REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of May 17, 1999, between XxxxxXxxx.xxx, Inc.,
a Washington corporation (the "Company"), and the persons listed on the
Schedule of Purchasers attached hereto (collectively referred to herein as
the "Purchasers" and individually as a "Purchaser").
The parties to this Agreement are parties to a Purchase Agreement of
even date herewith (the "Purchase Agreement"). In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the Closing under the
Purchase Agreement. Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in the Purchase Agreement.
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
a. REQUESTS FOR REGISTRATION. At any time after the earlier to
occur of (i) six months following the closing of the Company's initial public
offering or (ii) the date one year from the date hereof, the holders of at
least a majority of the Registrable Securities (as defined below) may request
registration under the Securities Act of 1933, as amended (the "Securities
Act") of all or part of their Registrable Securities on Form S-1 or any
similar long-form registration or on Form S-3 or any similar short-form
registration if available. Such request for a Demand Registration (as
defined herein) shall specify (i) the number of Registrable Securities
requested to be registered, (ii) the anticipated per share price range for
such offering, and (iii) if such holders wish to sell Registrable Securities
in a market other than in a public trading market, the intended method of
distribution. Within ten days after receipt of any such request, the Company
will give written notice of such requested registration to all other holders
of Registrable Securities and, subject to the limitation set forth in Section
l(d) hereof, will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice. Any
registration requested pursuant to this paragraph l(a) is referred to herein
as "Demand Registration."
b. LIMIT ON REGISTRATIONS. The holders of Registrable Securities
will be entitled to request one Demand Registration for which the Company
will pay all Registration Expenses (as defined in Section 5(a) below). A
registration will not count as the permitted Demand Registration until it has
become effective and unless the holders of Registrable Securities are able to
register and sell at least 70% of the Registrable Securities requested to be
included in such registration; provided that in any event the Company will
pay all Registration Expenses in connection with any registration initiated
as a Long-Form Registration whether or not it has become effective.
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c. PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities,
if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company will include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold without adversely affecting the
marketability of the offering, pro rata among the respective holders thereof
on the basis of the amount of Registrable Securities owned by each such
holder.
d. RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be
obligated to effect a Demand Registration within six months after the
effective date of a registration in which the holders of Registrable
Securities were given piggyback rights pursuant to Section 2 and in which
there was no reduction in the number of Registrable Securities requested to
be included. The Company may postpone for up to six months the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company determines in its reasonable discretion that such Demand Registration
could reasonably be expected to have an adverse effect on any proposal or
plan by the Company to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided that in such event, the holders of Registrable
Securities initially requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as the permitted Demand Registration hereunder.
e. SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities initially requesting a Demand Registration will have
the right to select the investment banker(s) and manager(s) to administer the
offering, with the consent of the Company, which consent shall not be
unreasonably withheld.
f. OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement or already outstanding as of the date of this Agreement, the
Company will not, after the date hereof, grant to any individual,
partnership, corporation, limited liability company, trust, joint venture or
other entity without limitation ("Person") the right to request the Company
to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without
the prior written consent of the holders of at least a majority of the
Registrable Securities, which consent shall not be unreasonably withheld.
g. REGISTRABLE SECURITIES. "Registrable Securities" means (i)
any Common Stock issued upon the conversion of any Series C Preferred Stock
issued pursuant to the Purchase Agreement, and (ii) any Common Stock issued
or issuable with respect to the securities referred to in clause (i) by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As
to any particular Registrable Securities, such securities will cease to be
Registrable Securities when
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they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force). For purposes of this Agreement, a Person will
be deemed to be a holder of Registrable Securities whenever such Person has
the right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise
of such right), whether or not such acquisition has actually been effected.
