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EXHIBIT 10.10
HIGH SPEED ACCESS CORP.
Amended and Restated
Registration Rights Agreement
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of the 25th day of November, 1998 by
and among HIGH SPEED ACCESS CORP., a Delaware corporation (the "Company"), and
the entities listed on Schedule I to this Agreement (collectively the
"Investors" and each an "Investor").
Recitals
WHEREAS, the Company, Broadband Solutions, LLC and Broadband
Solutions II, LLC entered into an Amended and Restated Registration Rights
Agreement dated as of September 1, 1998 (the "Previous Agreement"); and
WHEREAS, the parties to the Previous Agreement desire to amend
and restate the Previous Agreement in its entirety to, among other things, add
all of the Investors parties hereto; and
WHEREAS, the Company has agreed to grant to Investors certain
registration rights with respect to the capital stock of Company owned by
Investors, upon the terms and subject to the conditions set out in this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below.
1.1 "Common Stock" shall mean the Company's common stock, $.01
par value per share, or any capital stock exchanged therefor.
1.2 "Commission" shall mean the federal Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
1.3 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.4 "Holder" shall mean any Investor and any holder of
Registrable Securities to whom the registration rights conferred by this
Agreement have been transferred in compliance with Section 8 hereof.
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1.5 "Initiating Holders" shall mean any Holder or Holders of
not less than 25% of the Registrable Securities.
1.6 "Preferred Stock" shall mean the Company's Series A
Convertible Preferred Shares, $.01 par value per share, the Company's Series B
Convertible Preferred Shares, $.01 par value per share, and the Company's Series
C Convertible Preferred Shares, $.01 par value per share.
1.7 "Registrable Securities" shall mean [i] any shares of
Common Stock issued or issuable pursuant to the conversion of the Preferred
Stock, [ii] any shares of Common Stock or any other capital stock exchanged for
Common Stock issued as a dividend or other distribution with respect to or in
exchange for or in replacement of the shares referenced in [i] above, and [iii]
all other Common Stock which any of the Investors shall have acquired at any
time; provided, however, that Registrable Securities 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 under this Agreement are not transferred in accordance with
Section 8.
1.8 The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
1.9 "Registration Expenses" shall mean all expenses incurred
in effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, and expenses of any regular or special audits incident to or
required by any such registration, but shall not include Selling Expenses.
1.10 "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
1.11 "Rule 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
1.12 "Securities Act" shall mean the Securities Act of 1933,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.13 "Selling Expenses" shall mean all underwriting discounts,
selling commissions, and stock transfer taxes applicable to the sale of
Registrable Securities by and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of counsel included in Registration
Expenses).
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2. Company Registration.
2.1 If the Company shall determine to register any of its
Common Stock for its own account or for the account of any other party, other
than a registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any form of
registration statement that does not permit secondary sales, the Company will:
[a] promptly give to each Holder written notice
thereof and of the anticipated effective date of such registration; and
[b] use its best efforts to include in such
registration (and any related qualification under blue sky laws or
other compliance), except as set forth in Section 2.2 below, and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests made by any Holder and received by the
Company within thirty (30) days after the written notice from the
Company described in clause [a] above is mailed or otherwise delivered
in accordance with this Agreement by the Company. Such written request
may specify all or any part of a Holder's Registrable Securities.
2.2 Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1[a]. In such event, the right of any Holder to
registration pursuant to this Section 2 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 provided herein. All
Holders proposing to distribute their securities through such under writing
shall (together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representatives of the underwriter or underwriters
selected by the Company, including customary indemnification and contribution
agreements.
Notwithstanding any other provision of this Section 2, if the
lead representative of the underwriters advises the Company in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the lead representative may (subject to the limitations set forth
below) exclude all Registrable Securities from, or limit the number of
Registrable Securities to be included in, the registration and underwriting. The
Company shall so advise all Holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter as set forth in Section
10.
