Exhibit 10.6
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This Second Amended and Restated Registration Rights Agreement (the
"Agreement") is made and entered into as of March 29, 2000 by and among DIVEO
BROADBAND NETWORKS, INC., a Delaware corporation (the "Company"), and those
persons listed on Schedule 1 hereto.
WHEREAS, the Company has entered into a Registration Rights Agreement,
dated as of June 24, 1998, which was amended and restated on April 16, 1999 and
subsequently amended on July 2, 1999 (as so amended the "Original Registration
Rights Agreement"), with the holders named therein (the "Existing Investors");
WHEREAS, the Company concurrently with the execution of this Agreement is
entering into a Preferred Stock Purchase Agreement, dated as of the date hereof
(the "Purchase Agreement"), with the parties named as Investors therein (the
"Investors") pursuant to which the Company will issue and sell to the Investors
and the Investors will purchase from the Company shares of (i) series C-1 voting
preferred stock of the Class C Preferred Stock, par value $.0001 per share (the
"Series C-1 Voting Preferred Stock") and (ii) series C-1 non voting preferred
stock of the Class C Preferred Stock, par value $.0001 per share (the "Series C-
1 Non Voting Preferred Stock" and together with the Series C-1 Voting Preferred
Stock, the "Series C-1 Preferred Stock");
WHEREAS, in connection with the purchase and sale of the Series C-1
Preferred Stock, the Board of Directors and the shareholders of the Company have
duly authorized and approved the Third Restated and Amended Certificate of
Incorporation of the Company (the "Third Restated Certificate of
Incorporation");
WHEREAS, the due execution and delivery of an amendment of the Original
Registration Rights Agreement among the Company and the other parties hereto is
a condition to the execution and delivery of the Purchase Agreement;
WHEREAS, pursuant to Section 11(e) of the Original Registration Rights
Agreement, the holders of not less than 85% of the Registrable Securities (as
defined in the Original Registration Rights Agreement) may amend the Original
Registration Rights Agreement on behalf of all of the parties thereto; and
WHEREAS, holders of not less than 85% of the Registrable Securities and the
other parties hereto desire to amend and restate the Original Registration
Rights Agreement in its entirety and to replace the same with this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the parties hereto
agree that the Original Registration Rights Agreement is hereby amended and
restated in its entirety to provide as follows:
Unless otherwise defined herein, capitalized terms so used herein and not
defined shall have the same meaning as provided in the Purchase Agreement.
The parties hereby agree as follows:
1. Certain Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Business Day" means any day, other than a Saturday, Sunday or legal holiday,
on which banks in the State of New York are open for business.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.0001 per share, of the
Company, as constituted on the date hereof, any shares of the Company's capital
stock into which such Common Stock shall be changed or any shares of the
Company's capital stock resulting from any reclassification or recapitalization
with respect to such Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
successor statute thereto, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Founder Holders" means Xxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxxx
Xxxxxx, Diginet Development, L.L.C., Xxxxxx, X.X., and the Xxxxxx Xxxx Trusts.
"Founder Stock" means (i) the Common Stock held by the Founder Holders and
(ii) the Common Stock issued or issuable pursuant to the exercise of the Xxxx
Option (as described in the Preferred Stock and Warrant Purchase Agreement,
dated as of April 16, 1999, between the Company and certain investors).
"Xxxxxx Xxxx Trusts" means each of BT Alex. Xxxxx c/f Xxxxx Xxxx Xxxxxx Xxxx
CNV DTD 4/21/98, BT Alex. Xxxxx c/f Xxxxx Xxxx Xxxxxx Xxxx CNV DTD 5/1/98, BT
Alex. Xxxxx c/f Xxxxxxxx Xxxxxxx Xxxxxx Xxxx CNV DTD 4/21/98, BT Alex. Xxxxx c/f
Xxxxxxx Xxxx Xxxxxx Xxxx CNV DTD 4/28/98, BT Alex. Xxxxx c/f Xxxxx X. Xxxxxx
Xxxx CNV DTD 4/24/98, and BT Alex. Xxxxx c/f Xxxxx Xxxx Xxxxxx Xxxx CNV DTD
4/24/98, which trusts currently own Series A Preferred Stock.
"Holders" means the Persons listed on Schedule 1 hereto and any other Person
holding Registrable Securities to whom these registration rights have been
assigned pursuant to Section 11(f) of this Agreement.
"Initiating Holders" means at any time any Holder or Holders who in the
aggregate hold not less than six percent (6%) of the number of Registrable
Securities (excluding the Founder Stock) at such time.
"Majority Holders" means at any time the holders of a majority of the number
of outstanding Registrable Securities (excluding the Founder Stock) at such
time.
"Majority Initiating Holders" means the holders of a majority of the
Registrable Securities covered by a Requested Registration initiated by the
Initiating Holders.
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"Non Voting Common Stock" means the Company's Non Voting Common Stock, par
value $.0001 per share, as constituted on the date hereof, any shares of the
Company's capital stock into which such Non Voting Common shall be changed or
any shares of the Company's capital stock resulting from any reclassification or
recapitalization with respect to such Non Voting Common Stock.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization and any
government, governmental department or agency or political subdivision thereof.
"Purchase Agreement" has the meaning assigned to such term in the recitals
hereto.
The terms "register", "registered" or "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means (i) the Common Stock issued or issuable
pursuant to the conversion or exchange of the Series A-1 Preferred Stock, Series
A-2 Preferred Stock (including, without limitation, Series A-2 Preferred Stock
issued or issuable upon the exercise of the Series A-2 Warrants), Series B-1
Preferred Stock (including, without limitation, Series B-1 Preferred Stock
issued or issuable upon the exercise of Series B-1 Warrants), Series B-2
Preferred Stock, Series C-1 Preferred Stock or Non Voting Common Stock; (ii) any
Common Stock or other securities issued or issuable pursuant to the conversion
of, or with respect to, the Series A-1 Preferred Stock, Series A-2 Preferred
Stock (including, without limitation, Series A-2 Preferred Stock issued or
issuable upon the exercise of the Series A-2 Warrants), Series B-1 Preferred
Stock (including, without limitation, Series B-1 Preferred Stock issued or
issuable upon the exercise of Series B-1 Warrants), Series B-2 Preferred Stock,
Series C-1 Preferred Stock or Non Voting Common Stock held by any Holder, upon
any stock split, stock dividend, recapitalization or similar event; (iii)
Founder Stock; (iv) shares of Common Stock issued upon exercise of preemptive
rights under the Stockholders' Agreement; and (v) securities issued in
replacement of or exchange for any of the securities issued in clauses (i)
through (iv) above, including upon any recapitalization or reclassification of
such securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration, filing, listing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or "blue
sky" laws, all word processing, duplicating and printing expenses, all messenger
and delivery expenses, any transfer taxes, the fees and expenses of the
Company's legal counsel and independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, fees and disbursements of one counsel chosen
by the Majority Initiating Holders, any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities and other Persons retained
by the Company; provided, however, that Registration Expenses shall not include
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underwriting discounts and commissions.
