Exhibit 3
REGISTRATION RIGHTS AGREEMENT
by and among
iBEAM BROADCASTING CORPORATION,
XXXXXXXX COMMUNICATIONS, LLC,
XXXXX & COMPANY INCORPORATED,
TOUCH AMERICA, INC.
AND
XXXX iBEAM, LLC
-------------------
Dated as of July 10, 2001
TABLE OF CONTENTS
1. Prior Registration Rights............................................1
2. Certain Definitions..................................................1
3. Demand Registrations.................................................3
(a) Right to Request Registration..............................3
(b) Number of Demand Registrations.............................4
(c) Priority on Demand Registrations...........................4
(d) Restrictions on Demand Registrations.......................4
(e) Selection of Underwriters..................................5
(f) Other Registration Rights..................................5
(g) Effective Period of Demand Registrations...................5
4. Piggyback Registrations..............................................6
(a) Right to Piggyback.........................................6
(b) Priority on Primary Registrations..........................6
(c) Priority on Secondary Registrations........................7
(d) Selection of Underwriters..................................7
(e) Other Registrations........................................7
5. Holdback Agreements..................................................7
6. Registration Procedures..............................................8
7. Registration Expenses...............................................11
8. Indemnification.....................................................12
9. Participation in Underwritten Registrations.........................14
10. Rule 144...........................................................14
11. Miscellaneous......................................................15
(a) Notices....................................................15
(b) No Waivers.................................................16
(c) Successors and Assigns.....................................16
(d) Governing Law..............................................16
(e) Jurisdiction...............................................16
(f) Waiver of Jury Trial.......................................16
(g) Counterparts; Effectiveness................................17
(h) Entire Agreement...........................................17
(i) Captions...................................................17
(j) Severability...............................................17
(k) Amendments.................................................17
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of July
10, 2001, among iBeam Broadcasting Corporation, a Delaware corporation (the
"Company"), and each of Xxxxxxxx Communications, LLC, a Delaware limited
liability company, Xxxxx & Company Incorporated, a New York corporation,
Touch America, Inc., a Montana corporation, and Xxxx iBeam, LLC, an
Illinois limited liability company (each, a "Stockholder" and collectively,
the "Stockholders").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of
June 24, 2001 (the "Purchase Agreement"), between the Company and the
Stockholders, the Company agreed to issue and sell to the Stockholders an
aggregate of 2,400,939 shares of Series A Convertible Preferred Stock, par
value $.0001 per share (the "Series A Preferred Stock"), of the Company;
and
WHEREAS, in consideration of and to induce the Stockholders to
purchase the shares of Series A Preferred Stock, the Company has agreed to
grant registration rights with respect to the Registrable Common Stock (as
hereinafter defined).
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Prior Registration Rights.
The Company hereby represents and warrants to the Stockholders
that the grant of registration rights pursuant to this Agreement does not
violate or conflict with the provisions of any other agreements or other
obligations of the Company, including, without limitation, the registration
rights granted to parties to the Third Amended and Restated Investors'
Rights Agreement dated as of April 28, 2000, by and among the Company and
the parties thereto, as in effect on the date hereof (the "Investors'
Rights Agreement"). The Company has furnished or made available to the
Stockholders a copy of the Investors' Rights Agreement. The Company has
obtained written consent, as required by Section 1.12 of the Investors'
Rights Agreement, for the grant of registration rights pursuant to this
Agreement including, but not limited to, the grant of (i) demand
registration rights and (ii) piggyback registration rights, pursuant to
Section 4 of this Agreement, which supersede in all respects the provisions
of Section 1.3 of the Investors' Rights Agreement.
2. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" means, with respect to any specified person, (i) any
other Person 50% or more of whose outstanding voting securities are
directly or indirectly owned, controlled or held with the power to vote by
such specified Person or (ii) any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, the term "control"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person by virtue of
ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules
to any of the foregoing, and shall refer to this Registration Rights
Agreement as the same may be in effect at the time such reference becomes
operative.
"Business Day" means any day on which commercial banks are open
for business in New York, New York.
"Common Stock" means common stock, par value $.0001 per share, of
the Company.
