordance with any method of
disposition specified by any Holder or Holders, all of the shares of
Registrable Stock. The Company agrees to maintain the registration effective
as a shelf-registration for a period of eighteen (18) months, except in the
case of the following (each, a "Blackout Event"): (i) within 90 days after the
effective date of a Registration Statement filed by the Company or (ii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors
it would be seriously detrimental to the Company stockholders for a Form S-3
Registration Statement to be effective due to pending Company events, or that
keeping such Registration Statement effective at such time would require
disclosure of material non-public information relating to the Company which,
in the reasonable opinion of the Board of Directors, should not be disclosed,
or if the Company intends to file a Registration Statement within sixty (60)
days and agrees to register shares of the Holders' Registrable Stock therein,
provided, however, that the Company shall promptly notify the Holders when the
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Blackout Event has terminated and when the Holders may sell their shares under
such Registration Statement; provided further that
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the Company shall not utilize these rights more than twice in any 12-month
period, nor for a period of more than ninety (90) days, and further provided
that the shelf-registration shall be kept effective for an additional period
equal to the period of time during which the shelf-registration was not kept
effective pursuant hereto.
5. Registration Procedures. If and whenever the Company is required by the
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provisions of Section 2, 3 or 4 hereof to effect the registration of shares of
Registrable Stock or Founder Registrable Stock under the Securities Act, the
Company will, at its expense, as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and regulations of
the Commission, prepare and file with the Commission a Registration Statement
with respect to the Registrable Stock or Founder Registrable Stock, as the
case may be, and use its best efforts to cause such Registration Statement to
become and remain effective until the Registrable Stock or Founder Registrable
Stock, as the case may be, covered by such Registration Statement has been
sold, but for no longer than twelve (12) months (or eighteen (18) months in
the case of a Registration Statement on Form S-3) subsequent to the effective
date of such registration, and prepare and file with the Commission such
amendments to such Registration Statement and supplements to the prospectus
contained therein as may be necessary to keep such Registration Statement
effective and such Registration Statement and prospectus accurate and complete
until the Registrable Stock covered by such Registration Statement has been
sold, but for no longer than twelve (12) months (or eighteen (18) months in
the case of a Registration Statement on Form S-3) subsequent to the effective
date of such registration. Notwithstanding the foregoing, the Company shall
not be obligated to register, pursuant to Sections 2, 3 and 4 hereof, the
Registrable Stock or Founder Registrable Stock of any Holder who fails to
provide promptly to the Company such information as the Company may reasonably
request at any time to enable the Company to comply with any applicable law or
regulation or to facilitate preparation of the Registration Statement;
(b) If the offering is to be underwritten in whole or in part, enter
into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter, if any, of the public offering
and the Holders participating in such offering;
(c) Furnish to the participating Holders and to the underwriters such
reasonable number of copies of the Registration Statement, preliminary
prospectus, final prospectus and any supplement or amendment thereto and
such other documents as such underwriters and participating Holders may
reasonably request in order to facilitate the public offering of such
securities;
(d) Use its best efforts to register or qualify the Registrable Stock
and Founder Registrable Stock covered by such Registration Statement under
such state securities or blue sky laws of such jurisdictions (i) as shall
be reasonably appropriate for the distribution of the Registrable Stock or
Founder Registrable Stock, as the case
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may be, covered by such Registration Statement or (ii) as such participating
Holders and underwriters may reasonably request within ten (10) days following
the original filing of such Registration Statement, except that the Company
shall not for any purpose be required to execute a general consent to service
of process, to subject itself to taxation, or to qualify to do business as a
foreign corporation in any jurisdiction where it is not so qualified;
(e) Notify the Holders participating in such registration, promptly
after it shall receive notice thereof, of the date and time when such
Registration Statement and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such
Registration Statement has been filed;
(f) Notify the Holders participating in such registration promptly of
any request by the Commission or any state securities commission or agency for
the amending or supplementing of such Registration Statement or prospectus or
for additional information;
(g) Prepare and file with the Commission, promptly upon the request of
any such participating Holders, any amendments or supplements to such
Registration Statement or prospectus which, in the opinion of counsel
representing the Company in such Registration Statement (and which counsel is
reasonably acceptable to such participating Holders), is required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of the Registrable Stock by such participating Holders, but for
