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SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
dated as of September 23, 1999
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS.............................. 1
SECTION 2. REQUIRED REGISTRATION.................... 3
SECTION 3. PIGGYBACK REGISTRATION................... 6
SECTION 4. REGISTRATIONS ON FORM S-3................ 6
SECTION 5. HOLDBACK AGREEMENT....................... 7
SECTION 6. PREPARATION AND FILING................... 7
SECTION 7. EXPENSES................................. 10
SECTION 8. INDEMNIFICATION.......................... 10
SECTION 9. UNDERWRITING AGREEMENT................... 13
SECTION 10. INFORMATION BY HOLDER.................... 13
SECTION 11. EXCHANGE ACT COMPLIANCE.................. 13
SECTION 12. NO CONFLICT OF RIGHTS.................... 13
SECTION 13. TERMINATION.............................. 13
SECTION 14. SUCCESSORS AND ASSIGNS................... 14
SECTION 15. ASSIGNMENT............................... 14
SECTION 16. LEGEND ON CERTIFICATES; NEW CERTIFICATES. 14
SECTION 17. ENTIRE AGREEMENT......................... 15
SECTION 18. NOTICES.................................. 15
SECTION 19. MODIFICATIONS; AMENDMENTS; WAIVERS....... 16
SECTION 20. COUNTERPARTS; FACSIMILE SIGNATURES....... 17
SECTION 21. HEADINGS................................. 17
SECTION 22. GOVERNING LAW............................ 17
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
September 23, 1999, among XXXXXXXXXXX.XXX, INC., a Delaware corporation (the
"Company"), and the INVESTORS (as herein defined).
The Investors own or have the right to purchase or otherwise acquire
shares of the Common Stock (as hereinafter defined) of the Company. The Company
and the Investors deem it to be in their respective best interests to set forth
their rights in connection with public offerings and sales of the Common Stock
and are entering into this Agreement as a condition to and in connection with
the Series E Purchase Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Company and the Investors hereby
agree as follows:
Section 1. Definitions.
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As used in this Agreement, the following terms shall have the
following meanings:
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Investor Rights Agreement" means the Investor Rights Agreement dated
as of November 12, 1997, among the Company and certain of the Investors, as the
same may be amended, supplemented or otherwise modified from time to time.
"Investors" means (i) the persons listed under the caption "Investors"
on Schedule I on the date hereof, (ii) any other person who, with the written
consent of the Company, the Majority of the Series A & B Investors (voting as a
single class), the Majority of the Series C Investors (voting as a separate
class), the Majority of the Series D Investors (voting as a separate class) and
the Majority of the Series E Investors (voting as a separate class), agrees in
writing to become a party to, and be bound by and obligated to comply with the
terms and provisions of, this Agreement and the Stockholders' Agreement and to
be treated as an Investor hereunder and a Stockholder thereunder, and (iii) any
purchaser, assignee or other transferee of any of the foregoing in a purchase,
assignment or other transfer permitted under Section 15 hereof and in which such
purchaser, assignee or other transferee has complied in full with the joinder
requirements set forth in Section 15. Upon the addition of each new Investor as
a party to this Agreement, the Company shall amend Schedule I solely to reflect
the name and address of such new Investor, and the Company shall distribute to
the Investors such amended Schedule I.
"Majority of the Series A & B Investors" means those Investors which
hold in the aggregate in excess of 50% of the then-outstanding Registrable
Shares held by all of the Investors and which were issued or are issuable upon
the conversion of Series A Preferred or Series B Preferred.
"Majority of the Series C Investors" means those Investors which hold
in the aggregate in excess of 50% of the then-outstanding Registrable Shares
held by all of the Investors and which were issued or are issuable upon the
conversion of Series C Preferred.
"Majority of the Series D Investors" means those Investors which hold
in the aggregate in excess of 50% of the then-outstanding Registrable Shares
held by all of the Investors and which were issued or are issuable upon the
conversion of Series D Preferred.
"Majority of the Series E Investors" means those Investors which hold
in the aggregate in excess of 50% of the then-outstanding Registrable Shares
held by all of the Investors and which were issued or are issuable upon the
conversion of Series E Preferred.
"Other Shares" means at any time those shares of Common Stock which do
not constitute Primary Shares or Registrable Shares.
"Preferred Stock" means the Series A Preferred, the Series B
Preferred, the Series C Preferred, the Series D Preferred and the Series E
Preferred.
"Primary Shares" means at any time the authorized but unissued shares
of Common Stock and shares of Common Stock held by the Company in its treasury.
"Registrable Shares" means at any time, with respect to any Investor,
the shares of Common Stock held by such Investor, or into which shares of
Preferred Stock held by such Investor are convertible, which constitute
Restricted Shares.
"Registration Date" means the date upon which the registration
statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale to the public shall have been
declared effective.
