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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into
this 8th day of June, 2000, by and among XXX.XXX, INC., a Delaware corporation
(the "COMPANY"), and VULCAN VENTURES INCORPORATED, a Washington corporation
("VULCAN").
A. Concurrently with the execution of this Agreement, Vulcan is
purchasing 27,437 shares of the Company's Series A Convertible Preferred Stock,
$.001 par value (the "SERIES A PREFERRED STOCK"), convertible into shares of the
Company's Common Stock, $.001 par value (the "COMMON STOCK"), pursuant to that
certain Stock Purchase Agreement dated June 8, 2000, between the Company and
Vulcan (the "STOCK PURCHASE AGREEMENT"). Pursuant to the Stock Purchase
Agreement, the Company is also issuing to Vulcan a warrant (the "VULCAN
WARRANT") to purchase additional shares of the Company's Common Stock.
Capitalized terms used herein but not defined shall have the meanings set forth
for such terms in the Stock Purchase Agreement.
B. The parties hereto desire to set forth the respective rights of the
Company and Vulcan with respect to the registration of the shares of the
Company's Common Stock that Vulcan may acquire.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained herein, the parties hereto agree as follows:
1. Definitions.
1.1 As used in this Agreement, the following capitalized terms
shall have the following meanings:
AFFILIATE: A Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, Vulcan; provided that such control relationship involves direct or
indirect ownership of at least a majority of the outstanding voting interests of
the applicable Person. Without limiting the generality of the foregoing, it is
understood that any entity that is majority owned (directly or indirectly) by a
Person that directly or indirectly owns a majority of the outstanding voting
interests of Vulcan shall be an Affiliate of Vulcan.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended
from time to time.
FORM S-3 means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
HOLDERS: Vulcan, all of its Affiliates (including without
limitation Xxxx X. Xxxxx), any Person to which Registrable Securities are
transferred by Vulcan and its Affiliates for purposes of Xxxx X. Xxxxx'x estate
planning, and any Person to whom
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Registrable Securities are transferred by Vulcan and its Affiliates that has
registration rights pursuant to Section 10 below.
MAJORITY HOLDERS: Holders of a majority of the Registrable
Securities held by all Holders at the time of any request for registration
pursuant to Section 2.1(a).
PERSON: An individual, corporation, partnership, limited
liability company, trust, unincorporated organization or a government or any
agency or political subdivision thereof.
PROSPECTUS: The definitive prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
REGISTRABLE SECURITIES: Those shares of Common Stock now or
hereafter owned of record or beneficially by the Holders (including, without
limitation, any shares of Common Stock acquired by the Holders upon conversion
of the Series A Preferred Stock or upon exercise of the Vulcan Warrant) plus any
shares received with respect to or in replacement of such shares by reason of
splits, dividends and recapitalizations and other changes in the Company's
capital structure, but excluding any shares which may be then immediately sold
to the public without registration pursuant to Rule 144 under the Securities
Act.
REGISTRATION EXPENSES: See Section 6 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
filed under the Securities Act which covers Registrable Securities pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended from time
to time.
SELLING HOLDERS: Holders of Registrable Securities who seek to
sell such securities under any Registration Statement.
2. Registration Rights.
2.1 Registration Upon Request.
(a) At any time beginning on the later of the date that is
180 days after the date hereof, the Majority Holders may request by written
notice (a "DEMAND NOTICE") to the Company that the Company effect the
registration under the Securities Act of a number of Registrable Securities at
least equal to 5% of the shares of the Common Stock then outstanding, stating
the intended method of disposition of such shares. The
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registration rights contemplated by this Section 2.1 may be exercised only three
(3) times by the Majority Holders during the term of this Agreement; provided,
however, the request for registration shall not be deemed made if either (i) the
Registration Statement does not become effective under the Securities Act
(including without limitation if the Selling Holders withdraw the Registration
Statement, provided in case of such withdrawal the request for registration will
be deemed made by the Majority Holders unless the Selling Holders reimburse the
Company for its reasonable expenses in connection with such Registration
Statement) or a stop order, injunction or other order interferes or prevents the
contemplated method of distribution or (ii) the number of Registrable Securities
requested to be included in the registration is reduced by 15% or more pursuant
to Section 2.1(c); and provided further that such a demand may not be exercised
more than once in any twelve-month period (subject to the same exception set
forth in the previous proviso). Within five (5) business days after receipt of a
Demand Notice, the Company shall notify all other Holders and offer to them the
opportunity to include their Registrable Securities in such registration.