2. PIGGYBACK REGISTRATIONS.
a. RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a
Demand Registration or a registration on Form S-8) and the registration form
to be used may be used for the registration of Registrable Securities for
sale for cash (a "Piggyback Registration"), the Company will give prompt
written notice to all holders of Registrable Securities of its intention to
effect such a registration, which notice shall specify whether such offer
will be underwritten and will include in such registration all Registrable
Securities with respect to which the Company has received written requests
for inclusion therein within ten days after the receipt of the Company's
notice.
b. PIGGYBACK EXPENSES. The Registration Expenses of the holders
of Registrable Securities will be paid by the Company in all Piggyback
Registrations.
c. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Company, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, including the proposed
price for the securities, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro
rata among the holders of such Registrable Securities on the basis of the
number of shares owned by each such holder, and (iii) third, other securities
requested to be included in such registration.
d. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders
of the Company's securities, and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering,
including the proposed price for the securities, the Company will include in
such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iii) third, other securities requested to be
included in such registration.
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3. HOLDBACK AGREEMENTS.
a. Each holder and any transferee or assignee hereby agrees that,
if so requested by the Company and the underwriter (if any) in connection
with the Company's initial public offering, such holder and any such
transferee or assignee shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise transfer or dispose of any
Registrable Securities or other securities of the Company without the prior
written consent of the Company and the underwriter for such period of time
(not to exceed 180 days) following the effective date of a registration
statement of the Company filed under the Securities Act as may be requested
by the underwriter.
b. The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior
to and during the 90-period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) to cause
each holder of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at
any time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such 90-day period
(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing the registered public offering otherwise
agree. Notwithstanding the foregoing, the Company may (i) issue securities
upon exercise or conversion of rights or other securities outstanding on the
date of execution of the underwriting agreement in connection with such
underwritten Demand Registration or underwritten Piggyback Registration and
(ii) issue equity securities in the ordinary course of business pursuant to
the Company's 1997 Stock Incentive Plan.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company will use its reasonable best efforts
to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
a. prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
its reasonable best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to the
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed
to be filed);
b. prepare and file with the Securities and Exchange 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 a
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period of not less than 180 days or until holders of the Registrable
Securities have completed the distribution, whichever is earlier, and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
c. furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
d. use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions (a) in the case of a Demand Registration, as any seller
reasonably requests, (b) in the case of a Piggyback Registration, in such
jurisdictions as are specified in the notice sent pursuant to Section 2(a),
and (c) do any and all other acts and things which may be reasonably
necessary to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided,
in each case, that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required
to qualify but for this subparagraph, (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
e. notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading;
f. cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on The Nasdaq Stock Market
and, if listed on The Nasdaq Stock Market, use its reasonable best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a "national market system security" of The Nasdaq
Stock Market within the meaning of Rule 1lAa2-1 of the Securities and
Exchange Commission or, failing that, to secure Nasdaq authorization for such
Registrable Securities and, without limiting the generality of the foregoing,
use its reasonable best efforts to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
g. provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
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h. enter into such customary agreements satisfactory to the
Company in its reasonable discretion (including underwriting agreements in
customary form);
i. make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained
by any such seller or underwriter upon reasonable notice and at reasonable
times, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply upon reasonable notice and at
reasonable times, all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement;
j. otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission,
and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months beginning with the first day of the Company's first full calendar
quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
k. in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
l. use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the sellers thereof to consummate the disposition of such
Registrable Securities; and
m. obtain a comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of
the Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 40% of the securities covered by
such registration statement).
5. REGISTRATION EXPENSES.
a. All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, and
fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding fees, discounts and
commissions attributable to Registrable Securities) and other Persons
retained by the Company (all such expenses being herein called "Registration
Expenses"), will be borne as provided in this
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Agreement, except that the Company will, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are
then listed or on The Nasdaq Stock Market.
b. In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable
Securities covered by such registration for the reasonable and documented
fees and disbursements of counsel chosen by the holders of a majority of the
Registrable Securities initially requesting such registration, not to exceed
$10,000.
c. To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder will pay those Registration Expenses, including without limitation
underwriting fees, discounts and commissions, allocable to the registration
of such holder's securities so included, and any Registration Expenses not so
allocable will be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities
to be so registered.
