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EXECUTION COPY
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated as of May 4, 1999
by and among
XXXXX.XXX INC.
and
THE INVESTORS NAMED ON THE SIGNATURE PAGES HERETO
AND THE SCHEDULES ATTACHED HERETO
TABLE OF CONTENTS
Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Demand Registration Rights . . . . . . . . . . . . . . . . . . . 5
(a) Demands for Registration. . . . . . . . . . . . . . . . . . . . . . . 5
(b) Limitations on Demand Registrations . . . . . . . . . . . . . . . . . 6
(c) Registration Statement Form . . . . . . . . . . . . . . . . . . . . . 7
(d) Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . 7
(e) Priority in Cutback Registrations . . . . . . . . . . . . . . . . . . 7
(f) Preemption of Demand Registration . . . . . . . . . . . . . . . . . . 7
Section 3. Piggyback Registration . . . . . . . . . . . . . . . . . . . . . 7
(a) Right to Include Registrable Securities . . . . . . . . . . . . . . . 7
(b) Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) Priority in Cutback Registrations . . . . . . . . . . . . . . . . . . 8
Section 4. Registration Procedures. . . . . . . . . . . . . . . . . . . . . 8
Section 5. Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . 12
(a) Underwritten Offerings in Connection with Demand Registrations. . . . 12
(b) Underwritten Piggyback Offerings. . . . . . . . . . . . . . . . . . . 13
Section 6. Holdback Agreements. . . . . . . . . . . . . . . . . . . . . . . 13
(a) By the Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) By the Company and Other Securityholders. . . . . . . . . . . . . . . 13
Section 7. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Indemnification by the Company. . . . . . . . . . . . . . . . . . . . 14
(b) Indemnification by the Sellers. . . . . . . . . . . . . . . . . . . . 15
(c) Notices of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(d) Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Other Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 17
(f) Indemnification Payments. . . . . . . . . . . . . . . . . . . . . . . 17
(g) Underwriting Agreement. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8. Covenants Relating to Rule 144 . . . . . . . . . . . . . . . . . 17
Section 9. Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) No Existing Agreements. . . . . . . . . . . . . . . . . . . . . . . . 17
(b) Future Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10. Selection of Underwriters . . . . . . . . . . . . . . . . . . . 18
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Consents and Waivers by Holders . . . . . . . . . . . . . . . . . . . 20
(f) No Third Party Beneficiary. . . . . . . . . . . . . . . . . . . . . . 20
(g) Successors or Assigns . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Invalid Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(j) Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(k) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(l) Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(M) Termination of Registration Rights. . . . . . . . . . . . . . . . . . 21
(n) Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
May 4, 1999, is made and entered into by and among Xxxxx.xxx Inc., a Delaware
corporation (the "Company"), and the Investors (as defined herein).
WHEREAS, the Company and the Investors named on Schedule 1
hereto entered into a certain Registration Rights Agreement dated as of June
2, 1997 (as amended by that certain Amendment No. 1 to Registration Rights
Agreement dated as of October 31, 1997, that certain Amendment No. 2 to
Registration Rights Agreement dated as of February 11, 1998, and that certain
Amendment No. 3 to Registration Rights Agreement dated as of May 4, 1998 and
as otherwise heretofore amended or modified, the "Original Registration
Rights Agreement") in connection with that certain Preferred Stock Purchase
Agreement dated as of June 2, 1997 between the Company and certain of the
Investors;
WHEREAS, in accordance with paragraph (c) of Section 11 of the
Original Registration Rights Agreement and subsequent to June 2, 1997, the
additional Investors named on Schedule 2 hereto have become parties to the
Original Registration Rights Agreement pursuant to Amendment Xx. 0, Xxxxxxxxx
Xx. 0, Xxxxxxxxx Xx. 0, certain Joinders, and certain Joinder Agreements to
the Original Registration Rights Agreement;
WHEREAS, simultaneously herewith the Company is issuing and
selling, and certain of the Investors are purchasing from the Company, shares
of Series E Convertible Preferred Stock, par value $.01 per share (the
"Series E Preferred Stock"), and, if applicable, shares of Series A-IV
Convertible Preferred Stock, par value $.01 per share, pursuant to the terms
and conditions of that certain Series E Convertible Preferred Stock Purchase
Agreement dated as of the date hereof (the "Stock Purchase Agreement") among
the Company and certain of the Investors;
WHEREAS, it is a condition precedent to the consummation of
the transactions contemplated by the Stock Purchase Agreement that the
Company and the Investors that are parties to the Original Registration
Rights Agreement amend and restate the Original Registration Rights Agreement
on the terms and subject to the conditions set forth herein; and
WHEREAS, pursuant to paragraph (c) of Section 11 of the Original
Registration Rights Agreement, the Company and the Holders of more than
two-thirds (2/3) of the Registrable Securities currently outstanding or subject
to issuance on the date hereof, do hereby amend and restate the Original
Registration Rights Agreement in its entirety on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. DEFINITIONS.
(a) Except as otherwise specifically indicated, the
following terms will have the following meanings for all purposes of this
Agreement:
"AGREEMENT" means this Amended and Restated Registration
Rights Agreement, as the same shall be amended from time to time.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City.
"COMMISSION" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"COMMON STOCK" means the Common Stock, par value $.01 per share,
of the Company, as constituted on the date hereof, and any stock into which such
Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
"CUTBACK REGISTRATION" means any Demand Registration or
Piggyback Registration to be effected as an underwritten Public Offering in
which the Managing Underwriter with respect thereto advises the Company and
the Requesting Holders in writing that, in its opinion, the number of
securities requested to be included in such registration (including
securities of the Company which are not Registrable Securities) exceeds the
number which can be sold in such offering without a reduction in the selling
price anticipated to be received for the securities to be sold in such Public
Offering.
"DEMAND FOR REGISTRATION" has the meaning ascribed to it in
SECTION 2(a).
"DEMAND REGISTRATION" means any registration of Registrable
Securities under the Securities Act effected pursuant to a Demand for
Registration in accordance with SECTION 2.