"Conversion Shares" means any of (x) the shares of Common Stock
issued or issuable upon conversion of the outstanding shares of Series A
Preferred Stock or (y) any securities issued or issuable with respect to
the Series A Preferred Stock by way of conversion, exercise or exchange or
any stock dividend or stock split or other pro rata distribution, or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means each Stockholder and any other Person that holds
Registrable Common Stock, including their respective transferees,
successors and assigns who acquire Registrable Common Stock, directly or
indirectly, from a Stockholder or such other Person respectively. For
purposes of this Agreement, the Company may deem and treat the registered
holder of Registrable Common Stock as the Holder and absolute owner
thereof, and the Company shall not be affected by any notice to the
contrary.
"Person" means an individual, partnership, corporation, trust,
limited liability company, or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Common Stock covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in
such prospectus or prospectuses.
"Registrable Common Stock" means the Conversion Shares. For
purposes of determining the number of shares of Registrable Common Stock
held by a Holder and the number of shares of Registrable Common Stock
outstanding, for purposes of this Agreement (including the definition of
"Holder") but not for any other purpose, any holder of record of Series A
Preferred Stock shall be deemed to be a Holder of the number of Conversion
Shares issuable upon conversion of such Series A Preferred Stock and all
such Conversion Shares shall be deemed to be outstanding shares of
Registrable Common Stock.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Stock pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in
such Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters
for reoffering to the public.
3. Demand Registrations.
(a) Right to Request Registration. Any time after the date hereof,
subject to the provisions of Section 3(b) hereof, any Holder or Holders of
at least 10% of the outstanding shares of Registrable Common Stock
("Initiating Holders") may request registration under the Securities Act of
all or part of the Registrable Common Stock ("Demand Registration").
Within 10 days after receipt of any such request for Demand
Registration, the Company shall give written notice of such request to all
other Holders of Registrable Common Stock and shall, subject to the
provisions of Section 3(d) hereof, include in such registration all such
Registrable Common Stock with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of
the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 3(a), Holders of Registrable Common Stock shall be entitled to
request an aggregate of three (3) Demand Registrations; provided, however,
that, notwithstanding any other provision herein, Xxxxxxxx Communications,
LLC or its affiliates or any of their permitted assigns shall be entitled
to request at least two (2) Demand Registrations so long as such Holder or
Holders hold at least 10% of the outstanding shares of Registrable Common
Stock but in no event shall the aggregate number of Demand Registrations
exceed three (3). A registration shall not count as one of the permitted
Demand Registrations (i) until it has become effective, (ii) if the
Initiating Holders requesting such registration are not able to register
and sell at least 50% of the Registrable Common Stock requested by such
Initiating Holders to be included in such registration or (iii) in the case
of a Demand Registration that would be the last permitted Demand
Registration requested hereunder, if the Initiating Holders requesting such
registration are not able to register and sell all of the Registrable
Common Stock requested to be included by such Initiating Holders in such
registration.
(c) Priority on Demand Registrations. Except as provided in
Section 3(g), the Company shall not include in any Demand Registration any
securities which are not Registrable Common Stock without the written
consent of the Initiating Holders, or, if such Demand Registration is an
underwritten offering, without the written consent of the managing
underwriters. If the managing underwriters of the requested Demand
Registration advise the Company in writing that in their opinion the number
of shares of Registrable Common Stock proposed to be included in any such
registration exceeds the number of securities which can be sold in such
offering and/or that the number of shares of Registrable Common Stock
proposed to be included in any such registration would adversely affect the
price per share of the Company's equity securities to be sold in such
offering, the Company shall include in such registration only the number of
shares of Registrable Common Stock which in the opinion of such managing
underwriters can be sold. If the number of shares which can be sold is less
than the number of shares of Registrable Common Stock proposed to be
registered, the amount of Registrable Common Stock to be so sold shall be
allocated first, to the shares of Registrable Common Stock requested to be
registered by the Initiating Holders and then pro rata among the other
Holders of Registrable Common Stock desiring to participate in such
registration on the basis of the amount of such Registrable Common Stock
initially proposed to be registered by such other Holders. If the number of
shares which can be sold exceeds the number of shares of Registrable Common
Stock proposed to be sold, such excess shall be allocated pro rata among
the other holders of securities, if any, desiring to participate in such
registration based on the amount of such securities initially requested to
be registered by such holders or as such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration or a previous registration
under which the Initiating Holders have piggyback rights pursuant to
Section 4 hereof wherein the Initiating Holders were permitted to register,
and sold, at least 50% of the shares of Registrable Common Stock requested
to be included therein. The Company may (i) postpone for up to ninety (90)
days the filing or the effectiveness of a Registration Statement for a
Demand Registration if, based on the good faith judgment of the Company's
board of directors, such postponement or withdrawal is necessary in order
to avoid premature disclosure of a matter the board has determined would
not be in the best interest of the Company to be disclosed at such time or