6. INDEMNIFICATION.
a. The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers and directors and
each person who controls such holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses caused by
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the Company by such
holder expressly for use therein. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to
the indemnification of the holders of Registrable Securities.
b. In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated
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therein or necessary to make the statements therein not misleading, but only
to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such holder; provided
that the obligation to indemnify will be individual to each holder and will
be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement.
c. Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
d. The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of securities.
The indemnifying party also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the
event the indemnifying party indemnification is unavailable for any reason in
such proportion as is appropriate to reflect the relative fault of the
indemnifying and indemnified parties.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
person (a) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
8. MISCELLANEOUS.
a. NO INCONSISTENT AGREEMENTS. Without the prior consent of the
holders of at least a majority of the Registrable Securities, the Company
will not hereafter enter into any agreement with respect to its securities
which is inconsistent with or violates the rights granted to the holders of
Registrable Securities in this Agreement.
b. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will
not take any action, with respect to its securities which would materially and
adversely affect the ability of the holders of Registrable Securities to include
such Registrable Securities in a registration
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undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
c. REMEDIES. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically and to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law or equity.
d. AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least as a majority of the
Registrable Securities.
e. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
f. TRANSFER OF RIGHTS. The right to cause the Company to
register securities granted by the Company to the Purchasers under this
Agreement may be assigned by any holder to a transferee or assignee of any
Registrable Securities which (a) is a subsidiary, parent, general partner,
limited partner, retired partner, member or retired member of a holder, (b)
is a holder's family member or trust for the benefit of an individual holder
or (c) acquires at least 100,000 shares of such holder's Registrable
Securities (adjusted for any stock splits, subdivisions, stock dividends,
changes, combinations or the like); provided, however, that (i) the Company
must receive written notice prior to the time of said transfer, stating the
name and address of said transferee or assignee and identifying the
securities with respect to which such rights are being assigned, (ii) the
transferee or assignee of such rights must not be a person deemed by the
Board of Directors of the Company in its reasonable judgment, to be a
competitor or potential competitor of the Company and (iii) the transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement.
g. INCORPORATION OF PURCHASE AGREEMENT PROVISIONS. The sections
entitled "Severability," "Counterparts," "Descriptive Headings;
Interpretation," and "Governing Law" of the Purchase Agreement are hereby
incorporated in this Agreement by reference and made a part hereof, except
that the provisions of such paragraphs shall refer to this Agreement rather
than the Purchase Agreement and shall continue to apply hereto regardless of
whether the Purchase Agreement is no longer in effect.
h. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable express
courier service (charges prepaid), transmitted by electronic mail or
facsimile, or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to each Purchaser at the
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addresses indicated on the Schedule of Purchasers and to the Company at the
address indicated below:
To the Company: XxxxxXxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
With a copy to: Xxxxxx Xxxxxx White & XxXxxxxx
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXXX.XXX, INC.
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------
Title: CEO
---------------------------------
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XXXXXXXXX XXXXXXXXXXX
By: RIVERSIDE L.L.C.,
its Managing General Partner
By: FIRST ANALYSIS MANAGEMENT
COMPANY III, L.L.C.
its Manager
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxxx
/s/ Xxxx Xxxxxxxxxxx
---------------------------------------
XXXX XXXXXXXXXXX
/s/ Xxxx Xxx
---------------------------------------
XXXX XXX
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THE PRODUCTIVITY FUND IV, L.P.
a Delaware limited partnership
By: First Analysis Management Company III,
L.L.C., a General Manager
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxxx
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SCHEDULE OF PURCHASERS
Riverside Partnership
The Productivity Fund IV, L.P.
Xxxx Xxxxxxxxxxx
Xxxx Xxx
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