(b) Upon receipt of such request, the Company shall, as
soon as practicable, prepare and file a Registration Statement with the SEC on
an appropriate form under the Securities Act with respect to all of the
Registrable Securities that Holders of such securities have requested that the
Company register, and use its commercially reasonable efforts to cause such
Registration Statement to become effective.
(c) In connection with any Registration Statement filed in
response to such request, the Company, at its option, may include a primary
offering of additional shares of Common Stock and/or may include shares to be
sold by other stockholders of the Company; provided, however, that if the
managing underwriter of such offering reasonably determines in good faith and
delivers to the Selling Holders a written opinion that the number of shares
otherwise to be included in the Registration Statement is such that the success
of the underwritten offering would be materially and adversely affected and,
accordingly, the total number of shares to be included in the Registration
Statement is reduced to the amount recommended by such underwriter, then (i)
unless the Registration Statement includes all of the Registrable Securities
designated for sale by all Selling Holders participating in the demand
registration pursuant to Section 2.1(a), the Registration Statement shall not
include any shares to be offered by the Company or sold by other stockholders
(including other Holders exercising incidental registration rights pursuant to
Section 2.2), and (ii) if the Registration Statement does not include all of the
Registrable Securities designated for sale by such Selling Holders, the number
of Registrable Securities included in the Registration Statement shall be
allocated among such Selling Holders pro rata (based on the number of
Registrable Securities held by each).
(d) Notwithstanding the foregoing, upon delivery of
written notice (deliverable no later than 10 days after delivery of the Demand
Notice) to the person(s) who delivered the Demand Notice, the Company shall be
entitled to postpone filing of the Registration Statement, and may withhold
efforts to cause the Registration Statement to become effective, for a
reasonable period of time (not to exceed the shorter of 90 days or the Company's
termination of consideration of a Company Offering (as defined below) or
completion of any Transaction (as defined below), as the case may be) if (i) the
Company is
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contemplating filing a registration statement in connection with the offering of
its securities (a "COMPANY OFFERING") within 90 days of delivery of the Demand
Notice, or (ii) the Company determines in good faith that a registration
pursuant to the Demand Notice might interfere with or adversely affect the
negotiations or completion of any transaction that is being contemplated by the
Company at the time the right to delay is exercised (a "TRANSACTION"); provided,
however, that such deferral may not be utilized more than once in any twelve
(12) month period.
2.2 Incidental Registration.
(a) If at any time after the date hereof the Company
proposes to register any shares of Common Stock under the Securities Act (except
pursuant to a registration statement (i) on Form X-0, Xxxx X-0 or comparable
forms, or (ii) with respect to an employee benefit plan, or (iii) solely in
connection with a Rule 145 transaction under the Securities Act), or if any
other stockholder is being afforded an opportunity to register shares of Common
Stock (including pursuant to Section 2.1(a)), the Company will at each such time
give written notice to the Holders (other than Holders participating in a demand
registration pursuant to Section 2.1(a)) as provided in Section 11.4 hereof of
its intention to do so. Within twenty (20) days after receipt of such notice,
such Holders may request that the Company register all or part of the
Registrable Securities, stating in such request the intended method of
distribution of such securities (the "DESIGNATED SECURITIES"). Upon receipt of
such request, the Company shall use its commercially reasonable efforts to
effect the registration of the Designated Securities by including the Designated
Securities in such Registration Statement.
(b) In the event that securities of the same class as the
Registrable Securities are being registered by the Company in such Registration
Statement and such securities as well as any of the Designated Securities are to
be distributed in an underwritten offering, such Designated Securities shall be
included in such underwritten offering on the same terms and conditions as the
securities being issued by the Company for distribution pursuant to such
underwritten offering; provided, however, that if the managing underwriter of
such underwritten offering reasonably determines in good faith and advises the
parties that the inclusion in such underwritten offering of all the Designated
Securities would materially and adversely affect the success of the underwritten
offering, then the number of Designated Securities to be included in the
Registration Statement shall be reduced to the amount recommended in good faith
by and set forth in the opinion of such managing underwriter; provided, further,
that as to the Selling Holders exercising incidental registration rights
pursuant to this Section 2.2, such reduction shall be pro rata (based on the
number of shares held by each) with respect to the Designated Securities with
other Persons holding contractual incidental or "piggy-back" registration rights
in such underwritten offering.