(ii) postpone the filing of a Demand Registration in the event the Company
shall be required to prepare audited financial statements as of a date
other than its fiscal year end (unless the stockholders requesting such
registration agree to pay the expenses of such an audit); provided,
however, that in no event shall the Company withdraw a Registration
Statement under clause (i) after such Registration Statement has been
declared effective; and provided, further, however, that in any of the
events described in clause (i) or (ii) above, the Initiating Holders
requesting such Demand Registration shall be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration shall
not count as one of the permitted Demand Registrations. The Company shall
provide written notice to the Initiating Holders requesting such Demand
Registration of (x) any postponement or withdrawal of the filing or
effectiveness of a Registration Statement pursuant to this Section 3(d),
(y) the Company's decision to file or seek effectiveness of such
Registration Statement following such withdrawal or postponement and (z)
the effectiveness of such Registration Statement. The Company may postpone
the filing of a particular Registration Statement pursuant to this Section
3(d) only once.
(e) Selection of Underwriters. If any of the Registrable Common
Stock covered by a Demand Registration is to be sold in an underwritten
offering, the Initiating Holders shall have the right to select the
managing underwriter(s) to administer the offering subject to the approval
of the Company, which will not be unreasonably withheld.
(f) Other Registration Rights. The Company shall not grant to any
Person the right, other than as set forth herein and except to employees of
the Company with respect to registrations on Form S-8 (or any successor
forms thereto), to require the Company to register any securities of the
Company except such rights as are not more favorable than or inconsistent
with the rights granted to the Holders herein.
(g) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the
Company shall use its best efforts to keep such Demand Registration
effective for a period equal to 180 days from the date on which the SEC
declares such Demand Registration effective (or if such Demand Registration
is not effective during any period within such 180 days, such 180-day
period shall be extended by the number of days during such period when such
Demand Registration is not effective), or such shorter period which shall
terminate when all of the Registrable Common Stock covered by such Demand
Registration has been sold pursuant to such Demand Registration. If the
Company shall withdraw any Demand Registration pursuant to subsection (d)
of this Section 3 (a "Withdrawn Demand Registration"), the Initiating
Holders of the Registrable Common Stock remaining unsold and originally
covered by such Withdrawn Demand Registration shall be entitled to a
replacement Demand Registration which (subject to the provisions of this
Section 3) the Company shall use its best efforts to keep effective for a
period commencing on the effective date of such Demand Registration and
ending on the earlier to occur of the date (i) which is 180 days from the
effective date of such Demand Registration and (ii) on which all of the
Registrable Common Stock covered by such Demand Registration has been sold.
Such additional Demand Registration otherwise shall be subject to all of
the provisions of this Agreement.
4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
any of its common equity securities under the Securities Act (other than a
registration statement on Form S-8 or on Form S-4 or any similar successor
forms thereto), whether for its own account or for the account of one or
more securityholders of the Company, and the registration form to be used
may be used for any registration of Registrable Common Stock (a "Piggyback
Registration"), the Company shall give prompt written notice (in any event
within 10 business days after its receipt of notice of any exercise of
other demand registration rights) to all Holders of its intention to effect
such a registration and, subject to Sections 4(b) and 4(c), shall include
in such registration all Registrable Common Stock with respect to which the
Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. The Company may postpone or
withdraw the filing or the effectiveness of a Piggyback Registration at any
time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering and/or that the
number of shares of Registrable Common Stock proposed to be included in any
such registration would adversely affect the price per share of the
Company's equity securities to be sold in such offering, the Company shall
include in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Registrable Common Stock requested to be included
therein by the Holders, pro rata among the Holders of such Registrable
Common Stock on the basis of the number of shares requested to be
registered by such Holders, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such
securities on the basis of the number of shares requested to be registered
by such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of a
holder of the Company's securities other than Registrable Common Stock, and
the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering and/or
that the number of shares of Registrable Common Stock proposed to be
included in any such registration would adversely affect the price per
share of the Company's equity securities to be sold in such offering, the
Company shall include in such registration (i) first the securities
requested to be included therein by the holders requesting such
registration and the Registrable Common Stock requested to be included in
such registration by the Holders, pro rata among the holders of such
securities on the basis of the number of shares requested to be registered
by such holders, and (ii) second, other securities requested to be included
in such registration pro rata among the holders of such securities on the
basis of the number of shares requested to be registered by such holders or
as such holders may otherwise agree.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select
the managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
Registration Statement with respect to Registrable Common Stock pursuant to
Sections 3 hereof or pursuant to this Section 4, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at
least three months has elapsed from the effective date of such previous
registration.
