REGISTRATION RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”),
dated
as of April 30 2008, by and between The Knot, Inc., a Delaware corporation
(the
“Company”)
and
Macy’s, Inc., a Delaware corporation (the “Investor”),
on
behalf of itself and as agent of each of the Investor’s Divisions listed on the
signature page hereto.
RECITALS
A. The
Company and the Investor are parties to an Agreement dated as of June 5, 2006
(the “2006
Agreement”)
pursuant to which the Company and the Investor agreed to negotiate in good
faith
a registration rights agreement reflecting certain terms related to the
Investor’s shares of the Company’s common stock, par value $0.01 per share (the
“Common
Stock”).
B. In
connection with the 2006 Agreement, the Company has agreed to enter into this
Agreement and to grant to the Investor and permitted transferees the rights
set
forth in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the mutual promises and
covenants contained in this Agreement, the Investor and the Company (each,
a
“Party,”
and
collectively, the “Parties”)
agree
as follows:
1. Definitions.
For
purposes of this Agreement:
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which the national or
state banks located in the State of New York are authorized to be
closed.
“Demanding
Holder”
has
the
meaning given to the term in Section 2(a).
“Demand
Notice”
has
the
meaning give to the term in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor statute,
and
any rules and regulations promulgated thereunder.
“Holder”
means
(i) the Investor or (ii) any person or entity to whom the Investor sells,
transfers or assigns, pursuant to Section 12(b) hereof, in the aggregate
10% or more of the shares of Common Stock that qualify as Registrable Securities
at the time of such sale, transfer or assignment, other than in a sale pursuant
to Rule 144 under the Securities Act or a registration effected pursuant to
this Agreement.
“Merger
Agreement”
means
the Agreement and Plan of Merger and Reorganization, dated as of June 5, 2006,
by and among the Company, XxxxxxxXxxxxxx.xxx, Inc., IDO Acquisition Corporation
and Xxx Xxxxxx as Stockholder Representative.
“prospectus”
means
any preliminary prospectus, final prospectus, free writing prospectus or summary
prospectus prepared in connection with an offering of any Registrable
Securities.
“register,”
“registered,”
and
“registration”
refer
to an underwritten registration effected by preparing and filing with the U.S.
Securities and Exchange Commission (the “Commission”)
a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of
such
registration statement or document.
“Registration
Expenses”
means
all expenses in connection with the Company’s performance of or compliance with
its obligations under this Agreement, including, without limitation, all
(i) registration, qualification and filing fees; (ii) printing
expenses; (iii) fees, expenses and disbursements of counsel for the Company
and of all independent certified public accountants retained by the Company
(including the expenses of any special audit and “cold comfort” letters required
by or incident to such performance); and (iv) reasonable fees and expenses
of one counsel selected by Holders of a majority of the Registrable Securities
with the approval of the Company, which approval shall not be unreasonably
withheld. Registration Expenses shall not include selling commissions, discounts
or other compensation paid to underwriters or other agents or brokers to effect
the sale of Registrable Securities, or any counsel fees in addition to those
provided for in clause (iv) above and any other expenses incurred by Holders
in
connection with any registration that are not specified in the immediately
preceding sentence.
“Registrable
Securities”
means
the shares of Common Stock of the Company owned by the Investor and its
Affiliates as of the date hereof, but only to the extent such shares constitute
“restricted securities” under Rule 144 under the Securities Act.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any successor statute, and any rules
and regulations promulgated thereunder.
2. Demand
Registration.
(a) Request
for Form S-3 Registration.
At any
time after the date of this Agreement that the Company is eligible to file
a
resale registration statement on Form S-3 (or any successor form that
permits the incorporation by reference of future filings by the Company under
the Exchange Act), a Holder owning at least twenty percent (20%) of the
Registrable Securities (the “Demanding
Holder”)
may
submit a written request (a “Demand
Notice”)
to the
Company that the Company register Registrable Securities under and in accordance
with the Securities Act (a “Demand
Registration”)
on
such form. Such Demand Notice shall specify the number and description of
Registrable Securities to be included in such Registration and the intended
method of disposition of the Registrable Securities. Upon receipt of the Demand
Notice, the Company shall:
(i) in
the
event there are Holders other than the Investor, within five (5) Business Days
after receipt of such Demand Notice, give written notice of the proposed
registration to any other Holders; and
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(ii) as
soon
as practicable, use its reasonable best efforts to effect such registration
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
Holders joining in such request as are specified in written requests received
by
the Company within twenty (20) days after the date the Company mails the written
notice referred to in clause (i) above.