"Related Documents" means this Agreement, the Series E Purchase
Agreement, the Series D Purchase Agreement, the Series C Purchase Agreement and
the Stockholders' Agreement.
"Restricted Shares" means any shares of Common Stock, any shares of
Common Stock issuable upon the conversion of shares of Preferred Stock and any
other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock or other securities which are so exercisable or
convertible and any securities received in respect thereof, which are held by
such Investor. As to any particular Restricted Shares, once issued, such
Restricted Shares shall cease to be Restricted Shares when (i) they have been
registered under the Securities Act, the registration statement in connection
therewith has been declared effective and they have been disposed of pursuant to
such effective registration statement, (ii) they have been otherwise transferred
in accordance with the terms and conditions of the Related Documents, as
applicable, and new certificates for them not bearing a restrictive legend and
not
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subject to any stop transfer order or other restriction on transfer have
been delivered by the Company in exchange for the Restricted Shares, (iii) they
are eligible to be sold or distributed pursuant to Rule 144 within any
consecutive three month period (including, without limitation, Rule 144(k))
without volume limitations, or (iv) they shall have ceased to be outstanding.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule 144A).
"Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Series A Preferred" means the Series A Convertible Preferred Stock,
$.01 par value, of the Company, held by any Investor.
"Series B Preferred" means the Series B Convertible Preferred Stock,
$.01 par value, of the Company, held by any Investor.
"Series C Preferred" means the Series C Convertible Preferred Stock,
$.01 par value, of the Company, held by any Investor.
"Series C Purchase Agreement" means the Securities Purchase Agreement
dated as of January 29, 1999, among the Company and certain of the Investors, as
amended, supplemented or otherwise modified from time to time.
"Series D Preferred" means the Series D Convertible Preferred Stock,
$.01 par value, of the Company, held by any Investor.
"Series D Purchase Agreement" means the Securities Purchase Agreement
dated as of May 28, 1999, among the Company and certain of the Investors, as
amended, supplemented or otherwise modified from time to time.
"Series E Preferred" means the Series E Convertible Preferred Stock,
$.01 par value, of the Company, held by any Investor.
"Series E Purchase Agreement" means the Securities Purchase Agreement
dated as of the date hereof, among the Company and certain of the Investors, as
amended, supplemented or otherwise modified from time to time.
"Stockholders' Agreement" means the Second Amended and Restated
Stockholders' Agreement dated as of the date hereof among the Company, the
Investors and the other parties thereto (if any), as amended, supplemented or
otherwise modified from time to time.
Section 2. Required Registration.
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(a) On or after the earlier of (i) November 12, 2000 and (ii) the
expiration of six months following the Registration Date of a Qualified
Public Offering, if a Majority of
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the Series A & B Investors (voting as a single class), a Majority of the
Series C Investors (voting as a separate class), a Majority of the Series D
Investors (voting as a separate class) or a Majority of the Series E
Investors (voting as a separate class) shall in writing state that such
Investors desire to sell Registrable Shares (representing at least 15% of
the Registrable Shares then held by such Investors or any lesser percentage
thereof if the reasonably anticipated aggregate net proceeds to such
Investors of such sale is expected to exceed $15,000,000) in the public
securities markets and request the Company to effect the registration under
the Securities Act of such Registrable Shares, the Company shall:
(i) promptly give written notice of the proposed registration to
all other Investors, who shall have the right, subject to the
applicable terms of this Agreement, to include in such registration
Registrable Shares held by them (exercisable by delivering to the
Company written notice specifying the number of Registrable Shares
requested to be included within 20 days after receipt of such notice of
such registration from the Company); and
(ii) promptly use its best efforts to register under the
Securities Act all of the Registrable Shares that the Investors request
to be registered within 20 days after receipt of such written notice
from the Company.
(b) Notwithstanding anything contained in this Section 2 to the
contrary, the Company shall not be obligated to effect any registration
under the Securities Act except in accordance with the following
provisions:
(i) The Company shall not be obligated to use its best efforts
to file and cause to become effective (i) more than one registration
statement initiated at the request of a Majority of the Series A & B
Investors pursuant to Section 2(a) above on Form S-1 promulgated under
the Securities Act or any successor form thereto, (ii) more than one
registration statement initiated at the request of a Majority of the
Series C Investors pursuant to the Section 2(a) above on Form S-1
promulgated under the Securities Act or any successor form thereto,
(iii) more than one registration statement initiated at the request of
a Majority of the Series D Investors pursuant to Section 2(a) above on
Form S-1 promulgated under the Securities Act or any successor form
thereto, (iv) more than one registration statement initiated at the
request of a Majority of the Series E Investors pursuant to Section
2(a) above on Form S-1 promulgated under the Securities Act or any
successor form thereto, or (v) any registration statement during any
period in which any other registration statement (other than on Form S-
4 or Form S-8 promulgated under the Securities Act or any successor
forms thereto) pursuant to which Primary Shares are to be or were sold
has been filed and not withdrawn or has been declared effective within
the prior 180 days.