(c) No registration effected under this Section 2.2 shall
relieve the Company of its obligations to effect registrations at the request of
the Holders under Section 2.1.
2.3 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect a
registration on
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Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, the Company
will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, use all commercially reasonable efforts
to effect such registration and all such qualifications and compliances as may
be so requested and as would permit or facilitate the sale and distribution of
all or such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within twenty (20) days after receipt of
such written notice from the Company; provided, however, that the Company shall
not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 2.3:
(i) If the Company is not qualified as a registrant entitled to
use Form S-3;
(ii) If the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $2,500,000;
(iii) For the reasons, and under the circumstances described, in
Section 2.1(d), in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than 90
days after receipt of the request of the Holder or Holders under this Section
2.3; provided, however, that such deferral may not be utilized more than once in
any twelve (12) month period;
(iv) If the Company has, within the six (6) month period
preceding the date of such request, previously effected a registration pursuant
to Section 2.1 or on Form S-3 pursuant to this Section 2.3; or
(v) Within 180 days after the effective date of any registration
statement filed by the Company in connection with a registered public offering
of the Company's securities solely for cash, other than a registration (i) on
Form X-0, X-0 or comparable forms, or (ii) with respect to an employee benefit
plan, or (iii) solely in connection with a Rule 145 transaction under the
Securities Act.
3. Hold-Back Agreements.
3.1 Restrictions on Public Sale by Holders. Each Selling Holder
whose Registrable Securities are covered by a Registration Statement filed
pursuant to Section 2 hereof agrees, if requested by the managing underwriters
in an underwritten offering, not to effect any public sale or distribution of
securities of the Company of the same class as the securities included in such
Registration Statement during a period, not to exceed 90 days, beginning on the
closing date of each underwritten offering made pursuant to such
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Registration Statement, to the extent timely notified in writing by the managing
underwriters.
3.2 Restrictions on Public Sale by the Company and Others. The
Company agrees not to effect any public sale or distribution of its Common
Stock, during a period, not to exceed 45 days, beginning on the closing date of
an underwritten offering made pursuant to a Registration Statement filed under
Section 2 hereof to the extent timely notified in writing by the managing
underwriters (except as part of such underwritten registration or pursuant to
registrations on Forms S-4 or S-8 or any successor form to such Forms).
4. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 2 hereof, the Company will use its
commercially reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company will:
4.1 Preparation of Registration Statement. Prepare and file with
the SEC, within the time periods specified in Section 2, a Registration
Statement on such form as may be appropriate under the Securities Act, and use
its best efforts to cause such Registration Statement to become effective.
4.2 Maintaining Effectiveness. Promptly prepare and file with the
SEC such amendments to the Registration Statement as may be necessary to keep
such Registration Statement effective for a period of not more than 180 days
(or, in the case of an underwritten offering, no more than five (5) business
days), or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold.
4.3 Notification. Immediately notify the Selling Holders and the
managing underwriters, if any, and (if requested by any such Person) confirm
such advice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, (iii) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (iv) of the happening of any event which makes any statement
made in the Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus, or any document incorporated therein by
reference so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statement therein not misleading.
4.4 Stop Orders. Make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the qualification of any Registrable Securities for sale in any jurisdiction
at the earliest possible moment.
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4.5 Consultation with Holders. Prior to the filing of any
Registration Statement or amendment thereto, provide copies of such document to
the Selling Holders and to the managing underwriters, if any, make the Company's
representatives and the Company's counsel available for discussion of such
document and make such changes in such document relating to the Selling Holders
prior to the filing thereof as such Selling Holders, counsel for such Selling
Holders, or underwriters may reasonably request.
4.6 Copies of Registration Statements. Furnish to each Selling
Holder and each managing underwriter, if any, without charge, at least one
originally executed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference).
