EXHIBIT 4.3
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Dated as of August 9, 1999
by and among
XXXXX.XXX INC.
and
THE INVESTORS NAMED ON THE SIGNATURE PAGES HERETO
AND THE SCHEDULES ATTACHED HERETO
TABLE OF CONTENTS
Section 1. Definitions...........................................................................................2
Section 2. Demand Registration Rights............................................................................6
(a) Demands for Registration.................................................................................6
(b) Limitations on Demand Registrations......................................................................7
(c) Registration Statement Form..............................................................................7
(d) Registration Expenses....................................................................................7
(e) Priority in Cutback Registrations........................................................................7
(f) Preemption of Demand Registration........................................................................7
(f) Preemption of Demand Registration........................................................................8
Section 3. Piggyback Registration................................................................................8
(a) Right to Include Registrable Securities..................................................................8
(b) Registration Expenses....................................................................................8
(c) Priority in Cutback Registrations........................................................................8
Section 4. Registration Procedures...............................................................................9
Section 5. Underwritten Offerings...............................................................................12
(a) Underwritten Offerings in Connection with Demand Registrations..........................................13
(b) Underwritten Piggyback Offerings........................................................................13
Section 6. Holdback Agreements..................................................................................13
(a) By the Holders..........................................................................................14
(b) By the Company and Other Securityholders................................................................14
Section 7. Indemnification......................................................................................14
(a) Indemnification by the Company..........................................................................14
(b) Indemnification by the Sellers..........................................................................15
(c) Notices of Claims.......................................................................................16
(d) Contribution............................................................................................16
(e) Other Indemnification...................................................................................17
(f) Indemnification Payments................................................................................17
(g) Underwriting Agreement..................................................................................17
Section 8. Covenants Relating to Rule 144.......................................................................18
Section 9. Other Rights.........................................................................................18
(a) No Existing Agreements..................................................................................18
(b) Future Agreements.......................................................................................18
Section 10. Selection of Underwriters...........................................................................18
Section 11. Miscellaneous.......................................................................................19
(a) Notices.................................................................................................19
(b) Entire Agreement........................................................................................21
(c) Amendment...............................................................................................21
d) Waiver..................................................................................................21
(e) Consents and Waivers by Holders.........................................................................21
(f) No Third Party Beneficiary..............................................................................21
(g) Successors or Assigns...................................................................................21
(h) Headings................................................................................................21
(i) Invalid Provisions......................................................................................21
(j) Remedies................................................................................................22
(k) Governing Law...........................................................................................22
(l) Counterparts............................................................................................22
(l) Termination of Registration Rights......................................................................22
(n) Legends.................................................................................................22
-ii-
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of August 9, 1999, is made and entered into by and among Xxxxx.xxx
Inc., a Delaware corporation (the "Company"), and the Investors (as defined
herein).
WHEREAS, the Company and the Investors named on Schedule 1
hereto entered into a certain Registration Rights Agreement dated as of June
2, 1997 (as amended by that certain Amendment No. 1 to Registration Rights
Agreement dated as of October 31, 1997, that certain Amendment No. 2 to
Registration Rights Agreement dated as of February 11, 1998, and that certain
Amendment No. 3 to Registration Rights Agreement dated as of May 4, 1998 and
as otherwise heretofore amended or modified, the "Original Registration
Rights Agreement") in connection with that certain Preferred Stock Purchase
Agreement dated as of June 2, 1997 between the Company and certain of the
Investors;
WHEREAS, in accordance with paragraph (c) of Section 11 of
the Original Registration Rights Agreement and subsequent to June 2, 1997,
the additional Investors named on Schedule 2 hereto have become parties to
the Original Registration Rights Agreement pursuant to Amendment Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, certain Joinders, and certain Joinder
Agreements to the Original Registration Rights Agreement;
WHEREAS, the Company has issued and sold, and certain of
the Investors purchased from the Company, shares of Series E Convertible
Preferred Stock, par value $.01 per share (the "Series E Preferred Stock"),
and, if applicable, shares of Series A-IV Convertible Preferred Stock, par
value $.01 per share, pursuant to the terms and conditions of that certain
Series E Convertible Preferred Stock Purchase Agreement dated as of May 4,
1999 (the "Series E Stock Purchase Agreement") among the Company and certain
of the Investors, and in connection with the Series E Stock Purchase
Agreement, the Original Registration Rights Agreement was amended and
restated (the "First Amended and Restated Registration Rights Agreement");
WHEREAS, simultaneously with the closing of the Company's
initial Public Offering of its Common Stock, the Company shall issue to Clear
Channel Communications, Inc. ("CCU") shares of common stock of the Company
and a warrant to purchase additional shares of Common Stock (the "CCU
Warrant"), pursuant to the terms and conditions of that certain Stock
Purchase Agreement dated as of the date hereof (the "Stock Purchase
Agreement") by and between the Company and CCU;
WHEREAS, it is a condition precedent to the consummation of
the transactions contemplated by the Stock Purchase Agreement that the
Company and the Investors that are parties to the First Amended and Restated
Registration Rights Agreement amend and restate the
First Amended and Restated Registration Rights Agreement on the terms and
subject to the conditions set forth herein; and
WHEREAS, the Company and the Holders of more than
two-thirds (2/3) of the Registrable Securities currently outstanding or
subject to issuance on the date hereof, do hereby amend and restate the First
Amended and Restated Registration Rights Agreement in its entirety on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. DEFINITIONS.