(ii) The Company may delay the filing or effectiveness of any
registration statement for a period of up to 90 days after the date of
a request for registration pursuant to this Section 2 if at the time of
such request the Company is engaged, or has fixed plans to engage
within 90 days of the time of such request, in a firm
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commitment underwritten public offering of Primary Shares in which the
holders of Registrable Shares may include Registrable Shares pursuant
to Section 3.
(iii) With respect to any registration pursuant to this Section 2,
the Company shall give notice of such registration to the Investors who
do not request registration hereunder and to the holders of all Other
Shares which are entitled to registration rights and the Company may
include in such registration any Primary Shares or Other Shares;
provided, however, that if the managing underwriter advises the Company
in writing that the inclusion of all Registrable Shares, Primary Shares
and/or Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of the
Registrable Shares proposed to be included in such registration, then
the number of Registrable Shares, Primary Shares and/or Other Shares
proposed to be included in such registration shall be included in the
following order:
(A) first, the Registrable Shares requested to be included
in such registration (or, if necessary, such Registrable Shares pro
---
rata among the holders thereof based upon the number of Registrable
----
Shares requested to be registered by each such holder);
(B) second, the Primary Shares; and
(C) third, the Other Shares that are entitled to
registration rights.
(iv) If the Investors that are holders of the Registrable Shares
requesting to be included in a registration pursuant to Section 2(a) so
elect, the offering of such Registrable Shares pursuant to such
registration shall be in the form of an underwritten offering. The
Investors that are holders of Registrable Shares then holding a
majority of the Registrable Shares requested to be included in such
registration shall select one or more nationally recognized firms of
investment bankers reasonably acceptable to the Company to act as the
lead managing underwriter or underwriters in connection with such
offering.
(v) At any time before the registration statement covering
Registrable Shares becomes effective, the holders of a majority of such
shares may request the Company to withdraw or not to file the
registration statement. In that event, if such request of withdrawal
shall not have been caused by, or made in response to, the material
adverse effect of an event on the business, properties, condition,
financial or otherwise, or operations of the Company, the holders shall
have used the demand registration right of a Majority of the Series A &
B Investors, a Majority of the Series C Investors, a Majority of the
Series D Investors or a Majority of the Series E Investors, as the case
may be, set forth in Section 2(a) and the Company shall no longer be
obligated to register Registrable Shares pursuant to a demand therefor
by such group of Investors pursuant to Section 2(a), unless the Company
shall be paid the expenses incurred by it through the date of such
request.
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Section 3. Piggyback Registration.
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If the Company at any time proposes for any reason to register Primary
Shares under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto), it shall give written
notice to the Investors of its intention to so register such Primary Shares at
least 30 days before the initial filing of such registration statement and, upon
the written request, delivered to the Company within 10 business days after
delivery of any such notice by the Company, of the Investors to include in such
registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration and shall state
that such Investors desire to sell such Registrable Shares in the public
securities markets), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the Company that the
inclusion of all Registrable Shares requested to be included in such
registration would interfere with the successful marketing (including pricing)
of the Primary Shares proposed to be registered by the Company, then the number
of Primary Shares, and Registrable Shares proposed to be included in such
registration shall be included in the following order: first, the Primary
Shares; second, the Registrable Shares (or, if necessary, the Registrable Shares
pro rata among the holders thereof based upon the number of Registrable Shares
--- ----
requested to be registered by each such holder); and third, the Other Shares
requested to be included in such registration. Notwithstanding anything herein
to the contrary, the rights set forth in this Section 3 shall not be applicable
to the registration of the Company's Common Stock on Form S-1, provided such
Form S-1 is filed on or before October 15, 1999.
Section 4. Registrations on Form S-3.
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Anything contained in Section 2 to the contrary notwithstanding, at
such time as the Company shall have qualified for the use of Form S-3
promulgated under the Securities Act or any successor form thereto, the holders
of the Registrable Shares then outstanding shall have the right to request in
writing an unlimited number (but in any event not in excess of (A) two from the
Investors holding Registrable Shares that were issued or are issuable upon the
conversion of Series A Preferred or Series B Preferred in any one twelve month
period, (B) two from the Investors holding Registrable Shares that were issued
or are issuable upon the conversion of Series C Preferred in any one twelve
month period, (C) two from the Investors holding Registrable Shares that were
issued or are issuable upon the conversion of Series D Preferred in any twelve
month period and (D) two from the Investors holding Registrable Shares that were
issued or are issuable upon the conversion of the Series E Preferred in any
twelve month period) of registrations of Registrable Shares on Form S-3 or such
successor form, which request or requests shall (i) specify the number of
Registrable Shares intended to be sold or disposed of and the holders thereof,
(ii) state the intended method of disposition of such Registrable Shares and
(iii) relate to Registrable Shares having an aggregate offering price of at
least $1,000,000. A requested registration on Form S-3 or any such successor
form in compliance with this Section 4 shall not count as a registration
statement initiated pursuant to Section 2 but shall otherwise be treated as a
registration initiated pursuant to, and shall, except as otherwise expressly
provided in this Section 4, be subject to Section 2, including, without
limitation, Section 2(b)(i).