4.7 Prospectuses. Deliver to each Selling Holder and the
underwriters, if any, without charge, as many copies of the Prospectus (and each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request so long as the Registration Statement to which such
Prospectus or any amendment or supplement thereto relates is effective.
4.8 Blue Sky Laws. Prior to any public offering of Registrable
Securities, use its commercially reasonable efforts to register or qualify or
cooperate with the Selling Holders, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any Selling Holder or
underwriter reasonably requests, and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, however,
that the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or taxation in any such jurisdiction
where it is not then so subject.
4.9 Amendments Upon Changes. Upon the occurrence of any event
contemplated by Sections 4.3(ii), (iii) or (iv) or 4.4 above, prepare, as
promptly as practicable, a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading.
4.10 Underwriting Agreements. Enter into such customary
agreements (including an underwriting agreement) and take all such other actions
reasonably required in connection therewith in order to expedite or facilitate
the disposition of such Registrable Securities.
4.11 Compliance with Laws; Section 11(a). Otherwise use its best
efforts to comply with all applicable federal and state securities laws
(including without limitation the rules and regulations of the SEC), and make
generally available to its security holders
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earning statements satisfying the provisions of Section 11(a) of the Securities
Act no later than 45 days after the end of each 12-month period (or within 90
days after the end of a fiscal year).
4.12 Opinions. At the request of any Selling Holder, use its
commercially reasonable efforts to furnish on the date that the Registrable
Securities are delivered to that Holder and any underwriter for sale in
connection with a registration pursuant to this Agreement (i) an opinion of the
counsel representing the Company for the purposes of such registration, and (ii)
a letter from the independent certified public accountants of the Company, each
dated such date and in form and substance as is customarily given by counsel and
independent certified public accountants to underwriters in an underwritten
public offering, addressed to any Selling Holders' underwriter and to the
Selling Holders.
5. Selling Holders' Obligations.
5.1 Provision of Information. The Company may require each
Selling Holder of Registrable Securities as to which any registration is being
effected to furnish to the Company such information regarding the distribution
of such securities by, and such other information relevant to, the Selling
Holder for inclusion in such Registration Statement, as the Company may from
time to time reasonably request in writing.
5.2 Discontinued Use of Prospectus. Each Holder of Registrable
Securities agrees by execution of this Agreement that, upon receipt of any
written notice from the Company of the happening of any event of the kind
described in clauses (ii), (iii) or (iv) of Section 4.3 or Section 4.4 hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4.9 hereof, or until it is advised in writing
(the "ADVICE") by the Company that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental filings which are
incorporated by reference in such Prospectus, and, if so directed by the Company
such Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event the Company shall give any such notice, the time
period mentioned in Section 4.2 hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each Selling Holder shall have received the copies
of the supplemental or amended Prospectus contemplated by Section 4.9 hereof or
the Advice.
5.3 Underwriting Agreement. Each Selling Holder participating in
an underwritten offering pursuant to Section 2.1 or 2.2 will enter into a
customary underwriting agreement on terms reasonably satisfactory to the
managing underwriter.
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6. Registration Expenses. The Company shall bear all expenses other than
Selling Holder Expenses (defined below) incurred in connection with any
Registration Statement, including without limitation all registration and filing
fees, fees with respect to any filings required to be made with the National
Association of Securities Dealers, listing fees relative to any stock exchange
or national market system, fees and expenses of compliance with state securities
or blue sky laws (including reasonable fees and expenses of counsel for the
underwriters in connection therewith), printing expenses, fees and disbursements
of counsel for the Company, and fees and disbursements of all independent public
accountants of the Company. Each Selling Holder shall bear his or its pro rata
share of any Selling Holder Expenses. "SELLING HOLDER EXPENSES" shall consist of
and be limited to (i) the Selling Holder's legal costs, including the fees and
expenses of any counsel selected by the Selling Holder to represent him or it,
and (ii) the proportionate share of brokerage or underwriting commissions
attributable to the Selling Holder's shares.