(a) Except as otherwise specifically indicated, the
following terms will have the following meanings for all purposes of this
Agreement:
"AGREEMENT" means this Second Amended and Restated
Registration Rights Agreement, as the same shall be amended from time to time.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks
are open for business in New York City.
"COMMISSION" means the United States Securities and
Exchange Commission, or any successor governmental agency or authority.
"COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from
any reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
"CUTBACK REGISTRATION" means any Demand Registration or
Piggyback Registration to be effected as an underwritten Public Offering in
which the Managing Underwriter with respect thereto advises the Company and
the Requesting Holders in writing that, in its opinion, the number of
securities requested to be included in such registration (including
securities of the Company which are not Registrable Securities) exceeds the
number which can be sold in such offering without a reduction in the selling
price anticipated to be received for the securities to be sold in such Public
Offering.
"DEMAND FOR REGISTRATION" has the meaning ascribed to it in
SECTION 2(a).
"DEMAND REGISTRATION" means any registration of Registrable
Securities under the Securities Act effected pursuant to a Demand for
Registration in accordance with SECTION 2.
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"EFFECTIVE REGISTRATION" means, subject to the last
sentence of SECTION 2(f), a Demand Registration which (i) has been declared
or ordered effective in accordance with the rules of the Commission, and (ii)
has been kept effective for the period of time contemplated by SECTION 4(b).
Notwithstanding the foregoing, a registration that does not become effective
after it has been filed with the Commission solely by reason of the refusal
to proceed of the Holders demanding or requesting such registration shall be
deemed to be an Effective Registration for purposes of this Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"HOLDER" means a holder of Registrable Securities.
"INDEMNIFIED PARTY" means a party entitled to
indemnification in accordance with SECTION 7.
"INDEMNIFYING PARTY" means a party obligated to provide
indemnification in accordance with SECTION 7.
"INSPECTORS" has the meaning ascribed to it in SECTION 4(j).
"INVESTORS" means the "Investors" under and as defined in
the Original Registration Rights Agreement and the First Amended and Restated
Registration Rights Agreement (including, without limitation, the Persons so
named in the Joinder and Joinder Agreements to the Original Registration
Rights Agreement and the First Amended and Restated Registration Rights
Agreement), the other investors designated on Schedule 1 and Schedule 2
hereto, and the Persons so designated on the signature pages of the First
Amended and Restated Registration Rights Agreement and of this Agreement
(certain of which may also be set forth on Schedule 1 and Schedule 2 hereto).
Notwithstanding the foregoing definition of "Investors," no Person shall be
added as an Investor under this Agreement after the date hereof unless such
Person shall have been expressly added as a party as an Investor hereto
pursuant to an amendment executed and delivered in accordance with the
requirements of paragraph (c) of Section 11 of this Agreement. The term
"Investor" means any one of the Investors and, in the case of an Investor who
is a natural person, the term "Investor" shall also include such Investor's
legal representatives, executors or administrators when the context so
requires.
"LOSSES" has the meaning ascribed to it in SECTION 7(a).
"MANAGING UNDERWRITER" means, with respect to any Public
Offering, the lead managing underwriter for such Public Offering, selected in
accordance with SECTION 10.