no longer than twelve (12) months (or eighteen (18) months in the case of a
Registration Statement on Form S-3) subsequent to the effective date of such
registration;
(h) Prepare and promptly file with the Commission, and promptly notify
such participating Holders of the filing of, such amendments or supplements to
such Registration Statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
Registrable Stock and/or Founder Registrable Stock is required to be delivered
under the Securities Act, any event has occurred as the result of which any
such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(i) In case any of such participating Holders or any underwriter for
any such Holders is required to deliver a prospectus at a time when the
prospectus then in circulation is not in compliance with the Securities Act or
the rules and regulations of the Commission, prepare promptly upon request
such amendments or supplements to such Registration Statement and such
prospectus as may be necessary in order for such prospectus to comply with the
requirements of the Securities Act and such rules and regulations;
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(j) Advise such participating Holders, promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by the
Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(k) At the request of any such participating Holder (i) furnish to
such Holder, if such registration includes an underwritten public offering,
at the closing provided for in the underwriting agreement, copies of any
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any,
covering such matters with respect to the registration statement, the
prospectus and each amendment or supplement thereto, proceedings under
state and Federal securities laws, other matters relating to the Company,
the securities being registered and the offer and sale of such securities
as are customarily the subject of opinions of issuer's counsel provided to
underwriters in underwritten public offerings and (ii) use its best efforts
to furnish to such Holder letters dated each such effective date and such
closing date, from the independent certified public accountants of the
Company, addressed to the underwriters, if any, and to the Holder or
Holders making such request, stating that they are independent certified
public accountants within the meaning of the Securities Act and dealing
with such matters as the underwriters may request, or, if the offering is
not underwritten, that in the opinion of such accountants the financial
statements and other financial data of the Company included in the
Registration Statement or the prospectus or any amendment or supplement
thereto comply in all material respects with the applicable accounting
requirements of the Securities Act, and additionally covering such other
financial matters, including information as to the period ending not more
than five (5) business days prior to the date of such letter with respect
to the Registration Statement and prospectus, as such requesting Holder or
Holders may reasonably request and (iii) furnish to such Holder such
information as such Holder may reasonably request for the purpose of
establishing its "due diligence" defense under Section 11 of the Securities
Act;
(l) Apply for listing and use its best efforts to list the Registrable
Stock being registered on any national securities exchange on which a class
of the Company's equity securities is listed or, if the Company does not
have a class of equity securities listed on a national securities exchange,
apply for qualification and use its best efforts to qualify the Registrable
Stock being registered for inclusion on the Nasdaq Stock Market.
6. Expenses.
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(a) With respect to each registration effected pursuant to Section 2,
3 or 4 hereof, all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith ("Registration
Expenses") shall be borne by the Company; provided, however, (i) that
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Holders and other holders of the Company's
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stock participating in any such registration shall bear their pro rata
share of the underwriting discounts and selling commissions, and (ii) any
such fee, cost or expense which does not constitute a fee, cost or expense
customary in such a registration and which is attributable solely to one
(1) Holder or other holder of the Company's stock participating in any such
registration shall be borne by that holder or Holder; provided, further,
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that if a registration under Section 2 is withdrawn at the request of the
Holders requesting such registration (other than as a result of information
concerning the business or financial condition of the Company which is made
known to the Holders after the date on which such registration was
requested) and if the requesting Holders elect not to have such
registration counted as a registration requested under Section 2, the
requesting Holders shall pay the Registration Expenses of such registration
pro rata in accordance with the number of shares of their Registrable Stock
included in such registration.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and
disbursements of counsel for the underwriter or underwriters of such
securities (if the Company and/or selling security holders are otherwise
required to bear such fees and disbursements), all legal fees and
disbursements and other expenses of complying with state securities or blue
sky laws of any jurisdictions in which the securities to be offered are to
be registered or qualified, reasonable fees and disbursements of one
counsel for the selling Holders and the other holders of the Company's
stock and the premiums and other costs of policies of insurance insuring
the Company against liability arising out of such public offering.