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Section 5. Holdback Agreement.
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If the Company at any time shall register shares of Common Stock under
the Securities Act (including any registration pursuant to Sections 2, 3 or 4
hereof) for sale to the public, the Investors shall not sell publicly, make any
short sale of, grant any option for the purchase of, or otherwise dispose
publicly of, any capital stock of the Company (other than those shares of Common
Stock included in such registration pursuant to Sections 2, 3 or 4 hereof)
without the prior written consent of the Company, for a period designated by the
Company in writing to the Investors, which period shall begin not more than 10
days prior to the effectiveness of the registration statement pursuant to which
such public offering shall be made and shall not last more than 180 days after
the effective date of such registration statement. The Company shall obtain the
agreement of any person permitted to sell shares of stock in a registration to
be bound by and to comply with this Section 5 as if such person was an Investor
hereunder. In the event the Company fails to attain the agreement of the
holders of at least 90% of the Company's then outstanding Stock (other than any
such Stock held by Investors), the restrictions set forth in this Section 5
shall cease to apply to the Investors.
Section 6. Preparation and Filing.
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If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares, the Company shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement that
registers such Registrable Shares to become and remain effective for a
period of 90 days or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating
thereto or any amendments or supplements relating to such a registration
statement or prospectus, to one counsel selected by a majority of the
Investors initiating the registration (the "Investors' Counsel") copies of
all such documents proposed to be filed (it being understood that such
five-business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are
supplied to the Investors' Counsel in advance of the proposed filing by a
period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 90 days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing the Investor's Counsel (i) of the receipt by the
Company of any notification with respect to any comments by the Commission
with respect to such registration statement or prospectus or any amendment
or supplement thereto or any
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request by the Commission for the amending or supplementing thereof or for
additional information with respect thereto, (ii) of the receipt by the Company
of any notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or prospectus
or any amendment or supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as the
Investors reasonably request and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Investors to consummate the
disposition in such jurisdictions of the Registrable Shares owned by the
Investors; provided, however, that the Company will not be required to qualify
generally to do business, subject itself to general taxation or consent to
general service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (e) or to provide any material
undertaking or make any changes in its By-laws or Certificate of Incorporation
which the Board determines to be contrary to the best interests of the Company
or to modify any of its contractual relationships then existing;
(f) furnish to the Investors holding such Registrable Shares such number of
copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Investors may reasonably request in order
to facilitate the public sale or other disposition of such Registrable Shares;
(g) without limiting subsection (e) above, use its best efforts to cause
such Registrable Shares to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Investors holding such
Registrable Shares to consummate the disposition of such Registrable Shares;
(h) notify the Investors holding such Registrable Shares on a timely basis
at any time when a prospectus relating to such Registrable Shares is required to
be delivered under the Securities Act within the appropriate period mentioned in
subparagraph (a) of this Section 6, of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing and, at the request
of the Investors, prepare and furnish to such Investors 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 offerees of such shares, 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 not misleading in light of the circumstances then existing;
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(i) subject to the execution of confidentiality agreements in form and
substance satisfactory to the Company, make available upon reasonable notice and
during normal business hours, for inspection by the Investors holding such
Registrable Shares, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent retained
by the Investors or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information (together
with the Records, the "Information") reasonably requested by any such Inspector
in connection with such registration statement. Any of the Information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the Inspectors unless
(i) the disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the release of such
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) such Information has been made generally
available to the public; the Investors agree that they will, upon learning that
disclosure of such Information is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Information deemed
confidential;
(j) use its best efforts to obtain from its independent certified public
accountants "cold comfort" letters in customary form and at customary times and
covering matters of the type customarily covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion or opinions
in customary form;
(l) provide a transfer agent and registrar (which may be the same entity
and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which the Investors holding such
Registrable Shares may sell shares in such offering certificates evidencing such
Registrable Shares;
(n) list such Registrable Shares on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is not
listed on a national securities exchange, use its best efforts to qualify such
Registrable Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the "NASD"), or such other
national securities exchange as the holders of a majority of such Registrable
Shares shall reasonably request;
(o) 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, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months after the effective
date of the registration
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statement, which earnings statements shall satisfy the provisions of Section
11(a) of the Securities Act; and
(p) subject to all the other provisions of this Agreement, use its best
efforts to take all other steps necessary to effect the registration of
such Registrable Shares contemplated hereby.
