EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into as of December 29, 1995 by and among APEX PC
SOLUTIONS, INC., a Washington corporation (the "Company"), the entities named as
Purchasers on Exhibit A hereto (the "Purchasers"), and the persons or entities
named as Founders on Exhibit A hereto (the "Founders").
RECITALS
A. The Purchasers hold or, on the date hereof, are acquiring an aggregate
of 200,000 shares of the Company's Common Stock, no par value (the "Common
Shares") and an aggregate of 300,000 shares of the Company's Series A
Convertible Preferred Stock, no par value (the "Preferred Shares") (together,
the Common Shares and the Preferred Shares are referred to as the "Purchaser
Shares"), pursuant to the terms of a Stock and Subordinated Note Purchase
Agreement dated the date hereof among the Company, the Purchasers and the
Founders (the "Purchase Agreement").
B. The execution and delivery of this Agreement is a condition of the
Purchase Agreement and the Company desires to grant registration rights to the
Purchasers and the Founders.
C. The Founders hold on the date hereof an aggregate of 1,000,000 shares
of Common Stock of the Company ("Founders Shares") pursuant to the terms of the
Purchase Agreement, 500,000 of which shares shall be repurchased by the Company
pursuant to Section 6.3 of the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the Purchasers, the Founders and the Company agree as follows:
REGISTRATION
1. DEFINITIONS.
As used herein:
1.1 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
1.2 The term "Registrable Shares" means and includes any shares of Common
Stock issued or issuable upon the conversion of the Purchaser Shares and, for
the purposes of Section 2.1 but not Sections 2.2, 2.3, 2.10, 2.11 and 5, the
Founders Shares; provided that Registrable Shares shall not include any shares
of Common Stock which have previously been registered or which have
been sold to the public, or which have been sold in a private transaction in
which the transferor's rights pursuant to this Agreement were not assigned.
1.3 The term "Ownership Percentage" means and includes, with respect to
each holder of Registrable Shares requesting inclusion of Registrable Shares in
an offering pursuant to this Agreement, the number of Registrable Shares held by
such holder divided by the total of (a) all Registrable Shares held by all
holders requesting registration in such offering and (b) the total number of all
other securities entitled to registration pursuant to any agreement with the
Company approved by a majority in interest of the Purchasers and held by others
participating in the underwriting.
1.4 The term "Public Offering" shall mean a fully distributed,
underwritten public offering of shares of Common Stock registered under the
Securities Act.
1.5 The term "Securities Act" means the Securities Act of 1933, as
amended.
2. REGISTRATION RIGHTS.
2.1 "PIGGY BACK" REGISTRATION. If at any time the Company shall
determine to register under the Securities Act (including pursuant to a demand
of any shareholder of the Company exercising registration rights) any of its
Common Stock (except shares to be issued solely in connection with any
acquisition of any entity or business, shares issuable solely upon exercise of
stock options, or shares issuable solely pursuant to employee benefit plans), it
shall send to each holder of Registrable Shares written notice of such
determination and, if within fifteen (15) days after delivery of such notice,
such holder shall so request in writing, the Company shall include in such
registration all or any part of the Registrable Shares that such holder requests
to be registered, except that if, in connection with any offering involving an
underwriting of Common Stock to be issued by the Company, the managing
underwriter advises the Company that marketing factors require a limitation on
the number of shares of Common Stock to be included in any such registration,
then the number of shares that are entitled to be included in the registration
shall be allocated, first, to the Common Stock to be sold by the Company and
then to the Common Stock held by the holders of Common Stock having an
incidental ("piggy back") right to include such Common Stock in the registration
statement as provided below. To the extent that any Registrable Shares may be
included in the registration after the underwriter's cut-back (the "Available
Shares"), the Company shall be obligated to include in such registration
statement, with respect to each requesting holder, the amount equal to (i) the
number of Available Shares multiplied by (ii) such holder's Ownership
Percentage. Notwithstanding the foregoing, in any underwriting of Common Stock
that occurs after the Company's initial Public Offering, the underwriter shall
not reduce the number of Registrable Shares requested for inclusion hereunder to
be included to less than thirty percent (30%) of all shares to be underwritten.
