EXHIBIT 2
to SCHEDULE 13D
EXECUTION COPY
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
among
XXXXXXX.XXX, INC.,
GENERAL ATLANTIC PARTNERS 74, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAPSTAR, LLC,
ARDARA INC.,
INTERNATIONAL CAPITAL PARTNERS, INC.,
PROFIT SHARING TRUST
SPORTS CAPITAL PARTNERS, L.P.
SPORTS CAPITAL PARTNERS (CAYMAN ISLANDS), L.P.
SPORTS CAPITAL PARTNERS CEV, LLC
and
THE OTHER PARTIES NAMED HEREIN
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Dated: March 15, 2002
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TABLE OF CONTENTS
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PAGE
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1. Definitions...........................................................2
2. General; Securities Subject to this Agreement.........................7
(a) Grant of Rights..............................................7
(b) Registrable Securities.......................................7
(c) Holders of Registrable Securities............................7
3. Demand Registration...................................................7
(a) Request for Demand Registration..............................7
(b) Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration..........................................8
(c) Effective Demand Registration................................9
(d) Expenses.....................................................9
(e) Additional Demand Registration...............................9
(f) Underwriting Procedures......................................9
(g) Selection of Underwriters...................................10
4. Incidental or "Piggy-Back" Registration..............................10
(a) Request for Incidental Registration.........................10
(b) Expenses....................................................11
5. Shelf Registration...................................................11
(a) Request for a Form S-3 Shelf Registration...................11
(b) Form S-3 Underwriting Procedures............................12
(c) Limitations on Form S-3 Registrations.......................12
(d) Expenses....................................................13
(e) No Demand Registration......................................13
6. Holdback Agreements..................................................13
(a) Restrictions on Public Sale by Designated Holders...........13
(b) Restrictions on Public Sale by the Company..................13
7. Registration Procedures..............................................14
(a) Obligations of the Company..................................14
(b) Seller Information..........................................17
(c) Notice to Discontinue.......................................17
(d) Registration Expenses.......................................17
8. Indemnification; Contribution........................................18
(a) Indemnification by the Company..............................18
(b) Indemnification by Designated Holders.......................18
(c) Conduct of Indemnification Proceedings......................19
(d) Contribution................................................20
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9. Rule 144.............................................................20
10. Miscellaneous........................................................21
(a) Recapitalizations, Exchanges, etc...........................21
(b) No Inconsistent Agreements..................................21
(c) Remedies....................................................21
(d) Amendments and Waivers......................................21
(e) Notices.....................................................22
(f) Successors and Assigns; Third Party Beneficiaries...........24
(g) Counterparts................................................24
(h) Headings....................................................25
(i) Governing Law...............................................25
(j) Severability................................................25
(k) Rules of Construction.......................................25
(l) Entire Agreement............................................25
(m) Further Assurances..........................................25
(n) Other Agreements............................................25
SCHEDULE 1.....................................................................i
ii
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of March
15, 2002 (as amended, modified and/or supplemented from time to time, this
"AGREEMENT"), by and among Xxxxxxx.xxx, Inc., a Delaware corporation (the
"COMPANY"), General Atlantic Partners 74, L.P., a Delaware limited partnership
("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited partnership
("GAP COINVESTMENT"), GapStar, LLC, a Delaware limited liability company
("GAPSTAR"), Ardara Inc., a British Virgin Islands corporation ("ARDARA"),
International Capital Partners, Inc., Profit Sharing Trust, a Connecticut
corporation ("ICP"), Sports Capital Partners, L.P., a Delaware limited
partnership ("SC DELAWARE"), Sports Capital Partners (Cayman Islands), L.P., a
Cayman Islands limited partnership ("SC CAYMAN"), Sports Capital Partners CEV,
LLC, a Delaware limited liability company ("SC LLC" and together with SC
Delaware and SC Cayman, "SPORTS CAPITAL"), and the other persons set forth on
Schedule 1 attached hereto (the "OTHER INVESTORS").
WHEREAS, certain of the parties hereto are parties to the Registration
Rights Agreement, dated as of June 21, 2001, as amended by Amendment No. 1
thereto, dated as of August 1, 2001 (collectively, the "ORIGINAL AGREEMENT");
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of May 1,
2001 (the "MAY STOCK PURCHASE AGREEMENT"), by and among the Company, GAP LP, GAP
Coinvestment, GapStar and ICP, as amended by (i) Amendment No. 1 to the May
Stock Purchase Agreement, dated as of June 21, 2001 ("AMENDMENT NO. 1"), by and
among the Company, GAP LP, GAP Coinvestment, GapStar and ICP and (ii) Amendment
No. 2 to the May Stock Purchase Agreement, dated as of June 21, 2001 ("AMENDMENT
NO. 2" and collectively with the May Stock Purchase Agreement and Amendment No.