"NASD" means the National Association of Securities Dealers.
"NASDAQ" means the Nasdaq Stock Market.
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"NOTICE OF DEMAND FOR REGISTRATION" has the meaning
ascribed to it in SECTION 2(a).
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed
to it in SECTION 3(a).
"PERSON" means any natural person, corporation, general
partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union or association.
"PIGGYBACK REGISTRATION" means any registration of equity
securities of the Company under the Securities Act (other than a registration
in respect of a dividend reinvestment or similar plan for stockholders of the
Company or on Form S-4 or Form S-8 promulgated by the Commission, or any
successor or similar forms thereto), whether for sale for the account of the
Company or for the account of any holder of securities of the Company (other
than Registrable Securities), including a registration by the Company under
the circumstances described in SECTION 2(f).
"PREFERRED STOCK" means the Company's Series A Convertible
Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible
Preferred Stock, Series D Convertible Preferred Stock and Series E Preferred
Stock.
"PUBLIC OFFERING" means any offering of Shares to the
public, either on behalf of the Company or any of its security holders,
pursuant to an effective registration statement under the Securities Act.
"QUALIFIED INDEPENDENT UNDERWRITER" means an underwriter
meeting the requirements of Section 2(1) of Schedule E to the NASD By-Laws as
the same may be amended from time to time.
"QUALIFYING HOLDER" means any Holder who, alone or together
with one or more other Holders, holds Registrable Securities that constitute
at least seventeen and one half percent (17 1/2%) of the Registrable
Securities, including those subject to issuance.
"RECORDS" has the meaning ascribed to it in SECTION 4(j).
"REGISTRABLE SECURITIES" means (a) Shares that are at any
time outstanding and that are owned by Investors (or any Person that acquires
such Shares from any such Investor), (b) Shares issuable upon conversion of
the shares of Preferred Stock into Shares pursuant to the terms of the
Certificate of Incorporation (including the Certificates of Designation
thereto) of the Company and that are owned by any of the Investors (or any
Person that acquires such Shares or such Preferred Stock from any such
Investor), and (c) Shares issuable upon the exercise of warrants to purchase
Shares outstanding as of the effectiveness of this Second Amended and
Restated Registration Rights Agreement issued to any of the Investors (or any
Person that acquires such Shares or warrants from any such Investor). As to
any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (x) a
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registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (y) they shall
have been distributed to the public pursuant to Rule 144, or (z) they shall
have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with its obligations under this
Agreement to effect the registration of Registrable Securities in a Demand
Registration or a Piggyback Registration, including, without limitation, all
registration, filing, securities exchange listing, NASD fees and NASDAQ fees,
all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, the
reasonable fees and disbursements of a single firm of accountants and counsel
retained by the Holders of a majority of the Registrable Securities being
registered, premiums and other costs of policies of insurance against
liabilities arising out of the Public Offering of the Registrable Securities
being registered and any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions in respect of Registrable Securities, which shall
be payable by the Holders thereof PRO RATA among such Holders in proportion
to the number of Registrable Securities being sold.
"REQUEST FOR REGISTRATION" means a written request by a
Holder to the Company for registration of Registrable Securities in response
to a Notice of Demand for Registration or a Notice of Piggyback Registration,
which request shall specify the Registrable Securities intended to be
disposed of and the intended method of disposition thereof.
"REQUESTING HOLDERS" means, with respect to any
registration, the Holders demanding or requesting to have Registrable
Securities included in a registration in accordance with SECTION 2 or 3.
"RULE 144" means Rule 144 promulgated by the Commission
under the Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"SHARES" means the shares of Common Stock.
"STOCKHOLDERS' AGREEMENT" means the Amended and Restated
Stockholders' Agreement, of even date herewith, by and among the parties
thereto.
(b) Unless the context of this Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words using
the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby," "herewith," and
derivative or similar words refer to this entire Agreement; and (iv) the term
"Section" refers
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to the specified Section of this Agreement. Whenever this Agreement refers to
a number of days, such number shall refer to calendar days unless Business
Days are specified.