No incidental right under this Section 2.1 shall be construed to limit any
registration required under Section 2.2.
2.2 REQUIRED REGISTRATION. (a) If at any time after the earlier to
occur of (i) 120 days after the Company has completed a Public Offering, or
(ii) the twelve (12) month anniversary date hereof, one or more holders of at
least forty percent (40%) of the Registrable Shares, shall notify the
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Company in writing that it or they intend to offer or cause to be offered for
public sale any portion or all of the Registrable Shares, the Company will so
notify all holders of Registrable Shares. Upon written request of any holder
received by the Company within twenty (20) days after written notice is
delivered by the Company, the Company will cause all or any part of the
Registrable Shares that may be requested by any holder thereof (including the
holder or holders giving the initial notice of intent to offer) to be registered
under the Securities Act as expeditiously as possible. The Company shall not be
obligated to effect, or to take any action to effect, any such registration
pursuant to this Section 2.2:
(i) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the Company
is already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(ii) After the Company has initiated two such registrations
pursuant to this Section 2.2 (counting for these purposes only registrations
which have been declared or ordered effective and pursuant to which
securities have been sold and registrations which have been withdrawn by the
holders as to which the holders have not elected to bear the expenses of
registration pursuant to Section 2.9 hereof and would, absent such election,
have been required to bear such expenses);
(iii) During the period starting with the date 60 days prior
to the Company's good faith estimate of the date of filing of, and ending on
a date 120 days after the effective date of, a Company-initiated initial
Public Offering; provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(iv) If the initiating holders propose to dispose of
Registrable Shares which may be immediately registered on Form S-3 pursuant
to a request made under Section 2.3 hereof;
(b) Notwithstanding anything contained in this Section 2.2 to the
contrary, if the Company furnishes to the holders of Registrable Shares
requesting any registration pursuant to such section, a certificate signed by
the President of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, such registration would be detrimental to the
Company and that it is in the best interests of the Company to defer the filing
of a registration statement, then the Company shall have the right to defer the
filing of a registration statement with respect to such offering for a period of
not more than 120 days from receipt by the Company of the request by the
initiating holder; provided, however, that the Company may not exercise such
right more than once in any twelve month period.
2.3 REGISTRATION ON FORM S-3.
(a) In addition to the rights provided to the holders of Registrable
Shares in Section 2.1 and Section 2.2 above, if the registration of Registrable
Shares pursuant to the Securities Act can be effected on Form S-3 (or any
similar form promulgated by the Securities and Exchange
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Commission), upon the request of one or more holders of at least twenty percent
(20%) of the Registrable Shares, the Company will promptly so notify each holder
of Registrable Shares and then will, as expeditiously as possible thereafter,
effect the registration under the Securities Act on said Form S-3 of all or such
portion of the Registrable Shares as the holder or holders shall specify.
(b) Notwithstanding the foregoing, Company shall not be required to
register Registerable Shares on Form S-3 pursuant to Section 2.3(a), (i) on more
than one occasion in any calendar year or (ii) if the Company furnishes to the
holders of Registrable Shares requesting any registration pursuant to such
section, a certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, such
registration would be detrimental to the Company and that it is in the best
interests of the Company to defer the filing of a registration statement, then
the Company shall have the right to defer the filing of a registration statement
with respect to such offering for a period of not more than 90 days from receipt
by the Company of the request by the initiating holder; provided, however, that
the Company may not exercise such right more than three times, nor may the
Company exercise such right consecutively.