1, the "SERIES F STOCK PURCHASE AGREEMENT"), by and among the Company, GAP LP,
GAP Coinvestment, GapStar, ICP and the other parties named therein, the Company
issued and sold to GAP LP, GAP Coinvestment, GapStar, ICP, Ardara and the other
parties named therein, an aggregate of 28,333,333 shares of Series F Senior
Cumulative Redeemable Preferred Stock, par value $0.000225 per share, of the
Company (the "SERIES F PREFERRED STOCK");
WHEREAS, pursuant to the Securities Purchase Agreement, dated as of
March 15, 2002 (the "SECURITIES PURCHASE AGREEMENT"), by and among the Company,
GAP LP, GAP Coinvestment and GapStar, the Company has agreed to issue and sell
to GAP LP, GAP Coinvestment and GapStar, (i) an aggregate of 8,474,576 shares of
Series G Senior Cumulative Redeemable Convertible Participating Preferred Stock,
par value $0.000225 per share, of the Company (the "SERIES G PREFERRED STOCK")
and (ii) warrants (the "WARRANTS") to purchase, at an exercise price of $2.36
per share, an aggregate of 1,800,000 shares of Common Stock (as hereinafter
defined);
WHEREAS, in order to induce each of GAP LP, GAP Coinvestment and
GapStar to purchase its shares of Series G Preferred Stock, the Company, the
General Atlantic Stockholders and ICP desire to amend and restate in its
entirety the Original Agreement in the manner set forth herein;
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WHEREAS, pursuant to the terms of Section 10(d) of the Original
Agreement, the Original Agreement may not be amended unless consented to in
writing by (i) the Company, (ii) the General Atlantic Stockholders and (iii)
ICP; and
WHEREAS, the parties hereto intend to supersede and restate in its
entirety the Original Agreement in the manner set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"AFFILIATE" means any Person who is an "affiliate" as defined
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act. In
addition, the following shall be deemed to be Affiliates of GAP LP, GapStar and
GAP Coinvestment: (a) GAP LLC, the members of GAP LLC, the limited partners of
GAP Coinvestment, the limited partners of GAP LP and the members of GapStar; (b)
any Affiliate of GAP LLC, the members of GAP LLC, the limited partners of GAP
Coinvestment, the limited partners of GAP LP or the members of GapStar; and (c)
any limited liability company or partnership a majority of whose members or
partners, as the case may be, are members or former members of GAP LLC or
consultants or key employees of General Atlantic Service Corporation, a Delaware
corporation and an Affiliate of GAP LLC. In addition, GAP LP, GAP Coinvestment
and GapStar shall be deemed to be Affiliates of one another. Additionally, the
following shall be deemed to be Affiliates of SC LLC, SC Delaware and SC Cayman:
(a) the direct and indirect beneficial owners (whether limited or general
partners, shareholders, stockholders or otherwise) of SC LLC, the direct and
indirect beneficial owners (whether limited or general partners, shareholders,
stockholders or otherwise) of SC Delaware and the direct and indirect beneficial
owners (whether limited or general partners, shareholders, stockholders or
otherwise) of SC Cayman; (b) any Affiliate of the members of SC LLC, the limited
partners of SC Delaware or the limited partners of SC Cayman; and (c) any
limited liability company or partnership a majority of whose members or
partners, as the case may be, are members or key employees of Sports Capital
Partners, LLC, a Delaware limited liability company, SC LLC, SC Delaware or SC
Cayman. SC LLC, SC Delaware and SC Cayman shall be deemed to be Affiliates of
one another. In addition, with respect to the Other Investors, the term
"Affiliate" is intended to refer to affiliates of the persons listed under the
column "Purchasers" on SCHEDULE 1.
"AGREEMENT" means this Agreement as the same may be further
amended, supplemented or modified in accordance with the terms thereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section
3(g) of this Agreement.
"ARDARA" has the meaning set forth in the preamble to this
Agreement.
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"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CLOSING PRICE" means, with respect to the Registrable
Securities, as of the date of determination, (a) if the Registrable Securities
are listed on a national securities exchange, the closing price per share of a
Registrable Security on such date published in THE WALL STREET JOURNAL (NATIONAL
EDITION) or, if no such closing price on such date is published in THE WALL
STREET JOURNAL (NATIONAL EDITION), the average of the closing bid and asked
prices on such date, as officially reported on the principal national securities
exchange on which the Registrable Securities are then listed or admitted to
trading; or (b) if the Registrable Securities are not then listed or admitted to
trading on any national securities exchange but are designated as national
market system securities by the NASD, the last trading price per share of a
Registrable Security on such date; or (c) if there shall have been no trading on
such date or if the Registrable Securities are not designated as national market
system securities by the NASD, the average of the reported closing bid and asked
prices of the Registrable Securities on such date as shown by The Nasdaq Stock
Market, Inc. (or its successor) and reported by any member firm of The New York
Stock Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c)
is applicable, a market price per share determined in good faith by the Board of
Directors or, if such determination is not satisfactory to the Designated Holder
for whom such determination is being made, by a nationally recognized investment
banking firm selected by the Company and such Designated Holder, the expenses
for which shall be borne equally by the Company and such Designated Holder. If
trading is conducted on a continuous basis on any exchange, then the closing
price shall be at 4:00 P.M. New York City time.
"COMMISSION" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act and
the Exchange Act.
"COMMON STOCK" means the Common Stock, par value $0.000225 per
share, of the Company or any other capital stock of the Company into which such
stock is reclassified or reconstituted and any other common stock of the
Company.
"COMMON STOCK EQUIVALENTS" means any security or obligation
which is by its terms, directly or indirectly, convertible, exchangeable or
exercisable into or for shares of Common Stock, including, without limitation,
the Preferred Stock and Warrants, and any option, warrant or other subscription
or purchase right with respect to Common Stock or any Common Stock Equivalent.
"COMPANY" has the meaning set forth in the preamble to this
Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section
4(a) of this Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section
3(a) of this Agreement.
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"DESIGNATED HOLDER" means each of the General Atlantic
Stockholders, the Major Stockholders and any transferee of any of them to whom
Registrable Securities have been transferred in accordance with Section 10(f) of
this Agreement, other than a transferee to whom Registrable Securities have been
transferred pursuant to a Registration Statement under the Securities Act or
Rule 144 or Regulation S under the Securities Act (or any successor rule
thereto).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"FIFTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT" means
the Fifth Amended and Restated Investor Rights Agreement, dated August 4, 1999,
among the Company and the other Persons named therein.
"GAP COINVESTMENT" has the meaning set forth in the preamble
to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP and the managing
member of GapStar, and any successor to such entity.
"GAP LP" has the meaning set forth in the preamble to this
Agreement.
"GAPSTAR" has the meaning set forth in the preamble to this
Agreement.
"GENERAL ATLANTIC STOCKHOLDERS" means GAP LP, GAP
Coinvestment, GapStar, any Subsequent General Atlantic Purchaser and any
transferee thereof to whom Registrable Securities are transferred in accordance
with Section 10(f) of this Agreement.
"HOLDERS' COUNSEL" has the meaning set forth in Section
7(a)(i) of this Agreement.
"ICP" has the meaning set forth in the preamble to this
Agreement.
"INCIDENTAL REGISTRATION" has the meaning set forth in Section
4(a) of this Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c)
of this Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c)
of this Agreement.
"INITIATING HOLDERS" has the meaning set forth in Section 3(a)
of this Agreement.