"EFFECTIVE REGISTRATION" means, subject to the last sentence
of SECTION 2(f), a Demand Registration which (i) has been declared or ordered
effective in accordance with the rules of the Commission, and (ii) has been
kept effective for the period of time contemplated by SECTION 4(b).
Notwithstanding the foregoing, a registration that does not become effective
after it has been filed with the Commission solely by reason of the refusal
to proceed of the Holders demanding or requesting such registration shall be
deemed to be an Effective Registration for purposes of this Agreement.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"HOLDER" means a holder of Registrable Securities, provided that
all references in this Agreement to the Holders shall be deemed to include
holders of shares of the Company's Preferred Stock and each such Holder shall be
deemed to hold the number of Shares that are at the time issuable upon the
conversion of the shares of Preferred Stock into Shares pursuant to the terms of
the Certificate of Incorporation of the Company, as amended.
"INDEMNIFIED PARTY" means a party entitled to indemnification in
accordance with SECTION 7.
"INDEMNIFYING PARTY" means a party obligated to provide
indemnification in accordance with SECTION 7.
"INSPECTORS" has the meaning ascribed to it in SECTION 4(j).
"INVESTORS" means the "Investors" under and as defined in the
Original Registration Rights Agreement (including, without limitation, the
Persons so named in the Joinder and Joinder Agreements to the Original
Registration Rights Agreement), the other investors designated on Schedule 1 and
Schedule 2 hereto, and the Persons so designated on the signature pages hereto
(certain of which may also be set forth on Schedule 1 and Schedule 2 hereto).
The term "INVESTOR" means any one of the Investors and, in the case of an
Investor who is a natural person, the term "INVESTOR" shall also include such
Investor's legal representatives, executors or administrators when the context
so requires.
"LOSSES" has the meaning ascribed to it in SECTION 7(A).
"MANAGING UNDERWRITER" means, with respect to any Public
Offering, the lead managing underwriter for such Public Offering, selected in
accordance with SECTION 10.
"NASD" means the National Association of Securities Dealers.
"NASDAQ" means the Nasdaq Stock Market.
"NOTICE OF DEMAND FOR REGISTRATION" has the meaning ascribed to
it in SECTION 2(a).
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed to it
in SECTION 3(a).
"PERSON" means any natural person, corporation, general
partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union or association.
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"PIGGYBACK REGISTRATION" means any registration of equity
securities of the Company under the Securities Act (other than a registration
in respect of a dividend reinvestment or similar plan for stockholders of the
Company or on Form S-4 or Form S-8 promulgated by the Commission, or any
successor or similar forms thereto), whether for sale for the account of the
Company or for the account of any holder of securities of the Company (other
than Registrable Securities), including a registration by the Company under
the circumstances described in SECTION 2(f).
"PREFERRED STOCK" means the Company's Series A Convertible
Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible
Preferred Stock, Series D Convertible Preferred Stock and Series E Preferred
Stock.
"PUBLIC OFFERING" means any offering of Shares to the public,
either on behalf of the Company or any of its security holders, pursuant to
an effective registration statement under the Securities Act.
"QUALIFIED INDEPENDENT UNDERWRITER" means an underwriter
meeting the requirements of Section 2(1) of Schedule E to the NASD By-Laws as
the same may be amended from time to time.
"QUALIFYING HOLDER" means any Holder who, alone or together
with one or more other Holders, holds Registrable Securities that constitute
at least thirty percent (30%) of the issued and outstanding Registrable
Securities.
"RECORDS" has the meaning ascribed to it in SECTION 4(j).
"REGISTRABLE SECURITIES" means the Shares at any time
outstanding or subject to issuance upon conversion of the shares of Preferred
Stock into Shares pursuant to the terms of the Certificate of Incorporation
(including the Certificates of Designation thereto) of the Company and that
are owned by any of the Investors (or any Person that acquires such Shares or
such Preferred Stock from any such Investor). As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (x) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (y) they shall have been distributed to the public
pursuant to Rule 144, or (z) they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with its obligations under this
Agreement to effect the registration of Registrable Securities in a Demand
Registration or a Piggyback Registration, including, without limitation, all
registration, filing, securities exchange listing, NASD fees and NASDAQ fees,
all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and
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disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, the
reasonable fees and disbursements of a single firm of accountants and counsel
retained by the Holders of a majority of the Registrable Securities being
registered, premiums and other costs of policies of insurance against
liabilities arising out of the Public Offering of the Registrable Securities
being registered and any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions in respect of Registrable Securities, which shall
be payable by the Holders thereof PRO RATA among such Holders in proportion
to the number of Registrable Securities being sold.
"REQUEST FOR REGISTRATION" means a written request by a Holder to
the Company for registration of Registrable Securities in response to a Notice
of Demand for Registration or a Notice of Piggyback Registration, which request
shall specify the Registrable Securities intended to be disposed of and the
intended method of disposition thereof.
"REQUESTING HOLDERS" means, with respect to any registration, the
Holders demanding or requesting to have Registrable Securities included in a
registration in accordance with SECTION 2 or 3.
"RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SHARES" means the shares of Common Stock.
"STOCKHOLDERS' AGREEMENT" means the Amended and Restated
Stockholders' Agreement, of even date herewith, by and among the parties
thereto.
(b) Unless the context of this Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words using
the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby," "herewith," and
derivative or similar words refer to this entire Agreement; and (iv) the term
"Section" refers to the specified Section of this Agreement. Whenever this
Agreement refers to a number of days, such number shall refer to calendar
days unless Business Days are specified.