5. Holdback Agreements.
The Company agrees not to effect any public sale or distribution
of any of its equity securities during the 10 days prior to and during the
180 days beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations on Form S-8 or
S-4 or any successor forms thereto) unless the underwriters managing the
offering otherwise agree.
6. Registration Procedures.
Whenever any Holder requests that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best
efforts to effect the registration and the sale of such Registrable Common
Stock in accordance with the intended methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Common Stock and use its best efforts to cause
such Registration Statement to become effective as soon as practicable
thereafter; and before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Holders of Registrable
Common Stock covered by such Registration Statement and the underwriter or
underwriters, if any, copies of all such documents proposed to be filed,
including documents incorporated by reference in the Prospectus and, if
requested by such Holders, the exhibits incorporated by reference, and such
Holders shall have the opportunity to object to any information pertaining
to such Holders that is contained therein and the Company will make the
corrections reasonably requested by such Holders with respect to such
information prior to filing any Registration Statement or amendment thereto
or any Prospectus or any supplement thereto;
(b) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective
for a period of not less than 180 days, in the case of a Demand
Registration, or such shorter period as is necessary to complete the
distribution of the securities covered by such Registration Statement and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock such number
of copies of such Registration Statement, each amendment and supplement
thereto, the Prospectus included in such Registration Statement (including
each preliminary Prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Common Stock owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Common Stock under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Common Stock owned by such seller (provided, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Common Stock, at any
time when a Prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of any event as a result of which the
Prospectus included in such Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company shall prepare a supplement or amendment to such Prospectus so
that, as thereafter delivered to the purchasers of such Registrable Common
Stock, such Prospectus shall not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading;
(f) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as the Holders of a majority of number of
shares of the Registrable Common Stock being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Common Stock (including, without limitation, effecting
a stock split or a combination of shares and making members of senior
management of the Company available to participate in, and cause them to
cooperate with the underwriters in connection with, "road-show" and other
customary marketing activities (including one-on-one meetings with
prospective purchasers of the Registrable Common Stock) and cause to be
delivered to the underwriters and the sellers, if any, opinions of counsel
to the Company in customary form, covering such matters as are customarily
covered by opinions for an underwritten public offering as the underwriters
may request and addressed to the underwriters and the sellers;
(g) make available, for inspection by any seller of Registrable
Common Stock, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(h) use its best efforts to cause all such Registrable Common
Stock to be listed on each securities exchange on which securities of the
same class issued by the Company are then listed or, if no such similar
securities are then listed, on Nasdaq or a national securities exchange
selected by the Company;
(i) provide a transfer agent and registrar for all such
Registrable Common Stock not later than the effective date of such
Registration Statement;
(j) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable Common
Stock sold pursuant thereto), letters from the Company's independent
certified public accountants addressed to each selling Holder (unless such
selling Holder does not provide to such accountants the appropriate
representation letter required by rules governing the accounting
profession) and each underwriter, if any, stating that such accountants are
independent public accountants within the meaning of the Securities Act and
the applicable rules and regulations adopted by the SEC thereunder, and
otherwise in customary form and covering such financial and accounting
matters as are customarily covered by letters of the independent certified
public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(k) make generally available to its securityholders a consolidated
earnings statement (which need not be audited) for the 12 months beginning
after the effective date of a Registration Statement as soon as reasonably
practicable after the end of such period, which earnings statement shall
satisfy the requirements of an earning statement under Section 11(a) of the
Securities Act;
(l) promptly notify each seller of Registrable Common Stock and
the underwriter or underwriters, if any:
(i) when the Registration Statement, any
pre-effective amendment, the Prospectus or any Prospectus
supplement or post-effective amendment to the
Registration Statement has been filed and, with respect
to the Registration Statement or any post-effective
amendment, when the same has become effective;
(ii) of any written request by the SEC for
amendments or supplements to the Registration Statement
or Prospectus;
(iii) of the notification to the Company by the
SEC of its initiation of any proceeding with respect to
the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Common Stock for sale
under the applicable securities or blue sky laws of any
jurisdiction.