"INSPECTOR" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
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"LIABILITY" has the meaning set forth in Section 8(a) of this
Agreement.
"MAJOR STOCKHOLDERS" means Ardara, ICP, Sports Capital, the
Other Investors and any transferee thereof to whom Registrable Securities are
transferred in accordance with Section 10(f) of this Agreement.
"MAY STOCK PURCHASE AGREEMENT" has the meaning set forth in
the recitals to this Agreement.
"NASD" means the National Association of Securities Dealers,
Inc.
"ORIGINAL AGREEMENT" has the meaning set forth in the recitals
to this Agreement.
"OTHER INVESTORS" has the meaning set forth in the preamble to
this Agreement.
"PERSON" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"PREFERRED STOCK" means the Series F Preferred Stock and the
Series G Preferred Stock.
"RECORDS" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
"REGISTRABLE SECURITIES" means each of the following: (a) any
and all shares of Common Stock owned by the Designated Holders or issued or
issuable upon conversion of shares of Preferred Stock or issued or issuable upon
exercise of the Warrants, and any shares of Common Stock issued or issuable upon
conversion of any shares of preferred stock or exercise of any warrants acquired
by any of the Designated Holders after the date hereof, (b) any other shares of
Common Stock acquired or owned by any of the Designated Holders after the date
hereof if such Designated Holder is an Affiliate of the Company and (c) any
shares of Common Stock issued or issuable to any of the Designated Holders with
respect to the Registrable Securities by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and any shares of Common
Stock or voting common stock issuable upon conversion, exercise or exchange
thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section
7(d) of this Agreement.
"REGISTRATION STATEMENT" means a registration statement filed
pursuant to the Securities Act.
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"S-3 INITIATING HOLDERS" has the meaning set forth in Section
5(a) of this Agreement.
"S-3 REGISTRATION" has the meaning set forth in Section 5(a)
of this Agreement.
"SC CAYMAN" has the meaning set forth in the preamble to this
Agreement.
"SC DELAWARE" has the meaning set forth in the preamble to
this Agreement.
"SC LLC" has the meaning set forth in the preamble to this
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in
the recitals to this Agreement.
"SERIES F PREFERRED STOCK" has the meaning set forth in the
recitals to this Agreement.
"SERIES F STOCK PURCHASE AGREEMENT" has the meaning set forth
in the recitals to this Agreement.
"SERIES G PREFERRED STOCK" has the meaning set forth in the
recitals to this Agreement.
"SPORTS CAPITAL" has the meaning set forth in the preamble to
this Agreement.
"SUBSEQUENT GENERAL ATLANTIC PURCHASER" means any Affiliate of
GAP LLC that, after the date hereof, acquires shares of Common Stock, Preferred
Stock or any Common Stock Equivalents.
"VALID BUSINESS REASON" has the meaning set forth in Section
3(a) of this Agreement.
"WARRANTS" has the meaning set forth in the recitals to this
Agreement.
"XXXXXXX" means Xxxxxxx Capital Group LLC, a New York limited
liability company.
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2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants
registration rights to the Designated Holders upon the terms and conditions set
forth in this Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, with respect to each Designated Holder, Registrable Securities will
cease to be Registrable Securities, when (i) a Registration Statement covering
such Registrable Securities has been declared effective under the Securities Act
by the Commission and such Registrable Securities have been disposed of pursuant
to such effective Registration Statement, (ii) (x) the entire amount of the
Registrable Securities owned by such Designated Holder may be sold in a single
sale, in the opinion of counsel satisfactory to the Company and such Designated
Holder, each in their reasonable judgment, without any limitation as to volume
pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act and (y) such Designated Holder owning such Registrable Securities
owns less than one percent (1%) of the outstanding shares of Common Stock on a
fully diluted basis, or (iii) the Registrable Securities are proposed to be sold
or distributed by a Person not entitled to the registration rights granted by
this Agreement.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. At any time after
the date hereof, one or more of the General Atlantic Stockholders as a group,
acting through GAP LLC or its written designee (the "INITIATING HOLDERS"), may
make a written request to the Company to register, and the Company shall
register, under the Securities Act (other than pursuant to a Registration
Statement on Form S-4 or S-8 or any successor thereto) (a "DEMAND
REGISTRATION"), the number of Registrable Securities stated in such request;
PROVIDED, HOWEVER, that (x) subject to Section 3(e), the Company shall not be
obligated to effect more than two (2) such Demand Registrations for the General
Atlantic Stockholders and (y) the Company shall not be obligated to effect a
registration pursuant to this Section 3(a) during such time as the Company has
an "evergreen" shelf registration with respect to all such Registrable
Securities pursuant to Rule 415 under the Securities Act on form S-3 (or any
successor form) and such shelf registration has been declared, and remains,
effective. For purposes of the preceding sentence, two or more Registration
Statements filed in response to one demand shall be counted as one Demand
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Registration. If the Board of Directors, in its good faith judgment, determines
that any registration of Registrable Securities should not be made or continued
because it would materially interfere with any material financing, acquisition,
corporate reorganization or merger or other material transaction involving the
Company (a "VALID BUSINESS Reason"), the Company may (x) postpone filing a
Registration Statement relating to a Demand Registration until such Valid
Business Reason no longer exists, but in no event for more than ninety (90)
days, and (y) in case a Registration Statement has been filed relating to a
Demand Registration, if the Valid Business Reason has not resulted from actions
taken by the Company, the Company, upon the approval of a majority of the Board
of Directors, such majority to include at least one director elected by the
holders of the Series F Preferred Stock and one director elected by the holders
of the Series G Preferred Stock, may cause such Registration Statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such Registration Statement. The Company shall give written notice
of its determination to postpone or withdraw a Registration Statement and of the
fact that the Valid Business Reason for such postponement or withdrawal no
longer exists, in each case, promptly after the occurrence thereof.
Notwithstanding anything to the contrary contained herein, the Company may not
postpone or withdraw a filing under this Section 3(a) more than once in any
twelve (12) month period. Each request for a Demand Registration by the
Initiating Holders shall state the amount of the Registrable Securities proposed
to be sold and the intended method of disposition thereof.