Section 2. DEMAND REGISTRATION RIGHTS
(a) DEMANDS FOR REGISTRATION. At any time after June 2,
2002, or such earlier time as the Company shall have effected a Public
Offering, any Qualifying Holder may demand that the Company use its best
efforts to effect the registration under the Securities Act of all or part of
such Qualifying Holder's Registrable Securities. Such demand for
registration (a "DEMAND FOR REGISTRATION") shall be in writing, delivered to
the Company in accordance with SECTION 11(a), and shall specify the number of
Registrable Securities to be registered and the intended method of
disposition thereof. No later than ten (10) Business Days after receipt of
such Demand for Registration, the Company shall give written notice (a
"NOTICE OF DEMAND FOR
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REGISTRATION") of such Demand for Registration to all other Holders, and
shall use its best efforts to effect the registration under the Securities
Act of:
(i) the Registrable Securities included in the Demand
for Registration, and
(ii) all other Registrable Securities as to which any
Holder has delivered to the Company a Request for Registration
within fifteen (15) days after the giving of the Notice of Demand
for Registration,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the methods of disposition
specified. At the request of the Holders of a majority of the Registrable
Securities to be registered, the method of disposition of all Registrable
Securities included in such registration shall be an underwritten offering
effected in accordance with SECTION 5(a). Notwithstanding the foregoing, the
Company may postpone taking action with respect to a Demand Registration for
a reasonable period of time after receipt of the original Demand for
Registration (not exceeding one hundred eighty (180) days) if, in the good
faith opinion of the Board, effecting the registration would adversely affect
a material financing, acquisition, disposition of assets or stock, merger or
other comparable transaction or would require the Company to make public
disclosure of information the public disclosure of which would have a
material adverse effect upon the Company, PROVIDED that the Company shall not
delay such action pursuant to this sentence more than once in any twelve (12)
month period. Subject to SECTION 2(e), the Company may include in such
registration Shares or other securities for sale for its own account.
Neither the Company nor any Holder shall have the right to include any
securities in a registration statement to be filed as part of a Demand
Registration unless (i) such securities are of the same class as the
Registrable Securities included in the Demand for Registration (or the
demanding Holders consent to such inclusion in writing), and (ii) if such
Demand Registration is an underwritten offering, the Company and such other
Holders agree in writing to sell, subject to SECTION 2(e), their securities
on the same terms and conditions as apply to the Registrable Securities being
sold pursuant to the Demand for Registration.
(b) LIMITATIONS ON DEMAND REGISTRATIONS. Notwithstanding
anything herein to the contrary, the Company shall not be required to honor a
Demand for Registration if:
(i) the Registrable Securities to be so registered
represent less than thirty percent (30%) of the issued and
outstanding Registrable Securities;
(ii) the proposed aggregate Public Offering price for
the Registrable Securities included in the Demand for
Registration is less than (a) Thirty Million dollars
($30,000,000) for a Demand Registration on Form S-1 or its
equivalent or for an underwritten Public Offering on Form S-3 or
its equivalent, or (b) Seven Million Five Hundred Thousand
dollars ($7,500,000) for a non-underwritten Public Offering on
Form S-3 or its equivalent, based on the fair value estimated by
the underwriters in the case of an underwritten Public Offering
or the then-current market price in the case of a
non-underwritten Public Offering; or
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(iii) such Demand for Registration is received by the
Company less than one hundred eighty (180) days following the
effective date of any previous Effective Registration.
(c) REGISTRATION STATEMENT FORM. Demand Registrations shall
be on such appropriate registration form selected by the Company as shall be
reasonably acceptable to the Holders of a majority of the Registrable Securities
to which such registration relates, and shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods
specified by the Holders participating therein.
(d) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with (i) the first two (2) Demand
Registrations on Form S-1 or its equivalent, and (ii) the first two (2) Demand
Registrations on any other form, except Form S-1 or its equivalent. The
Registration Expenses for all other Demand Registrations shall be allocated
among all Persons (including the Company) on whose behalf securities of the
Company are included for offer and sale in such registration, pro rata on the
basis of the respective amounts of the securities then being registered on their
behalf; further provided that the Company shall not be responsible for the
Registration Expenses in connection with any Demand for Registration which has
been subsequently withdrawn by the Holders, in which case such expenses shall be
borne by the Holders requesting such withdrawal.
(e) PRIORITY IN CUTBACK REGISTRATIONS. If a Demand
Registration becomes a Cutback Registration, the Company shall include in such
registration the amount of securities which the Managing Underwriter advises the
Company can be sold in such offering without a reduction in the selling price
anticipated to be received for the securities to be sold in such Public
Offering: (i) FIRST, the Registrable Securities included in the Demands for
Registration or the Requests for Registration PRO RATA among the Holders making
such Demands for Registration or Requests for Registration in proportion to the
number of Registrable Securities included in their Demands for Registration or
Requests for Registration, and (ii) SECOND, the securities of the Company
included in such registration by the Company for sale for its own account.
(f) PREEMPTION OF DEMAND REGISTRATION. Notwithstanding
anything to the contrary contained herein, and without limitation as to the
rights of the Company to include in a Demand Registration securities for sale
for its own account as provided in SECTION 2(a), at any time within thirty (30)
days after receiving a Demand for Registration, the Company may elect to effect
an underwritten primary registration in lieu of the Demand Registration. If the
Company so elects, the Company shall give prompt written notice to all Holders
of its intention to effect such a registration and shall afford Holders the
rights contained in SECTION 3 with respect to Piggyback Registrations; the
Demands for Registration shall be deemed to have been withdrawn; and such
primary registration shall not be deemed to be an Effective Registration.
Section 3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Notwithstanding
any limitation contained in SECTION 2, if the Company at any time proposes after
the date hereof to effect a Piggyback Registration, including a registration in
lieu of a Demand Registration pursuant to
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SECTIONS 2(b)(iii) and 2(f), it will each such time give prompt written
notice (a "NOTICE OF PIGGYBACK REGISTRATION") to all Holders of its intention
to do so and of such Holders' rights under this SECTION 3, which Notice of
Piggyback Registration shall include a description of the intended method of
disposition of such securities. If any Holder delivers a Request for
Registration to the Company within fifteen (15) days after such Holder
receives a Notice of Piggyback Registration, the Company will use its best
efforts to include in the registration statement relating to such Piggyback
Registration all Registrable Securities which the Company has been so
requested to register. Notwithstanding the foregoing, if, at any time after
giving a Notice of Piggyback Registration and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Holder and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any
Requesting Holder entitled to do so to demand that such registration be
effected as a Demand Registration under SECTION 2, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering
any Registrable Securities for the same period as the delay in registering
such other securities. Subject to the provisions of SECTION 2(f), no
registration effected under this SECTION 3 shall relieve the Company of its
obligations to effect a Demand Registration under SECTION 2.