If any Holder does not agree to the terms of any such
underwriting, such Holder shall be excluded therefrom by written notice from the
Company or the lead representative of the underwriters. If shares are so
withdrawn from the registration and if the number of shares of Registrable
Securities to be included in such registration was previously reduced as a
result of
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marketing factors, the Company shall then offer to all persons who have retained
the right to include securities in the registration the right to include
additional securities in the registration in an aggregate amount equal to the
number of shares of Registrable Securities so withdrawn, with such shares of
Registrable Securities to be allocated among the Holders requesting additional
inclusion in accordance with Section 10. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
3. Demand Registration.
3.1 Demand for Registration.
(A) If the Company shall receive from Initiating Holders at
any time or times following the completion by the Company of a Qualified Public
Offering (as defined below), a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities, the
Company will:
[a] promptly give written notice of the proposed
registration to all other Holders; and
[b] as soon as practicable, and, in any event, within
ninety (90) days after Company's receipt of a written request pursuant
to this Section 3.1, use its best efforts to effect such registration
(including, without limitation, filing post-effective amendments,
appropriate qualifications under applicable blue sky or other state
securities laws, and appropriate compliance with the Securities Act and
any other governmental requirements or regulations) as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
received by the Company within thirty (30) business days after such
written notice from the Company is mailed or otherwise delivered in
accordance with this Agreement.
For purposes of this Agreement, a "Qualified Public
Offering" shall mean the Company shall have completed an underwritten
public offering of Common Stock , initiated by resolution of its Board
of Directors, at a per share price of at least $7.50 (as proportion
ately and appropriately adjusted to reflect any subdivision, reverse
split or recapitalization of Common Shares after the date hereof) and
not less than $50 million in aggregate gross proceeds to the Company
which has been made pursuant to a registration statement filed with the
Commission under the Securities Act.
The Company shall not be obligated to effect, or to
take any action to effect, any such registration pursuant to this
Section 3.1:
[i] In any particular jurisdiction in which
the Company would be required to qualify to do business or
execute a general consent to service of process
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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 3.1 (counting for
these purposes only registrations which have been declared or
ordered effective and pursuant to which Registrable Securities
requested by Initiating Holders to be included herein have
been sold);
[iii] During the period starting with the
date sixty (60) days prior to the Company's good faith
estimate of the date of filing of a registration statement for
the account of the Company (other than in connection with a
Qualified Public Offering), and ending on a date ninety (90)
days after the effective date thereof;
[iv] During the one hundred eighty (180) day
period following the effective date of a registration
statement of the Company filed under the Securities Act in
connection with a Qualified Public Offering.
(B) In addition, notwithstanding the foregoing provisions of
and without limiting the rights of any party hereto under Section 3.1(A), if the
Company shall not have completed a Qualified Public Offering on or before the
third anniversary of the date of this Agreement, then Vulcan Ventures,
Incorporated or its permitted assigns ("Vulcan") shall be entitled to request
that the Company effect a registration with respect to any portion of the
Registrable Securities then owned by it (so long as Vulcan or such assigns hold
not less than 25% of the Registrable Securities) and the Company shall use its
best efforts to effect such registration in accordance with the procedures set
forth in this Section 3. The Company shall not, however, be obligated to effect,
or to take any action to effect, any such registration pursuant to this Section
3.1(B) if the Board of Directors of the Company shall have resolved to file a
registration statement to effect a Qualified Public Offering and during the
sixty (60) days thereafter the Company shall have filed such registration
statement with the Securities and Exchange Commission.
3.2 Postponed Registration. Subject to clauses [i] through
[iv] of Section 3.1(A), the Company shall file a registration statement covering
the Registrable Securities requested pursuant to such section, or pursuant to
Section 3.1(B), to be registered as soon as practicable, but in any event within
ninety (90) days, after receipt of the request or requests of the Initiating
Holders; provided, however, that if (i) in the good faith judgment of the Board
of Directors of the Company, such registration would be seriously detrimental to
the Company and the Board of Directors of the Company concludes, as a result,
that it is essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish to such Holders a certificate signed by
an executive officer of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company for such registration statement to be filed in the near future and that
it is, therefore, essential to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for a period of not
more than ninety (90) days after receipt of the request of the Initiating
Holders, and, provided further, that the
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Company shall not defer its obligation in this matter more than once in any
eighteen month period. Notwithstanding the foregoing, nothing contained in this
Section 3.2 shall in any way restrict, reduce or postpone any registration right
of Vulcan provided in Section 3.1(B) of this Agreement.
The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of this Section 3.2 and
Section 10 hereof, include other securities of the Company, with respect to
which registration rights have been granted, and may include securities of the
Company being sold for the account of the Company.