(m) At all times after the Company has filed a registration
statement with the SEC pursuant to the requirements of either the
Securities Act or the Exchange Act, the Company shall file all reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and take such
further action as any Holder may reasonably request, all to the extent
required to enable such Holder to be eligible to sell Registrable Common
Stock pursuant to Rule 144 (or any similar rule then in effect).
(n) The Company may require each seller of Registrable Common
Stock as to which any registration is being effected to furnish to the
Company any other information regarding such seller and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(o) Each seller of Registrable Common Stock agrees by having its
stock treated as Registrable Common Stock hereunder that, upon notice of
the happening of any event as a result of which the Prospectus included in
such Registration Statement contains an untrue statement of a material fact
or omits any material fact necessary to make the statements therein not
misleading (a "Suspension Notice"), such seller will forthwith discontinue
disposition of Registrable Common Stock until such seller is advised in
writing by the Company that the use of the Prospectus may be resumed and is
furnished with a supplemented or amended Prospectus as contemplated by
Section 6(e) hereof, and, if so directed by the Company, such seller will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such seller's possession, of the Prospectus
covering such Registrable Common Stock current at the time of receipt of
such notice; provided, however, that any postponement of sales of
Registrable Common Stock pursuant to this Section 6(o) by the Holders shall
not exceed ninety (90) days in the aggregate in any one year. If the
Company shall give any notice to suspend the disposition of Registrable
Common Stock pursuant to a Prospectus, the Company shall extend the period
of time during which the Company is required to maintain the Registration
Statement effective pursuant to this Agreement by the number of days during
the period from and including the date of the giving of such notice to and
including the date such seller either is advised by the Company that the
use of the Prospectus may be resumed or receives the copies of the
supplemented or amended Prospectus contemplated by Section 6(e). In any
event, the Company shall not be entitled to deliver more than three (3)
Suspension Notices in any one year.
7. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, listing application fees, printing expenses,
transfer agent's and registrar's fees, cost of distributing Prospectuses in
preliminary and final form as well as any supplements thereto, and fees and
disbursements of counsel for the Company and all independent certified
public accountants and other Persons retained by the Company (all such
expenses being herein called "Registration Expenses") (but not including
any underwriting discounts or commissions attributable to the sale of
Registrable Common Stock or fees and expenses of more than one counsel
representing the Holders of Registrable Common Stock), shall be borne by
the Company. In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on
each securities exchange on which they are to be listed.
(b) In connection with each registration initiated hereunder
(whether a Demand Registration or a Piggyback Registration), the Company
shall reimburse the Holders covered by such registration or sale for the
reasonable fees and disbursements of one law firm chosen by the Holders of
a majority of the number of shares of Registrable Common Stock included in
such registration or sale.
(c) The obligation of the Company to bear the expenses described
in Section 7(a) and to reimburse the Holders for the expenses described in
Section 7(b) shall apply irrespective of whether a registration, once
properly demanded, if applicable, becomes effective, is withdrawn or
suspended, is converted to another form of registration and irrespective of
when any of the foregoing shall occur; provided, however, that Registration
Expenses for any Registration Statement withdrawn solely at the request of
a Holder of Registrable Common Stock (unless withdrawn following
postponement of filing by the Company in accordance with Section 3(d)(i) or
(ii)) or any supplements or amendments to a Registration Statement or
Prospectus resulting from a misstatement furnished to the Company by a
Holder shall be borne by such Holder.
8. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent
permitted by law, each Holder, its officers, directors and affiliates and
each Person who controls such Holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses arising
out of or based upon any untrue or alleged untrue statement of material
fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading or any violation or
alleged violation by the Company of the Securities Act, the Exchange Act or
applicable "blue sky" laws, except insofar as the same are made in reliance
and in conformity with information relating to such Holder furnished in
writing to the Company by such Holder expressly for use therein or caused
by such Holder's failure to deliver to such Holder's immediate purchaser a
copy of the Registration Statement or Prospectus or any amendments or
supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Holder with a sufficient
number of copies of the same. In connection with an underwritten offering,
the Company shall indemnify such underwriters, their officers and directors
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders.