Each holder of the Registrable Shares, upon receipt of any notice from
the Company of any event of the kind described in Section 6(h) hereof, shall
forthwith discontinue disposition of the Registrable Shares pursuant to the
registration statement covering such Registrable Shares until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(h) hereof, and, if so directed by the Company, such holder shall
deliver to the Company all copies, other than permanent file copies then in such
holder's possession, of the prospectus covering such Registrable Shares at the
time of receipt of such notice.
Section 7. Expenses.
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All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares, as provided in the last sentence of this
Section 7) incurred by the Company in complying with Section 6, including,
without limitation, all registration and filing fees (including all expenses
incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses, fees and expenses of the
Company's counsel and accountants and reasonable fees and expenses of the
Investors' Counsel, as the case may be, shall be paid by the Company; provided,
however, the Company shall not be required to pay any fees and expenses of the
Investor's Counsel incurred in connection with a registration pursuant to
Section 3, to the extent the same exceed $25,000; and provided, further,
however, that all underwriting discounts, selling commissions applicable to the
Registrable Shares and Other Shares shall be borne by the holders selling such
Registrable Shares and Other Shares, in proportion to the number of Registrable
Shares and Other Shares sold by each such holder.
Section 8. Indemnification.
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(a) In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Company shall indemnify and hold
harmless the holders of Registrable Shares, each underwriter, broker or any
other person acting on behalf of the holders of Registrable Shares and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or allegedly untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to
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state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or, with respect to any prospectus,
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, or any violation by the Company of the
Securities Act or state securities or blue sky laws applicable to the Company
and relating to action or inaction required of the Company in connection with
such registration or qualification under such state securities or blue sky laws;
and shall reimburse the holders of Registrable Shares, such underwriter, such
broker or such other person acting on behalf of the holders of Registrable
Shares and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action (including any legal or other expenses
incurred) arises out of or is based upon an untrue statement or allegedly untrue
statement or omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment, supplement or document
incident to registration or qualification of any Registrable Shares in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by the holders of Registrable Shares or their
counsel or underwriter specifically for use in the preparation thereof; provided
further, however, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement, allegedly untrue
statement, omission or alleged omission made in any preliminary prospectus but
eliminated or remedied in the final prospectus (filed pursuant to Rule 424 of
the Securities Act), such indemnity agreement shall not inure to the benefit of
any holder of Registrable Shares, underwriter, broker or other person acting on
behalf of holders of the Restricted Shares from whom the person asserting any
loss, claim, damage, liability or expense purchased the Restricted Shares which
are the subject thereof, if a copy of such final prospectus had been made
available to such person and such holder of Registrable Shares, underwriter,
broker or other person acting on behalf of holders of the Registrable Shares and
such final prospectus was not delivered to such person with or prior to the
written confirmation of the sale of such Registrable Shares to such person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall severally and not jointly indemnify and hold harmless (in the same manner
and to the same extent as set forth in the preceding paragraph of this Section
8) the Company, each director of the Company, each officer of the Company who
shall sign such registration statement, each underwriter, broker or other person
acting on behalf of the holders of Registrable Shares and each person who
controls any of the foregoing persons within the meaning of the Securities Act
with respect to any statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or such underwriter specifically for use in
connection with the preparation of such registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document; provided,
however, that the maximum amount of liability in
11
respect of such indemnification shall be limited, in the case of each seller of
Registrable Shares, to an amount equal to the proceeds actually received by such
Seller from the sale of Registrable Shares effected pursuant to such
registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 8, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. The failure of any indemnified party to
notify an indemnifying party of any such action shall not (unless such failure
shall have a material adverse effect on, or be materially prejudicial to, the
indemnifying party) relieve the indemnifying party from any liability in respect
of such action that it may have to such indemnified party on account of this
Section 8. In case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and 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 responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 8, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party (but shall have the
right to participate therein with counsel of its choice) and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any one counsel
retained by the indemnified party which are reasonably related to the matters
covered by the indemnity agreement provided in this Section 8. 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 with respect to such claim.
(d) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
12
omission. The parties agree that it would not be just and equitable if
contribution pursuant hereto were determined by pro rata allocation which does
--- ----
not take account of the equitable considerations referred to herein. No person
guilty of fraudulent misrepresentation shall be entitled to contribution from
any person.
Section 9. Underwriting Agreement.
---------- -----------------------
Notwithstanding the provisions of Sections 5, 6, 7 and 8, to the
extent that the Investors shall enter into an underwriting or similar agreement,
which agreement contains provisions covering one or more issues addressed in
such Sections, the provisions contained in such agreement addressing such issue
or issues shall control.
Section 10. Information by Holder.