3.3 Underwriting. In connection with any underwriting effected
hereunder, the Company shall enter into such reasonable agreements (including
underwriting agreements) and make such representations and warranties and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to any
applicable registration statement contemplated herein as may be reasonably
requested by any Holder in connection with any sale or resale pursuant to any
applicable registration statement. If any such Holder shall request that the
registration be in the form of a firm commitment underwritten offering, the
right of any such Holder to registration pursuant to Section 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 provided herein. In connection with a firm commitment underwritten
offering demanded by any Initiating Holder or Vulcan (pursuant to its right
under Section 3.1(B)), the Company shall: [i] upon request of any Holder,
furnish to each selling Holder and each underwriter, upon the effectiveness of
the registration statement (a) a certificate, dated such date, signed on behalf
of the Company by the principal executive officer of the Company, confirming, as
of the date thereof, that any preliminary prospectus or prospectus that is a
part of the registration statement as of their respective dates do not and will
not at any time contain an untrue statement of a material fact or omit to state
a material fact necessary, in light of the circumstances under which they were
made, not misleading, (b) an opinion of counsel for the Company covering matters
customarily set forth in an underwriting agreement for firm commitment
underwritten offerings, (c) a comfort letter from the Company's independent
accountants, in the customary form and covering matters of the type customarily
covered by comfort letters to underwriters in connection with firm commitment
underwritten offerings and (d) deliver such other documents and certificates as
may be reasonably requested by the selling Holders or the lead representative of
the underwriters in connection with such firm commitment underwritten offering.
A Holder may elect to include in such underwritten offering all or a part of the
Registrable Securities such Holder holds.
3.4 Procedures. If the Company shall request inclusion in any
registration pursuant to Section 3 of securities being sold for its own account,
or if other persons shall request inclusion in any registration pursuant to
Section 3, the Initiating Holders or Vulcan (pursuant to its right under Section
3.1(B)) shall, on behalf of all Holders, offer to include such securities in the
underwritten offering and may condition such offer on their acceptance of the
further applicable provisions of this Agreement. In connection with an
underwritten offering hereunder, the Company shall (together with all Holders
and other persons proposing to distribute their securities through such
underwritten offering) enter into an underwriting agreement in customary form
(including customary indemnification and contribution provisions) with the lead
representative of the
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underwriter or underwriters selected for such underwriting by the Company, which
underwriters are reasonably acceptable to a majority in interest of the
Initiating Holders or Vulcan (pursuant to its right under Section 3.1(B)).
Notwithstanding any other provision of this Section 3, if the lead
representative of the underwriters advises the Initiating Holders in writing
that marketing factors require a limitation on the number of shares to be
included in such underwritten offering, the number of shares to be included in
the underwritten offering shall be allocated as set forth in Section 10 hereof.
If a Holder who has requested inclusion in such registration as provided above
does not agree to the terms of any such underwritten offering, such Holder shall
be excluded therefrom by written notice from the Company, the lead
representative of the underwriters or the Initiating Holders. If shares are so
excluded from the registration and if the number of shares of Registrable
Securities to be included in such registration was previously reduced as a
result of marketing factors pursuant to this Section 3.4, then the Company shall
offer to all Holders who have retained rights to include Registrable Securities
in the registration the right to include additional Registrable Securities in
the registration in an aggregate amount equal to the number of shares of
Registrable Securities so excluded, with such shares of Registrable Securities
to be allocated among such Holders requesting additional inclusion in accordance
with Section 10.
4. Registration Expenses. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 2 and 3 hereof shall be borne by the Company. All Selling Expenses
relating to securities so registered shall be borne by the Company, except that
in no event shall the Company be responsible for payment of the underwriters'
discount and/or selling commissions in connection with the registration of the
Registrable Securities of any of the Holders.