(b) INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A
DEMAND REGISTRATION. Each of the Designated Holders (other than Initiating
Holders which have requested a registration under Section 3(a)) may offer its or
his Registrable Securities under any Demand Registration pursuant to this
Section 3(b). Within seven (7) days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3(a)) and (ii) subject to
Section 3(f), include in such registration all of the Registrable Securities
held by such Designated Holders from whom the Company has received a written
request for inclusion therein within ten (10) days of the receipt by such
Designated Holders of such written notice referred to in clause (i) above. Each
such request by such Designated Holders shall specify the number of Registrable
Securities proposed to be registered. The failure of any Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be
deemed to be a waiver of such Designated Holder's rights under this Section 3
with respect to such Demand Registration. Any Designated Holder may waive its
rights under this Section 3 prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holders. If
a Designated Holder sends the Company a written request for inclusion of part or
all of such Designated Holder's Registrable Securities in a registration, such
Designated Holder shall not be entitled to withdraw or revoke such request
without the prior written consent of the Company in its sole discretion unless,
as a result of facts or circumstances arising after the date on which such
request was made relating to the Company or to market conditions, such
Designated Holder reasonably determines that participation in such registration
would have a material adverse effect on such Designated Holder.
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(c) EFFECTIVE DEMAND REGISTRATION. The Company shall use
its commercially reasonable efforts to cause any such Demand Registration to
become and remain effective not later than sixty (60) days after it receives a
request under Section 3(a) hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and (ii) 120 days; PROVIDED,
HOWEVER, that a registration shall not constitute a Demand Registration if (x)
after such Demand Registration has become effective, such registration or the
related offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Initiating Holders and such interference is not thereafter
eliminated or (y) the conditions specified in the underwriting agreement, if
any, entered into in connection with such Demand Registration are not satisfied
or waived, other than by reason of a failure by the Initiating Holder.
(d) EXPENSES. The Company shall pay all Registration
Expenses in connection with a Demand Registration, whether or not such Demand
Registration becomes effective.
(e) ADDITIONAL DEMAND REGISTRATION. If at least
seventy-five percent (75%) of the Registrable Securities proposed to be
registered in such Demand Registration are not included in such Demand
Registration, then the General Atlantic Stockholders as a group shall have the
right to require the Company to effect an additional registration under the
Securities Act of all or part of the Registrable Securities held by such General
Atlantic Stockholders in accordance with the provisions of this Section 3, and
the Company shall pay the Registration Expenses in connection with such
additional registration.
(f) UNDERWRITING PROCEDURES. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders so elect, the Company shall use its commercially reasonable efforts to
cause such Demand Registration to be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter selected in accordance with
Section 3(g). In connection with any Demand Registration under this Section 3
involving an underwritten offering, none of the Registrable Securities held by
any Designated Holder making a request for inclusion of such Registrable
Securities pursuant to Section 3(b) hereof shall be included in such
underwritten offering unless such Designated Holder accepts the terms of the
offering as agreed upon by the Company, the other Initiating Holders and the
Approved Underwriter, and then, subject to the immediately following sentence,
only in such quantity as will not, in the opinion of the Approved Underwriter,
jeopardize the success of such offering by the Initiating Holders. If the
Approved Underwriter advises the Company that the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently
large to have a material adverse effect on the success of such offering, then
the Company shall include in such registration only the aggregate amount of
Registrable Securities that the Approved Underwriter believes may be sold
without any such material
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adverse effect and shall reduce the amount of Registrable Securities to be
included in such registration, FIRST, as to the Company, SECOND, as to any other
stockholders of the Company who hold similar registration rights to the
Designated Holders hereunder pursuant to other registration rights agreements as
a group, pro rata within each group based upon the number of Registrable
Securities or other similar securities owned by each such other stockholder of
the Company as a group, if any, and THIRD, as to the (i) Designated Holders and
(ii) any other stockholders of the Company who hold and have exercised similar
registration rights as the Initiating Holders hereunder pursuant to other
registration rights agreements as a group, pro rata within each group based on
the number of Registrable Securities or other similar securities owned by each
such Designated Holder or each such other stockholder of the Company.
(g) SELECTION OF UNDERWRITERS. If any Demand
Registration, or S-3 Registration, as the case may be, of Registrable Securities
is in the form of an underwritten offering, the Company shall select and obtain
an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER"); PROVIDED, HOWEVER,
that the Approved Underwriter shall, in any case, also be approved by the
Initiating Holders or S-3 Initiating Holders, as the case may be, such approval
not to be unreasonably withheld.
4. INCIDENTAL OR "PIGGY-BACK" REGISTRATION.
(a) REQUEST FOR INCIDENTAL REGISTRATION. If the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering by the Company for its own account (other than a Registration
Statement on Form S-4 or S-8 or any successor thereto) or for the account of any
stockholder of the Company other than the Designated Holders, then the Company
shall give written notice of such proposed filing to each of the Designated
Holders at least twenty (20) days before the anticipated filing date, and such
notice shall describe the proposed registration and distribution and offer such
Designated Holders the opportunity to register the number of Registrable
Securities as each such Designated Holder may request (an "INCIDENTAL
REGISTRATION"). The Company shall use its commercially reasonable efforts
(within twenty (20) days of the notice provided for in the preceding sentence)
to cause the managing underwriter or underwriters in the case of a proposed
underwritten offering (the "COMPANY UNDERWRITER") to permit each of the
Designated Holders who have requested in writing to participate in the
Incidental Registration to include its or his Registrable Securities in such
offering on the same terms and conditions as the securities of the Company or
the account of such other stockholder, as the case may be, included therein. In
connection with any Incidental Registration under this Section 4(a) involving an
underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
between the Company, such other stockholders, if any, and the Company
Underwriter, and then, subject to the immediately following sentence, only in
such quantity as the Company Underwriter believes will not jeopardize the
success of the offering by the Company. If the Company Underwriter determines
that the registration of all or part of the Registrable Securities which the
Designated Holders have requested to be included would materially adversely
affect the
11
success of such offering, then the Company shall be required to include in such
Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such adverse effect, FIRST, all
of the securities to be offered for the account of the Company, SECOND, the
Registrable Securities to be offered for the account of the Designated Holders
pursuant to this Section 4 or securities to be offered for the account of other
stockholders of the Company having similar "piggy-back" registration rights to
the Designated Holders hereunder pursuant to other similar registration rights
agreements, as a group pro rata based on the number of Registrable Securities or
similar securities owned by each such Designated Holder or each such other
stockholder of the Company, and THIRD, any other securities requested to be
included in such offering.
