EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
July 17, 2003
To the Holder named in
Schedule A attached hereto:
Dear Sir/Madam:
Pursuant to the Agreement and Plan of Reorganization dated as of July 14,
2003 (the "Reorganization Agreement"), among Concord Communications, Inc.
("Parent"); Sunburst Acquisition Corporation, a wholly owned subsidiary of
Parent ("Merger Sub"); netViz Corporation, a Maryland corporation ("netViz");
and the other parties named therein, Merger Sub is being merged with and into
netViz (the "Merger"). In connection therewith you, as the holder (the "Holder")
of Common Stock of netViz, are acquiring shares of Common Stock of Parent. As
the context requires, the Holder may be referred to as a "seller." In connection
with the Merger, Parent and you covenant and agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Agreement" shall mean this Registration Rights Agreement as amended
from time to time and in effect between the parties hereto.
"Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.001 par value, of
Parent, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, 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.
"Merger Shares" shall mean the shares of Common Stock of Parent
issued to the Holder pursuant to the Reorganization Agreement.
"Registration Expenses" shall mean the expenses so described in
Section 4.
"Restricted Stock" shall mean the Merger Shares, excluding Merger
Shares which (a) have been registered under the Securities Act pursuant to
an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them; or (b) have been
sold pursuant to Rule 144 under the Securities Act.
"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.
"Selling Expenses" shall mean the expenses so described in Section
4.
2. Registration. Parent agrees to use its reasonable best efforts to file
a registration statement under the Securities Act on an appropriate form (which
shall be Form S-3, if available) relating to all of the shares of Restricted
Stock to be filed as soon as reasonably practicable (but in no event later than
thirty days) after the Closing Date (as defined in the Reorganization
Agreement); provided, however, that Parent shall not be required to register
shares of Restricted Stock of the Holder if the Holder does not comply with such
Holder's obligations in the last two paragraphs of Section 3 below.
3. Registration Procedures. In using its efforts to effect the
registration of any shares of Restricted Stock under the Securities Act as
described in Section 2, Parent will, as expeditiously as possible:
(a) prepare and file, as required by Section 2 above, with the
Commission a registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement (i) to become
effective as soon as practicable after the date of its filing with the
Commission and (ii) to remain effective until the earlier of the sale of all
Restricted Stock covered thereby or two years after the Closing Date; provided,
however, that Parent may suspend sales at any time under the registration
statement immediately upon notice to the Holder at the last known address of the
Holder, for a period or periods of time not to exceed in the aggregate 180 days
during any 12-month period, if there then exists material, non-public
information relating to Parent which, in the reasonable opinion of Parent, would
not be appropriate for disclosure during that time;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above;
(c) furnish to each seller of Restricted Stock such number of copies
of the registration statement and each such amendment and supplement thereto (in
each case including exhibits) and the prospectus included therein (including
each preliminary prospectus) as such persons reasonably may request in order to
facilitate the public sale or other disposition of the Restricted Stock covered
by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock
reasonably shall request, provided, however, that Parent shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
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(e) prepare and file with Nasdaq an additional listing application
and use its reasonable best efforts to have the Restricted Stock covered by such
registration statement be accepted by Nasdaq for listing on the Nasdaq National
Market;
(f) notify each seller of Restricted Stock under 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 of which
Parent has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly prepare and furnish to such seller a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Restricted Stock, such prospectus
shall not include an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, provided
that in no event shall Parent be obligated to file more than three (3)
amendments or supplements to reflect gifts or other non-public transfers of
Restricted Stock so that such shares may be sold under the prospectus by such
donees or transferees; and
(g) if the registration pursuant to Section 2 involves an
underwritten public offering (as determined in accordance with the last
paragraph of this Section 3), furnish, at the request of the Holder of
Restricted Stock included in the registration statement pursuant to Section 2 of
this Agreement, on the date that such Restricted Stock is delivered to the
underwriters for sale in such registration, (i) an opinion, dated such date, of
the counsel representing Parent for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder, and (ii) a
letter dated such date, from the independent certified public accountants of
Parent, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holder (if permitted under applicable
professional standards).