5. Registration Procedures. In the case of each registration effected
by the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
material progress and completion thereof. At its expense, the Company will use
its best efforts to:
5.1 Keep such registration effective for a period of one
hundred eighty (180) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto; provided,
however, that such 180-day period shall be extended for a period of time equal
to the period the Holder refrains from selling any securities included in such
registration at the request of an underwriter of Common Stock (or other
securities of the Company);
5.2 Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus made a part of
such registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement;
5.3 Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
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5.4 Cause all such Registrable Securities registered pursuant
hereunto to be listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed and comply with all applicable
blue sky laws to enable the Registrable Securities to be publicly offered and
sold in the states in which such Registrable Securities will be offered;
5.5 Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
5.6 Advise the selling Holders promptly and, if requested by
such Holders, confirm such advice in writing, (i) when the prospectus or any
prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable registration statement or any post-effective amendment
thereto, when the same has become effective, (ii) of any request by the
Commission for amendments to the registration statement or amendments or
supplements to the prospectus or for additional information relating thereto,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, or (iv) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the registration statement, the prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the registration statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
registration statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities under state securities or blue sky
laws, the Company shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
5.7 Furnish to each selling Holder named in any registration
statement or prospectus in connection with such sale, if any, before filing with
the Commission, copies of any registration statement or any prospectus included
therein or any amendments or supplements to any such registration statement or
prospectus (including all documents incorporated by reference after the initial
filing of such registration statement), which documents will be subject to the
review and comment of such Holders in connection with such sale, if any, for a
period of at least three business days, and the Company will not file any such
registration statement or prospectus or any amendment or supplement to any such
registration statement or prospectus (including all such documents incorporated
by reference) to which the selling Holders of the Registrable Securities covered
by such registration statement in connection with such sale, if any, shall
reasonably object within three business days after the receipt thereof. A
selling Holder shall be deemed to have reasonably objected to such filing if
such registration statement, amendment, prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or omission or fails
to comply with the applicable requirements of the Securities Act;
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5.8 Promptly prior to the filing of any document that is to be
incorporated by reference into a registration statement or prospectus, provide
copies of such document to the selling Holders in connection with such sale, if
any, make the Company's representatives available for discussion of such
document and other customary due diligence matters, and include such information
in such document prior to the filing thereof as such selling Holders may
reasonably request;
5.9 Make available at reasonable times for inspection by the
selling Holders participating in any disposition pursuant to such registration
statement and any attorney or accountant retained by such selling Holders, all
financial and other records, pertinent corporate documents of the Company and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such selling Holder, attorney or accountant in
connection with such registration statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its effectiveness;
5.10 If requested by any selling Holders in connection with
such sale, if any, promptly include in any registration statement or prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan of
Distribution"; and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of
the matters to be included in such prospectus supplement or post-effective
amendment;
5.11 Furnish to each selling Holder upon their reasonable
request in connection with such sale, if any, without charge, at least one copy
of the registration statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
5.12 Prior to any public offering of Registrable Securities,
cooperate with the Holders and their counsel in connection with the registration
and qualification of the Registrable Securities under the securities or blue sky
laws of such jurisdictions as the selling Holders may request and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the registration statement, in any jurisdiction where it is not now so subject;
5.13 Use its reasonable best efforts to cause the disposition
of the Registrable Securities covered by the registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
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5.14 Comply with all applicable rules and regulations of the
Commission, and make generally available to all Holders with regard to any
applicable registration statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date of
the registration statement (as such term is defined in paragraph (c) of Rule 158
under the Securities Act); and
5.15 Make appropriate officers of the Company available to the
selling Holders for meetings with prospective purchasers of the Registrable
Securities and prepare and present to potential investors customary "road show"
material in a manner consistent with other new issuances of other securities
similar to the Registrable Securities.
6. Indemnification.
6.1 The Company will indemnify each Holder, each of its
officers, directors and partners, legal counsel, and accountants and each person
controlling such Holder within the meaning of Section 15 of the Securities Act
and each underwriter, if any, and each person who controls within the meaning of
Section 15 of the Securities Act any underwriter, with respect to which
registration, qualification, or compliance has been effected pursuant to this
Agreement, against all expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof), arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants and each person controlling such Holder, each such
underwriter, and each person who controls any such underwriter, for any legal
and any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability or action, as such
expenses are incurred, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability, or expense
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by such Holder or underwriter and stated to
be specifically for use therein. It is agreed that the indemnity agreement
contained in this Section 6.1 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the written consent of the Company (which consent has not been
unreasonably withheld). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Holder or any such
director, officer, partner, legal counsel, accountant, underwriter or control
person.