(b) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If a Piggyback
Registration becomes a Cutback Registration, the Company will include in such
registration to the extent of the amount of the securities which the Managing
Underwriter advises the Company can be sold in such offering without a reduction
in the selling price anticipated to be received for the securities to be sold in
such Public Offering:
(i) FIRST, the securities proposed by the Company to
be sold for its own account; and
(ii) SECOND, the Registrable Securities included in the
Requests for Registration of Requesting Holders, PRO RATA among such
Requesting Holders in proportion to the number of Registrable Securities
included in their Requests for Registration.
Any securities excluded shall be withdrawn from and shall not be included in
such Piggyback Registration.
Section 4. REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to SECTION 2 or SECTION 3, the
Company will use its best efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended methods of disposition
thereof specified by the Holders participating therein. Without limiting the
foregoing, the Company in each such case will, as expeditiously as possible:
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(a) prepare and file with the Commission (in the case of a
Demand Registration), the requisite registration statement to effect such
registration (including such audited financial statements as may be required by
the Securities Act or the rules and regulations promulgated thereunder) and use
its best efforts to cause such registration statement to become effective;
PROVIDED, that as far in advance as practical before filing such registration
statement or any amendment thereto, the Company will furnish to counsel for the
Requesting Holders copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits), and any such Holder shall have the
opportunity to object to any information pertaining solely to such Holder that
is contained therein and the Company will make the corrections reasonably
requested by such Holder with respect to such information prior to filing any
such registration statement or amendment;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and any prospectus used in connection
therewith as may be necessary to maintain the effectiveness of such registration
statement and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities included in such registration
statement, in accordance with the intended methods of disposition thereof, until
the earlier of (i) such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement and (ii) one hundred eighty
(180) days after such registration statement becomes effective;
(c) promptly notify each Requesting Holder and the
underwriter or underwriters, if any:
(i) when such registration statement or any prospectus
used in connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any post-effective
amendment thereto, when the same has become effective;
(ii) of any written request by the Commission
for amendments or supplements to such registration statement or
prospectus;
(iii) of the notification to the Company by the
Commission of its initiation of any proceeding with respect to
the issuance by the Commission of, or of the issuance by the
Commission of, any stop order suspending the effectiveness of
such registration statement; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction;
(d) furnish to each seller of Registrable Securities included
in such registration statement such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits and documents
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incorporated by reference), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 promulgated
under the Securities Act relating to such Holder's Registrable Securities,
and such other documents, as such seller may reasonably request to facilitate
the disposition of its Registrable Securities;
(e) use its best efforts to register or qualify all
Registrable Securities included in such registration statement under such
other securities or blue sky laws of such jurisdictions as each Holder
thereof shall reasonably request and to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and take any other action which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not for any such purpose be required (i) to qualify
generally to do business as a foreign corporation in any jurisdiction wherein
it would not but for the requirements of this paragraph (e) be obligated to
be so qualified, or (ii) to consent to general service of process in any such
jurisdiction;
(f) use its best efforts to cause all Registrable Securities
included in such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
each Holder thereof to consummate the disposition of such Registrable
Securities;
(g) to the extent any of the following are obtained by or
furnished to the Company or the underwriters, furnish to each Requesting Holder
a signed counterpart, addressed to such Holder (and the underwriters, if any),
of
(i) an opinion of counsel for the Company,
dated the effective date of such registration statement (or, if
such registration includes an underwritten Public Offering, dated
the date of any closing under the underwriting agreement),
reasonably satisfactory in form and substance to such Holder, and
(ii) a "cold comfort" letter, dated the
effective date of such registration statement (and, if such
registration includes an underwritten Public Offering, dated the
date of any closing under the underwriting agreement), signed by
the independent public accountants who have certified the
Company's financial statements included in such registration
statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten Public Offerings of securities; and, in the
case of the accountants' letter, with respect to events subsequent to the date
of such financial statements and such other financial matters as such Holder (or
the underwriters, if any) may reasonably request;
(h) notify each Holder whose Registrable Securities are
included in such registration statement, at any time when a prospectus relating
thereto is required to be delivered
10
under the Securities Act, of the happening of any event as a result of which
any prospectus included in such registration statement, as then in effect,
includes 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 the light of the circumstances under which they were
made, not misleading, and at the request of any such Holder promptly prepare
and furnish to such Holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and not file any amendment or supplement to such Registration
Statement or prospectus to which any such seller or any Requesting Holder shall
have reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Securities Act
or of the rules or regulations thereunder;
(j) make available for inspection by any Requesting Holder,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such Holder
or underwriter (collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") reasonably necessary to enable the Inspectors to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(k) provide a transfer agent and registrar for all
Registrable Securities included in such registration statement not later than
the effective date of such registration statement; and
(l) use its best efforts to cause all Registrable Securities
included in such registration statement to be listed, upon official notice of
issuance, on any securities exchange on which any of the securities of the same
class as the Registrable Securities are then listed.
The Company may require each Holder whose Registrable Securities
are being registered to, and each such Holder, as a condition to including
Registrable Securities in such registration, shall, furnish the Company and the
underwriters with such information and affidavits regarding such Holder and the
distribution of such securities as the Company and the underwriters may from
time to time reasonably request in writing in connection with such registration.