"Requested Registration" has the meaning set forth in Section 2(a) hereof.
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"Rights Holder" has the meaning set forth in Section 3(a)(iv) hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Series A-1 Preferred Stock" means, collectively, the Company's Series A-1
Voting Preferred Stock of the Class A Preferred Stock, $.0001 par value per
share, and Series A-1 Non Voting Preferred Stock of the Class A Preferred Stock,
par value $.0001 per share, as constituted on the date hereof.
"Series A-2 Preferred Stock" means the Company's Series A-2 Preferred Stock
of the Class A Preferred Stock, par value $.0001 per share, as constituted on
the date hereof.
"Series A-2 Warrants" means warrants to purchase up to 2,303,338 shares of
Series A-2 Preferred Stock issued by the Company.
"Series B-1 Preferred Stock" means, collectively, the Company's Series B-1
Voting Preferred Stock of the Class B Preferred Stock, par value $.0001 per
share, and Series B-1 Non Voting Preferred Stock of the Class B Preferred Stock,
par value $.0001 per share, as constituted on the date hereof.
"Series B-1 Warrants" means warrants to purchase shares of Series B-1
Preferred Stock issued by the Company.
"Series B-2 Preferred Stock" means the Company's Series B-2 Preferred Stock of
the Class B Preferred Stock, par value $.0001 per share, as constituted on the
date hereof.
"Series C-1 Non Voting Preferred Stock" means the Company's Series C-1 Non
Voting Preferred Stock of the Class C Preferred Stock, par value $.0001 per
share, as constituted on the date hereof.
"Series C-1 Preferred Stock" means, collectively, the Company's Series C-1
Voting Preferred Stock of the Class C Preferred Stock, $.0001 par value per
share, and Series C-1 Non Voting Preferred Stock of the Class C Preferred Stock,
par value $.0001 per share, as constituted on the date hereof.
"Series C-1 Voting Preferred Stock" means the Company's Series C-1 Voting
Preferred Stock of the Class C Preferred Stock, par value $.0001 per share, as
constituted on the date hereof.
"Short-Form Registration Statement" has the meaning set forth in Section 2(a)
hereof.
"Underwriter's Maximum Number" has the meaning set forth in Section 2(f)
hereof.
2. Registration.
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(a) Requested Registration. At any time after the earlier to occur of (i)
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April 16, 2003, and (ii) the Company's initial public offering of equity
securities (such an offering, an "Initial Public Offering"), upon written
request by the Initiating Holders to the Company that the Company effect a
registration under the Securities Act (a "Requested Registration"), the Company
shall use its diligent efforts to file a registration statement on Form S-1 or
any similar long-form registration statement (each, a "Long-Form Registration
Statement") (x) with respect to the first such Long-Form Registration Statement
within ninety (90) days after receipt of such request by such Initiating Holders
and (y) with respect to each successive Long-Form Registration Statement, within
sixty (60) days after receipt of such request by such Initiating Holders, in
each case in order to effect the registration under the Securities Act of the
Registrable Securities (other than Founder Stock) that the Company has been so
requested to register or to file a registration statement on Commission Form S-2
or Form S-3 or any successor or similar short-form registration statement (each,
a "Short-Form Registration Statement") within forty-five (45) days after receipt
of such request if the Company is qualified to file a Short-Form Registration
Statement; provided, however, that the Company shall not be obligated to file a
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Requested Registration on a Short-Form Registration Statement (a "Short-Form
Registration") pursuant to this Section 2(a) unless the anticipated gross
aggregate offering price of the Registrable Securities to be sold pursuant
thereto is at least two million dollars ($2,000,000) in the aggregate; provided,
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further, however, that in the event the Company has not completed an Initial
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Public Offering, the Company shall not be obligated to file a Requested
Registration on a Long-Form Registration Statement (a "Long-Form Registration")
pursuant to this Section 2(a) unless at least eighty million dollars
($80,000,000) in aggregate principal amount of the Registrable Securities (as
measured by the aggregate gross offering price thereof as reflected in the
registration statement with respect thereto), after giving effect to such
registration, would be registered under the Securities Act; provided, further,
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however, that if the Company has previously completed an Initial Public Offering
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the Company shall not be obligated to file a Long-Form Registration unless the
anticipated aggregate gross offering price with respect thereto would equal or
exceed thirty million dollars ($30,000,000). The Company must file an unlimited
number of Short-Form Registrations pursuant to this Section 2(a) subject to the
requirement that any such Short-Form Registration meets the two million dollar
($2,000,000) aggregate offering threshold referenced above and otherwise
satisfies the conditions or requirements applicable thereto. In no event shall
the Company be obligated hereunder to file more than six (6) Long-Form
Registrations in the aggregate or more than two (2) Long-Form Registrations
requested by any Investor and the affiliates thereof. Subject to Section 2(f),
the Company may include in such Requested Registration other securities of the
Company for sale, for the Company's account or for the account of any other
person, if and to the extent that the managing underwriter determines that the
inclusion of such additional shares will not interfere with the orderly sale of
the Registrable Securities subject to such Requested Registration at a price
range acceptable to the Majority Initiating Holders. Upon filing of a Long-Form
Registration Statement or a Short-Form Registration Statement, as the case may
be, the Company shall thereafter use its diligent efforts to cause such
registration statement to be declared effective under the Securities Act as
promptly as possible.
