Exhibit 10.25
Confidential treatment has been requested for portions of this document.
Redacted material is identified by double asterisks (i.e. "**"). The
redacted material has been filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
INTERNET PROMOTION AGREEMENT
THIS AGREEMENT, dated as of August 31, 1999 (the "Effective Date"), is
made by and between XxxxXxxxx.xxx, Inc., a Delaware corporation, ("InfoSpace"),
with offices at 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000, and Delphi Information
Systems, Inc. a Delaware corporation ("Company"), with offices at 0000 Xxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxx, XX, 00000.
RECITALS
This Agreement is entered into with reference to the following facts:
A. InfoSpace maintains on certain locations of its Web Sites (as defined
below) and makes available to Internet users certain content, resources,
archives, indices, catalogs and collections of information (collectively,
"Content").
B. Company wishes to have InfoSpace to post and maintain on the InfoSpace
Web Sites certain advertising and promotional placements, in exchange for
payment to InfoSpace of certain cash consideration and Company Warrants
representing shares of the common stock of the Company, as set forth herein and
in Exhibit B.
C. Company and InfoSpace have entered into related agreements of even
dates herewith, including an Internet Infospace Content (World Wide Web Site)
Distribution Agreement ("Cobrand Agreement") and Content Provider Agreement
("Content Agreement").
AGREEMENT
The parties agree as follows:
Section 1. Definitions.
As used herein, the following terms have the following defined meanings:
"Company Marks" means those Trademarks of Company set forth on Exhibit A
hereto and such other Trademarks (if any) as Company may from time to time
notify InfoSpace in writing to be "Company Marks" within the meaning of this
Agreement.
"Company Web Sites" means, collectively, all Web Sites maintained by or on
behalf of Company and its affiliates.
"Impression" means a user's viewing of any discrete screen of any
InfoSpace Web Site on which a Promotional Placement is displayed.
"InfoSpace Web Sites" means, collectively: (a) the Web Site the primary
home page of which is located at xxxx://xxx.xxxxxxxxx.xxx; and (b) other Web
Sites maintained by InfoSpace and its affiliates.
"Intellectual Property Rights" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"Person" means any natural person, corporation, partnership, limited
liability company or other entity.
-1-
"Promotional Placement" means any banner advertisement, button or other
Website-based promotional placement specified on Exhibit B.
"Trademarks" means any trademarks, service marks, trade dress, trade
names, corporate names, proprietary logos or indicia and other source of
business identifiers.
"Web Site" means any point of presence maintained on the Internet or on
any other public data network. With respect to any Website maintained on the
World Wide Web, such Website includes all HTML pages (or similar unit of
information presented in any relevant data protocol) that either (a) are
identified by the same second-level domain (such as xxxxxxxxx.xxx) or by the
same equivalent level identifier in any relevant address scheme, or (b) contain
branding, graphics, navigation or other characteristics such that a user
reasonably would conclude that the pages are part of an integrated information
or service offering.
2. Certain Rights Granted
2.1 Company Grant. Subject to the terms and conditions of this Agreement,
Company hereby grants InfoSpace the right to: (a) post and maintain Promotional
Placements on the InfoSpace Web Sites; and (b) use, reproduce, publish, perform
and display the Company Marks on the InfoSpace Web Sites in connection with the
posting of Promotional Placements and in promotional and marketing materials,
content directories and indices, and electronic and printed advertising,
publicity, press releases, newsletters and mailings about InfoSpace. Company
acknowledges and agrees that InfoSpace may upon written notice to Company delete
or refuse to post all or any portions of any Promotional Placements if InfoSpace
deems the same to be "unsuitable" (defined as, adult content, alcohol products,
tobacco products, violence, obscene, pornographic, libelous, defamatory,
infringing of any third party Intellectual Property Rights, invasion of privacy
or publicity or highly offensive or immoral) for posting on the InfoSpace Web
Sites. In consultation with Company, InfoSpace may alter or modify all or any
portion of any Promotional Placements if InfoSpace deems the same to be
unsuitable, as defined above, for posting an the InfoSpace Web Sites.
2.2 Approval of Trademark Usage. InfoSpace shall nor use or exploit in any
manner any of the Company Marks except in the form delivered by Company in any
Promotional Placements or in such other manner and media as Company may consent,
which consent shall not be unreasonably withheld or delayed. InfoSpace shall not
be deemed to be in breach of this Agreement (including by reason of any failure
to deliver any guaranteed Impressions) by reason of any delay in or failure by
the Company to timely approve any proposed usage or exploitation of any Company
Marks by InfoSpace. InfoSpace acknowledges and agrees that Company may request,
upon written notice to InfoSpace, that its Promotional Placements be removed
from a Web Site should that Web Site contain content or material deemed
unsuitable (as defined above) by Company, and InfoSpace shall use its
commercially best efforts to remove the Promotional Placement from such Web Site
as soon as possible, but in no event in less than two(2) business days.