11
Upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (h) of this SECTION 4, each Holder
will forthwith discontinue such Holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such Holder receives the copies of the supplemented or amended prospectus
contemplated by paragraph (h) of this SECTION 4 and, if so directed by the
Company, shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the period referred to in paragraph (b) of this SECTION 4 shall be extended by a
number of days equal to the number of days during the period from and including
the giving of notice pursuant to paragraph (h) of this SECTION 4 and to and
including the date when each Holder whose Registrable Securities are included in
such registration statement receives the copies of the supplemented or amended
prospectus contemplated by paragraph (h) of this SECTION 4.
Section 5. UNDERWRITTEN OFFERINGS. If a Demand for Registration is
made pursuant to SECTION 2, or if the Company at any time proposes to register
any of its securities in a Piggyback Registration or otherwise, and, in either
case, the securities included in such registration are to be distributed by or
through one or more underwriters, such securities shall be distributed by or
through, and the Company shall enter into a firm commitment underwriting
agreement in customary form with, (i) a Managing Underwriter selected in
accordance with SECTION 10, (ii) such other underwriters, reasonably
satisfactory to the Company, as may be selected by the Managing Underwriter to
assist or participate in the distribution, and (iii) if a Qualified Independent
Underwriter is required for such registration pursuant to Schedule E to the NASD
By-Laws or otherwise, a Qualified Independent Underwriter selected in accordance
with SECTION 10.
(a) UNDERWRITTEN OFFERINGS IN CONNECTION WITH DEMAND
REGISTRATIONS. If a Demand for Registration is made pursuant to SECTION 2 and
the distribution of the Registrable Securities included in such Demand for
Registration is to be underwritten, the underwriting agreement shall include,
among other provisions, indemnities substantially to the effect and to the
extent provided in SECTION 7. The Holders whose Registrable Securities are to
be distributed by such underwriters shall be parties to such underwriting
agreement. No Requesting Holder may participate in such underwritten offering
unless such Holder agrees to sell its Registrable Securities on the basis
provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of such underwriting agreement. If any Requesting
Holder disapproves of the terms of an underwriting, such Holder may elect to
withdraw therefrom and from such registration by notice to the Company and the
Managing Underwriter, and each of the remaining Requesting Holders shall be
entitled to increase the number of Registrable Securities being registered to
the extent of the Registrable Securities so withdrawn (i) in the case of a
Cutback Registration, in accordance with the priorities set forth in
SECTION 2(e) and (ii) in all other cases in the proportion which the number of
Registrable Securities being registered by such remaining Requesting Holder
bears to the total number of Registrable Securities being registered by all such
remaining Requesting Holders.
12
(b) UNDERWRITTEN PIGGYBACK OFFERINGS. If the Company at any
time proposes to register any of its securities in a Piggyback Registration and
such securities are to be distributed by or through one or more underwriters,
the Company will, subject to the provisions of SECTION 3(c), use its best
efforts, if requested by any Holder whose Registrable Securities are included in
such registration to arrange for such underwriters to include the Registrable
Securities to be offered and sold by such Holder among the securities to be
distributed by such underwriters, and such Holders shall be obligated to sell
their Registrable Securities in such Piggyback Registration through such
underwriters on the same terms and conditions as apply to the other Company
securities to be sold by such underwriters in connection with such Piggyback
Registration. The Holders whose Registrable Securities are to be distributed by
such underwriters shall be parties to the underwriting agreement between the
Company and such underwriter or underwriters. No Requesting Holder may
participate in such underwritten offering unless such Holder agrees to sell its
Registrable Securities on the basis provided in such underwriting agreement and
completes and executes all questionnaires, powers of attorney, indemnities and
other documents reasonably required under the terms of such underwriting
agreement. If any Requesting Holder disapproves of the terms of an
underwriting, such Holder may elect to withdraw therefrom and from such
registration by notice to the Company and the Managing Underwriter, and each of
the remaining Requesting Holders shall be entitled to increase the number of
Registrable Securities being registered to the extent of the Registrable
Securities so withdrawn (i) in the case of a Cutback Registration, in accordance
with the priorities set forth in SECTION 3(c) and (ii) in all other cases in the
proportion which the number of Registrable Securities being registered by such
remaining Requesting Holder bears to the total number of Registrable Securities
being registered by all such remaining Requesting Holders.
Section 6. HOLDBACK AGREEMENTS.
(a) BY THE HOLDERS. Unless the Managing Underwriter (or, in
the case of a non-underwritten Public Offering, the Company) otherwise agrees,
no Holder shall effect any public sale or distribution (including a sale under
Rule 144) of any Registrable Securities, or any securities convertible into or
exchangeable or exercisable for Registrable Securities, during the fourteen (14)
days prior to and (i) the one hundred eighty (180) days after the effective date
of the registration statement filed in connection with an initial Public
Offering (or for such shorter period of time as is sufficient and appropriate,
in the opinion of the Managing Underwriter, (or, in the case of a
non-underwritten Public Offering, the Company) in order to complete the sale and
distribution of the securities included in such registration), or (ii) the
ninety (90) days after the effective date of the registration statement filed in
connection with any registration statement filed by the Company with respect to
all other Public Offerings (or for such shorter period of time as is sufficient
and appropriate, in the opinion of the Managing Underwriter, (or, in the case of
a non-underwritten Public Offering, the Company) in order to complete the sale
and distribution of the securities included in such registration), except as
part of such registration statement, whether or not such Holder participates in
such registration.
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS. Unless the
Managing Underwriter otherwise agrees, the Company (i) shall not effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
fourteen (14) days prior to and the ninety (90) days after the effective date
13
of the registration statement filed in connection with an underwritten
offering made pursuant to a Demand Registration or a Piggyback Registration
(or for such shorter period of time as is sufficient and appropriate, in the
opinion of the Managing Underwriter, in order to complete the sale and
distribution of the securities included in such registration), except as part
of such underwritten registration and except pursuant to registrations on
Form S-4 or Form S-8 promulgated by the Commission or any successor or
similar forms thereto, and (ii) shall cause each holder of its equity
securities, or of any securities convertible into or exchangeable or
exercisable for such securities, in each case purchased from the Company at
any time after the date of this Agreement (other than in a Public Offering),
to agree not to effect any such public sale or distribution of such
securities (including a sale under Rule 144), during such period, except as
part of such underwritten registration.