(b) Incidental Registration. If the Company for itself or any of its security
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holders shall at any time or times after the date hereof determine to register
under the Securities Act any shares of its capital stock or other securities
(other than (i) the registration of an offer, sale or other disposition of
securities solely to employees of, or other persons providing services to, the
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Company or any subsidiary pursuant to an employee or similar benefit plan or
(ii) relating to a merger, acquisition or other transaction of the type
described in Rule 145 under the Securities Act or a comparable or successor
rule, registered on Form S-4 or similar or successor forms), on each such
occasion the Company will notify each Holder of such determination at least ten
(10) days after receipt of any Requested Registration or, in the case that the
Company determines to register for its own account any shares of its capital
stock, at least thirty (30) days prior to the filing of the registration
statement applicable thereto, and upon the request of any Holder given in
writing within twenty (20) days after the receipt of such notice, subject to
Section 2(f), the Company will use its diligent efforts as soon as practicable
thereafter to cause any of the Registrable Securities specified by any such
Holder to be included in such registration statement to the extent such
registration is permissible under the Securities Act and subject to the
conditions of the Securities Act (an "Incidental Registration").
(c) Registration Statement Form. The Company shall, if permitted by law,
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effect any registration requested under this Section 2 by the filing of a Short-
Form Registration Statement and shall use its diligent efforts to take any
action reasonably necessary to maintain its eligibility to utilize a Short-Form
Registration Statement to permit resales as requested by the Holders with
respect to "Transactions Involving Secondary Offerings" as described in General
Instruction I.B.3 of Commission Form S-3.
(d) Expenses. The Company shall pay all Registration Expenses incurred in
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connection with any Incidental Registration and any Requested Registration.
(e) Effective Registration Statement. A Requested Registration or an
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Incidental Registration pursuant to Section 2(a) or Section 2(b), respectively,
shall not be deemed to have been effected unless the registration statement
filed with respect thereto in accordance with the Securities Act has been
declared effective by the Commission. Notwithstanding the foregoing, a
registration statement will not be deemed to have become effective if (i) after
it has become effective with the Commission, such registration is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or any court proceeding for any reason
other than a misrepresentation or omission by any Holder, or (ii) the conditions
to closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied, other than solely
by reason of some act or omission by any Holder.
(f) Priority in Registration. If a Requested Registration or an Incidental
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Registration is made in connection with an underwritten offering, and the
managing underwriters give written advice to the Initiating Holders or the
Company, as the case may be, that, in their opinion, market conditions dictate
that no more than a specified maximum number of securities (the "Underwriter's
Maximum Number") could successfully be included in such registration, then the
Company and the Holders shall participate in such offering in the following
order of priority: (A) in the case of a Requested Registration, (i) there shall
be included in such registration that number of Registrable Securities issued
upon conversion of shares of Series A-1 Preferred Stock, Series A-2 Preferred
Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock (including
Registrable Securities issuable upon conversion of (x) the Series A-2 Preferred
Stock issuable upon conversion of the Series A-2 Warrants and (y) the Series B-1
Preferred Stock issuable upon conversion of the Series B-1 Warrants) and Series
C-1 Preferred Stock that the holders thereof
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shall have requested to be included in such offering either as an Initiating
Holder or as to an Incidental Registrant and that does not exceed the
Underwriter's Maximum Number; (ii) the Company shall be entitled to include in
such registration that number of securities that it proposes to offer and sell
for its own account to the full extent of the remaining portion of the
Underwriter's Maximum Number; and (iii) to the extent not inconsistent with any
registration rights hereafter granted by the Company to holders of Company
securities, the Founder Holders shall be entitled to include in such
registration that number of shares of Registrable Securities that the Founder
Holders shall have requested to be included in such registration to the full
extent of the remaining portion of the Underwriter's Maximum Number; and (B) in
the case of an Incidental Registration triggered by a proposed registration for
the account of the Company (i) the Company shall be entitled to include in such
registration that number of securities that the Company proposes to offer and
sell for its own account in such registration and that does not exceed the
Underwriter's Maximum Number; (ii) the Company will be obligated and required to
include in such registration that number of shares of Registrable Securities
issued upon the conversion of shares of Series A-1 Preferred Stock, Series A-2
Preferred Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock
(including Registrable Securities issuable upon conversion of (x) the Series A-2
Preferred Stock issuable upon conversion of the Series A-2 Warrants and (y) the
Series B-1 Preferred Stock issuable upon conversion of the Series B-1 Warrants)
and Series C-1 Preferred Stock that the holders thereof shall have requested to
be included in such offering as an Incidental Registration to the full extent of
the remaining portion of the Underwriter's Maximum Number; and (iii) to the
extent not inconsistent with any registration rights hereafter granted by the
Company to holders of the Company's securities, the Company will be obligated
and required to include in such registration that number of shares of Founder
Stock requested to be included in such offering by the Founder Holders along
with other securities of the Company that shall have been requested by other
Persons having registration rights pursuant to one or more other registration
rights agreements with the Company. If the number of shares of Registrable
Securities requested to be included in an underwritten offering exceeds the then
remaining portion of the Underwriter's Maximum Number as provided in clauses (A)
and (B) of this Section 2(f), as the case may be, then the Holders whose
aggregate request so exceeds the then remaining portion of the Underwriter's
Maximum Number and who are then entitled to include shares up to such
Underwriter's Maximum Number in accordance with the priority established in
clauses (A) and (B) of this Section 2(f) may include shares of Registrable
Securities in such underwritten offering pro rata in accordance with the
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relative number of shares originally requested to be included in such offering
by such Holders in the writing delivered in accordance with Section 2(a) or
Section 2(b), as the case may be.
(g) Notwithstanding anything in this Section 2 to the contrary, the Company
shall have the right to delay any registration of Registrable Securities
requested pursuant to Section 2(a) for up to ninety (90) days if such
registration would, in the good faith judgment of the Company's Board of
Directors, substantially interfere with any material transaction being
considered at the time of receipt of the request from the Holders.