In connection with the registration of Restricted Stock hereunder, the
sellers of Restricted Stock will furnish to Parent in writing such information
requested by Parent with respect to themselves and the proposed distribution by
them as shall be necessary in order to assure compliance with applicable federal
and state securities laws.
Parent and the Holder may determine, either before or after the initial
filing of the registration statement pursuant to Section 2, that the shares of
Restricted Stock may only be sold pursuant to such registration in an
underwritten public offering. In that event, Parent will give prompt notice of
such decision to each seller, and afford each seller an opportunity to
participate in such underwritten offering. Parent may set time limits for the
sellers to indicate whether or not they desire to participate in such public
offering, and may require those sellers wishing to participate therein to
execute custody agreements and powers of attorney (which shall include authority
to the attorney-in-fact thereunder to execute an underwriting agreement with
respect to such offering) and other documentation in the form reasonably
prescribed by Parent. Upon the filing of a registration statement for such
underwritten offering (or an amendment to a previously
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filed registration statement), sellers may only sell Restricted Stock pursuant
to such underwritten offering (or pursuant to an available exemption from
registration). If such underwritten offering is not completed within 75 days
from the date of the determination referred to in the first sentence of this
paragraph, then such restriction shall no longer be applicable, and Parent's
obligations under Section 2 hereof shall be reinstated, with a new registration
statement (or amendment) to be filed by Parent as soon as practicable and in any
event within 15 days after the expiration of such 75-day period.
4. Expenses. All expenses incurred by Parent in complying with Sections 2
and 3, including, without limitation, all registration and filing fees, fees and
disbursements of counsel and independent public accountants for Parent, fees and
expenses incurred in connection with complying with state securities or "blue
sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, but excluding any
Selling Expenses, are called "Registration Expenses." All underwriting discounts
(if any) and selling commissions applicable to the sale of Restricted Stock are
called "Selling Expenses."
Except as set forth in this paragraph, Parent will pay all Registration
Expenses in connection with the registration statement under Section 2. All
Selling Expenses in connection with the registration statement under Section 2
and the sale of Restricted Stock thereunder shall be borne by the participating
sellers in proportion to the number of shares sold by each. The Registration
Expenses associated with any amendment or supplement to the prospectus to
reflect a gift or other non-public transfer of shares of Restricted Stock so
that such shares may be sold under the prospectus by the donee or transferee
shall be paid by the seller or sellers which made such gift or transfer.
5. Indemnification and Contribution.
(a) In connection with the registration of the Restricted Stock
under the Securities Act pursuant to Section 2 hereof, Parent will indemnify and
hold harmless (i) each seller of such Restricted Stock thereunder, (ii) to the
extent the registration involves an underwritten public offering as determined
in accordance with Section 3, any underwriter of such Restricted Stock
thereunder and (iii) each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Section 2 hereof at the time
it became effective under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto, (b)
the omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made or (c) any violation by Parent or
its agents of any rule or regulation promulgated under the Securities Act,
Exchange Act or state securities laws applicable to Parent or its agents and
relating to action or inaction required of Parent in connection with such
registration, and Parent will reimburse each such seller, each such underwriter
and each such controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or
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defending any such loss, claim, damage, liability or action, provided, however,
that Parent will not be liable in any such case if any to the extent that (A)
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement, an omission or alleged omission or
a violation or alleged violation so made in conformity with information
furnished in writing by any such seller, any such underwriter or any such
controlling person for inclusion in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 2
hereof or any prospectus contained therein, or any amendment or supplement to
such registration statement or prospectus, or (B) if such untrue statement or
alleged untrue statement, omission or alleged omission or violation or alleged
violation was corrected in an amended or supplemented prospectus, and such
seller or underwriter failed to deliver a copy of the amended or supplemented
prospectus at or prior to the confirmation of the sale of the Restricted Stock
to the person or entity asserting any such loss, claim, damage or liability in
any case where such delivery is required by the Securities Act or any state
securities laws.