Section 7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to
the full extent permitted by law, indemnify and hold harmless each seller of
Registrable Securities included in any registration statement filed in
connection with a Demand Registration or a Piggyback Registration, its
directors, officers, and partners, and each other Person, if any, who
controls any such seller within the meaning of the Securities Act, against
any losses, claims, damages, expenses or liabilities, joint or several
(together, "LOSSES"), to which such seller or any such director, officer,
partner or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, and the Company
will reimburse such seller and each such director, officer, partner and
controlling Person for legal and other expenses reasonably incurred by them
in connection with investigating or defending any such Loss (or action or
proceeding in respect thereof) in accordance with paragraph (c) below;
PROVIDED, that the Company shall not be liable in any such case to the extent
that any such Loss (or action or proceeding in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such seller specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any
such director, officer, partner or controlling Person, and shall survive the
transfer of such securities by such seller. The Company shall also indemnify
each other Person who participates (including as an underwriter) in the
offering or sale of Registrable Securities, their officers and directors, and
partners, and each other Person, if any, who controls any such participating
Person within the meaning of the Securities Act to the same extent as
provided above with respect to sellers of Registrable Securities.
14
(b) INDEMNIFICATION BY THE SELLERS. Each Holder whose
Registrable Securities are included or are to be included in any registration
statement filed in connection with a Demand Registration or a Piggyback
Registration, as a condition to including Registrable Securities in such
registration statement, shall, to the full extent permitted by law, indemnify
and hold harmless the Company, its directors and officers, and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, against any Losses to which the Company or any such director or officer
or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, if such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; PROVIDED, HOWEVER,
that the obligation to provide indemnification pursuant to this SECTION 7(b)
shall be several, and not joint and several, among such Indemnifying Parties
on the basis of the number of Registrable Securities of each such
Indemnifying Party included in such registration statement; PROVIDED FURTHER,
HOWEVER, that in no event shall any indemnity by a Holder under this SECTION
7(b) exceed the net proceeds from the offering received by such Holder. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such seller. Such Holders shall also indemnify each other
Person who participates (including as an underwriter) in the offering or sale
of Registrable Securities, their officers and directors and each other
Person, if any, who controls any such participating Person within the meaning
of the Securities Act to the same extent as provided above with respect to
the Company.
(c) NOTICES OF CLAIMS. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraph (a) or (b) of this
SECTION 7, such Indemnified Party shall, if a claim in respect thereof is to
be made against an Indemnifying Party pursuant to such paragraphs, give
written notice to the latter of the commencement of such action, PROVIDED
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under the
preceding paragraphs of this SECTION 7, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate in and, unless, in the
reasonable judgment of any Indemnified Party, a conflict of interest between
such Indemnified Party and any Indemnifying Party exists with respect to such
claim, to assume the defense thereof, jointly with any other Indemnifying
Party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such Indemnified Party, and after notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the
defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other
15
than reasonable costs of investigation; PROVIDED that the Indemnified Party
may participate in such defense at the Indemnified Party's expense; and
PROVIDED FURTHER that the Indemnified Party or Indemnified Parties shall have
the right to employ one counsel to represent it or them if, in the reasonable
judgment of the Indemnified Party or Indemnified Parties, it is advisable for
it or them to be represented by separate counsel by reason of having legal
defenses which are different from or in addition to those available to the
Indemnifying Party, and in that event the reasonable fees and expenses of
such one counsel shall be paid by the Indemnifying Party. If the
Indemnifying Party is not entitled to, or elects not to, assume the defense
of a claim, it will not be obligated to pay the fees and expenses of more
than one counsel for the Indemnified Parties with respect to such claim,
unless in the reasonable judgment of any Indemnified Party a conflict of
interest may exist between such Indemnified Party and any other Indemnified
Parties with respect to such claim, in which event the Indemnifying Party
shall be obligated to pay the fees and expenses of up to one such additional
counsel for the Indemnified Parties. No Indemnifying Party shall consent to
entry of any judgment or enter into any settlement without the consent of the
Indemnified Party which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation. No Indemnifying
Party shall be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this SECTION 7 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses
(or actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on
the other hand in connection with statements or omissions which resulted in
such Losses, as well as any other relevant equitable considerations;
PROVIDED, HOWEVER, that in no event shall any contribution by a Holder under
this SECTION 7(d) exceed the net proceeds from the offering received by such
Holder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, then the Indemnifying Party shall contribute to
the amount paid or payable by the Indemnified Party as a result of such
Losses (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect not only the relative fault of, but also the
relative benefits received by, the Indemnifying Party on the one hand and the
Indemnified Party on the other hand in connection with statements or
omissions which resulted in such Losses, as well as any other relevant
equitable considerations. Relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph were to be 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 first sentence of this paragraph. The
amount paid by an Indemnified Party as a result of the Losses referred to in
the first sentence of this paragraph shall be deemed to include any legal and
other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any Loss which is the subject of this
paragraph.
16
No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this SECTION 7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority other than the Securities Act. The provisions of this SECTION 7 shall
be in addition to any other rights to indemnification or contribution which an
Indemnified Party may have pursuant to law, equity, contract or otherwise.
(f) INDEMNIFICATION PAYMENTS. The indemnification required
by this SECTION 7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or Losses are incurred.