2.3 Nonexclusivity. Each party acknowledges and agrees that the rights
granted to the other party in this Section 2 are non-exclusive, and that,
without limiting the generality of the foregoing, nothing in this Agreement
shall be deemed or construed to prohibit either party from participating in
similar business arrangements as those described herein including soliciting
third party advertisements or other materials, serving advertisements or other
materials to third parties' Web Sites, or hosting or permitting third parties to
place advertisements on such party's Web Site, whether or not, in each such
case, such advertisements are competitive with the products, services or
advertisements of the other party.
3. Certain Obligations of the Parties.
3.1 Promotional Placements. Company, in consultation with InfoSpace, shall
design and deliver in InfoSpace the Promotional Placements called for by Exhibit
B. InfoSpace shall be entitled to
-2-
reject or require modification of any proposed Promotional Placements if, in its
sole discretion, it determines that such Promotional Placements are unsuitable
for posting on the InfoSpace Web Sites. During the Term, InfoSpace will post and
maintain approved Promotional Placements on the InfoSpace Web Sites. Except as
otherwise specified on Exhibit B, the positioning and prominence of all
Promotional Placements shall be determined by InfoSpace in its sole discretion.
3.2 Accessibility of Web Sites. Each party will use commercially
reasonable efforts to ensure accessibility of its Web Sites in accordance with
industry standards.
3.3 Impression Information. InfoSpace shall track and use commercially
reasonable efforts to allow the Company to remotely access in electronic form
information maintained by InfoSpace concerning the number of Impressions
delivered. Within thirty (30) days after the end of each quarter during the
Term, InfoSpace shall deliver to Company a report of the Impressions delivered
in the preceding quarter.
3.4 Publicity. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld or
delayed). Neither party shall disclose the terms of this Agreement to any third
party other than its outside counsel, auditors, and financial advisors, except
as required by law. The parties will agree as to the timing, content and
discloser of the initial public announcement concerning the Agreement.
4. Payments.
4.1 Remuneration.
a. Dollar Fees: Company will pay InfoSpace the dollar amounts as set
forth on Exhibit B. Unless explicitly stated on Exhibit B, all amounts
payable Agreement shall be denominated in United States dollars and
Company will pay all amounts payable under this Agreement in lawful money
of the United States.
b. Warrant; Vesting: Company shall grant to InfoSpace a warrant (the
"Warrant") to purchase 250,000 shares of the Company's common stock for a
price of $15 per share (subject to adjustment as provided in Exhibit C).
The Warrant shall vest quarterly commencing on September 30, 1999 and
shall have an exercise period of one year commencing one year from the
Effective Date. The terms of the Warrant shall be substantially as set
forth in the form of warrant attached hereto as Exhibit C.
c. Conversion of Monthly Fees: Company shall grant InfoSpace a
warrant (the "Conversion Warrant") to purchase shares of Common Stock
(subject to adjustment) by the application of some or all of the Monthly
Fees and Revenue Share (as defined in Exhibit B) to be paid by Company to
InfoSpace pursuant to this Agreement, the Banner Advertising Revenue to be
paid by Company to InfoSpace pursuant to the Cobrand Agreement and the
Link Revenue Share to be paid by Company to InfoSpace pursuant to the
Content Agreement (the Monthly Fees, Revenue Share, Banner Advertising
Revenue and Link Revenue Share are referred to herein, collectively, as
the "Fees"), provided that InfoSpace shall not be entitled to acquire more
than 4.9% shares of Common Stock of the Company on a fully diluted basis
not including this Conversion Warrant and the Warrant. The exercise price
of the Conversion Warrant (which will be subject to adjustment in
accordance with the terms thereof) will be $15 per share for the first
year of this Agreement and $20 per share for the second year. InfoSpace
shall invoice the Company at the end of each calendar quarter for that
quarter's Fees and shall elect whether to take Fees in cash or to use them
in exercise the Conversion Warrant at the time it provides Company with
such invoice. The terms of the Conversion Warrant shall be substantially
as set forth in the form of warrant
-3-
attached hereto as Exhibit D. InfoSpace shall be entitled to the
registration rights set forth in Exhibit E hereto with respect to the
shares issued upon exercise of the Warrant and the Conversion Warrant,
provided that, as a result of the exercise of the Conversion Warrant and
the Warrant, InfoSpace shall not be entitled to acquire an aggregate
number of shares which is more than 4.9% of the shares of Common Stock of
the Company outstanding on the date hereof (on a fully diluted basis not
including the Conversion Warrant and the Warrant).