Notwithstanding
the foregoing, if the Company shall furnish to the Holders a certificate signed
by the chief executive officer of the Company stating that in the good faith
judgment of the board of directors of the Company, it would be seriously
detrimental to the Company and its stockholders for a registration statement
to
be filed on or before the date filing would be required in connection with
any
Demand Registration and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
or
delay its effectiveness for a reasonable period not to exceed ninety (90) days;
provided,
that
such right shall not be exercised more than once with respect to a request
for
registration hereunder during any period of twelve consecutive months. If the
Company postpones the filing of a registration statement on Form S-3, it will
promptly notify the Holders in writing when the events or circumstances
permitting such postponement have ended. The Company will pay all Registration
Expenses in connection with such withdrawn request for
registration.
(b) Shelf
Registration.
If at
the time the Company registers Registrable Securities under the Securities
Act
pursuant to this Section 2, the sale or other disposition of such Registrable
Securities by the Holders may be made on a delayed or continuous basis pursuant
to a registration statement on Form S-3 (or any successor form that permits
the incorporation by reference of future filings by the Company under the
Exchange Act), then such registration statement, unless otherwise directed
by
the Demanding Holder, shall be filed as a “shelf” registration statement
pursuant to Rule 415 under the Securities Act (or any successor rule). Any
such shelf registration shall cover the disposition of all Registrable
Securities in one or more underwritten offerings, block transactions, broker
transactions, at-market transactions and in such other manner or manners as
may
be specified by the Demanding Holder. Except as provided in Section 5(b)
hereof, the Company shall use its reasonable best efforts to keep such “shelf”
registration continuously effective as long as the delivery of a prospectus
is
required under the Securities Act in connection with the disposition of the
Registrable Securities registered thereby. In furtherance of such obligation,
the Company shall supplement or amend such registration statement and the
prospectus used in connection with such registration statement if, as and when
required by the rules, regulations and instructions applicable to the form
used
by the Company for such registration or by the Securities Act with respect
to
the disposition of all securities covered by such registration statement or
by
any other rules and regulations thereunder applicable to shelf registrations.
Upon their receipt of a certificate signed by the chief executive officer of
the
Company stating that, in the judgment of the Company, it is advisable to suspend
use of a prospectus included in a registration statement due to pending material
developments or other events that have not yet been publicly disclosed and
as to
which the Company believes public disclosure would be seriously detrimental
to
the Company, in accordance with the procedure set forth in the last paragraph
of
Section 2(a) hereof, the Holders will refrain from making any sales of
Registrable Securities under the shelf registration statement for a period
of up
to ninety (90) Business Days; provided,
that
this right to cause the Holders to refrain from making sales shall not be
exercised by the Company more than once in any twelve-month period (with any
exercise by the Company of its right to defer the filing or delay its
effectiveness of a registration statement under the last paragraph of
Section 2(a) counting as an exercise by the Company of its right to cause
the Holders to refrain from making sales under this Section 2(b)).
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(c) Underwriting.
In
connection
with any registration under this Section 2, if the Demanding
Holder
intends to distribute the Registrable Securities covered by any registration
under this Section 2 by means of an underwriting, they shall so
advise
the Company
in writing. In such event, the right of any Holder to include its Registrable
Securities in such distribution shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of each Holder’s
Registrable Securities in the underwriting to the extent provided in this
Agreement. The Holders proposing to distribute their securities through such
underwriting shall
enter into an underwriting agreement with one or more underwriters selected
by
the Holders, which underwriters shall be reasonably acceptable to the Company,
having terms and conditions customary for such agreements
as agreed to by such Holders,
the Company and the underwriter or underwriters. Notwithstanding any other
provision of this Section 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 such distribution; provided,
however,
that the number of shares of Registrable Securities to be included in such
registration shall not be reduced unless first all other securities are entirely
excluded from the registration. The Company shall so advise all the Holders
distributing Registrable Securities through such underwriting, and the number
of
Registrable Securities that may be included in such underwriting shall be
allocated to the Holders
in such manner as may be determined by the Demanding Holder.
