EXHIBIT 10.14
-------------
FORM OF
XXXXXX COMMUNICATIONS, INC.
REGISTRATION AGREEMENT
----------------------
THIS REGISTRATION AGREEMENT is made as of _______, 1999, by and among
Xxxxxx Communications, Inc., a Delaware corporation (the "Company"), the Persons
-------
listed as Investors on the Schedule of Investors attached hereto (collectively,
---------------------
the "Investors") and the Persons listed as Other Stockholders on the Schedule of
--------- -----------
Other Stockholders attached hereto (collectively, the "Other Stockholders").
------------------ ------------------
Unless otherwise provided in this Agreement, capitalized terms used herein shall
have the meanings set forth in paragraph 8 hereof.
WHEREAS, the Investors and the Other Stockholders and Xxxxxx
Communications, LLC, a California limited liability company ("Xxxxxx"), are
------
parties to that certain Registration Agreement, dated as of July 23, 1999 (the
"Existing Registration Agreement");
-------------------------------
WHEREAS, in connection with the initial public offering of the
Company's Common Stock registered under the Securities Act and as contemplated
in the Existing Registration Agreement, the Company will become the corporate
successor to Xxxxxx resulting from the conversion of Xxxxxx from a limited
liability company to a corporation;
WHEREAS, effective upon the consummation of such initial public
offering, this Agreement will become effective and will supersede and replace
the Existing Registration Agreement; and
WHEREAS, effective upon the consummation of such initial public
offering, the Investors and the Other Stockholders will cause the Existing
Registration Agreement to be terminated and superseded and replaced by this
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Demand Registrations.
--------------------
(a) Requests for Registration. At any time that is at least 180 days
-------------------------
after the date the Company has completed an initial public offering of its
securities registered under the Securities Act, the holders of a majority of the
Investor Registrable Securities and the holders of a majority of the Other
Registrable Securities may each request registration under the Securities Act of
all or any portion of their Registrable Securities on Form S-1 or any similar
long-form registration statement ("Long-Form Registrations") or Form S-2 or S-3
-----------------------
or any similar short-form registration statement ("Short-Form Registrations"),
------------------------
if the Company is eligible to use any such short form. All registrations
requested pursuant to this paragraph 1(a) are referred to herein as "Demand
------
Registrations." Each request for a Demand Registration shall specify the
-------------
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of a request for a Demand Registration, the Company shall give written
notice of such
requested registration to all other holders of Registrable Securities and,
subject to paragraph 1(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice.
(b) Long-Form Registrations. The holders of Investor Registrable
-----------------------
Securities and the holders of Other Registrable Securities shall each be
entitled to request one Long-Form Registration in which the Company shall pay
all Registration Expenses; provided that the aggregate offering value of the
-------- ----
Registrable Securities requested to be registered in any Long-Form Registration
must equal at least $10,000,000. A registration shall not count as one of the
permitted Long-Form Registrations until it has become effective (subject to the
next sentence) and unless the holders of Registrable Securities are able to
register and sell at least 75% of the Registrable Securities requested to be
included in such registration. Notwithstanding the foregoing, if a Long-Form
Registration is withdrawn by the holders of Registrable Securities who requested
such registration prior to the time it has become effective for reasons other
than the disclosure of information concerning the Company that is materially
adverse to the Company or its stock price (which disclosure is made by the
Company after the date that such registration is requested pursuant to paragraph
1(a) above), such Long-Form Registration shall count as a permitted Long-Form
Registration for such requesting holders unless the holders of Registrable
Securities who requested such registration reimburse the Company for all of the
Registration Expenses incurred by the Company prior to such withdrawal.