(b) In connection with the registration of the Restricted Stock
under the Securities Act pursuant to Section 2 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless Parent, each person, if any, who controls Parent within the meaning of
the Securities Act, each officer of Parent who signs the registration statement,
each director of Parent, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which Parent or such
officer, director, underwriter or controlling person may become subject under
the Securities Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
the failure of such seller to comply with the provisions of Section 8 herein, or
(ii) any untrue statement or alleged untrue statement of any material fact
contained in the registration statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse Parent and each such officer,
director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, provided, however, that such
seller will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, furnished by such seller in writing for inclusion in the registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Section 2 hereof or any prospectus contained therein, or any
amendment or supplement to such registration statement or prospectus; and
provided, further, that in no event shall any indemnity under this subsection
5(b) exceed the gross proceeds from the offering received by the Holder from the
sale of Restricted Stock.
(c) Promptly after receipt by an indemnified party hereunder 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 hereunder,
notify the indemnifying party in writing thereof, but the omission to so notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 5 and shall only relieve
it from
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any liability which it may have to such indemnified party under this Section 5
if and to the extent the indemnifying party is prejudiced by such omission. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense, the
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected, provided, however, that,
if the defendants in any such action include both the indemnified party and the
indemnifying party and if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.
(d) In order to provide for just and equitable contribution to joint
liability in any case in which a claim for indemnification is made pursuant to
this Section 5 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case notwithstanding the fact that this Section 5
provides for indemnification in such case, Parent and each seller of Restricted
Stock will contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in proportion to the
relative fault of Parent, on the one hand, and Holder, on the other hand;
provided, however, that, in any such case, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation and; provided, further, that
in no event shall any contribution under this subsection 5(d) on the part of any
the gross proceeds received by the Holder from the sale of Restricted Stock.
(e) The indemnities provided in this Section 5 shall survive the
transfer of any Restricted Stock by the Holder.
6. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holder the benefits of Rule 144 promulgated under the
Securities Act, Parent agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) maintain registration of its Common Stock under Section 12 of
the Exchange Act;
(c) use its reasonable best efforts to file in a timely manner all
reports and other documents required of Parent under the Securities Act and the
Exchange Act; and
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(d) furnish to the Holder, so long as the Holder owns any Restricted
Stock, forthwith upon request: (i) a written statement by Parent regarding its
compliance with the reporting requirements of Rule 144, (ii) a copy of the most
recent annual or quarterly report of Parent and such other reports and documents
so filed by Parent under the Exchange Act; and (iii) such other reports and
documents of Parent as the Holder may reasonably request in order to avail
himself of any similar rule or regulation of the Commission allowing him to sell
any such securities without registration, including, without limitation, Rules
144 and 144A.
7. Changes in Common Stock. If, and as often as, there is any change in
the Common Stock by way of a stock split, stock dividend, combination or
reclassification or similar event, or through a reorganization or
recapitalization or similar event, appropriate adjustment shall be made in the
provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
8. Sellers' Conduct. With respect to any sale of Restricted Stock pursuant
to Section 2, you understand and agree as follows:
(a) You will carefully review the information concerning you
contained in the registration statement (if any) and will promptly notify Parent
if such information is not complete and accurate in all respects, including
having properly disclosed any position, office or other material relationship
within the past three years with Parent or its affiliates;
(b) You agree to sell your Restricted Stock only in the manner set
forth in the registration statement while such registration statement is
effective;
(c) You agree to comply with the anti-manipulation rules under the
Exchange Act in connection with purchases and sales of securities of Parent
during the time the registration statement remains effective;
(d) You agree to only sell shares in a jurisdiction after counsel
for Parent has advised that such sale is permissible under the applicable state
securities or "Blue Sky" laws;
(e) You agree to comply with the prospectus delivery requirements of
the Securities Act;
(f) You agree to promptly notify Parent of any and all planned sales
and immediately notify Parent of any completed sales of shares; and
(g) You agree to suspend sales during the periods when sales are to
be suspended pursuant to Section 3(a) herein.