(d) Limitations.
The
Company shall not be obligated to (i) effect more than one registration
under Section 2, or (ii) effect any registration where the aggregate
estimated sales price for the Registrable Securities to be included therein
is
less than $10,000,000, or (iii) effect any such registration, qualification
or compliance in any particular jurisdiction in which the Company would be
required to do business or to execute a general consent to service of process
in
effecting such registration, qualification or compliance, or (iv) effect any
such registration during the period ending 180 days after the effective date
of
a registration statement pursuant to Section 3; provided,
however,
that a
registration pursuant to this Section 2 shall not be counted unless the
registration statement pursuant to which such Registrable Securities are being
registered is declared effective by the SEC.
(e) Company
Registration of Primary Shares.
At any
time the Company registers Registrable Securities under the Securities Act
pursuant to this Section 2, the Company can add primary shares to such
registration, and such registration will still count as a demand registration
hereunder unless
the number of share to be sold by the Demanding Holders is cut back by the
underwriters(s) of such offering.
3. Piggy-back
Registration.
(a) Notice
of Registration.
If at
any time or from time to time, the Company shall determine to register any
of
its capital stock, whether or not for its own account, other than a registration
relating to employee benefit plans or a registration effected on Form S-4
or any successor form, the Company shall:
4
(i) provide
to each Holder written notice thereof at least fifteen (15) Business Days prior
to the filing of the registration statement by the Company in connection with
such registration; and
(ii) include
in such registration, and in any underwriting involved therein, all those
Registrable Securities specified in a written request by each Holder received
by
the Company within fifteen (15) Business Days after the Company mails the
written notice referred to above, subject to the provisions of Section 3(b)
below.
(b) Underwriting.
The
right of any Holder to registration pursuant to this Section 3 shall be
conditioned upon the participation by such Holder in the underwriting
arrangements specified by the Company in connection with such registration
and
the inclusion of the Registrable Securities of such Holder in such underwriting
to the extent provided in this Agreement. All Holders proposing to distribute
their Registrable Securities through such underwriting shall (together with
the
Company) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company and take
all
other actions, and deliver such opinions and certifications, as may be
reasonably requested by such managing underwriter. Notwithstanding any other
provision of this Section 3, if the managing underwriter determines in its
sole discretion 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 such registration; provided,
however,
that
the number of shares of Registrable Securities to be included in such
registration shall not be reduced unless all other securities other than the
capital stock to be sold by the Company are excluded on a pro-rata basis from
the underwriting. The Company shall so advise all Holders distributing
Registrable Securities through such underwriting, and in the event that
Registrable Securities in a registration would exceed 20% of all shares included
in such registration, the Company may limit the number of Registrable Securities
included in such registration to not less than 20% of the number of shares
included in such registration.
(c) Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 3 whether or not any Holder has elected to include
Registrable Securities in such registration.
4. Expense
of Registration. All Registration Expenses incurred in connection with the
registration and other obligations of the Company pursuant to Section 2, 3,
4 or
5 shall be borne by the Company, and all underwriting discounts and selling
commissions incurred in connection with any such registrations shall be borne
by
the Holders of the securities so registered pro rata on the basis of the number
of shares so registered. Except as provided in the last sentence of
Section 2(a), the Company shall not, however, be required to pay for
expenses of any registration proceeding begun pursuant to Section 2, 3 or
4, the request of which has been subsequently withdrawn by the Holders unless
(i) the withdrawal is based upon material adverse information concerning the
Company of which the Holders were not aware at the time of such request or
(ii) the Holders of a majority of the Registrable Securities agree to
forfeit their right to registration pursuant to Section 2.
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5. Registration
Procedures.