(c) Short-Form Registrations. In addition to the Long-Form
------------------------
Registrations provided pursuant to paragraph 1(b) above, the holders of Investor
Registrable Securities and the holders of Other Registrable Securities shall
each be entitled to request two (2) Short-Form Registrations in which the
Company shall pay all Registration Expenses; provided that the aggregate
-------- ----
offering value of the Registrable Securities requested to be registered in any
Short-Form Registration must equal at least $10,000,000. A registration shall
not count as one of the permitted Short-Form Registrations until it has become
effective (subject to the next sentence) and unless the holders of Registrable
Securities are able to register and sell at least 75% of the Registrable
Securities requested to be included in such registration. Notwithstanding the
foregoing, if a Short-Form Registration is withdrawn by the holders of
Registrable Securities who requested such registration prior to the time it has
become effective for reasons other than the disclosure of information concerning
the Company that is materially adverse to the Company or its stock price (which
disclosure is made by the Company after the date that such registration is
requested pursuant to paragraph 1(a) above), such Short-Form Registration shall
count as a permitted Short-Form Registration for such requesting holders unless
the holders of Registrable Securities who requested such registration reimburse
the Company for all of the Registration Expenses incurred by the Company prior
to such withdrawal. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Securities
Exchange Act, the Company shall use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company shall not include in
--------------------------------
any
2
Demand Registration any securities which are not Registrable Securities without
the prior written consent of the holders of a majority of the Investor
Registrable Securities included in such registration (in the case of an Investor
Demand Registration) or the holders of a majority of the Other Registrable
Securities included in such registration (in the case of an Other Demand
Registration). If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold in an orderly manner
in such offering within a price range acceptable to the holders of a majority of
the Investor Registrable Securities included in such registration (in the case
of an Investor Demand Registration) or the holders of a majority of the Other
Registrable Securities included in such registration (in the case of an Other
Demand Registration), the Company shall include in such registration prior to
the inclusion of any securities which are not Registrable Securities the number
of Registrable Securities requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering, pro rata among the respective holders thereof on the basis of the
number of Registrable Securities requested to be included therein.
(e) Selection of Underwriters. If any Demand Registration is an
-------------------------
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Investor
Registrable Securities (in the case of an Investor Demand Registration) or the
holders of a majority of the Other Registrable Securities (in the case of an
Other Demand Registration).
(f) Restrictions on Demand Registrations. The Company shall not be
------------------------------------
obligated to effect any Demand Registration within 180 days after the effective
date of the Company's initial public offering of common stock under the
Securities Act or within 90 days after the effective date of a previous Demand
Registration. The Company may postpone for up to 90 days (or up to 60 days in
the case of clause (ii) below) the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's Board of Directors
determines in its reasonable good faith judgment that such Demand Registration
would reasonably be expected to have (i) a material adverse effect on (or
require premature disclosure of) any proposal or plan by the Company or any of
its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction or (ii) a material adverse effect on the
Company's business or stock price; provided that in such event, the holders of
-------- ----
Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Demand Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such registration. The Company may delay a Demand Registration hereunder only
once in any twelve-month period.
2. Piggyback Registrations.
-----------------------
(a) Right to Piggyback. Whenever the Company proposes to register any
------------------
of its securities under the Securities Act (other than pursuant to a Demand
Registration or a registration
3
on Form S-4 or S-8 or any successor or similar forms) and the registration form
to be used may be used for the registration of Registrable Securities (a
"Piggyback Registration"), the Company shall give prompt written notice to all
----------------------
holders of Registrable Securities of its intention to effect such a registration
and, subject to paragraphs 2(c) and 2(d) below, shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
------------------
Registrable Securities shall be paid by the Company in all Piggyback
Registrations whether or not such registration is consummated.
(c) Priority on Primary Registrations. If a Piggyback Registration is
---------------------------------
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, any other securities
requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
-----------------------------------
is an underwritten secondary registration on behalf of holders of the Company's
securities (other than the holders of Investor Registrable Securities or Other
Registrable Securities), and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company shall
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration and the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of securities requested to
be included therein and (ii) second, any other securities requested to be
included in such registration.
(e) Withdrawal by the Company. If, at any time after giving written
-------------------------
notice of its intention to register any of its securities (whether on its own
behalf or at the request of any holders of the Company's securities other than
Registrable Securities) as set forth in paragraph 2(a) and prior to the
effective date of such registration statement filed in connection with such
registration, the Company's Board of Directors shall determine in its good faith
judgment for any reason not to register such securities (or if the holders of
such other securities request that such registration be withdrawn), the Company
may, at its election, give written notice of such determination to each holder
of Registrable Securities and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection therewith
as provided herein).
(f) Selection of Underwriters. If any Piggyback Registration is an
-------------------------
underwritten
4
offering, the selection of investment banker(s) and manager(s) for the offering
must be approved by the holders of a majority of the Investor Registrable
Securities (which approval shall not be unreasonably withheld so long as such
investment banker(s) and manager(s) are of recognized national standing and can
reasonably be expected to provide the requisite degree of analytical, research
and other support to the Company and the investing public following such
offering).