2.4 EFFECTIVENESS. The Company will use its best efforts to maintain the
effectiveness for of any registration statement pursuant to which any of the
Registrable Shares are being offered until the earlier of (a) such time as all
of the Registrable Shares registered thereby are sold or (b) nine (9) months
after the effective date of the registrable statement, and from time to time
will amend or supplement such registration statement and the prospects contained
therein as and to the extent necessary to comply with the Securities Act and any
applicable state securities statute or regulation.
2.5 INDEMNIFICATION OF HOLDERS OF REGISTRABLE SHARES. In the event that
the Company registers any of the Registrable Shares under the Securities Act,
the Company will indemnify and hold harmless each holder and each underwriter of
the Registrable Shares so registered (including any broker or dealer through
whom such shares may be sold) and each person, if any, who controls such holder
or any such underwriter within the meaning of Section 15 of the Securities Act
from and against any and all losses, claims, damages, expenses or liabilities,
joint or several, to which they or any of them become subject under the
Securities Act or under any other statute or at common law, or otherwise, and,
except as hereinafter provided, will reimburse each such holder, each such
underwriter and each such controlling person, if any, for any legal or other
expenses reasonably incurred, as incurred, by them or any of them in connection
with investigating or defending any actions whether or not resulting in any
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement, in any
preliminary or amended preliminary prospectus or in the prospectus (or the
registration statement or prospectus as from time to time amended or
supplemented by the Company) or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading or any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, unless such untrue
statement or omission was made in such registration statement, preliminary or
amended, preliminary prospectus or prospectus in reliance upon and in conformity
with information furnished in writing to the
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Company in connection therewith by such holder of Registrable Shares, any such
underwriter or any such controlling person expressly for use therein. Promptly
after receipt by any holder of Registrable Shares, any underwriter or any
controlling person of notice of the commencement of any action in respect of
which indemnity may be sought against the Company, such holder of Registrable
Shares, or such underwriter or such controlling person, as the case may be, will
notify the Company in writing of the commencement thereof, and, subject to the
provisions hereinafter stated, the Company shall assume the defense of such
action (including the employment of counsel, who shall be counsel reasonably
satisfactory to such holder of Registrable Shares, such underwriter or such
controlling person, as the case may be), and the payment of expenses insofar as
such action shall relate to any alleged liability in respect of which indemnity
may be sought against the Company. Such holder of Registrable Shares, any such
underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall not be at the expense of the
Company unless the employment of such counsel has been specifically authorized
by the Company. The Company shall not be liable to indemnify any person for any
settlement of any such action effected without the Company's consent. The
Company shall not, except with the approval of each party being indemnified
under this Section 2.5, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to the parties being so indemnified of a release from
all liability in respect to such claim or litigation.
2.6 INDEMNIFICATION OF COMPANY. In the event that the Company registers
any of the Registrable Shares under the Securities Act, each holder of the
Registrable Shares so registered will indemnify and hold harmless the Company,
each of its directors and officers, each underwriter of the Registrable Shares
so registered (including any broker or dealer through whom any of such shares
may be sold) and each person, if any, who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, each other
holder and each of their directors and officers from and against any and all
losses, claims, damages, expenses or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or under any
other statute or at common law or otherwise, and, except as hereinafter
provided, will reimburse the Company and each such director, officer,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or defending
any actions whether or not resulting in any liability, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement, in any preliminary or amended preliminary prospectus
or in the prospectus (or the registration statement or prospectus as from time
to time amended or supplemented) or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, but
only insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company in connection
therewith by such holder of Registrable Shares, expressly for use therein;
provided, however, that such holder's obligations hereunder shall be limited to
an amount equal to the proceeds to such holder of the Registrable Shares sold in
such registration. Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against such holder of
Registrable Shares, the Company will notify such holder of Registrable Shares in
writing of the commencement thereof,
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and such holder of Registrable Shares shall, subject to the provisions
hereinafter stated, assume the defense of such action (including the employment
of counsel, who shall be counsel satisfactory to the Company) and the payment of
expenses insofar as such action shall relate to the alleged liability in respect
of which indemnity may be sought against such holder of Registrable Shares. The
Company and each such director, officer, underwriter or controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof but the fees and expenses of such counsel shall not be at
the expense of such holder of Registrable Shares unless employment of such
counsel has been specifically authorized by such holder of Registrable Shares.