Section 2. DEMAND REGISTRATION RIGHTS
(a) DEMANDS FOR REGISTRATION. Subject to Section 6 below,
at any time after June 2, 2002, or such earlier time as the Company shall
have effected a Public Offering, any Qualifying Holder may demand that the
Company use its best efforts to effect the registration under the Securities
Act of all or part of such Qualifying Holder's Registrable Securities. Such
demand for registration (a "DEMAND FOR REGISTRATION") shall be in writing,
delivered to the Company in accordance with SECTION 11(a), and shall specify
the number of Registrable Securities to be registered and the intended method
of disposition thereof. No later than ten (10) Business Days after receipt of
such Demand for Registration, the Company shall give written notice (a
"NOTICE OF DEMAND FOR REGISTRATION") of such Demand for Registration to all
other Holders, and shall use its best efforts to effect the registration
under the Securities Act of:
(i) the Registrable Securities included in the Demand for
Registration, and
(ii) all other Registrable Securities as to which any Holder
has delivered to the Company a Request for Registration within fifteen
(15) days after the giving of the Notice of Demand for Registration,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the methods of disposition
specified. At the request of the Holders of a majority of the Registrable
Securities to be registered, or in the case of a Demand Registration on Form
S-1 or its equivalent, the method of disposition of all Registrable
Securities included in such registration shall be an underwritten offering
effected in accordance with SECTION 5(a). Notwithstanding the foregoing, the
Company may postpone taking action with respect to a Demand Registration for
a reasonable period of time after receipt of the original Demand for
Registration (not exceeding one hundred eighty (180) days) if, in the good
faith opinion of the Board, effecting the registration would adversely affect
a material financing, acquisition, disposition of assets or stock, merger or
other comparable transaction or would require the Company to make public
disclosure of information the public disclosure of which would have a
material adverse effect upon the Company, PROVIDED that the Company shall not
delay such action pursuant to this sentence more than once in any twelve (12)
month period. Subject to SECTION 2(e), the Company may include in such
registration Shares or other securities for sale for its own account. Neither
the Company nor any Holder shall have the right to include any securities in
a registration statement to be filed as part of a Demand Registration unless
(i) such securities are of the same class as the Registrable Securities
included in the Demand for Registration (or the demanding Holders consent to
such inclusion in writing), and (ii) if such Demand Registration is an
underwritten offering, the Company and such other Holders agree in writing to
sell, subject to SECTION 2(e), their securities on the same terms and
conditions as apply to the Registrable Securities being sold pursuant to the
Demand for Registration.
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(b) LIMITATIONS ON DEMAND REGISTRATIONS. Notwithstanding
anything herein to the contrary, the Company shall not be required to honor a
Demand for Registration if:
(i) the proposed aggregate Public Offering price for the
Registrable Securities included in the Demand for Registration is less
than (a) Forty Million dollars ($40,000,000) for a Demand Registration
on Form S-1 or its equivalent or for an underwritten Public Offering on
Form S-3 or its equivalent, or (b) Seven Million Five Hundred Thousand
dollars ($7,500,000) for a non-underwritten Public Offering on Form S-3
or its equivalent, based on the fair value estimated by the
underwriters in the case of an underwritten Public Offering or the
then-current market price in the case of a non-underwritten Public
Offering; or
(ii) such Demand for Registration is received by the Company
less than one hundred eighty (180) days following the effective date of
any previous Effective Registration.
(c) REGISTRATION STATEMENT FORM. Demand Registrations shall
be on such appropriate registration form selected by the Company as shall be
reasonably acceptable to the Holders of a majority of the Registrable
Securities to which such registration relates, and shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods specified by the Holders participating therein.
(d) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with (i) the first two (2)
Demand Registrations on Form S-1 or its equivalent, and (ii) the first two
(2) Demand Registrations on any other form, except Form S-1 or its
equivalent. The Registration Expenses for all other Demand Registrations
shall be allocated among all Persons (including the Company) on whose behalf
securities of the Company are included for offer and sale in such
registration, pro rata on the basis of the respective amounts of the
securities then being registered on their behalf; further provided that the
Company shall not be responsible for the Registration Expenses in connection
with any Demand for Registration which has been subsequently withdrawn by the
Holders, in which case such expenses shall be borne by the Holders requesting
such withdrawal.