7. Indemnification and Contribution.
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(a) To the fullest extent permitted by law, the Company will indemnify
and hold harmless each Holder whose shares of Registrable Stock are
included in a Registration Statement pursuant to the provisions of this
Agreement, and, in the Company's Initial Public Offering, each Holder
whether or not such Holder's shares of Registrable Stock are included in
any such Registration Statement, and any underwriter (as defined in the
Securities Act) for such Holder, and any Person who controls such Holder or
such underwriter within the meaning of the Securities Act, and each of
their successors, from and against, and will reimburse such Holder and each
such underwriter and controlling Person with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs and expenses
to which such Holder or any such underwriter or controlling Person may
become subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses
arise out of or are based upon any untrue statement or allegedly untrue
statement of any material fact contained in such Registration Statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or arise out of any violation by the
Company of any rule or regulation
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under the Securities Act applicable to the Company and relating to action
or inaction required of the Company in connection with such registration;
provided, however, that the Company will not be liable in any such case to
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the extent that any such claim, action, demand, loss, damage, liability,
cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in
reliance upon and in conformity with information furnished by or on behalf
of any such Holder, such underwriter or controlling Person in writing
specifically for use in the preparation thereof; and provided, further,
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that this indemnity shall not be deemed to relieve any underwriter of any
of its due diligence obligations; and provided, further, that if any claim,
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action, demand, loss, damage, liability, cost or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission contained in any preliminary prospectus which did not
appear in the final prospectus and if the Holder delivered a copy of the
preliminary prospectus to the person alleging damage and failed to deliver
a copy of the final prospectus to such persons, the Company shall not be
liable with respect to the claims of such person.
(b) Each Holder of shares of Registrable Stock which are included in a
Registration Statement pursuant to the provisions of this Agreement will,
severally and not jointly, indemnify and hold harmless the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such registration, each person who controls the
Company or such underwriter within the meaning of the Securities Act, and
each other Holder of shares of Registrable Stock which are included in the
registration, each of the officers, directors and partners of each such
other Holder and each person controlling such other Holder, from and
against, and will reimburse such parties with respect to, any and all
losses, damages, liabilities, costs or expenses to which such parties may
become subject under the Securities Act or otherwise, to the extent that
any such loss, damage, liability, cost or expense arises out of or is based
upon any untrue or alleged untrue statement of any material fact contained
therein or any amendment or supplement thereto, or arises out of or is
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, in each case to the extent, but only to the extent
that such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in conformity with
written information furnished by or on behalf of such Holder for use in the
preparation thereof; provided that the liability of each Holder hereunder
shall be limited to the proportion of any such loss, claim, damage,
liability or expense which is equal to the proportion that the public
offering price of the shares sold by such Holder under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the net proceeds received by
such Holder from the sale of shares of Registrable Stock covered by a
Registration Statement; and provided, further, that this indemnity shall
-------- -------
not be deemed to relieve any underwriter of any of its due diligence
obligations.
(c) Promptly after receipt by a party to be indemnified pursuant to
the provisions of paragraph (a) or (b) of this Section 7 (an "indemnified
party") of actual
-12-
knowledge or notice of the commencement of any action involving the subject
matter of the foregoing indemnity provisions, such indemnified party will,
if a claim thereof is to be made against the indemnifying party pursuant to
the provisions of paragraph (a) or (b), notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7 and shall not relieve
the indemnifying party from liability under this Section 7 unless such
indemnifying party is prejudiced by such omission. In case such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party shall have the
right to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of such
paragraph (a) and (b) for any legal or other expense subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding the foregoing, an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests, as
reasonably determined by either party, between such indemnified party and
any other party represented by such counsel in such proceeding. No
indemnifying party shall be liable to an indemnified party for any
settlement of any action or claim without the consent of the indemnifying
party; no indemnifying party may unreasonably withhold its consent to any
such settlement. No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim
or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
Holder exercising rights under this Agreement, or any controlling Person of
any such Holder, makes a claim for indemnification pursuant to this Section
7 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that this Section
7 provides for the indemnification in such case, (ii) contribution under
the Securities Act may be required on the part of any such selling Holder
or any such controlling Person in circumstances for which indemnification
was provided under this Section 7; then, and in each case, the Company and
each such Holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution from
others) in such proportion so that such Holder is responsible for the
portion represented by the percentage that the public offering price of its
Registrable Stock offered by the Registration Statement bears to the public
price
-13-
of all securities offered by such Registration Statement, and the
Company is responsible for the remaining portion; provided, however, that,
-------- -------
in any such case, (A) no Person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any Person or entity was not
guilty of such fraudulent misrepresentation and (B) no Holder will be
required to contribute any amount in excess of the net proceeds received by
such Holder from the sale of all such Registrable Stock offered by it
pursuant to such Registration Statement.