6.2 Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify the Company, each of
its directors, officers, partners, legal counsel, and accountants and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each
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person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, each other such Holder, and each of their
officers, directors, and partners, and each person controlling such Holder,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular, or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and such Holders, directors, officers, partners, legal counsel, and
accountants, persons, underwriters, or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the written consent of
such Holder (which consent shall not be unreasonably withheld); and provided,
however, that in no event shall any indemnity under this Section 6.2 exceed the
gross proceeds from the offering received by such Holder with respect to its
sale of Registrable Securities pursuant to the prospectus less the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged omission.
The foregoing indemnity agreement is in addition to any liability which the
Holder may otherwise have to the Company or any such director, officer, partner,
legal counsel, accountant, underwriter or control person.
6.3 Promptly after receipt by an indemnified party under
paragraphs 6.1 or 6.2 above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such paragraph, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party
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or parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement or
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
6.4 If the indemnification provided for in this Section 6 is
for any reason unavailable to an Indemnified Party with respect to any loss,
liability, claim, damage, or expense referred to herein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage, or expense 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 of the Indemnifying Party and of the Indemnified Party. Such
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission 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
omission; provided that in no event shall contribution by the Holder under this
Section 6.4 exceed the gross proceeds from the offering received by the Holder.
6.5 Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
7. Information by Holder. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder 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.
8. Transfer or Assignment of Registration Rights. The rights to cause
the Company to register securities granted to a Holder by the Company under
Section 2 or the right to demand that the Company register securities granted
under Section 3 may be transferred or assigned by a Holder only to a transferee
or assignee of not less than 10,000 shares of Registrable Securities (as
presently constituted and subject to subsequent adjustments for stock splits,
stock dividends, reverse stock splits, and the like); provided, however, that
the Company is given written notice at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of the
transferee or assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned, and, provided further,
that the transferee or assignee of such rights assumes in writing the
obligations of such Holder under this Agreement.
9. "Market Stand-Off" Agreement. If requested by the Company and the
lead representative of the underwriters of Common Stock (or other securities of
the Company), no officer, director, holder of more than five percent (5%) of the
outstanding capital stock of the Company or Holder shall sell or otherwise
transfer or dispose of any Common Stock (or other securities) of the
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Company held by such Holder (other than those included in the registration)
during a period of up to ninety (90) days following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that such agreement shall only apply to the first such registration statement of
the Company that includes securities to be sold on its behalf to the public in
an underwritten offering.
The obligations described in this Section 9 shall not apply to
a registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Rule 145 transaction on Form S-4 or similar forms that may
be promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of said one hundred eighty (180) day period.
10. Allocation of Registration Opportunities. In any circumstance in
which all of the Registrable Securities and other shares of Common Stock with
registration rights (the "Other Shares") requested to be included in a
registration on behalf of the Holders or other selling stockholders cannot be so
included as a result of limitations of the aggregate number of shares of
Registrable Securities and Other Shares that may be so included, the number of
shares of Registrable Securities and Other Shares that may be so included shall
be allocated among the Holders and other selling stockholders requesting
inclusion of shares pro rata on the basis of the number of shares of Registrable
Securities and Other Shares that would be held by such Holders and other selling
stockholders. If any Holder or other selling stockholder does not request
inclusion of the maximum number of shares of Registrable Securities and Other
Shares allocated to him pursuant to the above-described procedure, the remaining
portion of this allocation shall be reallocated among those requesting Holders
and other selling stockholders whose allocations did not satisfy their requests
pro rata on the basis of the number of shares of Registrable Securities and
Other Shares that would be held by such Holders and other selling stockholders
and this procedure shall be repeated until all of the shares of Registrable
Securities and Other Shares which may be included in the registration on behalf
of the Holders and other selling stockholders have been so allocated. The
Company shall not limit the number of Registrable Securities to be included in a
registration pursuant to this Agreement in order to include shares held by
stockholders with no registration rights.