4.2 Records and Audit; Late Payments. During the Term, InfoSpace shall
maintain records of Impressions delivered pursuant to this Agreement. Company
**, and upon ** advance notice to InfoSpace, shall have the right once each
year during the Term to examine or audit such records in order to verify the
figures reported in any quarterly report. In the event that any such audit
shall reveal an underdelivery of more than ** of the guaranteed number of
Impressions for any quarter, Company shall have the right to conduct an
additional audit during the year, and InfoSpace shall be responsible to pay
the reasonable cost of an audit which determined the discrepancy of more than
**. Any such audit shall be conducted, to the extent possible, in a manner
that does not interfere with the ordinary business operations of InfoSpace.
5. Warranties, Indemnification and Limitation of Direct Liability.
5.1 Warranties
Each party represents and warrants to the other that:
a) it has the full corporate right, power and authority to enter into
this Agreement and to perform the acts required of it hereunder;
b) its execution of this Agreement and performance of its obligations
hereunder, do not and will not violate any agreement to which it is
a party or by which it is bound; and
c) when executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of such party, enforceable
against it in accordance with its terms.
d) Each party will perform its obligations under this Agreement in a
timely manner as contemplated by this Agreement.
5.2 Indemnification. Each party (the "Indemnifying Party") will defend,
indemnify and hold harmless the other party (the "Indemnified Party"), and the
respective directors, officers; employees agents and its successors and assigns
of the Indemnified Party, from and against any and all claims, costs, losses,
damages, judgments and expenses (including reasonable attorneys' fees) arising
out of or in connection with any third-party claim alleging any breach of such
party's representations or warranties or covenants set forth in this Agreement.
In addition, Company (as the Indemnifying Party) shall defend, indemnify and
hold harmless InfoSpace from and against any and all claims, costs, losses,
damages, judgments and expenses (including reasonable attorneys' fees) arising
out of or in connection with any third-party claim alleging that any Promotional
Placements, any other materials or content provided by Company to InfoSpace, or
the Company Web Site, contain any material that adult content, alcohol products,
tobacco products, violence obscene, pornographic, libelous defamatory,
infringing of any third party Intellectual Property Rights, invasion of privacy
or publicity or highly offensive or immoral. Additionally, InfoSpace (as the
Indemnifying Party) shall defend, indemnify and hold harmless Company from and
against any and all claims, costs, losses, damages, judgments and expenses
(including reasonable attorneys' fees) arising out of or in connection with any
third-party claim alleging that materials or content (other than Company's) on
InfoSpace Web Site, contain any material that adult content, alcoholic products,
tobacco products, violence obscene, pornographic, libelous defamatory,
infringing of any third party Intellectual Property Rights, invasion of privacy
or publicity or highly offensive or immoral. The Indemnified Party agrees that
the Indemnifying Party shall have sole and exclusive control over the defense
and settlement of any such third party claim. The Indemnified Party shall
promptly notify the Indemnifying Party of any such claim of
-4-
which it becomes aware and shall: (a) at the Indemnifying Party's expense,
provide reasonable cooperation to the Indemnifying Party in connection with the
defense or settlement of any such claim; and (b) at the Indemnified Party's
expense, be entitled to participate in the defense of any such claim. The
Indemnifying Party shall not acquiesce to any judgment or enter into any
settlement that adversely affects the Indemnified Party's rights or interests
without prior written consent of the Indemnified Party.
5.3 Limitation of Liability; Disclaimer.
(a) Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EITHER PARTY'S
LIABILITY, EXCEPT FOR CLAIMS RELATING TO INFRINGEMENT OF A PARTY'S INTELLECTUAL
PROPERTY RIGHTS (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE AND
NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED),
PRODUCT LIABILITY OR STRICT LIABILITY OF INFOSPACE) UNDER THIS AGREEMENT OR WITH
REGARD TO ANY OF THE PRODUCTS OR SERVICES RENDERED BY INFOSPACE UNDER THIS
AGREEMENT (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS
USED OR PROVIDED BY INFOSPACE OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING
THE CO-BRAND PAGES), THE INFOSPACE WEB SITES AND ANY OTHER ITEMS OR SERVICES
FURNISHED UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE COMPENSATION PAID BY
COMPANY TO INFOSPACE UNDER THIS AGREEMENT.