(b) EXPENSES. The Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this Section
4, whether or not such Incidental Registration becomes effective.
5. SHELF REGISTRATION.
(a) REQUEST FOR A FORM S-3 SHELF REGISTRATION. In the
event that the Company shall receive from (i) the Designated Holders of at least
66 2/3% of the outstanding shares of Series F Preferred Stock or shares of
Common Stock issued upon conversion of such shares of Series F Preferred Stock
or (ii) the Designated Holders of at least 66 2/3% of the outstanding shares of
Series G Preferred Stock or shares of Common Stock issued upon conversion of
such shares of Series G Preferred Stock (each of (i) and (ii), the "S-3
INITIATING HOLDERS"), a written request that the Company register for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act on Form S-3 (or any successor form then in effect) (an "S-3
REGISTRATION"), all or a portion of the Registrable Securities owned by such S-3
Initiating Holders, the Company shall give written notice of such request to all
of the Designated Holders (other than S-3 Initiating Holders which have
requested an S-3 Registration under this Section 5(a)) at least ten (10) days
before the anticipated filing date of such Form S-3, and such notice shall
describe the proposed registration and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request in writing to the Company, given within ten (10)
days after their receipt from the Company of the written notice of such
registration. If requested by the S-3 Initiating Holders, then such S-3
Registration shall be for an offering on a continuous basis pursuant to Rule 415
under the Securities Act. With respect to each S-3 Registration, the Company
shall subject to Section 5(b) (i) include in such offering the Registrable
Securities of the S-3 Initiating Holders and (ii) use its reasonable best
efforts to (x) cause such registration pursuant to this Section 5(a) to become
and remain effective as soon as practicable, but in any event not later than
forty-five (45) days after it receives a request therefor and (y) include in
such offering the Registrable Securities of the Designated Holders (other than
S-3 Initiating Holders which have requested an S-3 Registration under this
Section 5(a)) who have requested in writing to participate in such registration
on the same terms and conditions as the Registrable Securities of the S-3
Initiating Holders included therein. The Company shall use its best efforts to
keep the S-3 Registration continuously effective under the Securities Act until
all the Registrable
12
Securities are disposed of in accordance with the plan of distribution for such
S-3 Registration.
(b) FORM S-3 UNDERWRITING PROCEDURES. If the S-3
Initiating Holders holding a majority of the Registrable Securities held by all
of the S-3 Initiating Holders so elect, the Company shall use its commercially
reasonable efforts to cause such S-3 Registration pursuant to this Section 5 to
be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter selected in accordance with Section 3(g). In connection with any S-3
Registration under Section 5(a) involving an underwritten offering, the Company
shall not be required to include any Registrable Securities in such underwritten
offering unless the Designated Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, the Approved
Underwriter and the S-3 Initiating Holders, and then only in such quantity as
such underwriter believes will not jeopardize the success of such offering by
the S-3 Initiating Holders. If the Approved Underwriter believes that the
registration of all or part of the Registrable Securities which the S-3
Initiating Holders and the other Designated Holders have requested to be
included would materially adversely affect the success of such public offering,
then the Company shall be required to include in the underwritten offering, to
the extent of the amount that the Approved Underwriter believes may be sold
without causing such adverse effect, FIRST, all of the Registrable Securities to
be offered for the account of the S-3 Initiating Holders, the Registrable
Securities to be offered for the account of the other Designated Holders who
requested inclusion of their Registrable Securities pursuant to Section 5(a),
and any other stockholder of the Company having similar shelf registration
rights as the S-3 Initiating Holders hereunder pursuant to other similar
registration rights agreements, as a group pro rata based on the number of
Registrable Securities or other similar securities owned by such S-3 Initiating
Holders, Designated Holders or other stockholders of the Company, SECOND, the
Registrable Securities to be offered for the account of any other stockholders
of the Company who are entitled to registration of securities of the Company
based upon similar rights to those in Section 5(a), pro rata based upon the
number of registrable securities owned by such other stockholders, and THIRD,
any other securities requested to be included in such offering.
(c) LIMITATIONS ON FORM S-3 REGISTRATIONS. If the Board
of Directors has a Valid Business Reason, the Company may (x) postpone filing a
Registration Statement relating to a S-3 Registration until such Valid Business
Reason no longer exists, but in no event for more than ninety (90) days, and (y)
in case a Registration Statement has been filed relating to a S-3 Registration,
if the Valid Business Reason has not resulted from actions taken by the Company,
the Company, upon the approval of a majority of the Board of Directors, such
majority to include at least one director elected by the holders of the Series F
Preferred Stock and at least one director elected by the holders of the Series G
Preferred Stock, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
Registration Statement. The Company shall give written notice of its
determination to postpone or withdraw a Registration Statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each
13
case, promptly after the occurrence thereof. Notwithstanding anything to the
contrary contained herein, the Company may not postpone or withdraw a filing due
to a Valid Business Reason more than once in any twelve (12) month period. In
addition, the Company shall not be required to effect any registration pursuant
to Section 5(a), (i) within ninety (90) days after the effective date of any
other Registration Statement of the Company, (ii) if within the twelve (12)
month period preceding the date of such request, the Company has effected two
(2) registrations on Form S-3 pursuant to Section 5(a), and (iii) if Form S-3 is
not available for such offering by the S-3 Initiating Holders.
(d) EXPENSES. The Company shall bear all Registration
Expenses in connection with any S-3 Registration pursuant to this Section 5,
whether or not such S-3 Registration become effective.