(h) Notwithstanding anything in this Agreement to the contrary, the Company
shall not be obligated to take any action to effect registration, qualification
or compliance with respect to its Registrable Securities:
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(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process unless the Company
is already subject to service in such jurisdiction and except as required by the
Securities Act;
(ii) that would require it to qualify generally to do business in any
jurisdiction which it is not already so qualified;
(iii) that would subject it to taxation in a jurisdiction in which it is
not already subject generally to taxation; or
(iv) during the period ending on the 180th day immediately following the
effective date of, any registration statement pertaining to securities of the
Company, provided that the Company is actively employing in good faith
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reasonable efforts to cause such registration statement to become effective.
3. Registration Procedures.
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(a) If and whenever the Company is required to use its diligent efforts to
effect the registration of any Registrable Securities under the Securities Act
as provided in Section 2, the Company, as expeditiously as possible and subject
to the terms and conditions of Section 2, will:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and use its diligent efforts to cause such
registration to become and remain effective; provided that before filing a
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registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish copies of all such documents proposed to be filed to
counsel selected by the holders of Registrable Securities covered by such
registration statement;
(ii) permit any Holder who, in the reasonable judgment of such Holder,
might be deemed to be an underwriter or a controlling person of the Company to
participate in the preparation of such registration statement;
(iii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of such time as all of 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 or the expiration of 180 days
after such registration statement becomes effective;
(iv) furnish to any Holder of Registrable Securities to be sold under
such registration statement (a "Rights Holder") such number of conformed copies
of such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as the purchaser or any Rights Holder may reasonably
request;
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(v) use its diligent efforts to register or qualify all Registrable
Securities covered by such registration statement under such state securities or
"blue sky" laws of such jurisdictions within the United States as any Rights
Holder or managing underwriter shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect, and take any other action that may be reasonably
necessary or advisable to enable the Rights Holder to consummate the disposition
thereof in such jurisdictions;
(vi) use its diligent efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other United States state governmental agencies or authorities as may be
necessary to enable the Rights Holder to consummate the intended disposition of
such Registrable Securities;
(vii) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such registration
statement for sale in any jurisdiction, use its diligent efforts promptly to
obtain the withdrawal of such order;
(viii) use its diligent efforts to furnish to the Rights Holders (1) an
opinion, dated the closing date of the sale of Registrable Securities pursuant
to the registration statement, of counsel to the Company for the purposes of
such registration, addressed to the underwriters, if any, and to the Holders
making such request, to the effect that (i) it has been advised by the
Commission that the registration statement has been declared effective by the
Commission under the Securities Act, (ii) to the diligent knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act; (iii) the registration statement, the
related prospectus and each amendment or supplement thereto, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements and schedules and
statistical data contained therein); (iv) no facts have come to the attention
of such counsel to cause such counsel to believe that the registration
statement (except for financial statements and schedules and statistical data)
or the prospectus, or any amendment or supplement thereto, at the time the
registration statement and the prospectus included therein became effective,
contained any untrue statement of a material fact or omitted a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; (v) the
descriptions in the registration statement or the prospectus, or any amendment
or supplement thereto, of all legal and governmental matters and contracts and
other legal documents or instruments provided to such counsel fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein; and (vi) such
counsel is not aware of any legal or governmental proceedings, pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the registration statement or prospectus,
or any amendment or supplement thereto, and are not so described or of any
contracts or documents or instruments that are required to be described in the
registration statement or prospectus, or any amendment or supplement thereto, or
to be filed as exhibits to the registration statement that are not described and
filed as required (such opinion of counsel shall
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additionally cover such legal matters with respect to the registration in
respect of which such opinion is being given as the Rights Holders may
reasonably request and may contain such qualifications and limitations as are
customarily included in opinions of such sort); and (2) a letter, dated the
effective date of the registration statement, from the independent certified
public accountants of the Company, addressed to the underwriters, if any, and to
the Rights Holders making such request, stating that they are independent
certified public accountants within the meaning of the Securities Act and that
in the opinion of such accountants, the financial statements and other financial
data of the Company included in the registration statement or the prospectus, or
any amendment or supplement thereto, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act (such letter
from the independent certified public accountants shall additionally cover such
other financial matters (including information as to the period ending not more
than five business days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as the Holders may
reasonably request);
(ix) promptly notify the Rights Holders at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of its
becoming aware of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
material fact or omits any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of the Holders,
promptly prepare and furnish to the Holders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
(x) otherwise use its diligent efforts to comply with all applicable
rules and regulations of the Commission;
(xi) make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first full
calendar month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(xii) not file any amendment or supplement to such registration
statement or prospectus to which any Holder shall have reasonably objected in
writing on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(xiii) provide a transfer agent, registrar and a CUSIP number for all
Registrable Securities covered by such registration statement as soon as
practicable after the effective date of such registration statement;
(xiv) use its diligent efforts to list all Registrable Securities covered
by such registration statement on any securities exchange on which any of the
Registrable Securities are then listed,
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or if not so listed, use its diligent efforts to cause such Registrable
Securities to be listed on the Nasdaq National Market or any national exchange;
and
(xv) enter into such customary agreements (including underwriting
agreements in customary form) in form and substance reasonably acceptable to the
Company and take all such actions as the Majority Initiating Holders or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares).
(b) The Company may require each Rights Holder to furnish the Company with
such information and undertakings regarding such Holder and the distribution of
such securities that is typically required to be provided by selling
stockholders as the Company may from time to time reasonably request in writing.
(c) Each Holder, by execution of this Agreement, agrees that (i) upon receipt
of any notice from the Company, or upon such Holder's otherwise becoming aware,
of the occurrence of any event of the kind described in subdivision (a)(ix) of
this Section 3, such Holder shall forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the receipt by such Holder of the copies of the
supplemented or amended prospectus contemplated by subdivision (a)(ix) of this
Section 3 and, if so directed by the Company, shall deliver to the Company all
copies of the prospectus relating to such Registrable Securities, other than
permanent file copies, then in possession of the Holders and (ii) it shall
immediately notify the Company, at any time when a prospectus relating to the
registration of such Registrable Securities is required to be delivered under
the Securities Act, of the occurrence of any event as a result of which
information previously furnished by such Holder to the Company for inclusion in
such prospectus contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made. In the event the Company or any such Holder shall give any such
notice, the period referred to in subdivision (a)(iii) of this Section 3 shall
be extended by a number of days equal to the number of days during the period
from and including the giving of notice pursuant to subdivision (a)(ix) of this
Section 3 to and including the date when such Holder shall have received the
copies of the supplemented or amended prospectus contemplated by subdivision
(a)(ix) of this Section 3.