(b) No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.), AND EACH
PARTY HEREBY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE). IN
EACH CASE, REGARDING THEIR WEB SITES, ANY PRODUCTS OR SERVICES DESCRIBED
THEREON. ANY PROMOTIONAL PLACEMENTS, OR ANY OTHER ITEMS OR SERVICES PROVIDED
UNDER THIS AGREEMENT, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY
ACKNOWLEDGES THAT THE INFOSPACE WEB SITES AND THE CONTENT (INCLUDING ANY SERVERS
OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY INFOSPACE OR
ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE INFOSPACE WEB SITES OR THE
CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS" AND THAT
INFOSPACE MAKES NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB SITES IN
THEIR CURRENT FORM, THAT ITS WEB SITES WILL BE ACCESSIBLE WITHOUT INTERRUPTION,
THAT THE SITES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF THE OTHER PARTY, OR
THAT THE CONTENT OR ANY OTHER ANY MATERIALS ON ITS WEB SITES OR THE SERVERS AND
SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE ARE FREE FROM ERRORS, DEFECTS,
DESIGN FLAWS OR OMISSIONS.
6. Term and Termination
6.1 Term. The term of this Agreement is as set forth on Exhibit B.
6.2 Termination. (a) InfoSpace may terminate this Agreement upon not less
than 30 days' prior written notice to Company of any material breach of the
terms of this Agreement by Company, including Company's failure to pay
consideration to InfoSpace as provided herein, provided that Company has not
cured such material breach within such thirty (30) day period; (b) Company may
terminate this Agreement by prior written notice to Infospace of any material
breach of the terms of this Agreement by
-5-
Infospace, provided that InfoSpace has not cured such material breach within the
time period specified in this Agreement, or if no time period is so specified,
within thirty (30) days after written notice to InfoSpace of any material breach
of the terms of this Agreement by InfoSpace; or (c) if InfoSpace no longer
operate its website the primary home page of which is located at
xxxx://xxx.xxxxxxxxx.xxx. Either party may terminate this Agreement if the other
party ceases to conduct business in a normal course, becomes insolvent or is
declared bankrupt, merges or becomes amalgamated with another firm, person or
corporation which is a competitor of the terminating party.
6.3 Effect of Termination. Upon termination or expiration of the Term for
any reason, all rights and obligations of the parties under this Agreement shall
be extinguished, except that: (a) payment and remuneration obligations hereunder
up to the date of termination shall survive such termination or expiration; and
(b) the rights and obligations of the parties under Sections 4.2,, 5, 6, 7 and 8
shall survive such termination or expiration.
7. Intellectual Property.
7.1 Company. As between the parties, Company retains all right, title and
interest in and to the Company Web Sites and Promotional Placements (including,
without limitation, any and all content, data, URLs, domain names, technology,
software, code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
Content or other items supplied by InfoSpace) and the Company Marks along with
all Intellectual Property Rights associated with any of the foregoing. All
goodwill arising out of InfoSpace's use of any of the Company Marks shall inure
solely to the benefit of Company.
7.2 InfoSpace. As between the parties, InfoSpace retains all right, title
and interest in and to the Content and the InfoSpace Web Sites (including,
without limitation, any and all content, data, URLs, domain names, technology,
software, code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
items supplied by Company) and the InfoSpace Marks, along with all Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of Company's use of any of the InfoSpace Marks shall inure solely to the benefit
of InfoSpace.
7.3 Other Trademarks. InfoSpace shall not register or attempt to register
any of the Company Marks or any Trademarks which Company reasonably deems to be
confusingly similar to any of the Company Marks. Company shall not register or
attempt to register any of the InfoSpace Marks or any Trademarks which InfoSpace
reasonably deems to be confusingly similar to any of the InfoSpace Marks.
7.4 Further Assurances. Each party shall take, at the other party's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
8. General Provisions.
8.1 Confidentiality. Each party (the "Receiving Party") undertakes to
retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other party disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that each
party may disclose the terms and conditions of this Agreement to its immediate
legal and financial consultants in the ordinary course of its business. Each
party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. Both parties acknowledge that the terms of this Agreement are
Confidential Information. The foregoing restrictions shall not apply to any
information that: (a) was known by the Receiving Party prior to disclosure
thereof by the other party.
-6-
(b) was in or entered the public domain through no fault of the Receiving Party;
(c) is disclosed to the Receiving Party by a third party legally entitled to
make such disclosure without violation of any obligation of confidentiality; (d)
is required to be disclosed by applicable laws or regulations (but in such
event, only to the extent required to be disclosed and after notice is given to
the other party party with an opportunity to object); or (e) is independently
developed by the Receiving Party without reference to any Confidential
Information of the other party. Upon request of the other party, or an any event
upon any termination or expiration of the Term, each party shall return to the
other all materials, in any medium, which contain, embody, reflect or reference
all or any part of any Confidential information of the other party. Each party
acknowledges that breach of this provision by it would result in irreparable
harm to the other party, for which money damages would be an insufficient
remedy, and therefore that the other party shall be entitled to seek injunctive
relief to enforce the provisions of this Section 8.1.