(b) In connection with any Registration Statement in which a
Holder of Registrable Common Stock is participating, each such Holder shall
furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such
Registration Statement or Prospectus and, to the extent permitted by law,
shall indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses arising out of or based
upon any untrue or alleged untrue statement of material fact contained in
the Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is made in reliance on and in conformity with
information or affidavit so furnished in writing by such Holder expressly
for use in the Registration Statement; provided, however, that the
obligation to indemnify shall be several, not joint and several, among such
Holders and the liability of each such Holder shall be in proportion to and
limited to the net amount received by such Holder from the sale of
Registrable Common Stock pursuant to such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party there may
be one or more legal or equitable defenses available to such indemnified
party which are in addition to or may conflict with those available to
another indemnified party with respect to such claim. Failure to give
prompt written notice shall not release the indemnifying party from its
obligations hereunder.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of
securities.
(e) If the indemnification provided for in or pursuant to this
Section 8 is due in accordance with the terms hereof, but is held by a
court to be unavailable or unenforceable in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified person as a
result of such losses, claims, damages, liabilities or expenses 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 which result in such
losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of the indemnifying
party on the one hand and of the indemnified person on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and by such party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. In no event shall the
liability of any selling Holder be greater in amount than the amount of net
proceeds received by such Holder upon such sale or the amount for which
such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Section 8(a) or
8(b) hereof had been available under the circumstances.
9. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of
such underwriting arrangements.
10. Rule 144.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further
action as any Holder may reasonably request to make available adequate
current public information with respect to the Company meeting the current
public information requirements of Rule 144(c) under the Securities Act, to
the extent required to enable such Holder to sell Registrable Common Stock
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has
complied with such information and requirements.
11. Miscellaneous.
(a) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
If to the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If to Xxxxxxxx Communications, LLC:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Fax:
Attention:
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxx, Esq.
If to Xxxxx & Company Incorporated:
Xxxxx & Co.
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
If to Touch America, Inc.:
Touch America, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: General Counsel
If to Xxxx iBeam, LLC:
Xxxx Partners
Xxx Xxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxx
If to a transferee Holder, to the address of such Holder set forth
in the transfer documentation provided to the Company;
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section and the appropriate facsimile confirmation is
received or (b) if given by any other means, when delivered at the address
specified in this Section.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, it being understood that subsequent
Holders of the Registrable Common Stock are intended third party
beneficiaries hereof; provided, however, that, subject to the restrictions
on the right to initiate a Demand Registration set forth in Section 3(a)
and Section 3(b) hereof, the rights of a Holder under this Agreement may be
assigned by a Holder only to a transferee or assignee of at least 50,000
shares of Registrable Common Stock (as constituted on the date hereof), and
then only if the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee of the Registrable Common Stock with respect to which such rights
are assigned and a written undertaking by such transferee or assignee by
which the obligations and liabilities of a Holder hereunder are assumed by
such transferee or assignee.
(d) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of Delaware, without regard to
principles of conflicts of law.
(e) Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may
be brought in any federal or state court located in the State of New York,
and each of the parties hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 11(a) shall be deemed effective
service of process on such party.
(f) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
(h) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the transactions
contemplated herein. No provision of this Agreement or any other agreement
contemplated hereby is intended to confer on any Person other than the
parties hereto any rights or remedies.
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
(k) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the prior written consent of the holders of a majority of the
Conversion Shares (as constituted on the date hereof); provided, however,
that the consent or agreement of the Company shall be required with regard
to any termination, amendment, modification or supplement of, or waivers or
consents to departures from, the terms hereof, which affect the Company's
obligations hereunder.
[Execution Page Follows]
IN WITNESS WHEREOF, this Registration Rights Agreement has been
duly executed by each of the parties hereto as of the date first written
above.
iBEAM BROADCASTING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxx X. Xxxxxxxxx, Xx.
--------------------------
Name: Xxxx X. Xxxxxxxxx, Xx.
Title: Senior Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXXX & COMPANY INCORPORATED
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
TOUCH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President - Corporate
Development
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXX iBEAM, LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