If and
whenever the Company is required by the provisions of this Agreement to effect
the registration of Registrable Securities, the Company shall:
(a) as
expeditiously as reasonably possible, and in any event within 60 days of receipt
of a Demand Notice, prepare and file with the Commission a registration
statement with respect to such Registrable Securities, and use its reasonable
best efforts to cause such registration statement to become effective as
promptly as practicable, and in any event within 120 days of receipt of a Demand
Notice, and remain effective thereafter as provided in this Agreement,
provided,
that
prior to filing a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after the
initial filing of any registration statement, the Company will furnish to each
of the Holders whose Registrable Securities are covered by such registration
statement, their counsel and the underwriters copies of all such documents
proposed to be filed sufficiently in advance of filing to provide them with
a
reasonable opportunity to review such documents and comment
thereon;
(b) as
expeditiously as reasonably possible, prepare and file with the Commission
such
amendments (including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep such registration statement
effective and current and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
covered by such registration statement, including such amendments (including
post-effective amendments) and supplements as may be necessary to reflect the
intended method of disposition by the prospective seller or sellers of such
Registrable Securities, provided,
however,
that a
shelf registration under Section 2(b) need not be kept effective and
current for longer than three years subsequent to the effective date of such
registration statement;
(c) subject
to receiving reasonable assurances of confidentiality, for a reasonable period
after the filing of such registration statement, and throughout each period
during which the Company is required to keep a registration effective, make
available for inspection by the selling holders of Registrable Securities being
offered, and any underwriters, and their respective counsel, such financial
and
other information and books and records of the Company, and cause the officers,
directors, employees, counsel and independent certified public accountants
of
the Company to respond to such inquiries as shall be reasonably necessary,
in
the judgment of such counsel, to conduct a reasonable investigation within
the
meaning of Section 11 of the Securities Act;
(d) promptly
notify the selling holders of Registrable Securities and any underwriters and
confirm such advice in writing, (i) when such registration statement or the
prospectus included in such registration statement or any prospectus amendment
or supplement or post-effective amendment has been filed, and, with respect
to
such registration statement or any post-effective amendment, when the same
has
become effective, (ii) of any comments by the Commission, by The Financial
Industry Regulatory Authority (“FINRA”), and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any request
by
any such entity for amendments or supplements to such registration statement
or
prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (v) at any time when a prospectus is required to be delivered
under the Securities Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective amendment, or any document
incorporated by reference in any of the foregoing, 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, in light of the
circumstances under which they are made, not misleading, and at the request
of
any Holder, the Company will prepare a supplement or amendment to such
prospectus, so that, as thereafter delivered to purchasers of such shares,
prospectus will not contain any untrue statements of a material fact or omit
to
state any fact necessary to make the statements therein not
misleading;
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(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; and each Holder participating in
such
underwriting shall also enter into and perform its obligations under such an
agreement;
(f) in
the
event of any underwritten public offering, make appropriate members of senior
management of the Company reasonably available to participate in conference
calls with potential investors and make presentations to ratings agencies as
is
reasonably necessary and customary in secondary resale offerings of companies
of
comparable size, maturities and lines of business as the Company;
(g) furnish
to each Holder of Registrable Securities being offered, and any underwriters,
in
such quantities as they may reasonably request and as soon as practicable,
prospectuses or amendments or supplements thereto that update previous
prospectuses or amendments or supplements thereto;
(h) use
its
reasonable best efforts to (i) register or qualify the Registrable
Securities to be included in a registration statement under this Agreement
under
such other securities laws or blue sky laws of such jurisdictions within the
United States of America as any selling Holder of such Registrable Securities
or
any underwriter of the securities being sold shall reasonably request,
(ii) keep such registrations or qualifications in effect for so long as the
registration statement remains in effect and (iii) take any and all such
actions as may be reasonably necessary or advisable to enable such Holder or
underwriter to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such Holder; provided,
however,
that
the Company shall not be required for any such purpose to (x) qualify
generally to do business as a foreign corporation in any jurisdiction wherein
it
would not otherwise be required to qualify but for the requirements of this
Section 5(h) or (y) consent to general service of process in any such
jurisdiction;
(i) cause
all
such Registrable Securities to be listed or accepted for quotation on each
securities exchange on which the Company’s Common Stock then trades;
(j) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such registration statement;
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(k) upon
the
sale of any Registrable Securities pursuant to such registration statement,
remove all restrictive legends from all certificates or other instruments
evidencing the Registrable Securities;
(l) promptly
notify each Holder of Registrable Securities covered by such registration
statement of any Company determination that a post-effective amendment to a
registration statement would be appropriate or required and of the issuance
by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a registration statement or the initiation
of
any proceeding for that purpose;
(m) if
such
Registrable Securities are being sold through underwriters, use its reasonable
best efforts to furnish, at the request of such underwriters, on the date that
such Registrable Securities are delivered to the underwriters for sale,
(A) an opinion, dated such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is customarily
given to the underwriters in an underwritten public offering, and (B) 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, each
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities; and
(n) otherwise
use its reasonable best efforts to comply with all applicable provisions of
the
Securities Act, and rules and regulations of the Commission, and make available
to the Holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months beginning not later than the first
day of the Company’s fiscal quarter next following the effective date of the
related registration statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158
thereunder.