Notwithstanding the two preceding sentences, if the action is one in which the
Company may be obligated to indemnify any holder of Registrable Shares pursuant
to Section 2.5, the Company shall have the right to assume the defense of such
action, subject to the right of such holders to participate therein as permitted
by Section 2.5. Such holder of Registrable Shares shall not be liable to
indemnify any person for any settlement of any such action effected without such
holder's consent. Such holder shall not, except with the approval of the
Company, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to the party being so indemnified of a release from all liability in
respect to such claim or litigation.
2.7 EXCHANGE ACT REGISTRATION. The Company will use its best efforts to
file on a timely basis with the Securities and Exchange Commission all
information that the Commission may require under either of Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, and, so long
as it is required to file such information, shall use its best efforts to take
all action that may be required as a condition to the availability of Rule 144
under the Securities Act (or any successor exemptive rule hereinafter in effect)
with respect to the Company's Common Stock. The Company shall furnish to any
holder of Registrable Shares forthwith upon request (a) a written statement by
the Company as to its compliance with the reporting requirements of Rule 144,
(b) a copy of the most recent annual or quarterly report of the Company as filed
with the Securities and Exchange Commission and (c) any other reports and
documents that a holder may reasonably request in availing itself of any rule or
regulation of the Securities and Exchange Commission allowing a holder to sell
any such Registrable Shares without registration.
2.8 FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is required
hereunder to register Registrable Shares, it agrees that it shall also do the
following:
(a) Furnish to each selling holder such copies of each preliminary
and final prospectus and any other documents that such holder may reasonably
request to facilitate the public offering of its Registrable Shares;
(b) Use its best efforts to register or qualify the Registrable
Shares to be registered pursuant to this Agreement under the applicable
securities or "blue sky" laws of such jurisdictions as any selling holder may
reasonably request; provided, however, that the Company shall not be obligated
to qualify to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to the service of process in suits
other than those arising out of the offer
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or sale of the securities covered by the registration statement in any
jurisdiction where it is not then so subject;
(c) Furnish to each selling holder a copy of the signed:
(i) opinion of counsel for the Company, dated the effective
date of the registration statement;
(ii) "comfort" letters signed by the Company's independent
public accountants who have examined and reported on the Company's financial
statements included in the registration statement, to the extent permitted by
the standards of the American Institute of Certified Public Accountants,
covering substantially the same matters with respect to the registration
statement (and the prospectus included therein) and (in the case of the
accountants' "comfort" letters) with respect to events subsequent to the date of
the financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' "comfort" letters delivered to the underwriters in
underwritten public offerings of securities, but only if and to the extent that
the Company is required to deliver or cause the delivery of such opinion or
"comfort" letters to the underwriters in an underwritten public offering of
securities;
(d) Permit each selling holder or his counsel or other
representatives to inspect and copy such corporate documents and records as may
reasonably be requested by them; and
(e) Furnish to each selling holder, upon request, a copy of all
documents filed and all correspondence from or to the Securities and Exchange
Commission in connection with any such offering unless confidential treatment of
such information has been requested of the Securities and Exchange Commission.