7. Indemnification.
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each Holder of
Registrable Securities, each Person who controls such Holder (within the meaning
of the Securities Act or the Exchange Act) (a "CONTROLLING PERSON"), and each
officer, director, employee and agent of such Holder and each controlling person
and each underwriter or selling agent (the "INDEMNIFIED PARTIES") from and
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as (i) the Company has demonstrated that
the same are caused by or contained in any information furnished to the Company
by such Holder, expressly for use therein, or (ii) the Company has advised such
Holders' Representative in writing of a Section 4.3(iv) event and the Holder has
sold Registrable Securities notwithstanding receipt of such notice prior to
receipt of a supplement or amended Prospectus pursuant to Section 4.9 herein;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities and (ii) the
Prospectus would have corrected such untrue statement or omission; provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, prior to or concurrently with the sale of a Registrable
Security to the Person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security which is the subject thereof from such
Holder. The indemnity provided herein shall remain in full force
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and effect regardless of any investigation made by or on behalf of an
indemnified party and shall survive the transfer of Registrable Securities by
the Selling Holder.
7.2 Indemnification by Holders. In connection with the
Registration Statements hereunder, each Selling Holder agrees to indemnify and
hold harmless, to the full extent permitted by law, the Company, and each Person
who controls the Company (within the meaning of the Securities Act or the
Exchange Act) and each director, officer, employee and agent of each such Person
from and against any losses, claims, damages, liabilities and expenses caused by
any untrue statement of a material fact or any omission of a material fact
required to be stated in any Registration Statement or Prospectus or preliminary
prospectus or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that the Company has demonstrated that such
untrue statement or omission is contained in any information or affidavit so
furnished by such Holder to the Company specifically for inclusion in such
Registration Statement or Prospectus. In no event, however, shall the liability
of any Selling Holder hereunder be greater in amount than the dollar amount of
the proceeds (net of underwriters' discounts and commissions) received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be obligated to give to, and shall
be entitled to receive from, underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution
customary indemnities.
7.3 Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder will (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume within a reasonable period of
time the defense of such claim and employ counsel reasonably satisfactory to
such person or (c) in the reasonable judgment of any such Person, based upon
written advice of its counsel, a conflict of interest may exist between such
Person and the indemnifying party with respect to such claims or such Person may
have separate or additional defenses (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). 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. An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one principal and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
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7.4 Contribution. If the indemnification provided for in Sections
7.1 or 7.2 is unavailable to the indemnified parties in respect of any losses,
claims, damages or liabilities referred to herein, then each such indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) as between the Company and the Selling
Holders on the one hand and the underwriters on the other hand, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Holders on the one hand and the underwriters on the
other hand from the offering of all of the securities sold in the offering, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations and (ii) as between the Company on the
one hand and each Selling Holder on the other hand, in such proportion as is
appropriate to reflect the relative fault of the Company and of each Selling
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Holders on the one hand and the underwriters on the other hand
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Holders bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Selling Holders on the one hand and of the
underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Selling Holders or by the underwriters. The
relative fault of the Company on the one hand and of each Selling Holder on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7.4, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Common Stock underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Selling Holder
shall be required to
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contribute any amount in excess of the amount by which the total price at which
the securities of such Selling Holder were offered to the public exceeds the
amount of any damages which such Selling Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Selling
Holders' obligations to contribute pursuant to this Section 7.4 are several in
proportion to the proceeds of the offering received by each Selling Holder bears
to the total proceeds of the offering received by all the Selling Holders and
not joint.
8. Selection of Underwriters. In connection with any request for
registration under Section 2.1 hereof, the Company shall be entitled to select
the managing underwriter if it is also registering shares on its own behalf. The
Selling Holders, however, shall be entitled to select the co-managing
underwriter. If the Registration Statement covers only shares being sold by the
Selling Holders, then the Selling Holders shall be entitled to select the
managing underwriter, subject to approval by the Company, which approval shall
not be unreasonably withheld. In connection with any registration under Section
2.2, the Selling Holders shall have no right to select underwriters.
9. Rule 144 The Company covenants that it will timely file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder, and it will take such
further action as may be reasonably and customarily requested by any Holder of
Registrable Securities, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC. The Company also
agrees that it will take commercially reasonable efforts to enable the Holders
to utilize Form S-3 for the sale of their Registrable Securities. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
information and requirements and such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC or any
state securities authorities which permits the selling of any such securities
without registration or pursuant to such form.