(e) NO DEMAND REGISTRATION. No registration requested by
any S-3 Initiating Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. To
the extent (i) requested by the Approved Underwriter or the Company Underwriter,
as the case may be, in the case of an underwritten public offering and (ii) all
of the Company's officers, directors and holders in excess of two percent (2%)
of its outstanding capital stock execute agreements identical to those referred
to in this Section 6(a), each Designated Holder agrees (x) not to effect any
public sale or distribution of any Registrable Securities or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144 under the Securities Act, or offer to
sell, contract to sell (including without limitation any short sale), grant any
option to purchase or enter into any hedging or similar transaction with the
same economic effect as a sale any Registrable Securities and (y) not to make
any request for a Demand Registration or S-3 Registration under this Agreement,
during the ninety (90) day period or such shorter period, if any, mutually
agreed upon by such Designated Holder and the requesting party beginning on the
effective date of the Registration Statement (except as part of such
registration) for such public offering. No Designated Holder of Registrable
Securities subject to this Section 6(a) shall be released from any obligation
under any agreement, arrangement or understanding entered into pursuant to this
Section 6(a) unless all other Designated Holders of Registrable Securities
subject to the same obligation are also released.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The
Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
Registration Statement in which the Designated Holders of Registrable Securities
are participating and ending on the earlier of (i) the date on which all
Registrable Securities registered on such Registration Statement are sold and
14
(ii) 120 days after the effective date of such Registration Statement (except as
part of such registration).
7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its commercially reasonable
efforts to effect the registration and sale of such Registrable Securities in
accordance with the intended method of distribution thereof as quickly as
practicable, and in connection with any such request, the Company shall, as
expeditiously as possible:
(i) prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of such Registrable Securities in accordance with the intended
method of distribution thereof, and cause such Registration Statement to become
effective; PROVIDED, HOWEVER, that (x) before filing a Registration Statement or
prospectus or any amendments or supplements thereto, the Company shall provide
counsel selected by the Designated Holders holding a majority of the Registrable
Securities being registered in such registration ("HOLDERS' Counsel") and any
other Inspector with an adequate and appropriate opportunity to review and
comment on such Registration Statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the Commission, subject
to such documents being under the Company's control, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities of any
stop order issued or threatened by the Commission and take all action required
to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such
amendments and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective for the lesser of (x) 120 days and (y) such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold; PROVIDED, that if the S-3 Initiating
Holders have requested that an S-3 Registration be for an offering on a
continuous basis pursuant to Rule 415 under the Securities Act, then the Company
shall keep such Registration Statement effective until all Registrable
Securities covered by such Registration Statement have been sold; 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;
(iii) furnish to each seller of Registrable
Securities, prior to filing a Registration Statement, at least one copy of such
Registration Statement as is proposed to be filed, and thereafter such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto), and the prospectus included in such
Registration Statement (including each preliminary prospectus) and any
prospectus filed under Rule 424 under the Securities Act
15
as each such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller of Registrable Securities may request, and to continue such
qualification in effect in such jurisdiction for as long as permissible pursuant
to the laws of such jurisdiction, or for as long as any such seller requests or
until all of such Registrable Securities are sold, whichever is shortest, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) notify each seller of Registrable Securities
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon 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 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 were made, not misleading and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller of Registrable Securities a reasonable number of copies
of such supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit 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 were made,
not misleading;
(vi) enter into and perform customary agreements
(including an underwriting agreement in form requested by the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3,
Section 4 or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities, including causing its officers to
participate in "road shows" and other information meetings organized by the
Approved Underwriter or Company Underwriter;
(vii) make available at reasonable times for
inspection by any seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities pursuant to a
Registration Statement, Holders' Counsel and any attorney, accountant or other
agent retained by any such seller or any managing underwriter (each, an
"INSPECTOR" and collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and the
independent public
16
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors (and
the Inspectors shall confirm their agreement in writing in advance to the
Company if the Company shall so request) unless (x) the disclosure of such
Records is necessary, in the Company's judgment, to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction after exhaustion of all appeals therefrom or (z) the
information in such Records was known to the Inspectors on a non-confidential
basis prior to its disclosure by the Company or has been made generally
available to the public. Each seller of Registrable Securities agrees that it
shall, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(viii) if such sale is pursuant to an underwritten
offering, obtain a "cold comfort" letter dated the effective date of the
Registration Statement and the date of the closing under the underwriting
agreement from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold comfort"
letters as Holders' Counsel or the managing underwriter reasonably requests;
(ix) furnish, at the request of any seller of
Registrable Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such securities are
not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such request,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(x) comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of the
Registration Statement, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed, PROVIDED that the applicable listing requirements are
satisfied;
(xii) keep Holders' Counsel advised in writing as
to the initiation and progress of any registration under Section 3, Section 4 or
Section 5 hereunder;
17
(xiii) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(xiv) take all other steps reasonably necessary to
effect the registration of the Registrable Securities contemplated hereby.
(b) SELLER INFORMATION. The Company may require each
seller of Registrable Securities as to which any registration is being effected
to furnish, and such seller shall furnish, to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Designated Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 7(a)(v), such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Designated Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 7(a)(v) and, if so directed by the Company, such Designated Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Designated Holder's possession, of the
prospectus covering such Registrable Securities which is current at the time of
receipt of such notice. If the Company shall give any such notice, the Company
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation,
the period referred to in Section 7(a)(ii)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 7(a)(v) to and including the date when sellers of such Registrable
Securities under such Registration Statement shall have received the copies of
the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 7(a)(v).