2.9 EXPENSES. In the case of any registration under Section 2.1, 2.2 or
2.3 the Company shall bear all costs and expenses of each such registration,
including, but not limited to, printing, legal and accounting expenses,
Securities and Exchange Commission filing fees and "blue sky" fees and expenses;
provided, however, that the Company shall have no obligation to pay or otherwise
bear (i) any portion of the fees or disbursements of more than one counsel for
the selling holders of Registrable Shares in connection with the registration of
their Registrable Shares, (ii) any portion of the underwriter's commissions or
discounts attributable to the Registrable Shares being offered and sold by the
holders of Registrable Shares, or (iii) any of such expenses if the payment of
such expenses by the Company is prohibited by the laws of a state in which such
offering is qualified (but only to the extent so prohibited); and provided
further, that, in the event any registration under the Securities Act is
initiated by any holders of Registrable Shares pursuant to Section 2.2 or 2.3 of
this Agreement and such registration is thereafter withdrawn or terminated by
such holders for reasons other than the occurrence of one or more events
regarding the Company which may have a material adverse affect upon the business
or prospects of the Company, and such holders learn of such event or events
after the date of the demand for registration and prior to the date of
withdrawal or termination by them and such withdrawal or termination occurs with
reasonable promptness thereafter, then the Company shall have no obligation to
pay or otherwise bear any fees, expenses or
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other costs arising out of or relating to such registration, unless, in the case
of a registration under Section 2.2 hereof, such holders relinquish one of their
rights to demand registration under such section.
2.10 TRANSFER OF REGISTRATION RIGHTS. The registration rights of the
holders of Registrable Shares under this Agreement may be transferred by any
Purchaser to (i) any partner or affiliate of such Purchaser and (ii) to any
transferee of such Purchaser's Registrable Shares who after such transfer will
hold at least 5% of the holdings of Registrable Shares of such Purchaser;
provided that the Company is given written notice within a reasonable period of
time following such transfer setting forth the name and address of the
transferee and identifying the number of Registrable Shares transferred.
2.11 NO SUPERIOR RIGHTS. The Company will not grant registration rights to
any person or entity without the prior written and executed consent of the
holders of at least 66 2/3% of the Registrable Securities.
2.12 MARKET STAND-OFF AGREEMENT. Provided that all holders of Registrable
Securities are treated equally and all officers and directors of the Company are
bound by restrictions not less restrictive then those set forth in this
Section 2.12, no holder of Registrable Shares shall, to the extent requested by
the Company or any managing underwriter of the Company, sell or otherwise
transfer or dispose of (other than to donees or partners of the holder who agree
to be similarly bound) any Registrable Shares during a period (the "Stand-Off
Period") equal to 180 days following the effective date of a registration
statement of the Company filed under the Securities Act (or such shorter period
as the Company or managing underwriter may authorize) except for securities sold
as part of the offering covered by such registration statement in accordance
with the provisions of this Agreement. In order to enforce the foregoing
covenant, the Company may impose stock transfer restrictions with respect to the
Registrable Shares of each holder until the end of the Stand-Off Period.
2.13 UNDERWRITING.
(a) (i) If the holders of Registrable Securities intend to
distribute the Registrable Securities covered by their request pursuant to
Section 2.2 or 2.3 hereof by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to such Section and the Company
shall include such information in the written notice referred to in such
Sections. The right of any such holder to registration pursuant to Sections 2.2
and 2.3 shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities in the
underwriting to the extent requested (unless otherwise mutually agreed by a
majority in interest of the holders of Registrable Securities) to the extent
provided herein.
(ii) The Company shall (together with all holders of Registrable
Securities proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
holders of Registrable Securities. Notwithstanding any other provision of this
Section 2.13, if the managing underwriter advises the holders of Registrable
Securities in writing
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that marketing factors require a limitation of the number of shares to be
underwritten, then, subject to the provisions of Sections 2.2 and 2.3, the
Company shall so advise all holders of Registrable Securities and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all holders of Registrable Securities
requesting inclusion in the registration in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
holders of Registrable Securities at the time of filing the registration
statement, provided however, that the number of shares of Registrable Securities
to be included in such underwriting shall not be reduced unless (i) all other
shares which are not Registrable Securities are first entirely excluded from the
Underwriting or (ii) the holders of not less than 50% of the Registrable
Securities consent thereto in writing. No Registrable Securities excluded from
the underwriting by reason of the managing underwriter's marketing limitation
shall be included in such registration.
