1
Exhibit 10.6
JUPITER COMMUNICATIONS, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
September __, 1999 by and among Jupiter Communications, Inc., a Delaware
corporation (the "Company"), and the individuals and entities named as
Stockholders on the signature pages hereof (the "Stockholders").
WHEREAS, the Stockholders previously entered into that certain Third
Amended and Restated Operating Agreement of Jupiter Communications, LLC, dated
as of October 22, 1997 (the "Operating Agreement"), which provides for certain
registration rights to be granted to the Stockholders;
WHEREAS, in connection with the Company's proposed initial public
offering, the Company will effect a merger (the "Merger") pursuant to which
Jupiter Communications, LLC will be merged with and into the Company;
WHEREAS, in connection with the Merger, the Stockholders will receive
shares (the "Shares") of the common stock, par value $0.001 per share (the
"Common Stock"), of the Company in exchange for the units of Jupiter
Communications, LLC currently owned by the Stockholders; and
WHEREAS, the Company now wishes to grant the Stockholders certain
registration rights with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth herein, the Company and the Stockholders agree as follows:
1. EFFECTIVE DATE. This Agreement shall become effective upon the
consummation of the Merger.
2. REGISTRATION RIGHTS.
(a) In the event that the Company contemplates a Public
Offering (as defined below), the Company shall so notify the Stockholders in
writing of its intention to do so at least thirty (30) days prior to the filing
of the registration statement related to such Public Offering. Each Stockholder
shall give written notice to the Company, within twenty (20) days of receipt of
such notice from the Company, of such Stockholder's desire to have any of its
Registrable Securities (as defined below) of the Company included in such
registration statement and may, subject to the provisions of this Section 2,
have its Registrable Securities so included. The Company shall file any required
amendments of or supplements to any registration statement related to such
Public Offering and otherwise use its best efforts to insure that such
registration statement remains in effect under the Securities Act of 1933, as
amended, until the earlier of the sale of all of the Registrable Securities
included in the registration or the expiration of one hundred twenty (120) days
from the effective date thereof.
1
2
For purposes of this Section 2, a "Public Offering" shall mean
a public offering by the Company of any class or classes of its securities under
the Securities Act of 1933, as amended, provided that the aggregate gross
proceeds of the offering of such securities (before reduction by underwriting
commissions and other expenses of sale) exceed $15,000,000.
(b) "Registrable Securities" shall mean shares of Common Stock
outstanding as of the date hereof or any equity securities into which such
shares of Common Stock may be converted or exchanged and which are included in
the registration statement being filed.
(c) If the Public Offering of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Stockholders as a part of the written notice given pursuant to
Section 2(a). In such event the right of a Stockholder to registration pursuant
to Section 2(a) shall be conditioned upon the Stockholder's participation in
such underwriting and the inclusion of the Stockholder's Registrable Securities
in the underwriting to the extent provided herein. If the managing underwriter
in such underwritten offering shall advise the Company that, due to marketing
limitations or other industry-accepted criteria, it declines to include a
portion or all of the securities requested by Stockholders and other persons
with piggyback registration rights to be included in the registration statement,
then all or a portion of the Registrable Securities requested for inclusion in
the registration statement (and offering, if applicable) may be excluded from
such registration statement (and offering, if applicable), in which case the
number of securities included in the registration statement on behalf of persons
other than the Company shall be allocated among the Stockholders and other
holders of registration rights in proportion to the respective numbers of
securities entitled to registration rights held by the Stockholders and other
holders requesting registration. In such event the Company shall give the
Stockholders prompt notice of the number of Registrable Securities excluded.
Should a Stockholder propose to distribute the Company's securities through such
underwriting, then the Stockholder shall (together with the Company and any
others distributing their securities through such underwriting) enter into an
underwriting agreement and related documents in customary form with the managing
underwriter selected for such underwriting by the Company (or by any other
person or entity who has demanded such registration), which may include, among
other things, indemnification, lock-up and expense sharing provisions.
(d) The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 2 prior to the effectiveness
of such registration whether or not any Stockholder or Stockholders have elected
to include securities in such registration.
(e) The Stockholders will cooperate with the Company in all
respects in connection with such registration statement, including, but not
limited to, timely supplying all information reasonably requested by the Company
and executing and returning all documents reasonably requested in connection
with the registration and sale of the Registrable Securities. It shall be a
condition to the Company's obligations to include Registerable Securities that
the Stockholder provide written information requested by the Company or the
managing underwriter in a timely manner.
2
3
(f) The Gartner Group, Inc. ("Gartner") hereby agrees that,
for a period of one (1) year following the first of any Public Offerings,
neither it or any Affiliate (as defined below) will acquire any additional
shares of common stock or other equity securities of the Company, if immediately
after such acquisition Gartner would own, directly or indirectly, more than
thirty-two percent (32%) of any class of common stock or other equity securities
of the Company.