(g) UNDERWRITING AGREEMENT. Notwithstanding the foregoing,
to the extent that the provisions concerning indemnification and contribution
contained in the underwriting agreement entered into in connection with an
underwritten Public Offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
Section 8. COVENANTS RELATING TO RULE 144. If at any time the Company
is required to file reports in compliance with either Section 13 or
Section 15(d) of the Exchange Act, the Company will (a) file reports in
compliance with the Exchange Act, (b) comply with all rules and regulations of
the Commission applicable in connection with the use of Rule 144 and take such
other actions and furnish each Holder with such other information as such Holder
may request in order to avail itself of such rule or any other rule or
regulation of the Commission allowing such Holder to sell any Registrable
Securities without registration, and (c) at its expense, forthwith upon the
reasonable request of any Holder, deliver to such Holder a certificate, signed
by the Company's principal financial officer, stating (i) the Company's name,
address and telephone number (including area code), (ii) the Company's Internal
Revenue Service identification number, (iii) the Company's Commission file
number, (iv) the number of shares of each class of stock outstanding as shown by
the most recent report or statement published by the Company, and (v) whether
the Company has filed the reports required to be filed under the Exchange Act
for a period of at least ninety (90) days prior to the date of such certificate
and in addition has filed the most recent annual report required to be filed
thereunder. If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the written request of the Holder of
any Registrable Securities, make available adequate current public information
with respect to the Company within the meaning of paragraph (c)(2) of Rule 144.
Section 9. OTHER RIGHTS.
(a) NO EXISTING AGREEMENTS. The Company represents and
warrants to each other party hereto that immediately after the effectiveness of
this Agreement, there will not be in
17
effect any agreement by the Company (other than this Agreement) pursuant to
which any holders of securities of the Company have a right to cause the
Company to register or qualify such securities under the Securities Act or
any securities or blue sky laws of any jurisdiction.
(b) FUTURE AGREEMENTS. The Company shall not hereafter agree
with the holders of any securities issued or to be issued by the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction unless such agreement specifically provides
that (i) such holder of such securities may not participate in any Demand
Registration except as provided in SECTION 2; and (ii) the holder of such
securities may not participate in any Piggyback Registration except as provided
in SECTION 3.
Section 10. SELECTION OF UNDERWRITERS. It is acknowledged and agreed
by the Company and the other parties hereto that the Managing Underwriter for
any registration of Registrable Securities effected pursuant to this Agreement
shall be selected, in the case of a Piggyback Registration, by the Board, and,
in the case of a Demand Registration, by the Holders of a majority of the
Registrable Securities to be sold in such offering after consultation with, and
with the consent of, the Company, which consent shall not be unreasonably
withheld. If a Qualified Independent Underwriter is required for any
registration of Registrable Securities effected pursuant to this Agreement, such
Qualified Independent Underwriter shall be an investment banking firm, selected
by the Managing Underwriter and reasonably satisfactory to the Company which
(i) meets the criteria for a "qualified independent underwriter" set forth in
Section 2(1) of Schedule E to the NASD By-Laws as the same may be amended from
time to time and any other applicable rule or regulation of the NASD or
otherwise, and (ii) agrees to act in such capacity for compensation and upon
other terms and conditions substantially consistent with the compensation and
other terms and conditions that could reasonably be expected to be required by
similar investment banking firms acting in such capacity in similar
transactions.
Section 11. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally, by courier or by facsimile transmission or mailed (first
class postage prepaid) to the parties at the addresses or facsimile numbers set
forth below.
(i) If to the Company, to:
Xxxxx.xxx Inc.
000 Xxxxx XxXxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
18
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(ii) if to an Investor, to such Investor at its address
set forth in the stock ledger of the Company, with copies to:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ms. Kaca Xxxxxxx
Facsimile: (000) 000-0000
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
netWorth Partners I, LLC
One Buckhead Plaza
Suite 780
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
Facsimile: (000) 000-0000
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: B. Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
All such notices, requests and other communications will (x) if
delivered personally or by courier to the address provided in this
SECTION 11(a), be deemed given upon delivery, (y) if delivered by facsimile
transmission to the facsimile number provided in this SECTION 11(a), be deemed
given when receipt of transmission has been electronically confirmed
19
by the sending party if given prior to 5:00 p.m., local time of the
recipient, otherwise on the next Business Day, and (z) if delivered by first
class or registered mail in the manner described above to the address as
provided in this SECTION 11(a), be deemed given three (3) Business Days after
deposit in the United States Mail (in each case regardless of whether such
notice, request or other communication is received by any other Person to
whom a copy of such notice is to be delivered pursuant to this Section). Any
party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
(b) ENTIRE AGREEMENT. This Agreement amends and restates the
Original Registration Rights Agreement in its entirety and supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and of the Original Registration Rights Agreement, and contains
the sole and entire agreement between the parties hereto with respect to the
subject matter hereof and of the Original Registration Rights Agreement.
(c) AMENDMENT. This Agreement may be amended, supplemented
or modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and the
Holders of two-thirds (2/3) or more of the Registrable Securities then
outstanding or subject to issuance.
(d) WAIVER. Subject to paragraph (e) of this SECTION 11, any
term or condition of this Agreement may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
(e) CONSENTS AND WAIVERS BY HOLDERS. Any consent of Holders
pursuant to this Agreement, and any waiver by Holders of any provision of this
Agreement, shall be in writing (which may be executed in any number of
counterparts) and may be given or taken by the Holders of two-thirds (2/3) or
more of the Registrable Securities then outstanding or subject to issuance, and
any such consent or waiver so given or taken will be binding on all the Holders.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnification under SECTION 7.
(g) SUCCESSORS OR ASSIGNS. The registration rights contained
in this Agreement shall be transferable by any Holder to any Person that
acquires Registrable Securities from such Holder (excluding any Person that
acquires such Registrable Securities in a transaction pursuant to which such
securities cease to be Registrable Securities).
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
20
(i) INVALID PROVISIONS. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
(j) REMEDIES. Except as otherwise expressly provided for
herein, no remedy conferred by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter if, existing at law or in equity or by statute or otherwise.
The election of any one or more remedies by any party hereto shall not
constitute a waiver by any such party of the right to pursue any other available
remedies.