(iii) If any holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the managing underwriter and the other holders of
Registrable Securities . The Registrable Securities and/or other securities so
withdrawn shall also be withdrawn from registration; provided, however, that if
by the withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other holders of Registrable Securities may be included in
such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all holders of Registrable
Securities who have included Registrable Securities in the registration the
right to include additional Registrable Securities in the same proportion used
in determining the underwriter limitation in this Section 2.13.
(b) The substantive provisions of Sections 2.13(a)(i) and 2.13
(a)(iii) shall be applicable to any participation in an underwritten offering
pursuant to Section 2.1.
3. ASSIGNABILITY
Subject to the provisions of Section 2.10 hereof, this Agreement shall be
binding upon and inure to the benefit of the respective heirs, successors and
assigns of the parties hereto.
4. LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Washington.
5. AMENDMENT
Any modification, amendment, or waiver of this Agreement or any provision
hereof shall be in writing and executed by holders of not less than 66-2/3% of
the Registrable Shares; provided however, that no such modification, amendment
or waiver shall reduce the aforesaid percentage of Registrable Shares without
the consent of the record of beneficial holders of at least 90% of the
Registrable Shares; provided, further, however, that no such modification,
amendment of waiver shall
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adversely affect the rights of the Founders hereunder in a manner different than
the way in which the rights of the Purchasers are affected without consent of a
majority of the holders of the Founders Shares.
6. CONFLICT
In the event of any conflict between the terms of this Agreement and the
Purchase Agreement, the terms of this Agreement shall control.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
8. NOTICE
Any notices and other communications required or permitted under this
Agreement shall be effective if in writing and delivered personally or sent by
telecopier, Federal Express or registered or certified mail, postage prepaid,
addressed as follows:
If to the Purchasers, to: TA Associates
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
If to the Company, to: Apex PC Solutions
00000 000xx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
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If to the Founders, to the address set forth for each in Exhibit A attached
hereto.
Unless otherwise specified herein, such notices or other communications
shall be deemed delivered (a) on the date delivered, if delivered personally,
(b) two business days after being sent, if sent by Federal Express or other
commercial overnight delivery service, (c) one business day after being sent, if
sent by telecopier with confirmation of good transmission and receipt, and
(d) three business days after being sent, if sent by registered or certified
mail. Each of the parties herewith shall be entitled to specify another address
by giving notice as aforesaid to each of the other parties hereto.
9. TERMINATION
The obligations of the Company under Sections 2.1, 2.2 and 2.3 shall
terminate on the seventh anniversary of the Company's initial Public Offering.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COMPANY
APEX PC SOLUTIONS, INC.
a Washington corporation
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: President
PURCHASERS
ADVENT VII L.P.
By: TA Associates VII L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Managing Director
ADVENT ATLANTIC AND PACIFIC II L.P.
By: TA Associates AAP II Partners, its General
Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Managing Director
[Signature Page to Registration Rights Agreement]
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ADVENT NEW YORK L.P.
By: TA Associates VI L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
TA VENTURE INVESTORS LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, General Partner
FOUNDERS
/s/ Xxxxxxxx Xxxx
------------------------------
Xxxxxxxx Xxxx
BRITANNIA HOLDINGS LIMITED
By: /s/ Xxxxxxx Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx Xxxx
Title: Director
[Signature Page to Registration Rights Agreement]
-13-
EXHIBIT A
LIST OF PURCHASERS
Advent VII, L.P.
Advent Atlantic and Pacific II L.P.
Advent New York L.P.
TA Venture Investors Limited Partnership
A-1
LIST OF FOUNDERS
Xxxxxxxx Xxxx
0000 000xx Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Britannia Holdings Limited
Kings House, The Grange, Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX0 0XX
Telecopier: 00-0000-000000
A-2