For purposes of this Section 2(f), "Affiliate" shall mean,
with respect to any Person, any other Person, directly or indirectly,
controlling, controlled by, or under direct or indirect common control with,
such Person. For the purposes of this definition: "Person" shall mean an
individual, corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity; "control," when used with respect
to any specified Person, shall mean the power to direct or cause the direction
of management and policies of such Person, directly or indirectly, whether
through ownership of voting securities or partnership or other ownership
interests, by contract or otherwise; and "controlling" and "controlled" shall
have correlative meanings.
3. MISCELLANEOUS.
3.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of New York without regard to
conflicts of laws principles. The parties expressly stipulate that any
litigation under this Agreement shall be brought in the state courts of the
County of New York, New York or in the United States District Court for the
Southern District of New York. The parties agree to submit to the jurisdiction
and venue of those courts.
3.2 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.
3.3 TRANSFER OR ASSIGNMENT RIGHTS. The rights granted to the
Stockholders by the Company under this Agreement may only be transferred or
assigned by the Stockholders to a transferee or assignee of any of the Shares if
the Company is given notice by the Stockholders prior to the time of said
transfer or assignment, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such rights are
being transferred or assigned; the transferee or assignee of such rights assumes
the obligations of the Stockholders under this Agreement, and provided that (i)
the transfer is in connection with a transfer of all securities of the Company
held by the transferor, (ii) the transferee after the transfer has an aggregate
of at least 100,000 shares of the Registrable Securities (in either case, as
adjusted for stock splits, stock dividends and events of a similar nature),
(iii) the transfer is from one Stockholder to another Stockholder, or (iv) the
transfer or assignment is to constituent partners or stockholders who agree to
act through a single representative.
3.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof
3
4
and thereof, 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 or therein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided,
however, that holders of a majority of the Shares (as adjusted for stock splits,
stock dividends and similar events) may, with the prior written consent of the
Company, waive, modify or amend on behalf of all holders, any provisions hereof.
3.5 NOTICES, ETC. All notices and other communications
required or permitted in this Agreement shall be in writing, shall be effective
when given, and shall in any event be deemed to be given upon receipt or, if
earlier, (a) five (5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered by first class mail, postage prepaid,
(b) upon delivery, if delivered by hand, (c) one business day after the business
day of deposit with Federal Express or similar overnight courier, freight
prepaid or (d) one business day after the business day of facsimile
transmission, if delivered by facsimile transmission with copy by first class
mail, postage prepaid, and shall be addressed if to a Stockholder, at the
Stockholder's address as set forth on Exhibit A hereto, if to the Company to the
address set forth on the signature page hereto, or at such other address as a
party may designate by ten days' advance written notice to the other party
pursuant to the provisions above.
3.6 DELAYS OR OMISSIONS. Except as expressly provided herein,
no delay or omission to exercise any right, power or remedy accruing to any
Stockholder, 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 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 may be executed by less than all of the
Stockholders, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.8 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
3.9 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are
4
5
used for convenience only and are not considered in construing or interpreting
this Agreement.
3.10 TERMINATION OF RIGHTS GRANTED IN EARLIER AGREEMENT. Upon
execution and delivery of this Agreement by the Company and the Stockholders,
the registration rights granted to the Stockholders pursuant to the Operating
Agreement shall be terminated and superseded by the rights granted in this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
6
The foregoing agreement is hereby executed by each party as of the date
set forth above.
JUPITER COMMUNICATIONS, INC.
By
---------------------------------
Name:
Title:
THE STOCKHOLDERS:
------------------------------------
Xxxxxx XxXxxx
------------------------------------
Xxxx Xxxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxx
------------------------------------
Xxxxxxx Tahta
------------------------------------
Xxxxxx X. Xxxxxxxxx
23
7
------------------------------------
Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxxxxxx
24
8
EXHIBIT A
LIST OF STOCKHOLDERS
NAME AND ADDRESS NUMBER OF SHARES
---------------- ----------------
Xxxxxx XxXxxx 2,393,478
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxxxx 1,004,721
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxx 29,905
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Xxxxxx Xxxxxx 1,070,595
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Tahta 118,391
00 Xxxxxxxxxx Xxxxxx Xxxxxx
Xxxxxx X0 0XX U.K.
Xxxxxx X. Xxxxxxxxx 971,221
00 Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxxxxx 8,475
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx 148,711
00 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx 200,000
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
25
9
NAME AND ADDRESS NUMBER OF SHARES
---------------- ----------------
Xxxxxx Xxxxxxxxxx 845,335
00 Xxxxxx Xxxxx
Xxx Xxxx, XX
Gartner Group, Inc. 4,028,503
X.X. Xxx 00000
00 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX
00