11. Limitations on Registration of Other Securities; Representation.
From and after the date of this Agreement, the Company shall not, without the
prior written consent of a majority in interest of the Holders, enter into any
agreement with any holder or prospective holder of any securities of the Company
giving such holder or prospective holder any registration rights the terms of
which are as or more favorable than registration rights granted to the Holders
hereunder unless the Company shall also give such favorable rights to the
Holders hereunder. Except for certain registration rights granted to certain
holders of the Company's Common Shares pursuant to the Registration Rights
Agreement dated February 23, 1998 among XXXX.xxx, Inc. and certain others, which
provisions are incorporated herein by this reference, are adopted and affirmed
by the Company as of the date hereof, and shall survive the integration
provisions of Section 14.3 below, the Company represents and warrants as of the
date hereof that there is no other agreement existing
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giving any other person or entity any registration rights with respect to any
securities of the Company.
12. Reporting.
12.1 The Company agrees when required by law to make and keep
public information available, as those terms are understood and defined in Rule
144, at all times after ninety (90) days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public.
12.2 The Company will use its best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act.
12.3 The Company will provide written evidence of compliance
with Section 12.1 and the filing of all reports contemplated by Section 12.2 to
a Holder promptly upon receipt of a written request for such evidence from such
Holder.
13. Termination of Registration Rights. The right of any Holder to
request registration or inclusion in any registration pursuant to Section 2
shall terminate on the closing of the first Company initiated registered public
offering of Common Stock if all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may immediately be sold under
Rule 144 during any 90-day period, or on such date after the closing of the
first Company initiated registered public offering of Common Stock if all shares
of Registrable Securities held or entitled to be held upon conversion by such
Holder may immediately be sold under Rule 144 during any 90-day period;
provided, however that the provisions of this Section 13 shall not apply to any
Holder who owns more than five percent (5%) of the Company's outstanding stock
until such time as such Holder owns less than five percent (5%) of the
outstanding stock of the Company.
14. Miscellaneous.
14.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware without giving effect to the
principles of conflicts of laws thereof.
14.2 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
14.3 Entire Agreement; Amendment; Waiver. This Agreement
amends and restates in its entirety the Amended and Restated Registration Rights
Agreement dated as of September 1, 1998 among the Company, Broadband Solutions,
LLC and Broadband Solutions II, LLC. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except with the consent of the holders of a
majority of each class or series
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of the then outstanding Preferred Stock voting as a separate class or series
(with each share having one vote), and any such amendment, waiver, discharge or
termination shall be binding on all the Holders, but in no event shall the
obligation of any Holder hereunder be materially increased, except upon the
written consent of such Holder.
14.4 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be mailed by
first class, registered, or certified mail, postage prepaid, or sent via
overnight reputable courier service, or delivered personally or via facsimile
with copy sent by mail as provided above:
If to Investors, to: To the address of each Investor set
out on Schedule I to this Agreement.
If to Company to: High Speed Access Corp.
Attn: W. Xxxx Xxxxx, III
Suite 210
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy No: (000) 000-0000
With a copy to: Xxxx X. Xxxxxxx, Esq.
High Speed Access Corp.
Suite 210
1000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy No: (000) 000-0000
or to such other address of which the addressee shall have notified the sender
in writing. Notices mailed in accordance with this section shall be deemed given
three days after being mailed, notices sent by overnight courier service shall
be deemed given one day after placed in the hands of a representative of such
service and notice given by facsimile shall be deemed given on the date of
transmission subject to sender's receipt of a confirmation copy.
14.5 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement or any
waiver on the part of any Holder of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Holder, shall be cumulative and
not alternative.
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14.6 Rights; Separability. Unless otherwise expressly provided
herein, a Holder's rights hereunder are several rights, not rights jointly held
with any of the other Holders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
14.7 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
14.8 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.
14.9 Prevailing Party. In the event any legal action or other
proceeding is brought by a party hereto to enforce the terms of this Agreement,
the substantially prevailing party in such action or proceeding will be entitled
to reasonable attorneys', paralegals' and accountants' fees and costs incurred
before and at trial and at all appellate levels, in addition to all awards,
judgments and recoveries of damages obtained.
[End of Text]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first written above.
"COMPANY"
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Vice Chairman
------------------------------
"INVESTORS"
BROADBAND SOLUTIONS, LLC
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Title: Managing Director
------------------------------
BROADBAND SOLUTIONS II, LLC
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------
Title: Managing Director
------------------------------
VULCAN VENTURES, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Vice President
------------------------------
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SCHEDULE I
Vulcan Ventures, Incorporated
000 000xx Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Broadband Solutions, LLC
1850 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Broadband Solutions II, LLC
1850 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