8.2 Independent Contractors. Company and InfoSpace are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Company and InfoSpace. Neither party has any authority to enter into agreements
of any kind on behalf of the other party.
8.3 Assignment. Neither party may assign this Agreement or any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld; except that
either party may, without the other party's consent, assign this Agreement or
any of its rights or delegate any of its duties under this Agreement: (a) to any
affiliate of such party; or (b) to any purchaser of all or substantially all of
such party's assets or to any successor by way of merger, consolidation or
similar transaction. Subject to the foregoing, this Agreement will be binding
upon, enforceable by, and inure to the benefit of the parties and their
respective successors and assigns.
8.4 Choice or Law; Forum Selection. This Agreement shall be governed by,
and construed in accordance with, the laws of the jurisdiction of the defendant
without reference to its choice of law rules.
8.5 Nonwaiver. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving party.
8.6 Force Majeure. Neither party shall be deemed to be in default of or to
have breached any provision of this Agreement as a result of any delay, failure
in performance or interruption of service, resulting directly or indirectly from
acts of God, acts of civil or military authorities, civil disturbances, wars,
strikes or other labor disputes, fires, transportation contingencies,
interruptions in telecommunications or Internet services or network provider
services, failure of equipment and/or software, other catastrophes or any other
occurrences which are beyond such party's reasonable control.
8.7 Notices. Any notice or other communication required or permitted to be
given hereunder shall be given in writing and delivered in person, mailed via
confirmed facsimile or e-mail, or delivered by recognized courier service,
properly addressed and stamped with the required postage, to the individual
signing this Agreement on behalf of the applicable party at its address
specified in the opening paragraph of the agreement and shall be deemed
effective upon receipt. Either party may from time to time change the individual
to receive notices or its address by giving the other party notice of the change
in accordance with this section. In addition, a copy of any notice sent to
InfoSpace or Company, as applicable, shall also be sent to the following
address:
XxxxXxxxx.xxx, Inc. Delphi Information Systems, Inc.
00000 XX 00xx Xxxxxx 0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: 847/000-0000
Attention: General Counsel Attention: Legal Department
-7-
8.8 Integration. This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters contemplated hereby,
supersedes all previous agreements or negotiations between InfoSpace and Company
concerning the subject matter hereof, and cannot be amended except by a writing
signed by both parties.
8.9 Savings. In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the
remaining provisions shall remain in full force and effect. If any provision of
this Agreement shall, for any reason, be determined by a court of competent
jurisdiction to be excessively broad or unreasonable as to scope or subject,
such provision shall be enforced to the extent necessary to be reasonable under
the circumstances and consistent with applicable law while reflecting as closely
as possible the intent of the parties as expressed therein.
8.10 Counterparts; Electronic Signature. In the event any provision of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, the remaining provisions shall remain in full
force and effect. If any provision of this Agreement shall, for any reason, be
determined by a court of competent jurisdiction to be excessively broad or
unreasonable as to scope or subject, such provision shall be enforced to the
extent necessary to be reasonable under the circumstances and consistent with
applicable law while reflecting as closely as possible the intent of the parties
as expressed herein.
-8-
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
Delphi Information Services XxxxXxxxx.xxx, Inc.
--------------------------- -------------------
("Company") ("InfoSpace")
----------- -------------
By (signature) /s/ Xxxxx Xxxxx By (signature) /s/ Bernee X.X. Xxxxx
---------------------------------- ------------------------------------
Name XXXXX XXXXX Name BERNEE X.X. XXXXX
---------------------------------- ------------------------------------
Title PRESIDENT Title PRESIDENT & CEO
---------------------------------- ------------------------------------
EXHIBIT A
TRADEMARKS
Company Marks
-------------
ebix
xxxx.xxx
xxxx.xxx - The Electronic Brokers & Insurers Express
ebix.mall
xxxx.xxxx.xxx
xxxx.xxxx
xxxx.xxxx.xxx
xxxx.xxxxxxxxxxx
Internet Insurance Exchange
(as supplemented from time to time by Company)
-10-
EXHIBIT B
1. Promotional Placements. Subject to Section 3.1, Company will design and
deliver Promotional Placements, and InfoSpace shall integrate such Promotional
Placements which shall point to the Company Web Sites in the following areas of
the InfoSpace Web Sites:
a. Insurance Center. Promotions shall be placed within the "More Insurance
Services" area within InfoSpace's Insurance Center and shall include links for
auto, home, health and life insurance. InfoSpace shall place a rotating banner
advertisement on the Insurance Center home page and a rotating button within the
"Preferred Services" area within the Insurance Center.
b. InfoSpace Financial Center. InfoSpace shall provide a link within the
InfoSpace Finance Channel to co-branded content sponsored and provided by
Company. Such content will contain links to Company Web Sites.
c. Xxxxxxxx.xxx. InfoSpace shall place a rotating banner
advertisement within the "Top Picks" area of Xxxxxxxx.xxx.
d. Business Services. Promotions shall be placed within the
"Resources for Business Professionals" area within InfoSpace's
Business Services and shall include links for auto, home,
health and life insurance. InfoSpace shall place a rotating
banner advertisement on the Business Services home page and a
rotating button within the "Preferred Services" area within
the Business Services.
e. Yellow Pages. Promotions shall be placed within the
"Insurance" category within InfoSpace's Yellow Pages.
InfoSpace shall place a rotating banner advertisement between
the "Our Sponsors" and the Tab section of the "Insurance"
category.
f. Placements of Promotions. InfoSpace shall place Promotional Placements
provided by Company in other areas on the InfoSpace Web Sites at its sole
discretion.
2. Term. The term of this Agreement shall commence on the Effective Date
and, unless earlier terminated as provided in Section 6 or extended by the
parties, shall end upon the two (2) year anniversary of this Agreement (the
"Term").
3. Placement Fee. Subject to Section 4.1, the Company will pay to
InfoSpace the following placement fees in consideration of InfoSpace's posting
of Promotional Placements and this Agreement:
a. Revenue Share. Company shall pay to InfoSpace 20% of all revenue
("Revenue Share") received by Company as a result of user traffic to the
Company Web Sites via any Promotional Placement on any InfoSpace Web Site.
b. Minimum Fee. Company shall pay InfoSpace a minimum $25,000 per
month ("Monthly Fee") for the term of this Agreement in consideration for
InfoSpace's placement and maintenance of Promotional Placements pursuant
to this Agreement. If the Revenue Share
-11-
received by InfoSpace is greater than $25,000 for any given month, then
the Minimum Fee shall be waived for that month.
c. Warrant. In consideration of InfoSpace's continuous posting of
Promotional Placements throughout the Term of this Agreement, the Company
shall within 30 days of the date of this Agreement grant to InfoSpace the
Warrant, which shall vest quarterly commencing on September 30, 1999 and
shall have an exercise period of one year commencing one year from the
Effective Date. The terms of the Warrant shall be substantially as set
forth in the form of warrant attached hereto as Exhibit C.
4. Guaranteed Impressions. Subject to Paragraph 5 below, InfoSpace
shall deliver at least ** Impressions per month during the Term.
5. Guarantees. In the event that any guarantee or minimum Impressions to
be delivered is set forth in Paragraph 4 above, Company's **.
-12-
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
SECTION 1. Registration Rights
1.1 Certain Definitions
Capitalized terms used herein, but not otherwise defined shall have the
meanings set forth below, or if there is no such definition below, as defined in
the Agreement to which this is an Exhibit:
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean the Holder and any person holding Registrable
Securities to whom the rights under this Agreement have been transferred in
accordance with Section 1.13 hereof.
"Initial Public Offering" shall mean the first public offering of
Common Stock by the Company to the public pursuant to a registration statement
filed with, and declared effective by, the Commission under the Securities Act.
The terms "register", "registered" and "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.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 1.2 and 1.3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Registrable Securities" means the Common Stock issuable upon
exercise of the Warrant and/or the Conversion Warrant ("Warrant Stock") or other
securities issued or issuable with respect to Warrant Stock upon any stock
split, stock dividend, recapitalization or similar event; provided, however,
that Registrable Securities shall not be deemed to include any securities after
such securities have been registered under the Securities Act and sold pursuant
to such registration or any shares sold without registration under Rule 144,
pursuant to any other exemption from registration under the Securities Act to a
Person who is free to resell such securities without registration under the
Securities Act; and provided, further, Registrable Securities shall not include
-1-
any securities which are eligible to be sold without registration under the
Securities Act in compliance with subsection (k) of Rule 144.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for the Holders (as
limited by Section 1.4).
1.2 Company Registration
(a) Notice of Registration. If at any time or from time to time the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (x) a
registration relating solely to employee benefit plans or (y) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof, and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities
specified in a written request or requests made within fifteen
(15) days after receipt of such written notice from the
Company by any Holder.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holder as a part of the written notice given
pursuant to Section 1.2(a)(i). In such event, the right of any Holder to
registration pursuant to Section 1.2 shall he conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting, to the extent requested, to the extent provided herein. The
Holder shall (together with the Company and the other holders distributing their
securities through such underwriting (the "Other Participating Holders")) enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 1.2, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting, on a pro rata
basis based on the total number of securities (including, without limitation,
Registrable Securities) requested to be registered pursuant to registration
rights granted to the Holder and the Other Participating Holders by the Company;
provided, however that the right of the underwriters to exclude shares
(including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that the number of Registrable Securities
included in any such registration is not reduced below twenty-five percent (25%)
of the shares included in the registration.