(g) Other Registrations. If the Company has previously filed a
-------------------
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 90 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
-------------------
(a) No holder of Registrable Securities shall effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 180-day period
beginning on the effective date of the Company's initial public offering of its
common stock under the Securities Act or during the seven days prior to and the
90-day period beginning on the effective date of the next registered public
offering of the Company's common stock (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company's initial public offering
of its common stock under the Securities Act or during the 90-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree
in writing to a shorter period, and (ii) shall use commercially reasonable
efforts to cause each holder of at least 2% (on a fully-diluted basis) of its
common stock, or any securities convertible into or exchangeable or exercisable
for common stock, purchased from the Company at any time after the date of the
Existing Registration Agreement (other than in a registered public offering) to
agree not to effect any public sale or distribution (including sales pursuant to
Rule 144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree in writing to a shorter
period.
4. Registration Procedures. Whenever the holders of Registrable
-----------------------
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall
5
use its best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
--------
that before filing a registration statement or prospectus or any amendments or
----
supplements thereto, the Company shall (if requested) furnish to the counsel
selected by the holders of a majority of the Investor Registrable Securities and
the counsel selected by the holders of a majority of the Other Registrable
Securities covered by such registration statement copies of all such documents
proposed to be filed, which documents shall be subject to the review and comment
of such counsel;
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of either
(i) not less than 120 days or, if such registration statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by any underwriter or dealer (with any such
period being extended during any period in which a stop order is in effect or
during any period described in subparagraph (e) below) or (ii) such shorter
period as will terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such registration
statement (but in any event not before the expiration of any longer period
required under the Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all such securities have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement and the prospectus used
in connection therewith;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller (including any underwriter) reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided that the Company shall not
-------- ----
be required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
6
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other customary actions as the
holders of a majority of the Investor Registrable Securities being sold or the
holders of a majority of the Other Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all necessary financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and
7
exclusive judgment, might be deemed to be an underwriter or a controlling person
of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common securities included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities in the United States or any political
subdivisions thereof as may be necessary to enable the sellers thereof to
consummate the disposition of such Registrable Securities; and
(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters.
5. Registration Expenses.
---------------------
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions payable with respect to Registrable Securities, which shall be paid
by the holders of such Registrable Securities) and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses"), shall
---------------------
be borne as provided in this Agreement, except that the Company shall, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
8
6. Indemnification.
---------------
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by, or
relating to any action or proceeding arising out of or based upon, any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities; except with respect to any information supplied by any
underwriter for use in such registration statement, prospectus or other offering
document and except that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this paragraph 6(a) shall not inure to the
benefit of the underwriter (or to the benefit of any Person controlling such
underwriter) from whom the Person asserting any such losses, claims, damages,
liabilities or expenses purchased common securities to the extent that any such
loss, claim, damage, liability or expense of the underwriter or controlling
Person results from an untrue statement or omission in the preliminary
prospectus which was corrected in the prospectus if a copy of the prospectus was
not sent or given to such Person as required by the Securities Act.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
-------- ----
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such prompt
-------- ----
notice shall not impair any Person's right to indemnification
9
hereunder to the extent such failure has not prejudiced the indemnifying party)
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. Each
indemnifying party also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the indemnification provided for herein is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may
-------------------------------------------
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
8. Definitions.
-----------
(a) "Investor Demand Registration" means a Demand Registration
----------------------------
requested by the holders of a majority of the Investor Registrable Securities
pursuant to paragraph 1 above.
(b) "Investor Registrable Securities" means (i) any common stock of
-------------------------------
the Company received by the Investors in connection with the conversion of
Xxxxxx from a limited liability company to a corporation, (ii) any securities
issued or issuable with respect to the common stock referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization or other reorganization and (iii) any
other shares of common stock held by Persons holding securities described in
clauses (i) and (ii) above.
(c) "Other Demand Registration" means a Demand Registration requested
-------------------------
by the holders of a majority of the Other Registrable Securities pursuant to
paragraph 1 above.
(d) "Other Registrable Securities" means (i) any common stock of the
----------------------------
Company received by the Other Stockholders in connection with the conversion of
Xxxxxx from a limited liability company to a corporation, (ii) any securities
issued or issuable with respect to the common stock referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization or other reorganization and (iii) any
other shares of common
10
stock held by Persons holding securities described in clauses (i) and (ii)
above.
(e) "Person" means an individual, a partnership, a corporation,
------
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
(f) "Registrable Securities" means, collectively, the Investor
----------------------
Registrable Securities and the Other Registrable Securities. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force) or repurchased by the Company or any Subsidiary.