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10. Transfer of Registration Rights. The registration rights granted
pursuant to this Agreement shall be available to a transferee of any Registrable
Securities if (i) the transferring Holder gives the Company written notice of
such transfer, identifying the name and address of the transferee and the
securities involved; (ii) the transferee agrees in writing to be bound by the
provisions of this Agreement; and (iii) (A) the transferee is a Vulcan
Affiliate, (B) as a result of such transfer, the transferee holds at least
250,000 shares of Common Stock (assuming conversion into or exercise for Common
Stock, at the conversion rate or exercise price then in effect, if the transfer
is of Series A Preferred Stock or the Vulcan Warrant (in whole or in part), as
applicable) or (C) such transferee is a bank, insurance company or other
financial institution or any assignee of the same that has received shares of
Common Stock as a result of its foreclosure on any shares of Series A Preferred
Stock or Common Stock, that were pledged, mortgaged or otherwise encumbered by
Holder for financing purposes.
11. Miscellaneous.
11.1 Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby waives the defense in any action
for specific performance that a remedy at law would be adequate.
11.2 No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with or limits or impairs the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
11.3 Adjustments Affecting Registrable Securities. The Company
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the Holders
of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
11.4 Notices. All notices or other communications hereunder shall
be in writing and shall be given by (i) personal delivery, (ii) courier or other
delivery service which obtains a receipt evidencing delivery, (iii) registered
or certified mail (postage prepaid and return receipt requested), or (iv)
facsimile or similar electronic device, to such address as may be designated
from time to time by the relevant party, and which shall initially be: (i) in
the case of the Company, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000,
Attention: Chief Financial Officer, facsimile (000) 000-0000, with a copy to
Xxxxxx Godward LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000,
Attention: Xxxxx X. Xxxxxxxx, Esq.; and (ii) in the case of Vulcan, 000 000xx
Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, attention: Xxxxxxx X. Xxxxx,
facsimile (000) 000-0000, with a copy to Irell & Xxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000, Attn: Xxxxx X. Xxxxx, Esq., facsimile
(000) 000-0000. All notices and other communications shall be deemed to have
been given (i) if delivered by the United States mail, three business days after
mailing (five business days if delivered to an address outside of the United
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States), (ii) if delivered by a courier or other delivery service, one business
day after dispatch (two business days if delivered to an address outside of the
United States), and (iii) if personally delivered or sent by facsimile or
similar electronic device, upon receipt by the recipient or its agent or
employee (which, in the case of a notice sent by facsimile or similar electronic
device, shall be the time and date indicated on the transmission confirmation
receipt). No objection may be made by a party to the manner of delivery of any
notice actually received in writing by an authorized agent of such party.
11.5 Complete Agreement; Modifications. This Agreement and any
documents referred to herein or executed contemporaneously herewith constitute
the parties' entire agreement with respect to the subject matter hereof and
supersede all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof. This Agreement may be amended, altered or modified only by a writing
signed by the Company, the Majority Holders.
11.6 Successors and Assigns. Except as provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties, their respective successors and permitted assigns, including without
limitation and without the need for an express assignment, subsequent Holders of
Registrable Securities.
11.7 Governing Law. All questions with respect to the Agreement
and the rights and liabilities of the parties shall be governed by the laws of
the State of Delaware, regardless of the choice of laws provisions of Delaware
or any other jurisdiction.
11.8 Attorneys' Fees. Should any litigation be commenced
(including any proceedings in a bankruptcy court) between the parties hereto or
their representatives concerning any provision of this Agreement or the rights
and duties of any Person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason of
such litigation.
11.9 Headings. The Article and Section headings in this Agreement
are inserted only as a matter of convenience, and in no way define, limit,
extend or interpret the scope of this Agreement or of any particular Article or
Section.
11.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
11.11 Gender. Throughout this Agreement, as the context may
require, the masculine gender includes the feminine and neuter; and the neuter
gender includes the masculine and feminine.
11.12 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so
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executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth hereinabove.
XXX.XXX, INC.
By: /s/ XXXXXX XXXX
---------------------------------
Xxxxxx Xxxx
Chief Financial Officer
VULCAN VENTURES INCORPORATED
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Xxxxxxx X. Xxxxx
President
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