4. Underwritten Offerings.
----------------------
(a) Underwritten Offering. In connection with any underwritten offering
---------------------
pursuant to a Requested Registration, the Company shall enter into an
underwriting agreement with the underwriters for such offering in form and
substance reasonably satisfactory to the Majority Initiating Holders and such
underwriters in their reasonable judgment, such agreement to contain such
representations and warranties by the Company and such other terms as are
customarily contained in agreements of that type, including, without limitation,
indemnities to the effect and to the extent provided in Section 8. Each Holder
participating in such underwritten registration shall be a party to such
underwriting agreement and may, at such Holder's option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of each such Holder and that any or all of the conditions
precedent to the obligations of such
-11-
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holder. No Holder participating in any such underwritten
registration shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder and its intended method of
distribution and any other representation required by law.
(b) Selection of Underwriters. If a Requested Registration involves an
-------------------------
underwritten offering, then the Company shall select the underwriter from among
underwriting firms of national reputation, subject to the consent of the
Majority Initiating Holders, which consent shall not be unreasonably withheld.
(c) Holdback Agreements. (i) Each Holder agrees, if so requested by the
-------------------
managing underwriter in each underwritten registration of the Company's capital
stock or other securities described in Section 2(a) and Section 2(b), to sign an
agreement not to effect (except as part of such underwritten registration in
accordance with the provisions hereof) any sale, distribution, short sale, loan,
grant of options for the purchase of, or otherwise dispose of, any Registrable
Securities for such period as such underwriter requests, such period in no event
to commence earlier than seven (7) days prior to, or to end more than (i) 180
days after an Initial Public Offering or (ii) 90 days after the effective date
of any other registration, provided that each Holder is treated on an equal
basis in being required to comply with such underwriter's request.
(ii) The Company agrees, if so requested by the managing underwriter in
each underwritten registration of the Company's capital stock or other
securities described in Section 2(a), to sign an agreement not to effect (except
as part of such underwritten registration in accordance with the provisions
hereof) any sale, distribution, short sale, loan, grant of options for the
purchase of, or otherwise dispose of, any Registrable Securities for such period
as such underwriter requests, such period in no event to commence earlier than
seven (7) days prior to, or to end more than 180 days after, the effective date
of such Requested Registration.
5. Preparation, Reasonable Investigation.
-------------------------------------
In connection with the preparation and filing of each registration statement
under the Securities Act, the Company will give the Holders of Registrable
Securities to be sold under such registration statement, the underwriters, if
any, and their respective counsel and accountants, advance draft copies of such
registration statement and each prospectus included therein or filed with the
Commission at least 5 business days prior to the filing thereof with the
Commission, and any amendments and supplements thereto promptly as they become
available, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the reasonable opinion of such Holders and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
6. Controlling Stockholders Rights.
-------------------------------
If any registration statement prepared in connection with a Requested
Registration or an Incidental Registration refers to any holder by name or
otherwise as the holder of any securities
-12-
of the Company and if, in such holder's sole and exclusive judgment, such holder
is or might be deemed to be a controlling person of the Company, such holder
shall have the right to require (i) the insertion therein of language, in form
and substance satisfactory to such holder and presented to the Company in
writing and reasonably acceptable to the Company, to the effect that the holding
by such holder of such securities is not to be construed as a recommendation by
such holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such holder will assist in
meeting any financial requirements of the Company, or (ii) in the event that
such reference to such holder by name or otherwise is not required by the
Securities Act or any similar Federal statute then in force, the deletion of the
reference to such holder to the extent not required thereby.
7. Withdrawal of Requested Registration.
------------------------------------
A Requested Registration may only be withdrawn upon the request of the
Majority Initiating Holders with respect to such Requested Registration.
8. Indemnification and Contribution.
--------------------------------
(a) Indemnification by the Company. In the event of any registration under
------------------------------
the Securities Act pursuant to Section 2 of any Registrable Securities, the
Company shall indemnify and hold harmless each Holder of Registrable Securities
to be sold pursuant to such registration statement, its directors, officers and
each Person, if any, who controls any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, each other
Person who participates as an underwriter or a Qualified Independent
Underwriter, if any, in the offering or sale of such securities (if so required
by such underwriter as a condition to including the Registrable Securities of
the Holders in such registration), and each Person, if any, who controls any
such underwriter or Qualified Independent Underwriter, within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively, the "Indemnified Parties"), from and against any losses, claims,
damages or liabilities, joint or several, arising out of, based upon or caused
by any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, or any preliminary prospectus, final
prospectus or summary prospectus contained therein or any document incorporated
therein by reference, or any amendment or supplement thereto, or arising out of,
based upon or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading or
arise out of any violation by the Company of any rule or regulation promulgated
under the Securities Act or state securities law applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, except (i) with respect to a Holder insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Holder furnished to the Company in writing by such Holder specifically
for use therein or (ii) with respect to an Underwriter insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such underwriter or Qualified Independent Underwriter furnished to the
Company in writing by such underwriter or Qualified Independent Underwriter
specifically for use therein, and the Company will reimburse the Indemnified
Parties for any legal or any other expenses reasonably
-13-
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, that the foregoing indemnity
--------
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Registrable Securities or any person
controlling such underwriter, if a copy of the Final Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Registrable Securities to such person.
(b) Indemnification by the Holders. The Company may require, as a condition
------------------------------
to including any Registrable Securities of any person or entity in any
registration statement filed pursuant to Section 2, that the Company shall have
received an undertaking reasonably satisfactory to it from such person or entity
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 8) the Company, each director of the
Company, each officer who has signed the registration statement and each other
Person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement or any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto,
if, and only if, such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such person or entity specifically for use therein.