----------- ----------------------
The Investors shall furnish to the Company such written information
regarding the Investors and the distribution proposed by the Investors, as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
Section 11. Exchange Act Compliance.
----------- ------------------------
From the Registration Date or such earlier date as a registration
statement filed by the Company pursuant to the Exchange Act relating to any
class of the Company's securities shall have become effective, the Company shall
comply with all of the reporting requirements of the Exchange Act applicable to
it (whether or not it shall be required to do so, but specifically excluding
Section 14 of the Exchange Act if not then applicable to the Company) and shall
comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Company shall cooperate with the Investors in supplying
such information as may be necessary for the Investors to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
Section 12. No Conflict of Rights.
----------- ----------------------
Without the prior written consent of a Majority of the Series A & B
Investors (voting as a single class), a Majority of the Series C Investors
(voting as a separate class), a Majority of the Series D Investors (voting as a
separate class) and a Majority of the Series E Investors (voting as a separate
class), the Company shall not, after the date hereof, grant any registration
rights which conflict with or impair the registration rights granted hereby.
Section 13. Termination.
----------- ------------
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Registrable Shares outstanding.
13
Section 14. Successors and Assigns.
----------- -----------------------
This Agreement shall bind and inure to the benefit of the Company and
the Investors and, subject to Section 15, the respective successors and assigns
of the Company and the Investors.
Section 15. Assignment.
----------- -----------
Each Investor may sell, assign or otherwise transfer its rights
hereunder to any purchaser, assignee or other transferee of Registrable Shares;
provided, however, that any such sale, assignment or other transfer shall be (i)
in connection with the sale, assignment or other transfer of either all the
Registrable Shares of such Investor or at least 250,000 Registrable Shares of
such Investor (as adjusted to reflect any stock dividends, stock splits, reverse
stock splits or combination or other pro rata recapitalization event affecting
such Registrable Shares) or (ii) to a member of such Investor's Group (as
defined in the Stockholders' Agreement); and provided, further, however, that
any such purchaser, assignee or other transferee of such rights hereunder shall,
as a condition to the effectiveness of such sale, assignment or other transfer,
agree to become a party to, and be bound by and obligated to comply with the
terms and provisions of, (i) this Agreement, (ii) the Stockholders' Agreement,
(iii) if such Registrable Shares were issued or are issuable upon the conversion
of Series C Preferred, the Series C Purchase Agreement, (iv) if such Registrable
Shares were issued or are issuable upon the conversion of Series D Preferred,
the Series D Purchase Agreement and (v) if such Registrable Shares were issued
or are issuable upon conversion of the Series E Preferred, the Series E Purchase
Agreement.
Section 16. Legend on Certificates; New Certificates.
----------- ----------------------------------------
(a) Each certificate representing Restricted Shares shall bear a
legend containing the following words (in addition to any other legend
required by law or applicable agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A SECOND AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT DATED SEPTEMBER 23, 1999, AMONG XXXXXXXXXXX.XXX, INC.
AND CERTAIN HOLDERS OF THE OUTSTANDING STOCK OF SUCH COMPANY. COPIES
OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE
BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF SUCH
COMPANY."
(b) As expeditiously as possible after the registration of Restricted
Shares under the Securities Act pursuant to a registration statement that
has been declared effective, the Company shall deliver in exchange for any
legended certificate evidencing Restricted Shares so registered, new stock
certificates not bearing any restrictive legends, provided that in the
event less than all of the Restricted Shares evidenced by such legended
14
certificate are registered, the holder thereof agrees that a new
certificate evidencing such unregistered shares will be issued bearing the
appropriate restrictive legend.
Section 17. Entire Agreement.
----------- -----------------
This Agreement, the other Related Documents and any other writings
referred to herein or delivered pursuant hereto contain the entire agreement
among the parties hereto with respect to the subject matter hereof and hereby
amend, restate and otherwise supersede all prior and contemporaneous agreements
and understandings with respect thereto, including, but not limited to, the
Investor Rights Agreement.
Section 18. Notices.
----------- --------
All notices, requests, demands, claims, consents and other
communications which are required or otherwise delivered hereunder shall be in
writing and shall be deemed to have been duly given if (i) personally delivered,
(ii) sent by nationally recognized overnight courier, (iii) mailed by registered
or certified mail with postage prepaid, return receipt requested, (iv)
transmitted by electronic mail, with receipt acknowledged by the recipient by
return electronic mail (with a copy of such transmission concurrently
transmitted by registered or certified mail with postage prepaid, return receipt
requested), or (v) transmitted by facsimile or telecopy (with a copy of such
transmission concurrently transmitted by registered or certified mail with
postage prepaid, return receipt requested), to the parties hereto at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to the Company, to:
XxxxXxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
E-mail: xxxxxxx@xxxxxxxxxxx.xxx
-----------------------
with a copy to:
Xxxxxxx, Xxxxxxx and Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx III, Esq.