(d) REGISTRATION EXPENSES. The Company shall pay all
expenses arising from or incident to its performance of, or compliance with,
this Agreement, including, without limitation, (i) Commission, stock exchange
and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable fees, charges
and disbursements of counsel to any underwriter incurred in connection with
"blue sky" qualifications of the Registrable Securities as may be set forth in
any underwriting agreement), (iii) all printing, messenger and delivery
expenses, (iv) the fees, charges and expenses of one counsel to the Company and
of its independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification) and, in the case of Demand
Registration or an S-3 Registration, any legal fees, charges and expenses of one
special counsel selected by the Initiating Holders or the S-3 Initiating
Holders, as the case may be, (v) any liability insurance or other premiums for
insurance obtained in connection with any Demand Registration or piggy-back
registration thereon, Incidental Registration
18
or S-3 Registration pursuant to the terms of this Agreement, regardless of
whether such Registration Statement is declared effective and (vi) fees and
disbursements of underwriters, selling brokers, dealers, managers and similar
securities industry professionals relating to distribution of Registrable
Securities. All of the expenses described in the preceding sentence of this
Section 7(d) are referred to herein as "REGISTRATION EXPENSES." The Designated
Holders of Registrable Securities sold pursuant to a Registration Statement
shall bear the expense of any broker's commission or underwriter's discount or
commission relating to registration and sale of such Designated Holders'
Registrable Securities in proportion to the number of Registrable Securities
that each Designated Holder shall have registered pursuant to such Registration
Statement and, subject to clause (iv) above, shall bear the fees and expenses of
their own counsel.
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Designated Holder, its partners, directors,
officers, affiliates and each Person who controls (within the meaning of Section
15 of the Securities Act) such Designated Holder from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a "LIABILITY" and collectively, "LIABILITIES"), arising
out of or based upon any untrue, or allegedly untrue, statement of a material
fact contained in any Registration Statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading under the circumstances such statements were made, except
insofar as such Liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission contained in such
Registration Statement, preliminary prospectus or final prospectus in reliance
and in conformity with information concerning such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use therein,
including, without limitation, the information furnished to the Company pursuant
to Section 8(b). The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
Section 15 of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection
with any Registration Statement in which a Designated Holder is participating
pursuant to Section 3, Section 4 or Section 5 hereof, each such Designated
Holder shall promptly furnish to the Company in writing such information with
respect to such Designated Holder as the Company may reasonably request or as
may be required by law for use in connection with any such Registration
Statement or prospectus and all information required to be disclosed in order to
make the information previously furnished to the Company by such Designated
Holder not materially misleading or necessary to cause such Registration
Statement not to omit a material fact with respect to such Designated Holder
necessary in order to make the statements therein not misleading. Each
19
Designated Holder agrees to indemnify and hold harmless the Company, any
underwriter retained by the Company and each Person who controls the Company or
such underwriter (within the meaning of Section 15 of the Securities Act) to the
same extent as the foregoing indemnity from the Company to the Designated
Holders, but only if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with information with
respect to such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use in such Registration Statement or
prospectus, including, without limitation, the information furnished to the
Company pursuant to this Section 8(b); PROVIDED, HOWEVER, that the total amount
to be indemnified by such Designated Holder pursuant to this Section 8(b) shall
be limited to the net proceeds (after deducting the underwriters' discounts and
commissions) received by such Designated Holder in the offering to which the
Registration Statement or prospectus relates.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give
prompt written notice to the indemnifying party (the "INDEMNIFYING PARTY") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; PROVIDED, HOWEVER, that the failure so
to notify the Indemnifying Party shall not relieve the Indemnifying Party of any
Liability that it may have to the Indemnified Party hereunder (except to the
extent that the Indemnifying Party is materially prejudiced or otherwise
forfeits substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action with counsel reasonably satisfactory to the Indemnified Party or
(iii) the named parties to any such action (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and such parties
have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party. In
any of such cases, the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent shall not
be unreasonably withheld. No Indemnifying Party shall, without the consent of
such Indemnified Party, effect any settlement of any pending or threatened
proceeding in
20
respect of which such Indemnified Party is a party and indemnity has been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability for claims
that are the subject matter of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 8 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any Liabilities referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant
equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(a), 8(b)
and 8(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; PROVIDED that the
total amount to be contributed by such Designated Holder shall be limited to the
net proceeds (after deducting the underwriters' discounts and commissions)
received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
9. RULE 144. The Company covenants that it shall (a) file any
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder may reasonably request (including
providing any information necessary to comply with Rule 144 under the Securities
Act), all to the extent required from time to time to enable such Designated
Holder to sell Registrable Securities 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 Regulation S
under the Securities Act or (ii) any similar rules or regulations hereafter
adopted by the Commission. The Company shall, upon the request of any Designated
Holder, deliver to such Designated Holder a written statement as to whether it
has complied with such requirements.
21
10. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of
this Agreement shall apply to the full extent set forth herein with respect to
(i) the shares of Common Stock, (ii) any and all shares of voting common stock
of the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale of
assets or otherwise) to enter into a new registration rights agreement with the
Designated Holders on terms substantially the same as this Agreement as a
condition of any such transaction.
(b) NO INCONSISTENT AGREEMENTS. Except for the Fifth
Amended and Restated Investor Rights Agreement, the Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Designated Holders herein. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement, except that the Company may grant the
registration rights held by the General Atlantic Stockholders to any Subsequent
General Atlantic Purchaser.
(c) REMEDIES. The Designated Holders, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive in any action for specific
performance the defense that a remedy at law would be adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by each of (i) the Company, (ii)
the General Atlantic Stockholders and (iii) ICP; PROVIDED, HOWEVER, that any
such amendment, modification, supplement or waiver that adversely affects any
Major Stockholder (except ICP) in a manner different than any other Designated
Holder shall require the written consent of such adversely affected Major
Stockholder. Any such written consent shall be binding upon the Company and all
of the Designated Holders. Notwithstanding the first sentence of this
22
Section 10(d), the Company, without the consent of any other party hereto (other
than the General Atlantic Stockholders), may amend this Agreement to add any
Subsequent General Atlantic Purchaser as a party to this Agreement as a General
Atlantic Stockholder.
(e) NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be made by registered or certified first-class mail, return receipt
requested, telecopier, courier service or personal delivery:
(i) if to the Company:
Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxxx Phleger & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
(ii) if to any of the General Atlantic
Stockholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
23
(iii) if to ICP:
International Capital Partners, Inc., Profit
Sharing Trust
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
Four Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
(iv) if to Sports Capital:
c/o Sports Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
(v) if to Ardara:
Lombard, Odier & Co.
00, Xxx xx xx Xxxxxxxxxx
0000 Xxxxxx Xxxxxxxxxxx
Telecopy: 011-41-22-709-3944
Attention: Xxxxx Xxxxxx Bastaroli
with a copy to:
c/o International Capital Partners, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
24
(vi) if to the Other Investors:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: 000-000-0000
Attention: Xxxx Xxxxxx, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service, seven (7) days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 10(e) designate another address or Person for
receipt of notices hereunder.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto as hereinafter provided. The Demand
Registration rights and the S-3 Registration rights and related rights of the
General Atlantic Stockholders or the Major Stockholders contained in Sections 3
and 5 hereof, shall be (i) with respect to any Registrable Security that is
transferred to an Affiliate of a General Atlantic Stockholder or an Affiliate of
a Major Stockholder, automatically transferred to such Affiliate, (ii) with
respect to any Registrable Security that is transferred to any Person who has an
investment advisory agreement and who has granted a power of attorney to
Xxxxxxx, automatically transferred to such Person and (iii) with respect to any
Registrable Security that is transferred in all cases to a non-Affiliate,
transferred only with the consent of the Company which consent shall not be
unreasonably withheld. The incidental or "piggy-back" registration rights of the
Designated Holders contained in Sections 3(b), 4 and 5 hereof and the other
rights of each of the Designated Holders with respect thereto shall be, with
respect to any Registrable Security, automatically transferred to any Person who
is the transferee of such Registrable Security. All of the obligations of the
Company hereunder shall survive any such transfer. Except as provided in Section
8, no Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
25
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. 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 LAW THEREOF.
(j) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
(k) RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
(l) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
with respect to the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings, with respect to the
subject matter contained herein, other than those set forth or referred to
herein. This Agreement amends and restates in its entirety and supersedes the
Original Agreement and all prior agreements and understandings among the parties
with respect to such subject matter.
(m) FURTHER ASSURANCES. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
(n) OTHER AGREEMENTS. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under, or any restrictions on the transfer of Registrable
Securities or other securities of the Company imposed by, any other agreement
including, but not limited to, the Securities Purchase Agreement and the Series
F Stock Purchase Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Amended and Restated Registration Rights Agreement on the date
first written above.
XXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
27
INTERNATIONAL CAPITAL PARTNERS, INC.,
PROFIT SHARING TRUST
By: /s/ N.E. Xxxxxxxx
---------------------------------------
Name: N.E. Xxxxxxxx
Title: Trustee
ARDARA US DIRECT INVESTMENT INC.
By:
---------------------------------------
Name:
Title:
SPORTS CAPITAL PARTNERS, L.P.
By:
---------------------------------------
Name:
Title: A General Partner
SPORTS CAPITAL PARTNERS (CAYMAN
ISLANDS), L.P.
By:
---------------------------------------
Name:
Title: A General Partner
SPORTS CAPITAL PARTNERS CEV, LLC
By:
---------------------------------------
Name:
Title: A Managing Member
28
ZCG PURCHASERS
By: Xxxxxxx Capital Group, LLC,
as agent and attorney in fact
By:
---------------------------------------
Name:
Title:
SCHEDULE 1
----------
--------------------------------------------------------------------------------
PURCHASER: RECORD HOLDER:
========== ==============
--------------------------------------------------------------------------------
1 NFIB Corporate Account Huland & Co.
--------------------------------------------------------------------------------
2 Public Employee Retirement System of Mellon Bank NA custodian for
Idaho XXXXX-Xxxxxxx Capital
--------------------------------------------------------------------------------
3 City of Stamford Firemen's Pension Fund City of Stamford Firemen's
Pension Fund
--------------------------------------------------------------------------------
4 The Xxxxxxx Xxxxxx Foundation Batrus & Co.
--------------------------------------------------------------------------------
5 Xxxxx Foundation Hare & Co.
--------------------------------------------------------------------------------
6 Roanoke College FirstUnion & Co.
--------------------------------------------------------------------------------
7 Xxxxxx Family LLC Xxxx & Co.
--------------------------------------------------------------------------------
8 Xxxxxxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxxxxxxx
--------------------------------------------------------------------------------
9 HBL Charitable Unitrust HBL Charitable Unitrust
--------------------------------------------------------------------------------
10 Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------
11 Xxxxx Xxxx Xxxx & Co.
--------------------------------------------------------------------------------
12 Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
--------------------------------------------------------------------------------
13 Psychology Associates Psychology Associates
--------------------------------------------------------------------------------
14 Xxxxx Xxxxxx Xxxxx Xxxxxx
--------------------------------------------------------------------------------
15 Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
--------------------------------------------------------------------------------
16 Xxxxxx Capital, LLC Xxxxxx Capital, LLC
--------------------------------------------------------------------------------
17 Xxxxxx Foundation Xxxxxx Foundation
--------------------------------------------------------------------------------
18 The Xxxxxx Investment Partnership I, L.P. The Xxxxxx Investment
Partnership I, L.P.
--------------------------------------------------------------------------------
19 Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
--------------------------------------------------------------------------------
20 Xxxxxx Trust Co. of the Bahamas Ltd. as Xxxxxx Trust Co. of the Bahamas
Trustee U/A/D 11/30/93 Ltd. as Trustee U/A/D 11/30/93
--------------------------------------------------------------------------------
21 Xxxxx Xxxx Xxxxxxx Hare & Co.
--------------------------------------------------------------------------------
22 Theeuwes Family Trust, Xxxxx Xxxxxxxx Theeuwes Family Trust, Xxxxx
Trustee Theeuwes Trustee
--------------------------------------------------------------------------------
00 Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
--------------------------------------------------------------------------------
24 Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
--------------------------------------------------------------------------------
25 Xxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
26 Xxxxxx and Xxx-Xxxxx Xxxxxx Xxxxxx and Xxx-Xxxxx Xxxxxx
--------------------------------------------------------------------------------
27 Xxxx X. & Xxxxxxxxx X. Xxxxxx Xxxx X. & Xxxxxxxxx X. Xxxxxx
--------------------------------------------------------------------------------
28 Xxxx X. Xxxxxxx Xxxx Xxxxxxx
--------------------------------------------------------------------------------
29 Xxxxxxx Investment Partners XX Xxxxxxx Investment Partners LP
--------------------------------------------------------------------------------