8. Reporting Requirements Under Securities Exchange Act of 1934. When
------------------------------------------------------------
it is first legally required to do so, the Company shall register its Common
Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall use its best efforts to (whether or not it shall
then be required to do so) timely file such information, documents and reports
as the Commission may require or prescribe under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act. Immediately upon becoming subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company shall forthwith upon request furnish any Holder (i) a written statement
by the Company that it has complied with such reporting requirements, (ii) a
copy of the most recent annual or quarterly report of the Company, and (iii)
such other reports and documents filed by the Company with the Commission as
such Holder may reasonably request in availing itself of an exemption for the
sale of Registrable Stock without registration under the Securities Act. The
Company acknowledges and agrees that the purposes of the requirements contained
in this Section 8 are (a) to enable any such Holder to comply with the current
public information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (b) to qualify the Company for the use of Registration Statements on Form S-
3. In addition, the Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its best efforts to
facilitate and expedite transfers of Registrable Stock pursuant to Rule 144
under the Securities Act (or any similar or successor exemptive provision
hereafter in effect), which efforts shall include timely notice to its transfer
agent to expedite such transfers of Registrable Stock.
9. Stockholder Information. The Company may require each Holder of
-----------------------
Registrable Stock or Founder Registrable Stock as to which any registration is
to be effected pursuant to this Agreement to furnish the Company in a timely
manner such information with respect to such Holder and the distribution of such
Registrable Stock or Founder Registrable
-14-
Stock as the Company may from time to time reasonably request in writing and as
shall be required by law or by the Commission in connection therewith.
10. Lock-Up Agreements.
------------------
(a) Restrictions on Public Sale by the Holders. Each Holder agrees
------------------------------------------
that it will not, to the extent requested by the Company and the managing
underwriter of such offering, sell or otherwise dispose of any equity
securities of the Company, including any sale pursuant to Rule 144, during
a period specified by the Company and such underwriter (not to exceed one
hundred eighty (180) days after the effective date of the Initial Public
Offering or ninety (90) days for any subsequent offering), except in
conjunction with such underwritten offering.
(b) Restrictions on Public Sale by Subsequent Holders. Except in a
-------------------------------------------------
public offering registered under the Securities Act, the Company shall not
issue or sell any equity security unless each recipient thereof agrees in
writing with the Company not to offer to sell or sell such equity security
during a period specified by the Company and the underwriter thereof (not
to exceed one hundred eighty (180) days after the effective date of the
Initial Public Offering), except in conjunction with such underwritten
offering.
Notwithstanding anything herein to the contrary, this Agreement shall not
restrict Xxxxxxx, Xxxxx & Co. and its affiliates from engaging in any brokerage,
investment advisory, financial advisory, anti-raid advisory, merger advisory,
financing, asset management, trading, market making, arbitrage and other similar
activities conducted in the ordinary course of its or its affiliates' business,
so long as such activities are not reasonably expected to result in the transfer
of, or reduction of risk with respect to, the economic ownership of any
Registrable Stock or securities convertible into or exchangeable for any
Registrable Stock held by the Investors as of the date hereof.
As a condition to the Holders' obligations under this Section 10, each
officer, director and holder of 5% or more of the outstanding Common Stock of
the Company shall have executed and be bound by a similar lock-up agreement in
favor of the Company.
11. Notices. Any notice required or permitted to be given hereunder shall
be in writing and shall be deemed to be properly given when sent by registered
or certified mail, return receipt requested, by Federal Express, DHL or other
guaranteed overnight delivery service or by facsimile transmission, addressed as
follows:
If to the Company: eDocs, Inc.
000 Xxxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn.: President
Telecopier: (000) 000-0000
-15-
With a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Telecopier: (000) 000-0000
If to any Investor: To the address of such Investor set forth beneath
his, her or its signature to this Agreement, or at
such other address or addresses as may have been
furnished in writing to the Company by such Investor
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section, provided that a change of address shall only be effective upon receipt.