E-mail: xxxxxxxxxx@xxxxxxx.xxx
15
(ii) if to the Investors, to their respective addresses set forth on
Schedule I hereto, with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
E-mail: xxx@xxx.xxx
-----------
and a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
E-mail: xxxxxxx@xxxxxxxxx.xxx
-----------------
and a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
E-mail: xxxx@xxx.xxx
All notices, requests, demands, claims, consents and other
communications which are required or otherwise delivered hereunder shall be
deemed to have been given and received (i) in the case of personal delivery, on
the date of such delivery, (ii) in the case of delivery by nationally recognized
overnight courier, on the second business day following dispatch, (iii) in the
case of mailing by registered or certified mail with postage prepaid, return
receipt requested, on the fifth business day after the posting thereof, (iv) in
the case of transmission by electronic mail, on the date of such transmission,
and (v) in the case of transmission by facsimile or telecopy, on the date of
such delivery.
Section 19. Modifications; Amendments; Waivers.
----------- -----------------------------------
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision be waived, except pursuant to the written consent
of each of the Company, the Majority of the Series A & B Investors (voting as a
single class), the Majority of the Series C Investors (voting as a separate
class), the Majority of the Series D Investors (voting as a separate class) and
the Majority of the Series E Investors (voting as a separate class); provided,
however,
16
no such written consent shall be required for the amendment of Schedule
I solely to reflect the name and address of any new Investor who has become a
party to this Agreement in accordance with the terms and conditions hereof.
Section 20. Counterparts; Facsimile Signatures.
----------- -----------------------------------
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement. Facsimile
counterpart signatures to this Agreement shall be acceptable at the Closing (as
defined in the Securities Purchase Agreement) if the originally executed
counterpart is delivered within a reasonable period thereafter.
Section 21. Headings.
----------- ---------
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
Section 22. Governing Law.
----------- --------------
This Agreement shall be governed by and construed and enforced in
accordance with the Delaware General Corporation Law as to matters within the
scope thereof and as to all other matters shall be governed by and construed and
enforced in accordance with the internal laws of the Commonwealth of Virginia
applicable to contracts made and to be performed wholly therein.
* * * *
17
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended
and Restated Registration Rights Agreement on the date first written above.
COMPANY
-------
XXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
ABS VENTURES LM L.L.C.
BY: XXXXXXX CAPITAL II L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
ABS VENTURES IV L.P.
BY: XXXXXXX CAPITAL L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
ABX FUND, L.P.
BY: XXXXXXX CAPITAL II L.L.C.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXXX-XXXXX INVESTMENTS L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxxx X. Xxxxx
_________________________________________
Xxxxxx X. Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxx Xxxxx
_________________________________________
Xxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxx Xxxx
_________________________________________
Xxx Xxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxx X. Xxxxxxxxxxxxx
_________________________________________
Xxxxx X. Xxxxxxxxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxx Xxxxxxx
_________________________________________
Xxxx Xxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxx Xxxxx
_________________________________________
Xxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
EXCELSIOR PRIVATE EQUITY FUND II, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Investment Officer
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXX XXXXXX VENTURE PARTNERS, L.P.
BY: XXXXX XXXXXX COMPANY, LLC,
its general partner
By: /s/ X. Xxxxxx Xxxxx
----------------------------------
Name: X. Xxxxxx Xxxxx
Title: Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXX XXXXXX VENTURE PARTNERS II, L.P.
BY: XXXXX XXXXXX COMPANY II, LLC,
its general partner
By: /s/ X. Xxxxxx Xxxxx
------------------------------
Name: X. Xxxxxx Xxxxx
Title: Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
FBR TECHNOLOGY VENTURE PARTNERS, L.P.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxx Xxxxxxxxx
__________________________________________
Xxxx Xxxxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxxx Xxxxxxx
_________________________________________
Xxxxxx Xxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxx Xxx
_________________________________________
Xxx Xxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxx Xxxxxx
_________________________________________
Xxx Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
LYCOS VENTURES, L.P.
BY: LYCOS TRIANGLE PARTNERS, LLC,
its general partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
LYCOS VENTURES CO-INVESTMENT FUND, L.P.
BY: LYCOS, INC.,
its general partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
R & R XXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
NETWORTH PARTNERS IV, LLC
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice-President
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXX, XXXX & XXXXX VENTURE ASSOCIATES V, L.L.C.
BY: WPG VC FUND ADVISER II, L.L.C.,
Fund Investment Advisory Member
By: R. B. Mharte
----------------------------------------
Name:
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXX, XXXX & XXXXX VENTURE ASSOCIATES V-A, L.L.C.
BY: WPG VC FUND ADVISER II, L.L.C.,
Fund Investment Advisory Member
By: R. B. Mharte
------------------------------------------
Name:
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXXXX, XXXX & XXXXX VENTURE ASSOCIATES V CAYMAN,
L.P.