6. Indemnification.
In the
event any of the Registrable Securities are included in a registration statement
under this Agreement:
(a) to
the
extent permitted by law, the Company agrees to indemnify and hold harmless
the
Holders, and each person, if any, who controls a Holder or underwriter within
the meaning of the Securities Act or the Exchange Act (each, an “Holder
Indemnified Party”),
from
and against any expenses, losses, judgments, claims, damages, liabilities,
charges, actions, proceedings, demands, settlement costs and expenses of any
nature whatsoever (including, without limitation, attorneys’ fees and expenses)
(“Losses”),
whether joint or several, arising out of or based upon (i) any untrue
statement (or allegedly untrue statement) of a material fact contained in any
registration statement under which the sale of such Registrable Securities
was
registered under the Securities Act, any prospectus contained in the
registration statement, or any amendment or supplement to such registration
statement, (ii) any omission (or alleged omission) to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (iii) any violation by the Company of the Securities
Act, the Exchange Act or any rule or regulation promulgated thereunder
applicable to the Company, or of any blue sky or other state securities law
or
any rule or regulation promulgated thereunder applicable to the Company, in
each
case, relating to action or inaction required of the Company in connection
with
any such registration; and the Company shall promptly reimburse any Holder
Indemnified Party for any legal or any other expenses reasonably incurred by
such Holder Indemnified Party in connection with investigating or defending
any
such Losses; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
Losses arise out of or are based upon any untrue statement or allegedly untrue
statement or omission or alleged omission made in such registration statement,
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such Holder
expressly for use therein. The Company shall also indemnify any underwriter
(as
defined in the Securities Act) of the Registrable Securities, and each person
who controls such underwriter on substantially the same basis as that of the
indemnification provided above in this Section 6(a).
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(b) To
the
extent permitted by law, each Holder of Registrable Securities being offered
will, in the event that any registration is being effected under the Securities
Act pursuant to this Agreement of any Registrable Securities held by such
Holder, indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any), and each other selling Holder and each
other person, if any, who controls the Company, another selling Holder or such
underwriter within the meaning of the Securities Act, against any Losses,
whether joint or several, insofar as such Losses (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement (or allegedly
untrue statement) of a material fact contained in any registration statement
under which the sale of such Registrable Securities was registered under the
Securities Act, any prospectus contained in the registration statement, or
any
amendment or supplement to the registration statement, offering circular or
other document incident to any such registration or compliance or (ii) any
omission (or the alleged omission) to state a material fact required to be
stated therein or necessary to make the statement therein not misleading, in
each case to the extent (and only to the extent) the statement or omission
was
made in reliance upon and in conformity with information furnished in writing
to
the Company by such selling Holder expressly for use therein, and shall
reimburse the Company, its directors and officers, and each other selling Holder
or controlling person for any legal or other expenses reasonably incurred by
any
of them in connection with investigation or defending any such Losses. Each
selling Holder’s indemnification obligations hereunder shall be several and not
joint and shall be limited to the amount of any net proceeds actually received
by such Holder.
(c) Each
party entitled to indemnification under this Section 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; provided,
that
failure to give such prompt notice shall not relieve the Indemnifying Party
of
its obligations under this Agreement unless it is materially prejudiced thereby,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom if it is a claim brought by a third party,
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). Such Indemnified Party shall have the right
to
employ one separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be that of such
Indemnified Party unless (i) the Indemnifying Party has agreed to pay such
fees and expenses, (ii) the Indemnifying Party shall have failed to assume
the defense of such action or proceeding and employ counsel reasonably
satisfactory to such Indemnified Party in any such action or proceeding or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party and such Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to such Indemnified Party which
are
different from or additional to those available to the Indemnifying Party (in
which case the Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions
or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all Indemnified Parties, which
firm shall be designated in writing by a majority of the Indemnified Parties
who
are eligible to select such counsel). No Indemnifying Party, in the defense
of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, 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. No Indemnified Party may consent to entry of any
judgment or enter into any settlement without the prior written consent of
the
Indemnifying Party.
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(d) If
the
indemnification provided for in this Section 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 in this Agreement,
then the Indemnifying Party, in lieu of indemnifying the Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party with
respect to such loss, liability, claim, damage or expenses in the proportion
that is appropriate to reflect the relative fault of the Indemnifying Party
and
the Indemnified Party 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,
that in
no event shall any contribution by a Holder under this Section 6(d) exceed
the net proceeds from the offering received by such Holder, except in the case
of gross negligence, willful misconduct or fraud by such Holder.. The relative
fault of the Indemnifying Party and the Indemnified Party shall be determined
by
reference to, among other things, whether the untrue or alleged untrue statement
of 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) The
obligations of the Company and the Holders under this Section 6 shall
survive the completion of any offering of securities in a registration statement
under this Agreement and otherwise.
7. Exchange
Act 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 Registrable Securities
(i) to the public without registration, after such time as a public market
exists for the Common Stock or (ii) pursuant to a registration statement on
Form S-3, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act;
(b) 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; provided, however,
that if the Company fails to file such reports and other documents and loses
its
eligibility to use Form S-3, the Company will use commercially reasonable
efforts to obtain a waiver from the Commission staff to regain its eligibility
to use Form S-3 for registrations pursuant to this Agreement; and
10
(c) furnish
to any Holder promptly upon request (i) a written statement as to its
compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of
the
SEC which permits the selling of any such securities without registration or
pursuant to such form.
The
provisions of this Section 7 shall terminate on the date on which there are
no Holders owning Registrable Securities constituting at least 5% of the Common
Stock outstanding as of the closing of the Merger Agreement transactions on
September 8, 2006.
8. Termination
of Registration Rights.
No
Holder shall be entitled to exercise any right provided for in this Agreement
after the earlier of (a) the date that all Registrable Securities held by such
Holder may be sold in a single three-month period under Rule 144 under the
Securities Act or (b) the date on which there are no Holders owning Registrable
Securities constituting at least 5% of the Common Stock outstanding as of the
closing of the Merger Agreement transactions on September 8, 2006.
9. Information
To Be Provided by the Holders.
Each
Holder whose Registrable Securities are included in any registration pursuant
to
this Agreement shall furnish the Company such information and affidavits
regarding such Holder and the distribution proposed by such Holder as may be
reasonably requested by the Company and as shall be required in connection
with
such registration or the registration or qualification of such securities under
any applicable state securities law.
10. “Stand-Off”
Agreement.
Each
Holder hereby agrees that it will not, without the prior written consent of
the
managing underwriter of a registered public offering of securities by the
Company, sell, contract to sell, lend, pledge, sell any option or contract
to
purchase, purchase any option or contract to sell, grant any option, right
or
warrant to purchase, or otherwise transfer or dispose, directly or indirectly,
any Registrable Securities or other securities of the Company then held by
such
Holder (whether such Registrable Securities or other securities of the Company
are then owned by such Holder or are thereafter acquired), except the
Registrable Securities included in such registrations, for a specified period
of
time that is customary under the circumstances (not to exceed ninety (90) days)
following the effective date of the registration statement for such offering,
provided,
that
(a) no such agreement shall be required unless each officer and director of
the
Company enters into a similar agreement covering the same period of time and
(b)
such agreement shall contain terms customary for such agreements; provided,
that if
the managing underwriter of a registered public offering of securities of the
Company releases any of the foregoing stockholders from such restrictions prior
to the expiration of the ninety (90) day period, then each Holder shall also
be
released from such restrictions for its pro rata share of securities so
released. The Company may impose stop transfer instructions to enforce any
required agreement of the Holders under this Section 10.
11
11. Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this
Agreement.
12. Miscellaneous.
(a) No
Inconsistent Agreements.
The
Company represents and warrants to the Holders that it has not entered into,
and
covenants with the Holder that it will not enter into, any agreement with
respect to its Common Stock which is inconsistent with or violates the rights
granted to the Holder under this Agreement.
(b) Transfer
of Rights.
Each
Holder shall be entitled to transfer or assign at any time any of its rights
under this Agreement (but only with all related obligations) to any transferee
or assignee of such securities that (i) is a subsidiary, parent, partner,
limited partner, member or stockholder of any Holder or an entity associated
by
common ownership or control and (ii) after such transfer or assignment,
holds at least 366,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations); provided,
that in
each such case, the Company receives prompt written notice of any transfer
or
assignment, including the name and address of such transferee or assignee;
provided,
further,
that
such assignment or transfer shall be effective only if immediately following
such transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted to the extent required under the Securities
Act.
(c) Notices.
Unless
otherwise provided, all
notices, requests and other communications hereunder shall be in writing and
shall be deemed to have been duly given at the time of delivery if delivered
by
email, or at the time of receipt if delivered by hand, or at the time the sender
receives confirmation of the facsimile transaction if transmitted by facsimile,
or forty-eight hours after being deposited in the U.S. mail, as registered
or
certified mail, return receipt requested, with postage prepaid, or one day
after
being mailed via overnight courier service, to the applicable Parties at the
physical or email address or facsimile number, as applicable, stated below
or if
any Party shall have designated a different physical or email address or
facsimile number by written notice to the other Parties given as provided above,
then to the last physical or email address or facsimile number so
designated.
(d) Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed and interpreted in such manner
as to be effective and valid under applicable law.
(e) Waiver
or Modification.
Any
amendment or modification of this Agreement shall be effective only if evidenced
by a written instrument executed by the Company and by the Holder.
(f) Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to the principles of conflicts of laws of
the
State of New York or any other state. Courts within the State of New York,
County of New York or the United States District Court for the Southern District
of New York will have jurisdiction over all disputes between the parties hereto
arising out of or relating to this Agreement and the agreements, instruments
and
documents contemplated hereby. The parties hereby consent to and agree to submit
to the jurisdiction of such courts. Each of the parties hereto waives, and
agrees not to assert in any such dispute, to the fullest extent permitted by
applicable law, any claim that (i) such party is not personally subject to
the jurisdiction of such courts, (ii) such party and such party’s property
is immune from any legal process issued by such courts or (iii) any
litigation commenced in such courts is brought in an inconvenient
forum.
12
(g) WAIVER
OF TRIAL BY JURY.
THE
PARTIES TO THIS AGREEMENT WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT.
(h) Further
Assurances.
Each
Party agrees to act in accordance with the provisions of this Agreement and
not
to take any action that is designed to avoid the intention hereof.
(i) Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any Person other than the parties
hereto or their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
(j) Counterparts.
This
Agreement may be executed and delivered (including by facsimile transmission)
in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to
be an
original but all of which taken together shall constitute one and the same
agreement.
[remainder
of page intentionally left blank]
13
IN
WITNESS WHEREOF, the Company has executed this Agreement as of the day and
year
first above written.
| THE KNOT, INC. | ||
| |
|
|
| By: | /s/ XXXXX XXX | |
| Name: |
Xxxxx Xxx |
|
| Title: | Chief Executive Officer | |
.
| Address for Notice: | ||
| |
|
|
| The Knot, Inc. | ||
| 000 Xxxxxxxx | ||
| 0xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxx Xxxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| Email: xxxxxxxxx@xxxxxxx.xxx | ||
| with a copy (which shall not constitute notice) to: | ||
| Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP | ||
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| Email: xxxxx.xxxxxxxx@xxxxxxxxxx.xxx | ||
[Company
Signature Page]
14
IN
WITNESS WHEREOF, the undersigned Investor has executed this Agreement as of
the
day and year first above written.
| MACY’S, INC. | ||
| (for itself and on behalf of Macy’s Retail Holdings, Inc. and Macy’s Corporate Services, Inc.) | ||
| |
|
|
| By: | /s/ XXXXXX XXXXXXXXX | |
| Name: |
Xxxxxx X. Xxxxxxxxx |
|
| Title: | SVP, General Counsel and Secretary | |
.
| Address for Notice: | ||
| |
|
|
| Macy’s, Inc. | ||
| 0 Xxxx 0xx Xxxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: Xxxxxx Xxxxxxxxx | ||
| Facsimile: (000) 000-0000 | ||
| Email: Xxxxxx.Xxxxxxxxx@xxxxx.xxx | ||
| with a copy to: | ||
| Xxxxx Day | ||
| 0000 Xxxxx Xxxxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attention: Xxxxxxx Xxxx | ||
| Phone: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| Email: xxxxx@xxxxxxxx.xxx | ||
[Investor
Signature Page]
15