The obligation of any Holder hereunder is a separate obligation of each Holder
and is not a joint obligation with any other holder of Registrable Securities
and shall be limited to an amount equal to the net proceeds received by such
Holder from the sale of Registrable Securities in the offering covered by such
registration, unless such liability arises out of or is based upon such Holder's
willful misconduct.
(c) Indemnification Procedures. Promptly after receipt by an Indemnified
--------------------------
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 8, such
Indemnified Party shall, if a claim in respect thereof is to be made against a
party required to provide indemnification (an "Indemnifying Party"), give
written notice to the latter of the commencement of such action; provided,
--------
however, that the failure of any Indemnified Party to give notice as provided
-------
herein shall not relieve the Indemnifying Party of its obligation under the
preceding subdivisions of this Section 8, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, the Indemnifying
Party shall be entitled to participate in and to assume the defense thereof,
jointly with any other Indemnifying Party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party shall not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties)
-14-
include both the Indemnifying Party and the Indemnified Party and representation
of both parties by the same counsel would be, in the reasonable judgment of the
Indemnified Party, inappropriate due to actual differing interests between them.
It is understood that the Indemnifying Party shall not, in respect of the legal
expenses of any Indemnified Party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
underwriters and all persons, if any, who control any underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm (in addition to any local counsel) for any Holders and all
Persons, if any, who control any Holder within the meaning of either such
Section. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent will not be
unreasonably withheld, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the consent of the
Indemnified Party, effect the settlement or compromise of, or consent to entry
of any judgment or enter into any settlement with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of the Indemnified Party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any Indemnified Party.
(d) Other Indemnification. Indemnification similar to that specified in the
---------------------
preceding subdivisions of this Section 8 (with appropriate modifications) shall
be given by the Company and each Holder of Registrable Securities included in
any registration statement with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority, other than the Securities Act.
(e) Indemnification Payment. The indemnification required by this Section 8
-----------------------
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(f) Survival of Obligations. The obligations of the Company and of the
-----------------------
Holders under this Section 8 shall survive the completion of any offering of
Registrable Securities in accordance with this Agreement and will 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.
(g) Contribution. If the indemnification provided for in this Section 8 is
------------
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable to such
Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in this Section 8 an amount or additional amount, as the case may
be, in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party
-15-
or Indemnifying Parties on the one hand and the Indemnified Party on the other
in connection with the statements or omissions which resulted in such losses,
claims, demands or liabilities as well as any other relevant equitable
considerations. With respect to contribution required pursuant to this Section
8(g), the relative fault 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 Indemnifying Party or Indemnifying Parties on the one hand or
the Indemnified Party on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid to an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this Section 8(g) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any action or claim which is the subject of this Section 8.
Notwithstanding the provisions of this Section 8(g), an indemnified holder of
Registrable Securities shall not be required to contribute any amount in excess
of the amount by which the net proceeds to such holder of Registrable Securities
from the sale thereof exceed the amount of damages which such indemnified holder
has otherwise been required to pay pursuant to Section 8(a) or Section 8(b), as
applicable, by reason of any 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.
If indemnification is available under Section 8(a) or Section 8(b), an
indemnifying party shall indemnify an indemnified party to the full extent
provided in Section 8(a) or Section 8(b), as applicable, without regard to the
equitable considerations provided for in the immediately preceding paragraph.
9. Covenants Relating to Rule 144.
------------------------------
With a view to making available the benefits of certain rules and regulations
of the Commission which may at any time permit the sale of securities of the
Company to the public without registration after such time as a public market
exists for the Common Stock of the Company, the Company agrees:
(a) to make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
(b) to use its diligent efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements; and
(c) so long as a Holder owns any Registrable Securities, to furnish to the
Holder forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
90 days after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public) and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such
-16-
reporting requirements) or that it qualifies as a registrant whose securities
may be resold pursuant to a Short-Form Registration Statement (at any time after
it so qualifies), (ii) a copy of the most recent annual or quarterly report of
the Company filed with the Commission and (iii) such other reports and documents
of the Company as a Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing a Holder to sell any such securities
without registration.
10. Other Registration Rights.
-------------------------
The Company represents and warrants that it has not granted any registration
rights to any Person. The Company shall not grant to any Person any registration
rights more favorable than or inconsistent with any of those contained herein,
so long as any of the registration rights under this Agreement remain in effect.
11. Miscellaneous.
-------------
(a) Specific Performance. The parties hereto acknowledge that there may be no
--------------------
adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement.
(b) Notices. All demands, requests, notices and other communications required
-------
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by United States
first class mail (registered, return receipt requested) properly addressed and
postage prepaid:
(i) If to the Company, to:
Chief Financial Officer
Diveo Broadband Networks, Inc.
0000 Xxx Xxxxxx Xxxxxx, X.X. - Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxxx, Esq.
Xxxxx & Xxxxxxx, L.L.P.
Columbia Square
000 Xxxxxxxxxx Xx., X.X.
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
-17-
(ii) if to the Holders, to their addresses set forth on Schedule 1 hereto,
with a copy, in the case of Holders of Series A-1 Preferred Stock, to:
Xxxxxxx X. Slap, Esq.
Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy, in the case of Holders of Series B-2 Preferred Stock, to:
F. Xxxxxxx Xxxxxxx, Esq.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
with a copy, in the case of Holders of Series C-1 Preferred Stock, to:
.
Such names, addresses and telecopy numbers may be changed by such notice.
Except as otherwise provided herein, all such demands, requests, notices and
other communications shall be deemed to have been received on the date of
personal delivery thereof or on the third business day after the mailing
thereof.
(c) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY
CONFLICTS OR CHOICE OF LAWS PROVISIONS THAT WOULD CAUSE THE APPLICATION OF THE
DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION).
(d) Headings. The descriptive headings of the several sections and paragraphs
--------
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement and shall not affect in any way the meaning or interpretation
of this Agreement.
(e) Entire Agreement; Amendments. This Agreement and the other writings
----------------------------
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter.
This Agreement terminates, restates and supersedes all prior agreements and
understandings between the parties with respect to its subject matter, including
the Original Registration Rights Agreement. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the Holders of not less than
85% of the Registrable Securities. Each Holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by an amendment
-18-
or waiver authorized by this Section 11(e), whether or not any such Registrable
Securities shall have been marked to indicate such consent.