BY: WPG VC FUND ADVISER II, L.L.C.,
Fund Investment Advisory Partner
By: R. B. Mharte
----------------------------------------
Name:
Title: Managing Member
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
IMPERIAL VENTURES, INC.
By: /s/ Xxxxx X. Xxxxxx
____________________________________
Name: Xxxxx X. Xxxxxx
Title: President
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
TAILWIND CAPITAL PARTNERS, L.P.
BY: XXXXXX XXXXXX CAPITAL PARTNERS LLC
its general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Counsel
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxxxx Xxxxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Registration Rights Agreement on the date first above
written.
INVESTOR
--------
XXX XXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: President
Schedule I
----------
INVESTORS
---------
ABS VENTURES LM L.L.C.
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
E-mail: xxxxx.xxxxxxx@xxxxxxxxxxx.xxx
ABS VENTURES IV L.P.
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
E-mail: xxxxx.xxxxxxx@xxxxxxxxxxx.xxx
ABX FUND, L.P.
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
E-mail: xxxxx.xxxxxxx@xxxxxxxxxxx.xxx
XXXXXX-XXXXX INVESTMENTS L.L.C.
c/o ABS Ventures
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail:
XXXXXX X. XXXXX
c/o ABS Ventures
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel:
Fax:
E-mail:
XXXX XXXXX
c/o ABS Ventures
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel:
Fax:
E-mail:
XXX XXXX
c/o ABS Ventures
0 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Tel:
Fax:
E-mail:
XXXXX X. XXXXXXXXXXXXX
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.xxxxxxxxxxxxx@xx.xxx
--------------------------
XXXX XXXXXXX
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx.xxxxxxx@xx.xxx
-------------------
XXXXX XXXXX
00 X. Xxxxx Xxxxxx Xxxxx #000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxx.xxxxx@xx.xxx
------------------
EXCELSIOR PRIVATE EQUITY FUND II, INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
E-mail: xxxxxxxxx@xxxxxxx.xxx
XXXXX XXXXXX VENTURE PARTNERS, L.P.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: X. Xxxxxx Xxxxx
E-mail: xxxxxx0000@xxx.xxx
XXXXX XXXXXX VENTURE PARTNERS II, L.P.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: X. Xxxxxx Xxxxx
E-mail: xxxxxx0000@xxx.xxx
FBR TECHNOLOGY VENTURE PARTNERS, L.P.
0000 00xx Xxxxxx, Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx
E-mail: xxxxxxxxx@xxx.xxx
XXXX XXXXXXXXX
XXX
000 Xxx Xxxxxxxxx Xxxx.
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
------------------------------
XXXXXX XXXXXXX
XXX
000 Xxx Xxxxxxxxx Xxxx.
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxxxxx.xxx
----------------------------
XXX XXX
ICG
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx@xxxxxxxxxxxxxxx.xxx
------------------------
XXX XXXXXX
ICG
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxxxxx.xxx
---------------------------
XXXXX XXXXXX
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
LYCOS VENTURES, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: X.X. Xxxxxxxxxx, Xx.
E-mail: xxxxxx@xxxxxx.xxx
-----------------
LYCOS VENTURES CO-INVESTMENT FUND, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: X.X. Xxxxxxxxxx, Xx.
E-mail: xxxxxx@xxxxxx.xxx
-----------------
R & R XXXXX FAMILY LIMITED PARTNERSHIP
c/o Lycos, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxx@xxxxx.xxx
----------------
NETWORTH PARTNERS IV, LLC
c/o Mellon Ventures
Xxx Xxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxx Xxxxxx
E-mail: xxxxxx.xx@xxxxxx.xxx
--------------------
XXXXX,XXXX & XXXXX VENTURE ASSOCIATES V, L.L.C.
c/x Xxxxx, Xxxx & Xxxxx, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
E-mail: xxxx@xxxxx.xxx
XXXXX,XXXX & XXXXX VENTURE ASSOCIATES V-A, L.L.C.
c/x Xxxxx, Xxxx & Xxxxx, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
E-mail: xxxx@xxxxx.xxx
XXXXX,XXXX & XXXXX VENTURE ASSOCIATES V CAYMAN, L.P.
c/x Xxxxx, Xxxx & Xxxxx, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxx Xxxxxx
E-mail: xxxx@xxxxx.xxx
IMPERIAL VENTURES, INC.
0000 x. Xx Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
XXXXX XXXXX
000 Xxxxxxxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
Tel: (703) 707-8261 ext. 246
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
TAILWIND CAPITAL PARTNERS, L.P.
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel:
Fax:
Attention:
E-mail:
XXXXXXXX XXXXXXXX
0000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxxxx@xxxx.xxx
XXX XXXXXXX CAPITAL MANAGEMENT, INC.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxx
E-mail:
