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EXHIBIT 4.1
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (the "Agreement") is entered
into as of the 5th day of May, 2000, by and among iManage, Inc., a Delaware
corporation (the "Company"), Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxxx (collectively,
the "Founders" and individually, a "Founder") and each of the persons named in
Schedule A attached hereto.
RECITALS
A. Investors who purchased shares of Series A Preferred Stock of the
Company pursuant to the Company's Series A Preferred Stock Purchase Agreement
dated as of December 27, 1996 (the "Series A Purchase Agreement") entered into a
Rights Agreement dated as of December 27, 1996 (the "Rights Agreement").
B. The Series A Purchase Agreement and Rights Agreement were
subsequently amended to extend the closing date of sales of Series A Preferred
Stock under the Series A Purchase Agreement to February 28, 1997 and March 14,
1997 pursuant to letter agreements dated February 13, 1997 and March 4, 1997,
respectively.
C. Certain other investors who purchased shares of Series A Preferred
Stock of the Company pursuant to Amendment Number One to the Series A Purchase
Agreement dated as of August 28, 1997 entered into Amendment Number One of the
Rights Agreement to receive rights of "Purchasers" under the Rights Agreement.
D. Investors who purchased shares of Series B Preferred Stock of the
Company pursuant to the Company's Series B Preferred Stock Purchase Agreement
dated as of December 15, 1997 (the "Series B Purchase Agreement") entered into
Amendment Number Two of the Rights Agreement to receive rights of "Purchasers"
under the Rights Agreement.
E. Investors who purchased shares of Series C Preferred Stock of the
Company pursuant to the Company's Series C Preferred Stock Purchase Agreement
dated as of December 15, 1997 (the "Series C Purchase Agreement") entered into
Amendment Number Three of the Rights Agreement to receive rights of "Purchasers"
under the Rights Agreement (the Rights Agreement, as previously amended by
Amendment Numbers One, Two, and Three, is hereinafter referred to as the
"Amended Rights Agreement").
F. The Company has entered into that certain Agreement and Plan of
Reorganization dated April 11, 2000 (the "Agreement and Plan of
Reorganization"), whereby THOUGHTSTAR, Inc., a Delaware corporation
("THOUGHTSTAR") will merge with and into NetRight Technologies, Inc. ("Sub"), a
wholly-owned subsidiary of the Company (the "Merger"). Pursuant to the Agreement
and Plan of Reorganization, among other things, all of the issued and
outstanding shares of THOUGHTSTAR Common Stock shall be converted into shares of
iManage Common Stock and the right to receive a cash payment and iManage will
issue to the shareholders of THOUGHTSTAR (the "THOUGHTSTAR Shareholders")
certain shares of iManage Common Stock and make such cash payment.
G. In connection with the Agreement and Plan of Reorganization, the
Company has agreed to grant the THOUGHTSTAR Shareholders certain registration
rights by amending and restating the Amended Rights Agreement all as more fully
set forth herein. The terms of the Amended Rights Agreement provide that it may
be amended by written consent of the Company, when authorized by resolution of
its Board of Directors, and by the written consent of the record or beneficial
holders of at least two-thirds (2/3) of the shares issued or issuable upon
conversion of the Series A Preferred Stock, Series B Preferred Stock, and Series
C Preferred Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
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1. Registration Rights.
1.1 Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Conversion Stock" means the Common Stock issued or
issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock.
(c) "Exchange Act" means 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.
(d) "Holder" shall mean any shareholder of the Company
holding Registrable Securities and any person holding Registrable Securities to
whom the rights under this Section 1 have been transferred in accordance with
Section 1.11 hereof.
(e) "Initiating Holders" shall, in the case of a
registration under Section 1.2, mean any Holder or Holders of at least fifty
percent (50%) of the outstanding Conversion Stock (adjusted after the original
issuance thereof for stock splits, stock dividends, recapitalizations and the
like), or in the case of a registration under Section 1.4, the holder or holders
of at least ten percent (10%) of the outstanding Conversion Stock (adjusted
after the original issuance thereof for stock splits, stock dividends,
recapitalizations and the like).
(f) "Merger Stock" means the shares of iManage Common
Stock to be issued to the THOUGHTSTAR Shareholders pursuant to the Agreement and
Plan of Reorganization in exchange for shares of Common Stock of THOUGHTSTAR.
(g) "Registrable Securities" means (i) the Conversion
Stock and the Merger Stock; or (ii) stock issued in respect of the stock
referred to in (i) as a result of a stock split, stock dividend,
recapitalization or the like, which has not been sold to the public. Except for
subsections 1.1(e), 1.2, 1.4, 1.5, and 1.9, Registrable Securities shall also
mean shares of Common Stock of the Company issued or issued after the date
hereof to the Employee-Holders as such term is defined in Section 1.3(c) hereof.
(h) 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.
(i) "Registration Expenses" shall mean all expenses,
except Selling Expenses, incurred by the Company in complying with Sections 1.2,
1.3, 1.4 and 1.5 hereof, 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, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of each registration provided for in
Sections 1.2, 1.3, 1.4 and 1.5 hereof.
(j) "Related Party" shall mean with respect to any
Holder who is an individual (x) such Holder's spouse, parents, children or
grandchildren and (y) any trust solely for the benefit of such Holder and/or any
one or more of the individuals referred to in clause (x).
(k) "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
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(l) "Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
securities registered by the Holders and, except as set forth above, all
reasonable fees and disbursements of counsel for the selling Holders.
(m) "Shares" shall mean the Company's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and the Merger Stock.
1.2 Requested Registration.
(a) Request for Registration. At any time after December
31, 2001, in case the Company shall receive from Initiating Holders a written
request that the Company effect a registration with respect to their Registrable
Securities having a reasonably anticipated aggregate offering price to the
public of not less than $12,000,000, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best
efforts to effect such registration, qualification or compliance (including,
without limitation, appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and 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 twenty (20) days after receipt
of written notice from the Company pursuant to Section 1.2(a)(i); provided,
however, that the Company shall not be obligated to take any action to effect
any such registration, qualification or compliance pursuant to this Section 1.2:
(A) 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;
(B) At any time during the period starting
with the date sixty (60) days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration statement pursuant to Section 1.3 hereof;
provided that the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective;
(C) After the Company has effected two (2)
such registrations pursuant to this Section 1.2(a), and such registrations have
been declared or ordered effective;
(D) If the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company or its Holders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.2 shall be deferred for a period not to
exceed sixty (60) days from the date of receipt of written request from the
Initiating Holders, provided that the Company may not use this right more than
once in any twelve month period; or
(E) With respect to requests for the
registration of Merger Stock, to the extent that the aggregate anticipated
offering price to the public of the Merger Stock so registered, when added to
the aggregate offering price of Merger Stock then previously registered by the
Company pursuant to this Agreement in non-underwritten offerings would exceed
$8,000,000; provided, further, that any required reduction shall be effected
ratably among the Holders of Merger Stock that have requested the registration
of their Merger Stock in proportion as nearly as possible to the respective
amounts of Merger Stock requested to be included in such
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registration by such Holders; provided, further, that this Section 1.2(a)(ii)(E)
shall not apply to a registered public offering involving an underwriting.
Subject to the foregoing clauses (A) through (E), the Company shall file
a registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration
pursuant to this Section 1.2 is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as part of the notice
given pursuant to Section 1.2(a)(i). In such event, the right of any Holder to
participate in such registration shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section 1.2, and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders 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 Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 1.2, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all participating Holders and
the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
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 Initiating Holders. The
Registrable Securities, and/or other securities so withdrawn shall also be
withdrawn from registration, and such securities shall not be transferred in a
public distribution prior to ninety (90) days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require.
If the underwriter has not limited the number of Registrable Securities
to be underwritten, the Company may include securities for its own account (or
for the account of other purchasers) in such registration if the managing
underwriter so agrees and if the number of Registrable Securities that would
otherwise have been included in such registration and underwriting will not
thereby be limited.
1.3 Company Registration.
(a) Notice of Registration. If at any time or from time
to time the Company shall determine to register any of its securities, either
for its own account or the account of a security holder or holders, other than
(i) a registration relating solely to employee benefit plans, (ii) a
registration relating solely to a Commission Rule 145 transaction, or (iii) a
registration effected pursuant to Sections 1.2, 1.4, or 1.5 hereof, for so long
as holders of Conversion Stock are entitled to have such stock registered
pursuant to this Agreement the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within twenty (20) days after receipt of such
written notice from the Company, by any Holder; provided, however, that with
respect to requests for the registration of Merger Stock, such Merger Stock
shall be excluded from such registration to the extent that the aggregate
anticipated offering price to the public of the Merger Stock so registered, when
added to the aggregate offering price of Merger Stock then previously registered
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by the Company pursuant to this Agreement in non-underwritten offerings would
exceed $8,000,000; provided, further, that any required reduction shall be
effected ratably among the Holders of Merger Stock that have requested the
registration of their Merger Stock in proportion as nearly as possible to the
respective amounts of Merger Stock requested to be included in such registration
by such Holders; provided, further, that this Section 1.3(a)(ii) shall not apply
to a registered public offering involving an underwriting.
(b) 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 1.3(a)(i). In such event the right of any
Holder to registration pursuant to this Section 1.3 shall be conditioned upon
such Holder's participation in such underwriting to the extent provided herein.
All Holders proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company, but subject to the reasonable approval of Holders holding more than
a majority of the Registrable Securities to be included in such registration.
Notwithstanding any other provision of this Section 1.3, if the managing
underwriter determines that marketing factors require limitation of the number
of shares to be underwritten, the managing underwriter may limit the Registrable
Securities to be included in such registration. The Company shall so advise all
Holders and other holders distributing their securities through such
underwriting and the number of shares of securities that may be included in the
registration and underwriting (other than on behalf of the Company) shall be
allocated among all Holders and such other holders (provided that such other
holders have contractual rights to participate in such registration in
accordance with Sections 1.3(c) hereof which are not subordinate to the Holders)
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities or other securities requested to be included in such
registration by such Holders and such other holders; provided, however, in no
event shall the amount of Registrable Securities of the Holders included in the
offering be reduced below thirty percent (30%) of the total amount of securities
included in such offering; provided that in each such case, no shares held by
any Holder shall be so excluded from such registration until all shares proposed
to be registered by the Founders or other parties granted registration rights
pursuant to Section 1.3(c) hereof are excluded from the registration. To
facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to any Holder or holder to the
nearest 100 shares. If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to ninety (90) days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) Registration Rights of Founders, Officers,
Directors, and Employees. Upon any sale by the Company of shares of its Common
Stock to the public in a firmly underwritten public offering, subject to the
cutback described in Section 1.3(b) above, the Founders and any other officer,
director or employees designated by the Company's Board of Directors by
unanimous vote shall be entitled to include any of their shares of Common Stock
in any registration by the Company under this subsection 1.3, if such persons
who choose to include any of their securities in such registration shall
continue to serve the Company as officer, director or employee on the effective
date of such registration statement, and such persons agree to be bound by all
other provisions of this Agreement and participate in any such registration on
the same basis as each Holder in accordance with all applicable provisions of
this Agreement (such persons are collectively referred to as
"Employee-Holders").
1.4 Registration on Form S-3 at Request of Initiating Holders.
(a) If Initiating Holders request that the Company file
a registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $500,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall promptly give to each Holder written notice
of such request and shall use its best efforts to cause all the Registrable
Securities specified in a written request or requests, made within twenty (20)
days after receipt of such written notice, to be registered for the offering on
such form and to cause such Registrable Securities to be qualified in such
jurisdictions as such Holder or Holders may reasonably request.
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(b) The substantive provisions of Section 1.2(b) shall
be applicable to each registration initiated under this Section 1.4.
(c) Notwithstanding the foregoing, the Company shall not
be obligated to take any action pursuant to this Section 1.4:
(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) if the Company, within ten (10) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within sixty (60) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate for the
registration of Registrable Securities), and in which event the amount of
Registrable Securities of such Initiating Holders included in such offering
shall not be subject to the limitations provided for in Section 1.3(b) above;
(iii) if the Company has effected a registration
pursuant to this Section 1.4 within the 12 month period preceding the receipt of
a request for registration;
(iv) within one hundred eighty (180) days of the
effective date of any registration referred to in Sections 1.2 and 1.3 above;
(v) if the Company shall furnish to such Holder
a certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or the Holders for registration statements to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed sixty (60)
days from the receipt of the request to file such registration by such Holder,
provided that the Company may not use this right more than once in any twelve
month period; or
(vi) with respect to requests for the
registration of Merger Stock, to the extent that the aggregate anticipated
offering price to the public of the Merger Stock so registered, when added to
the aggregate offering price of Merger Stock then previously registered by the
Company pursuant to this Agreement in non-underwritten offerings would exceed
$8,000,000; provided, further, that any required reduction shall be effected
ratably among the Holders of Merger Stock that have requested the registration
of their Merger Stock in proportion as nearly as possible to the respective
amounts of Merger Stock requested to be included in such registration by such
Holders; provided, further, that this Section 1.4(c)(vi) shall not apply to a
registered public offering involving an underwriting.
1.5 Registration on Form S-3 at Request of Holders of Merger
Stock.
(a) If the Holders of a majority of the outstanding
shares of Merger Stock request that the Company file a registration statement on
Form S-3 (or any successor form to Form S-3) for a public offering of shares of
Merger Stock the reasonably anticipated aggregate price to the public of which,
net of underwriting discounts and commissions, would exceed $500,000 and the
Company is a registrant entitled to use Form S-3 to register the Merger Stock
for such an offering, the Company shall promptly give to each Holder written
notice of such request and shall use its best efforts to cause all the
Registrable Securities specified in a written request or requests, made within
twenty (20) days after receipt of such written notice, to be registered for the
offering on such form and to cause such Registrable Securities to be qualified
in such jurisdictions as such Holder or Holders may reasonably request.
(b) Underwriting. In the event that a registration
pursuant to this Section 1.5 is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as part of the notice
given pursuant to Section 1.5(a). In such event, the right of any Holder to
participate in such registration shall be
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conditioned upon such Holder's participation in the underwriting arrangements
required by this Section 1.5, and the inclusion of such Holder's Registrable
Securities in the underwriting to the extent requested shall be limited to the
extent provided herein.
The Company shall (together with all Holders 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 Holders of outstanding shares of Merger Stock, but
subject to the Company's reasonable approval. Notwithstanding any other
provision of this Section 1.5, if the managing underwriter advises the Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Company shall so advise all participating Holders
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No shares of Merger Stock excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and a majority of the Holders of outstanding shares of Registrable
Securities. The Registrable Securities, and/or other securities so withdrawn
shall also be withdrawn from registration, and such securities shall not be
transferred in a public distribution prior to ninety (90) days after the
effective date of such registration, or such other shorter period of time as the
underwriters may require.
If the underwriter has not limited the number of shares of Registrable
Securities to be underwritten, the Company may include securities for its own
account (or for the account of other purchasers) in such registration if the
managing underwriter so agrees and if the number of shares of Registrable
Securities that would otherwise have been included in such registration and
underwriting will not thereby be limited.
(c) Notwithstanding the foregoing, the Company shall not
be obligated to take any action pursuant to this Section 1.5:
(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) if the Company, within ten (10) days of the
receipt of the request of the Holders of a majority of the outstanding shares of
Merger Stock, gives notice of its bona fide intention to effect the filing of a
registration statement with the Commission within sixty (60) days of receipt of
such request (other than with respect to a registration statement relating to a
Rule 145 transaction, an offering solely to employees or any other registration
which is not appropriate for the registration of Registrable Securities), and in
which event the amount of Merger Stock of such Holders included in such offering
shall not be subject to the limitations provided for in Section 1.3(b) above;
(iii) if the Company has already effected one
registration pursuant to this Section 1.5;
(iv) within one hundred eighty (180) days of the
effective date of any registration referred to in Sections 1.2, 1.3, or 1.4
above; or
(v) if the Company shall furnish to such Holder
a certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or the Holders for registration statements to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed sixty (60)
days from the receipt of the request to file such registration by such Holder,
provided that the Company may not use this right more than once in any twelve
month period.
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(vi) to the extent that the aggregate
anticipated offering price to the public of the Merger Stock so registered, when
added to the aggregate offering price of Merger Stock then previously registered
by the Company pursuant to this Agreement in non-underwritten offerings would
exceed $8,000,000; provided, further, that any required reduction shall be
effected ratably among the Holders of Merger Stock that have requested the
registration of their Merger Stock in proportion as nearly as possible to the
respective amounts of Merger Stock requested to be included in such registration
by such Holders; provided, further, that this Section 1.5(c)(vi) shall not apply
to a registered public offering involving an underwriting.
1.6 Expenses of Registration. All Registration Expenses incurred
in connection with all registrations pursuant to Sections 1.2, 1.3, 1.4, and 1.5
shall be borne by the Company. Unless otherwise stated, all Selling Expenses
relating to securities registered on behalf of the Holders shall be borne by the
Holders of such securities pro rata on the basis of the number of shares so
registered.
1.7 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration and as to the completion thereof. At its expense the Company
will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective (i) until the distribution
described in the registration statement has been completed or for at least one
hundred eighty (180) days in the case of a registration under Sections 1.2, 1.3,
or 1.4 and (ii) for at least seventy-five (75) days in the case of a
registration under Section 1.5.
(b) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities.
(c) Prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection with 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.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, 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 the light of the circumstances then
existing, and at the request of any such Holder, prepare and furnish to such
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectuses as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectuses 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 the
light of the circumstances then existing.
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1.8 Indemnification.
(a) To the extent permitted by law, the Company will
indemnify each Holder, each of its officers and directors and partners, and each
person controlling such person within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Section 1, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, or any violation by
the Company of the Securities Act or any rule or regulation promulgated under
the Securities Act, the Exchange Act, any state securities laws or any rule or
regulation thereunder applicable to the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, each of its officers and directors, 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, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable to any
such person 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, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder,
controlling person or underwriter and stated to be specifically for use therein
or the preparation thereby. It is agreed that the indemnity obligation of this
Section shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent has not been unreasonably withheld).
(b) To the extent permitted by law, 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 and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of any untrue
statement of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any 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, such Holders,
such directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating,
preparing 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
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 an instrument duly executed by such Holder and
stated to be specifically for use therein or the preparation thereby; 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
consent of such Holder (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited to an amount equal to the net proceeds from the
offering received by such Holder, unless such liability arises out of or is
based on willful conduct by such Holder.
(c) Each party entitled to indemnification under this
Section 1.8 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party (together with all other
indemnified parties which may be represented without conflict by one counsel)
may participate in such defense at such party's expense, provided; however, that
the Indemnified Party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the Indemnifying Party, if representation of
such Indemnified
10
Party by the counsel retained by the Indemnifying Party would be appropriate due
to actual or potential differing interests between such Indemnified Party and
any other party represented by such counsel in such proceeding, and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 1 unless the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different defenses. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party a
release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section
1.8 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein, 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 that resulted in such loss,
liability, claim, damage, or expense 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 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, however, that, in any such case, no such Holder
will be required to contribute any amount in excess of the gross proceeds from
the offering received by such Holder.
(e) 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 public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and the Holders under
this Section 1.8 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement, and otherwise.
1.9 Information by Holder. The Holders of Registrable Securities
shall furnish to the Company such information regarding such Holders, the
Registrable Securities held by them and the distribution proposed by such
Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 1.
1.10 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) 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 (at any time after it has become subject
to such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities
to furnish to the Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of
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said Rule 144 (at any time after ninety (90) days after the effective date of
the first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements), a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
1.11 Transfer of Registration Rights. The rights to cause the
Company to register securities granted to the Holders under sections 1.2, 1.3,
1.4, and 1.5 may be assigned to a transferee or assignee reasonably acceptable
to the Company in connection with any transfer or assignment of Registrable
Securities by a Holder provided that, except in the case of an assignment to a
partner, affiliate or Related Party of a Holder, (i) the transferor provides the
Company with written notice of the proposed transfer; (ii) the transferee
acquires at least 10,000 shares of the transferor's Registrable Securities not
sold to the public; and (iii) the transferee or assignee of such rights assumes
the obligations of such Holder under this Section 1. For the purposes of
determining the number of shares of Registrable Securities held by a transferee
or assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) shall be
aggregated together with the partnership; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this Section 1.
1.12 Standoff Agreement. Each Holder agrees in connection with
the Company's initial public offering of the Company's securities that, upon
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for one hundred
eighty (180) days or for such period of time from the effective date of such
registration as is agreed upon by holders of a majority of the outstanding
capital stock of the Company; provided, that the officers and directors of the
Company who own stock of the Company and any shareholder holding more than five
percent (5%) of the outstanding voting securities of the Company also agree to
such restrictions.
1.13 Termination. Any registration rights granted pursuant to
this Section 1 shall terminate with respect to any Holder (i) six (6) years
after November 22, 1999, the closing date of the Company's initial public
offering, or (ii) when all remaining Conversion Stock or Merger Stock held or
entitled to be held by such Holder may be sold under Rule 144 during any three
(3) month period.
2. Confidentiality. Each of the Holders agrees to keep confidential and
not to disclose to persons other than its officers, directors, employees,
professional consultants and advisors any information concerning the Company
which is confidential or proprietary ("Confidential Information"), except as
otherwise required by law or as deemed necessary by a Holder to be disclosed to
its own partners. No Confidential Information shall be used or disclosed by a
Holder for any purpose except in connection with the transactions contemplated
by the agreements pursuant to which each Holder acquired his or her respective
Shares and the agreements executed and delivered in connection with such
agreement and in the enforcement of his or her rights thereunder. Each Holder
shall use the same level of care with the Confidential Information as it uses
with its own confidential information. Notwithstanding the foregoing, the
restrictions set forth in this Section shall not be applicable to any
information that is publicly available, any information independently developed
by a Holder or its professional consultants, any information known to a Holder
or its professional consultants before the disclosure thereof by the Company, or
any information disclosed to a Holder by a person not known by the Holder to
have any confidentiality duty to the Company.
3. Miscellaneous.
3.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as applied to transactions
taking place between California residents and wholly within the State of
California.
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3.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby.
3.3 Successors and Assigns. Except as otherwise 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.
3.4 Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein. With the written consent of the Company and the
record or beneficial holders of at least two-thirds (2/3) of the Shares and
Conversion Stock, the obligations of the Company and the rights of the Holders
of the Registrable Securities under this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), and with the same
consent the Company, when authorized by resolution of its Board of Directors,
may enter into a supplementary agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement; provided, however, that:
(a) the rights of the Holders of Conversion Stock under
Sections 1.2, 1.3, and 1.4 of this Agreement may be waived or amended only with
the written consent of the record or beneficial holders of at least two-thirds
(2/3) of the Conversion Stock;
(b) the rights of the Holders of Merger Stock under
Sections 1.2, 1.3, 1.4 and 1.5 of this Agreement may be waived or amended only
with the written consent of the record or beneficial holders of at least
two-thirds (2/3) of the Merger Stock;
(c) any amendment which would adversely effect the
Founders who possess registration rights pursuant to this Agreement at such
time, in a manner different than the Holders of Registrable Securities, shall
additionally require the consent of the Founders holding at least two-thirds
(2/3) of the Registrable Securities held by the Founders; and
(d) provisions of Section 3.4(a), (b), and (c) may only
be waived or amended by the written consent of two-thirds (2/3) of the Holders
of the category referred to therein.
Upon the effectuation of each such waiver, consent, agreement or amendment or
modification, the Company shall promptly give written notice thereof to the
record holders of the Registrable Securities who have not previously consented
thereto in writing. This Agreement or any provision hereof may be changed,
waived, discharged, or terminated only by a statement in writing signed by the
party against which enforcement of the change, waiver, discharge, or termination
is sought, except to the extent provided in this Section 3.4.
3.5 Notices, etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be delivered personally,
mailed by first class mail, postage prepaid, certified or registered mail,
return receipt requested, facsimile or delivered by courier or overnight
delivery, addressed (a) if to any Holder, at such Holder's address as set forth
on his or her signature page hereto, or at such other address as such Holder
shall have furnished to the Company in writing, or (b) if to the Company, at
0000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, or at such
other address as the Company shall have furnished to the Holder in writing.
Notices that are delivered personally, by courier or overnight delivery shall be
deemed received upon personal delivery, or if delivered by facsimile, upon
confirmation of facsimile receipt, or if by mail, three (3) days after deposit
in the United States mail.
3.6 Delays or Omissions. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any holder
of any Shares, 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
13
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 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.
3.7 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.
3.8 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable the remainder of this Agreement and application of such provision
to persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto, the parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
3.9 Attorneys' Fees. If any action at law or in equity
(including arbitration) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled as determined by such court, equity or arbitration
proceeding.
3.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
IMANAGE, INC.
By:
---------------------------------
Xxxxxxx Xxxxxxxx, President
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COUNTERPART SIGNATURE PAGE
TO IMANAGE, INC. AMENDED AND RESTATED RIGHTS AGREEMENT
DATED AS OF MAY 5, 2000
"HOLDER" OR "FOUNDER"
If you are an individual, Name (Please Print)
please sign and print your name
to the right
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Signature
Address:
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If you are signing on behalf of Name (Please Print)
an entity, please print the
name of the entity and sign to the ------------------------------------
right, indicating your title
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Signature
Title:
------------------------------
Address:
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