(f) Assignability. This Agreement and all of the provisions hereof will be
-------------
assigned, without the consent of the Company, by any Holder to, and shall inure
to the benefit of, any purchaser, transferee or assignee of any Registrable
Security, unless the Holder specifies otherwise in connection with particular
transfers of Registrable Securities. However, the Company shall not be required
to recognize any such purchaser, transferee or assignee as a Holder under this
Agreement unless and until either (i) such person becomes the holder of record
of Registrable Securities or (ii) the Company receives written notice of such
purchase, transfer or assignment.
(g) Counterparts. This Agreement may be executed in two or more counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(h) Adjustments Affecting Registrable Securities. Unless failure to do so
--------------------------------------------
would have a material adverse effect on the Company or its subsidiaries, the
Company will not take any action, or permit any change to occur, with respect to
its securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
-19-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CORPORATION:
DIVEO BROADBAND NETWORKS, INC.
By:______________________________
Name:
Title:
NEW INVESTORS:
NEWBRIDGE DIGINET INVESTORS, L.P.
By: Newbridge Diginet GP, L.P.
By: Newbridge Diginet GenPar, LLC
By:___________________________________
Name:
Title:
XXXXX XXXXXXXXXX
________________________________________
EXISTING HOLDERS OF 85% OR MORE OF THE REGISTRABLE
SECURITIES:
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors, L.P., general partner of
GS Capital Partners III, L.P.
By: GS Advisors, Inc., general partner of
GS Advisors, L.P.
By:__________________________________________
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III (Cayman), L.P., its general
partner
By: GS Advisors III, L.L.C., its general partner
By:__________________________________________
Name:
Title:
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
By:__________________________________________
Name:
Title:
and
By:__________________________________________
Name:
Title:
STONE XXXXXX XXXX 0000, X.X.
By: Stone Street 1999 Corp.,
its general partner
By:_______________________________________
Name:
Title:
BOOTH AMERICAN COMPANY
By:_______________________________________
Name:
Title:
COLUMBIA MANAGEMENT, INC.
By:_______________________________________
Name:
Title:
ALTA COMMUNICATIONS VII, L.P.
By: Alta Communications VII Managers L.L.C,
its Manager
By:_______________________________________
Name:
Title:
ALTA COMMUNICATIONS VI, LP
By: Alta Communications VI Management Partners,
L.P., its general partner
By:_______________________________________
Name:
Title:
ALTA COMM S BY S, LLC
By:_______________________________________
Name:
Title:
NORWEST EQUITY CAPITAL, L.L.C.
By:_______________________________________
Name:
Title:
ONELIBERTY FUND IV, L.P.
By: OneLiberty Partners IV, L.L.C.,
its general partner
By:_______________________________________
Name:
Title:
ONELIBERTY ADVISORS FUND IV, L.P.
By: OneLiberty Partners IV, L.L.C.,
its general partner
By:_______________________________________
Name:
Title:
NAZCA LIMITED PARTNERSHIP
By:_______________________________________
Name:
Title:
SOMERVILLE AND COMPANY
By:_______________________________________
Name:
Title:
NORWEST BANK COLORADO, N.A.,
TRUSTEE OF THE SOMERVILLE & CO.
PROFIT SHARING PLAN, FBO
XXXXX XXXXXXXXXX
By:_______________________________________
Name:
Title:
XXXXX XXXXXXX
________________________________________
XXXXXX X. XXXXXXX
________________________________________
XXXX XXXXXXXXXX
_________________________________________
XXXXXXX X. XXXXXXX
________________________________________
XXXXXX FARM PARTNERSHIP
By:_______________________________________
Name:
Title:
XXXXXXX X. XXXXXXXXX
________________________________________
XXXX XXXXXXX
________________________________________
XXXXXXX X. AND XXXX X. XXXX, JTWROS
By:_______________________________________
Name:
Title:
KETTLE PARTNERS, LP
By:_______________________________________
Name:
Title:
XXXXXX X. XXXXXXXXX
________________________________________
XXXXX X. XXXXXXXXXX
________________________________________
XXXXXXX CAPITAL, LLC
By:_______________________________________
Name:
Title:
XXXXXXX X. XXXXXXX REVOCABLE TRUST, UA DTD 6/27/90
By:_______________________________________
Name:
Title:
XXXX XXXXXXX
________________________________________
FRANCAREP
By:_______________________________________
Name:
Title:
DIGINET DEVELOPMENT, L.L.C.
By:________________________________________
Name:
Title:
XXXXX XXXXXX
___________________________________________
DIGITAL VENTURES, LTD.
By:
Name:___________________________________
Title:
BT ALEX. XXXXX C/F XXXXX X. XXXXXX
XXXX CNV DTD 4/24/98
By:________________________________________
Name:
Title:
BT ALEX. XXXXX C/F XXXXX XXXX XXXXXX
Xxxx CNV DTD 4/24/98
By:________________________________________
Name:
Title:
XXXXXXXX X. XXXXXX REVOCABLE TRUST
By:_______________________________________
Name:
Title:
JAKER INC.
By:_______________________________________
Name:
Title:
XXXXXX. L.P.
By:_______________________________________
Name:
Title:
BT ALEX. XXXXX C/F XXXXXXXX XXXXXXX
XXXXXX XXXX CNV DTD 4/21/98
By:_______________________________________
Name:
Title:
BT ALEX. XXXXX C/F XXXXX XXXX XXXXXX
XXXX CNV DTD 4/24/98
By:_______________________________________
Name:
Title:
BT ALEX. XXXXX C/F XXXXX XXXX XXXXXX
XXXX CNV DTD 5/1/98
By:_______________________________________
Name:
Title:
BT ALEX. XXXXX C/F XXXXXXX XXXX
XXXXXX XXXX CNV DTD 4/28/98
By:_______________________________________
Name:
Title:
MERITAGE PRIVATE EQUITY FUND, L.P.
By:_______________________________________
Name:
Title:
MERITAGE PRIVATE EQUITY PARALLEL FUND, L.P.
By:_______________________________________
Name:
Title:
MERITAGE ENTREPRENEURS FUND, L.P.