Notwithstanding any other provision of this Section 1.2. if the managing
underwriter of a proposed
public offering shall advise the Company in writing that, in its opinion, the
distribution of the shares of Registrable Securities requested to be included in
the registration concurrently with the securities being registered by the
Company or the Other Participating Holder would adversely affect the
distribution of such securities by the Company or the Other Participating
Holders, then the Holders of Registrable Securities, the Other Participating
Holders (other than any Other Participating Holder who initially requested such
registration, any Holder of Registrable Securities participating in such
registration pursuant to Section 12 hereof) and the Company shall reduce the
amount of securities each intended to distribute through such offering on a pro
rata basis. To facilitate the allocation of shares in accordance with the above
provisions, the Company or the underwriters may round the number of shares
allocated to the Holder or the Other Participating Holders to the nearest one
hundred (100) shares. If the Holder or any Other Participating Holder
disapproves of the terms of any such underwriting, it, he or she may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to one hundred and eighty (180) days after the effective date
of the registration statement relating thereto.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 1.2 prior to the effectiveness of such registration, whether or not any
Holder has elected to include securities in such registration.
1.3 Registration on Form S-3
If any Holder of Registrable Securities requests that the Company
file a registration statement on Form S-3 (or any successor form to Form S-3)
for a public offering of Registrable Securities, the reasonably anticipated
aggregate price to the public of which, net of underwriting discounts and
commissions, would exceed $1,000,000, and the Company is a registrant entitled
to use Form S-3 to register the Registrable Securities for such an offering, the
Company shall use its best efforts to cause such Registrable Securities to be
registered for the offering on such form. The Company will (i) promptly give
written notice of the proposed registration to all other Holders and (ii) as
soon as practicable use its best efforts to effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within fifteen (15) days after receipt
of such written notice from the Company. In no event shall the Company be
required to take any action to keep any such registration statement effective
for more than ninety (90) days. The substantive provisions of Section 1.2(b)
shall be applicable to each registration initiated under this Section 1.2.
(b) Notwithstanding the foregoing, the Company shall not be obligated to
take any action pursuant to this Section 1.3: (i) in any particular jurisdiction
in which the Company would be required to execute a general consent to service
of process in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) during the period
starting with the date sixty (60) days prior to the Company's estimated date of
filing of, and ending on the date six (6) months immediately following the
effective date of a registration statement (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate for the
registration of Registrable Securities), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective; (iii) in any twelve month period after the
Company has effected a registration pursuant to this Section 1.3 in such
calendar year arid each such registration has been declared or ordered effective
and has remained effective for the period specified in Section 1.5(a) of this
Agreement; and (iv) if the Company shall furnish to such Holder a certificate
signed by the President of the Company stating that, in the good faith judgment
of the Board of Directors, it would be seriously detrimental to the Company or
its stockholders for registration statements to be filed in the near future,
then the Company's obligation to use its best efforts to file a registration
Statement shall be deferred for a period not to exceed one hundred twenty (120)
days from the receipt of the request to file such registration by such Holder or
Holders; provided, however, that the Company may not utilize this right more
than twice in any twelve (12) month period.
1.4 Expenses of Registration
All Registration Expenses incurred in connection with any registration
pursuant to Section 1.2 or Section 1.3, and, the reasonable cost of one special
legal counsel to all holders of securities of the Company exercising
registration rights in any such registration shall be borne by Company If a
registration proceeding is begun upon the request of the Holder pursuant to
Section 1.3 but such request is subsequently withdrawn, then the Holder may
either (i) bear all Registration Expenses of such proceeding, in which case the
Company shall be deemed not to have effected a registration pursuant to Section
1.3 of this Exhibit, or (ii) require the Company to bear all Registration
Expenses of such proceeding, in which case the Company shall be deemed to have
effected a registration pursuant to Section 1.3 of this Exhibit. The preceding
sentence shall not apply if, at the time of such withdrawal, the Holder has
learned of a material adverse change in the condition, business or prospects of
the Company from that known to the holder at the time of their request. Unless
otherwise stated, all other Selling Expenses relating to securities registered
on behalf of the Holder shall be borne by the Holder.
1.5 Registration Procedures
In the case of each registration, qualification or compliance effected by
the Company pursuant to this Section 1, the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective until the distribution described in the
registration statement has been completed, but in no event longer than ninety
(90) days; and
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may
be necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(c) Furnish to the Holders participating in such registration and to the
underwriters, if any, of the securities being registered such reasonable number
of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may reasonably request
in order to facilitate the public offering of such securities.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Securities
Act.
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits 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 then existing.