In addition, (i) as to any particular Registrable Securities held by any Person,
such securities shall cease to be Registrable Securities when the aggregate
number of Registrable Securities held by such Person (as "person" is defined in
Rule 144(a)(2) under the Securities Act (or any similar rule then in force))
does not exceed one percent of the number of shares of common stock then
outstanding as shown by the most recent report or statement published by the
Company and such Person has held such securities for at least two years (taking
into account any "tacking" that may be permitted under Rule 144 in the opinion
of counsel for any such Person) and (ii) as to any particular Registrable
Securities held by any of the Summit Investors, such securities shall cease to
be Registrable Securities when they have been distributed by any of the Summit
Investors to their partners (but this clause (ii) shall only apply to the
Registrable Securities so distributed and only if the holders of a majority of
the Investor Registrable Securities held by the Summit Investors advise the
Company in writing of their desire to exclude the securities so distributed from
the definition of "Registrable Securities" hereunder).
(g) "Summit Investors" means, collectively, Summit Ventures V, L.P.,
----------------
Summit V Advisors (QP) Fund, L.P., Summit V Advisors Fund, L.P. and Summit
Investors III, L.P.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. Except as provided for herein, the
--------------------------
Company shall not hereafter enter into any agreement with respect to its
securities which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a majority of the Investor
Registrable Securities and the holders of a
11
majority of the Other Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All issues and questions concerning the
-------------
construction, validity, interpretation and enforcement of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of
California, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California.
(i) Notices. All notices, demands or other communications to be given
-------
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), upon machine-generated acknowledgment of receipt after transmittal by
facsimile or five days after being mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be sent to the Company at the address
indicated below, to each Investor at the address indicated on the Schedule of
-----------
Investors attached hereto and to each Other Stockholder at the address indicated
---------
on the Schedule of Other Stockholders attached hereto:
------------------------------
12
To the Company:
--------------
Xxxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
13
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
XXXXXX COMMUNICATIONS, INC.
By:
--------------------------------
Its:
-------------------------------
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
its General Partner
By: Summit Partners, LLC
its General Partner
By:
------------------------------
Managing Member
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners V, L.P.
its General Partner
By: Summit Partners, LLC
its General Partner
By:
------------------------------
Managing Member
SUMMIT V ADVISORS (QP) FUND, L.P.
By: Summit Partners V, L.P.
its General Partner
By: Summit Partners, LLC
its General Partner
By:
------------------------------
Managing Member
SUMMIT INVESTORS III, L.P.
By:
------------------------------
Authorized Signatory
XXXXXXXX STREET PARTNERS
By:
------------------------------
Its:
------------------------------
XXXXXXXX STREET PARTNERS 1998 DIF, LLC
By:
------------------------------
Its:
------------------------------
[Signature Page to Registration Agreement]
SUNAPEE SECURITIES, INC.
By:
------------------------------
Xxxx X. Xxxxxxxxx
Title: Treasurer
SQUAM LAKE INVESTORS III, L.P.
By: GPI, Inc., its General Partner
By:
------------------------------
Xxxx X. Xxxxxxxxx
Title: Treasurer
------------------------------
Xxxxxx X. Xxxxxxxxx
------------------------------
Xxx Xxxxx
------------------------------
Xxxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
------------------------------
Xxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxxx
------------------------------
Xxxxx Xxxxx
------------------------------
Xxxxxx Xxxxxxx
------------------------------
Xxxxx Xxxx
------------------------------
Xxxxxxx Xxxxx
[Signature Page to Registration Agreement]
SCHEDULE OF INVESTORS
---------------------
Summit Ventures V, L.P.
c/o Summit Partners
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Summit V Advisors Fund, L.P.
c/o Summit Partners
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Summit V Advisors (QP) Fund, L.P.
c/o Summit Partners
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Summit Investors III, L.P.
c/o Summit Partners
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Sunapee Securities, Inc.
c/o Bain & Company, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02166
Attn: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Squam Lake Investors III, L.P.
c/o Bain & Company, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02166
Attn: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx Street Partners II
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (312) 861-2200
Xxxxxxxx Street Partners 1998 DIF, LLC
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Investors):
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19
SCHEDULE OF OTHER STOCKHOLDERS
------------------------------
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxx Xxx. #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxx Xxxxx
0000 Xxxxx Xxxxxx #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxx. #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxx Xxxxx
0000 Xxxxxxxxx Xxx. #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx
00 X. Xxxx Xxx. #X000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxxx #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx Xxxxx
0000 Xxxxxxxxx Xxx. #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx
0000 X. Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx Xxxx
0000 Xxxxx Xxxxxx #000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx
00 X. Xxxx Xxx. #X000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Existing Members)
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Thirtieth Floor
Los Angeles, California 90017
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