By:_______________________________________
Name:
Title:
SCHEDULE I
----------
List of Holders
---------------
Name and Address of Holder
--------------------------------------------------------
STOCKHOLDERS THAT ARE NOT EXISTING
INVESTORS:
Newbridge Diginet Investors, L.P.
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
(000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
with a copy to:
Newbridge Latin America, L.P.
Newbridge Andean Partners L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxxxx
-and-
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Xxxxx Xxxxxxxxxx
000 Xxxx 00/xx/ Xxxxxx
Xxxxxx XX 00000-0000
EXISTING INVESTORS THAT ARE NOT FOUNDING INVESTORS:
GS Capital Partners III, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn.: Xxxxxx Xxxxxx
I-1
GS Capital Partners III, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn.: Xxx Xxxxx
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn.: F. Xxxxxxx Xxxxxxx
GS Capital Partners III Offshore, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxxxxx Xxxx 0000, L.P
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Booth American Company
Suite 1230
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx
Columbia Management, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxx
I-2
Alta Communications VII, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Bus.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxx
Xxxx Communications VI, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Bus.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxx
Xxxx Comm S by S, LLC
Xxx Xxxxxxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
Bus.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxx
Norwest Equity Capital, L.L.C.
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
000-000-0000 Ext. 231
OneLiberty Fund IV, L.P.
c/o OneLiberty Ventures, Inc
000 Xxxxxxxxx Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Bus.: (000) 000-0000
Tel.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
OneLiberty Advisors Fund IV, L.P.
c/o OneLiberty Ventures, Inc
000 Xxxxxxxxx Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Bus.: (000) 000-0000
Tel.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
I-3
NAZCA Limited Partnership
c/o Rothschild Trust Cayman Limited
Anchorage Centre, Second Floor
P. O. Box 30715 SMB
Harbour Drive
Xxxxxx Town, Grand Cayman
British West Indies
Attn: Xxxxxxx Xxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
c/x Xxxxxxxxxx North America, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Somerville and Company
Attn: Xxxxx Xxxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Tel.: (000) 000-0000 Ext. 108
Norwest Bank Colorado, N.A.,
Trustee of the Somerville & Co.
Profit Sharing Plan, FBO Xxxxx Xxxxxxxxxx
Norwest Investment Management Trust
0000 Xxxxxxxx
Xxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax.: (000) 000-0000
Attn.: Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Advisors, LLC
000 Xxxxxx Xxxx Xx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
I-4
Meritage Private Equity Fund, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Attn: Xxxx Xxxxxxx
Meritage Private Equity Parallel Fund, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Attn: Xxxx Xxxxxxx
Meritage Private Equity Entreprenuers Fund, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Attn: Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
c/x Xxxxxx Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Xxxx Xxxxxxxxxx
c/o Insignia/ESG, Inc. Real Estate
000 00/xx/ Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxx X. Xxxxxxx
c/o IPEM Associates
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
I-5
Xxxxxx Farm Partnership
c/o Lazard Freres & Co. LLC
Attn: Xxxxxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Xxxxxxx X. Xxxxxxxxx
c/o LTS Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Tel.: (000) 000-0000
Xxxx Xxxxxxx
c/o U.S. Franchise Systems, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Tel.: (000) 000-0000
Xxxxxxx X. and Xxxx X. Xxxx, JTWROS
0000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Tel.: (000) 000-0000
Kettle Partners, L.P.
Attn: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Tel.: (000) 000-0000
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Tel.: (000) 000-0000
Xxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Xxxxxxx Capital, LLC
c/o Xxxxxxx Xxxxxxx
000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Tel.: (000) 000-0000
I-6
Xxxxxxx X. Xxxxxxx Revocable Trust U/A DTD 6/27/90
c/o IPEM Associates
Attn: Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx
XxXxxx, XX 00000
Tel.: (000) 000-0000
Xxxx Xxxxxxx
c/o Coherent Communications
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Tel.: (000) 000-0000
FRANCAREP
Attn: Xxxxxxx Xxxxxxx
00, xxxxxx xxx Xxxxxx-Xxxxxxx
00000
Xxxxx, Xxxxxx
Tel: 00-0-00-00-00-00
Fax: 00-0-00-00-00-00
with a copy to:
Xxxxxx X. Xxxxx
c/o Rothschild North America, Inc.
Suite 940
1251 Avenue of the Americas
Xxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
EXISTING INVESTORS THAT ARE FOUNDING INVESTORS:
Diginet Development, L.L.C.
0000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000)-000-0000
Fax: (000)-000-0000
Attn.: Xxxxx Xxxxxx
I-7
Xxxxx Xxxxxx
c/o Diginet Americas, Inc.
0000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Diginet Ventures, Ltd.
0000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000)-000-0000
Fax: (000)-000-0000
Attn.: Xxxxx Xxxxxx
BT Xxxx. Xxxxx c/f Xxxxx X. Xxxxxx Xxxx CNV DTD
4/24/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
BT Alex. Xxxxx c/f Xxxxx Xxxx
Xxxxxx Xxxx CNV DTD 4/24/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
I-8
Xxxxxxxx X. Xxxxxx Revocable Trust
000 X. Xxxxxxx #000
Xx. Xxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxxxxx Xxxxxx
Jaker Inc.
000 X. Xxxxxxx #000
Xx. Xxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxxxxx Xxxxxx
Xxxxxx, X.X.
000 X. Xxxxxxx #000
Xx. Xxxxx, XX 00000
Tel.: (000) 000-0000
Fax (000) 000-0000
BT Alex. Xxxxx c/f Xxxxxxxx Xxxxxxx Xxxxxx Xxxx
CNV DTD 4/21/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
BT Alex. Xxxxx c/f Xxxxx Xxxx Xxxxxx Xxxx CNV DTD
4/21/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
I-9
BT Alex. Xxxxx c/f Xxxxx Xxx Xxxxxx Xxxx CNV DTD
5/1/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
BT Alex. Xxxxx c/f Xxxxxxx Xxxx Xxxxxx Xxxx CNV
DTD 4/28/98
c/o BT Alex. Xxxxx & Sons, Inc.
0000 Xxx Xxxx Xxx., XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn.: Xxxxx X. Xxxxxxxxxx
X-00