All notices, requests, consents and other communications hereunder shall be
deemed to have been received (i) if by hand, at the time of delivery thereof to
the receiving party at the address of such party set forth above or as so
designated, (ii) if made by telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the fifth business day following the day such mailing is
made.
12. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the substantive laws of the Commonwealth of Massachusetts
(without regard to conflict of laws provisions).
13. Waivers; Amendments. No waiver of any right hereunder by any party
-------------------
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and the Holders of at least sixty (60%) percent of the then outstanding
Registrable Stock and the securities convertible into, exchangeable for or
exercisable for Registrable Stock (calculated on an as converted, exchanged or
exercised basis); provided, that this Agreement may be amended with the consent
--------
of the Holders of less
-16-
than all of the outstanding Registrable Stock only in a manner which applies to
all such Holders in the same fashion.
14. Other Registration Rights. The Company shall not grant to any third
-------------------------
party any registration rights more favorable than any of those contained herein,
or which would interfere with or delay the exercise by the Holders of their
registrations rights hereunder, so long as any of the registration rights under
this Agreement remains in effect, unless approved by Holders of sixty (60%)
percent of the shares of Registrable Stock, which approval may require that such
rights be granted only pursuant to an amendment or restatement of this
Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto; provided, however, that registration rights
conferred herein shall only inure to the benefit of a transferee if (i) there is
transferred at least 50% of the Registratable Stock or Founder Registrable
Stock, as the case may be, held by the transferor of such shares as of the date
hereof or (ii) such transferee is a partner, shareholder or affiliate of a party
hereto; and provided further that any person or entity to which Registrable
Shares are proposed to be transferred shall provide prior written notice of such
proposed transfer to the Company.
16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Prior Understandings. This Agreement represents the complete
--------------------
agreement of the parties with respect to the transactions contemplated hereby
and supersedes all prior agreements and understandings.
18. Headings. Headings in this Agreement are included for reference only
--------
and shall have no effect upon the construction or interpretation of any part of
this Agreement.
19. Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[This space intentionally left blank]
-17-
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a duly authorized officer, and each Investor has duly executed this Agreement
(or has caused it to be executed by a duly authorized officer, partner, trustee
or agent, as the case may be), as of the date first above recited.
COMPANY:
eDocs, Inc.
By:/s/ Xxxxx Xxxxxxx
-----------------
(See counterpart signature pages.)
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
INVESTOR:
--------
XXXXXXX RIVER PARTNERSHIP VIII,
A Limited Partnership
By:/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
INVESTOR:
--------
SIGMA PARTNERS IV, L.P.
By:/s/ Xxxx Xxxxxxx
----------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGMA ASSOCIATES IV, L.P.
By:/s/ Xxxx Xxxxxxx
----------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGMA INVESTORS IV, L.P.
By:/s/ Xxxx Xxxxxxx
----------------
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
INVESTOR:
--------
JAFCO CO., LTD.
By:/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx, Chairman
JAFCO America Ventures Inc.
Attorney-in-fact
Address: Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
JAFCO L-1 VENTURE CAPITAL
INVESTMENT PARTNERSHIP
By:/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx, Chairman
JAFCO America Ventures Inc.
Attorney-in-fact
Address: Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
U.S. INFORMATION TECHNOLOGY
FUND III, L.P.
By:/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx, Chairman
JAFCO America Ventures Inc.
Its Executive Partner
Address: Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
INVESTOR:
--------
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Corporation,
its general partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 1999 Corp.,
its general partner
By: /s/ Xxx X. Xxxxxxxx
-------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 1999 Corp.,
its general partner
By: /s/ Xxx X. Xxxxxxxx
--------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
INVESTOR:
--------
COMDISCO, INC.
By:/s/ Xxxxx X. Xxxx
-----------------
Address: 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
FOUNDER:
-------
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
FOUNDER:
-------
/s/ Xxxx Xxxxxxxxxxx
--------------------
Xxxx Xxxxxxxxxxx
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
* COUNTERPART SIGNATURE PAGE *
--------------------------
FOUNDER:
-------
/s/ Xxxxx Xxxxx
---------------
Xxxxx Xxxxx