(g) Cause all such Registrable Securities registered pursuant hereunder to
be listed on each securities exchange or other trading market on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration.
(i) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities arc being sold through underwriters, (i) an opinion. dated such date,
of the counsel representing the Company for the purposes of such registration,
in form substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters
and to the Holder requesting registration of Registrable Securities.
1.6 Indemnification
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all actual
out-of-pocket expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in any litigation or
in settlement of any litigation, commenced or threatened, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, preliminary prospectus,
offering circular or other document, or any amendment or supplement thereto,
incident to any such registration, qualification or compliance, or based on 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 any violation or any
alleged violation by the Company of the Securities Act or the Exchange Act or
any state securities law, or of any rule or regulation promulgated under any of
the foregoing applicable to the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, each of its officers and directors, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other actual out-of-pocket expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, as such expenses are incurred;
provided, however, that the indemnity agreement contained in this Section 1.6(a)
shall not apply to amounts paid in settlement of any such matter if the
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld; and provided further that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder,
controlling person or underwriter specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all actual out-of-pocket expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation. commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein, in
light of the circumstances in which they were made, or necessary to make the
statements therein not misleading, and will reimburse the Company, such Holders,
such directors, officers, persons, underwriters or control persons for any legal
and any other actual out-of-pocket expenses reasonably incurred in connection
with investigating or
defending any such claim, loss, damage, liability or action, as such expenses
are incurred, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
is made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder specifically for use therein; provided, however,
that the indemnity agreement contained in this Section 1.6(b) shall not apply to
amounts paid in settlement of any matter if the settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld; and
provided, further, that the maximum liability of each selling Holder under this
Section 1.6(b) shall be equal to the net proceeds to such selling Holder as a
result of such registration and offering.
(c) Each party entitled to indemnification under this Section 1.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; provided, however, that an Indemnified Party (together with all
other Indemnified Parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses of such counsel to be paid by the Indemnifying
Party, if representation of such Indemnified Party by the counsel retained by
the Indemnifying Party would be inappropriate due to actual or potential
differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure of any indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 1.6 unless the failure to give such notice
is materially prejudicial to an Indemnifying Party's ability to defend such
action. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party (not to be unreasonably
withheld), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation.
(d) If the indemnification provided for in this Section 1.6 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid of payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations;
provided, however, that, in no event shall any contribution by a Holder under
this subsection 1.6(d) exceed the net proceeds from the offering received by
such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwriting public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
(f) The obligations of the Company and Holders under this Section 1.6
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
Rule 144 Reporting
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 the
Shares to the public without registration, after such time as a public market
exists for the Common Stock of the Company, the Company agrees to use its best
efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act so long as the
Company is subject to the reporting requirements of the Exchange Act; and
b) So long as the Holder owns any Registrable Securities, to furnish to
the Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule, and of the Exchange Act (at
any time after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company and other information in the possession of
or reasonably obtainable by the Company as the Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
1.8 Transfer of Registration Rights
The rights to cause the Company to register securities granted to the Holder
under Sections 1.2 and 1.3 may be assigned to a transferee or assignee in
connection with any transfer or assignment of Registrable Securities by the
Holder (together with any affiliate); provided, however, that (a) such transfer
may otherwise be effected in accordance with applicable securities laws and the
terms of the Warrant and/or the Conversion Warrant, as applicable, (b) notice of
such assignment is given to the Company, (c) such transferee or assignee (i) is
a wholly-owned subsidiary or constituent partner (including limited partners,
retired partners, spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) of the Holder, or (ii) acquires from the Holder at least
10% of the Holder's Registrable Securities and (d) agrees to be bound by the
terms and conditions of this Exhibit E.
1.9 Market Standoff
If the Company registers shares of Common Stock (or other securities of
the Company) for sale in a firm underwritten public offering, upon notice
thereof to each Holder by the Company, as required by the underwriters in such
offering, each Holder of Registrable Securities shall not sell or otherwise
transfer of dispose of any shares of Common Stock (or other equity securities of
the Company) held by such Holder (other than those included in such
registration) for a period specified by the representative of the underwriters
nor to exceed one hundred and eighty (180) days following the effective date of
such registration statement, provided, that all officers and directors of the
Company enter into similar agreements. The Company may impose stop-transfer
instructions with respect to the shares of Common Stock (or other securities of
the Company) subject to the foregoing restriction until the end of the
applicable period.
1.10 Termination of Rights
The rights of any particular Holder to cause the Company to register
securities under Sections 1.2 and 1.3 shall terminate with respect to such
Holder on the earlier of (a) the third anniversary of the date of the Agreement
and (b) such time as Rule 144 or another similar exemption under the Securities
Act is available for the sale of all such Holders securities during a three
(3)-month period without registration.