9. Miscellaneous.
(a) The undersigned Holder of Restricted Stock shall not sell
publicly any shares of Restricted Stock for a period of 180 days following the
effective date of the registration statement relating to such shares of
Restricted Stock. Notwithstanding the foregoing, Parent agrees to waive the
provisions of this Section 9(a) to the extent necessary to enable the Holder to
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pay income taxes with respect to his receipt of such shares of Restricted Stock
if the Holder is reasonably advised in writing by his tax advisor, with a copy
to Parent, that he is required prior to the end of such 180-day period to pay
income taxes with respect to his receipt of such shares of Restricted Stock.
(b) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including, without
limitation, transferees of any Restricted Stock, provided that such transferee
executes a counterpart signature page to this Agreement in a form acceptable to
Parent), whether so expressed or not, and provided, further, that no holder or
transferee of Merger Shares which have ceased to be Restricted Stock shall have
the benefit of the covenants and agreements in this Agreement with respect to
such Merger Shares.
(c) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, sent by nationally recognized
delivery service guaranteeing delivery in two business days or less, with the
price of delivery paid by the sender, or faxed, addressed as follows:
if to Parent, at Concord Communications, Inc., 000 Xxxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, ATTN: Xxxxxxx X. Xxxx, Esq. (Fax
Number (000) 000-0000), with a copy to Xxxxx X. Xxxxx, Esq., Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(Fax Number 000-000-0000); and;
if to any other party hereto, at the address of such party set
forth on the signature page hereto with a copy to Xxxxx X. Xxxxxxxx, Esq,
Xxxxx Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (Fax
Number 000-000-0000);
or, in any case, at such other address or addresses as shall have been furnished
in writing to Parent (in the case of the Holder of Restricted Stock) or to the
Holder of Restricted Stock (in the case of Parent) in accordance with the
provisions of this paragraph.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts. The Holder consents to
jurisdiction and venue in the state and federal courts in Boston, Massachusetts.
(e) This Agreement may be amended or modified, and provisions hereof
may be waived, with the written consent of Parent and the Holder.
(f) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(g) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision
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of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
(The remainder of this page has been left blank intentionally.)
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Signature Page to
Registration Rights Agreement
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between the Company and you. You understand that Parent is
expressly relying on the accuracy of the information contained herein. The
foregoing information is complete and correct as of the date hereof. You hereby
undertake to promptly notify Parent of any change in the above information prior
to investment in Parent.
Very truly yours,
CONCORD COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: President and Chief
Executive Officer
AGREED TO AND ACCEPTED as of
the date first above written.
HOLDER:
/s/ Xx Xxxx
--------------------------
Xx Xxxx
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Instrument of Accession
Reference is made to that certain Registration Rights Agreement dated as
of July 17, 2003 (as amended and in effect from time to time, the "Registration
Rights Agreement"), among Concord Communications, Inc. (the "Company") and Vo
Xxxx Xxxx (the "Holder").
Holder has agreed to transfer (the "Transfer") to the undersigned, TCGen,
Inc. ("TCGen"), as consideration for services rendered by TCGen in connection
with the merger of netViz Corporation with and into Sunburst Acquisition
Corporation, a wholly-owned subsidiary of the Company, an aggregate of 13,639
shares of Restricted Stock (as defined in the Registration Rights Agreement) of
the Company (the "Shares").
TCGen, in order to become the owner or holder of the Shares, hereby agrees
that by execution hereof the undersigned shall become a party to the
Registration Rights Agreement subject to all of the restrictions and conditions
applicable to the Holder set forth in such Registration Rights Agreement, and
all of the Shares transferred to the undersigned in connection with the Transfer
are subject to all the restrictions and conditions applicable to Restricted
Stock as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the State of
Delaware.
TCGEN, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: President
------------------------------
Record Address:
000 Xxxxxxxx Xx.
------------------------------------
Xxxxx Xxxx, XX 00000
------------------------------------
------------------------------------
Accepted:
CONCORD COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice-President,
General Counsel and Clerk
Date: August 18, 2003
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