Damages in the event of breach of this Agreement by any party
hereto or any of their respective successors or permitted assigns would be
difficult, if not impossible, to ascertain, and it is therefore agreed that each
such Person, in addition to and without limiting any other remedy or right it
may have, will have the right to an injunction or other equitable relief in any
court of competent jurisdiction, enjoining any such breach, and enforcing
specifically the terms and provisions hereof and each party hereto, on its own
behalf and on the behalf of its respective successors and permitted assigns,
hereby waives any and all defenses it may have on the ground of lack of
jurisdiction or competence of the court to grant such an injunction or other
equitable relief. The existence of this right will not preclude any such Person
from pursuing any other rights and remedies at law or in equity which such
Person may have.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois applicable to a
contract executed and performed therein, without giving effect to the conflicts
of laws principles thereof.
(l) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(m) TERMINATION OF REGISTRATION RIGHTS. All registration
rights granted under Sections 2 and 3 of this Agreement shall terminate and be
of no further force and effect twenty-five (25) years after the date of the
Company's initial Public Offering.
(n) LEGENDS. Each certificate representing Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) bear the following legends:
The securities represented by this certificate were
issued in a transaction exempt from registration under
the Securities Act of 1933 (as then in
21
effect), and in reliance upon the holder's representation
that such securities were being acquired for investment
and not for resale. No transfer of such securities may be
made on the books of the Company unless accompanied by an
opinion of counsel, satisfactory to the Company, that such
transfer may be effected without registration under the
Securities Act of 1933 (as amended) or that such
securities have been so registered under a registration
statement which is in effect at the date of such
transfer.
The sale, assignment, pledge, encumbrance or other
transfer of the securities represented by this
certificate is subject to the provisions of an Amended
and Restated Registration Rights Agreement, dated as of
May 4, 1999, among the Company and the Investors named
therein, a copy of which is on file at the principal
executive office of the Company.
SIGNATURES ON FOLLOWING PAGES
22
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the day and year first above
written.
THE COMPANY:
XXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Chief Financial Officer
--------------------------------
INVESTORS:
NETWORTH PARTNERS I, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------
Name: XXXXXX X. XXXXXXXXX, XX.
---------------------------------
Title: AUTHORIZED PERSON
--------------------------------
GS CAPITAL PARTNERS II, L.P. , a Delaware
limited partnership
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general
partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Its: Vice President
-------------------------------
GS CAPITAL PARTNERS II OFFSHORE, L.P., a
limited partnership organized under the laws
of the Cayman Islands
By: GS Advisors II (Cayman), L.P., its
general partner
By: GS Advisors II, Inc., its general
partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Its: Vice President
-------------------------------
S-1
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
XXXXXXX XXXXX & CO. VERWALTUNGS GMBH, a
company organized under the laws of Germany
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Its: Managing Director
--------------------------------
By: /s/ Xxx X. Xxxxxxxx
--------------------------------
Its: Registered Agent
--------------------------------
STONE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., General
Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Its: Authorized Signatory
-------------------------------
BRIDGE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., Managing
General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Its: Authorized Signatory
-------------------------------
S-2
Schedule 1
to
Amended and Restated Registration Rights Agreement
Dated as of May 4, 1999
INVESTORS, AS OF JUNE 2, 1997, UNDER THE ORIGINAL REGISTRATION RIGHTS AGREEMENT:
GS Capital Partners II, L.P.
GS Capital Partners II Offshore, X.X.
Xxxxxxx Sachs & Co., Verwaltungs GmbH
Stone Street Fund 0000, X.X.
Xxxxxx Xxxxxx Fund 1997, X.X.
Xxxxx X. Xxxxxxxx
D. Xxxxx Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx-Internet, L.P.
Xxxxx X. Xxxxx XX
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Golan Productions, Inc.
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxxxxxxx
Xxxxx Xxxxx Revocable Trust
Xxxxx X. Xxxxxxx
Schedule 1
(Page 1 of 1)
Schedule 2
to
Amended and Restated Registration Rights Agreement
Dated as of May 4, 1999
INVESTORS, SUBSEQUENT TO JUNE 2, 1997, UNDER THE ORIGINAL REGISTRATION RIGHTS
AGREEMENT:
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx Trust dated 9/14/90
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
The Xxxxxxxxx X. Xxxx Trust dated November 25, 1991
Xxxx X. Xxxx, XXX R/O
Xxxxxxx X. Xxxx
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
FDP Music, L.L.C.
Xxxxxxx X. Xxxx
Heartland Internet Music, L.L.C.
Xxxxx X. Xxxxxx
JAMtv Venture Partners, L.L.C.
K. A. Steel Chemicals Inc.
Xxxx X. Xxxx
Xxxx Xxxx
Xxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxxx X. Xxxxx
Xxxxxx X. XxXxxxxx
Music Convergence, L.L.C.
Music Funding L.L.C.
Music Infusion, L.L.C.
Xxxxx X. Xxxx
Renrel V Investments Limited Partnership
Resolute Partners, L.P.
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxxx, XXX R/O
Xxxxxx X. Xxxxxx
Schedule 2
(Page 1 of 2)
SCHEDULE 2 (CONT.):
Xxxxxx X. Xxxxxxxx
WNC Corporation
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
An "Investor" under and as defined in this Agreement shall include,
without limitation, each of the following Holders of Series E Convertible
Preferred Stock of the Company and any of the other Holders of Series E
Convertible Preferred Stock of the Company; provided that such Holder has agreed
to be bound by the terms and conditions of this Agreement (by executing an
additional counterpart signature page to this Agreement, a joinder, or such
other document evidencing such Person's agreement to be bound hereby):
netWorth Partners I, LLC
FDP Music II, L.L.C.
Music Infusion II, L.L.C.
Xxxxx X. Xxxx
Xxxxx Xxxxx
Xxxxxxxx X. Xxxxxxxxxx
Xxxx X. Bank
The Xxxxxxx Living Trust
Music Funding II, L.L.C.
Schedule 2
(Page 2 of 2)