(e) PRIORITY IN CUTBACK REGISTRATIONS. If a Demand
Registration becomes a Cutback Registration, the Company shall include in
such registration the amount of securities which the Managing Underwriter
advises the Company can be sold in such offering without a reduction in the
selling price anticipated to be received for the securities to be sold in
such Public Offering: (i) FIRST, the Registrable Securities included in the
Demands for Registration or the Requests for Registration PRO RATA among the
Holders making such Demands for Registration or Requests for Registration in
proportion to the number of Registrable Securities included in their Demands
for Registration or Requests for Registration, and (ii) SECOND, the
securities of the Company included in such registration by the Company for
sale for its own account.
(f) PREEMPTION OF DEMAND REGISTRATION. Notwithstanding
anything to the contrary contained herein, and without limitation as to the
rights of the Company to include in a Demand Registration securities for sale
for its own account as provided in SECTION 2(a), at any
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time within thirty (30) days after receiving a Demand for Registration, the
Company may elect to effect an underwritten primary registration in lieu of
the Demand Registration. If the Company so elects, the Company shall give
prompt written notice to all Holders of its intention to effect such a
registration and shall afford Holders the rights contained in SECTION 3 with
respect to Piggyback Registrations; the Demands for Registration shall be
deemed to have been withdrawn; and such primary registration shall not be
deemed to be an Effective Registration.
(g) LIMITATION ON DEMAND REGISTRATION. Notwithstanding that
the Shares issuable upon the exercise of the CCU Warrant are Registrable
Securities and that such Shares shall be considered part of CCU's aggregate
holdings of Shares for purposes of determining its right to participation in
any Demand Registration or Piggyback Registration, no Shares issued or
issuable under the CCU Warrant shall be permitted to be registered pursuant
to any demand for a Demand Registration or Piggyback Registration made
earlier than 12 months after the date of issuance of the CCU Warrant.
Section 3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES.
Notwithstanding any limitation contained in SECTION 2, if the Company at any
time proposes after the date hereof to effect a Piggyback Registration,
including a registration in lieu of a Demand Registration pursuant to
SECTIONS 2(b)(iii) and 2(f), it will each such time give prompt written
notice (a "NOTICE OF PIGGYBACK REGISTRATION") to all Holders of its intention
to do so and of such Holders' rights under this SECTION 3, which Notice of
Piggyback Registration shall include a description of the intended method of
disposition of such securities. If any Holder delivers a Request for
Registration to the Company within fifteen (15) days after such Holder
receives a Notice of Piggyback Registration, the Company will use its best
efforts to include in the registration statement relating to such Piggyback
Registration all Registrable Securities which the Company has been so
requested to register. Notwithstanding the foregoing, if, at any time after
giving a Notice of Piggyback Registration and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Holder and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any
Requesting Holder entitled to do so to demand that such registration be
effected as a Demand Registration under SECTION 2, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering
any Registrable Securities for the same period as the delay in registering
such other securities. Subject to the provisions of SECTION 2(f), no
registration effected under this SECTION 3 shall relieve the Company of its
obligations to effect a Demand Registration under SECTION 2.
(b) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If a Piggyback
Registration becomes a Cutback Registration, the Company will include in such
registration to the extent of the amount
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of the securities which the Managing Underwriter advises the Company can be
sold in such offering without a reduction in the selling price anticipated to
be received for the securities to be sold in such Public Offering:
(i) FIRST, the securities proposed by the Company to be sold
for its own account; and
(ii) SECOND, the Registrable Securities included in the
Requests for Registration of Requesting Holders, PRO RATA among such
Requesting Holders in proportion to the number of Registrable
Securities included in their Requests for Registration.
Any securities excluded shall be withdrawn from and shall not be included in
such Piggyback Registration.
Section 4. REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act pursuant to SECTION 2 or
SECTION 3, the Company will use its best efforts to effect the registration
and sale of such Registrable Securities in accordance with the intended
methods of disposition thereof specified by the Holders participating
therein. Without limiting the foregoing, the Company in each such case will,
as expeditiously as possible:
(a) prepare and file with the Commission (in the case of a
Demand Registration), the requisite registration statement to effect such
registration (including such audited financial statements as may be required
by the Securities Act or the rules and regulations promulgated thereunder)
and use its best efforts to cause such registration statement to become
effective; PROVIDED, that as far in advance as practical before filing such
registration statement or any amendment thereto, the Company will furnish to
counsel for the Requesting Holders copies of reasonably complete drafts of
all such documents proposed to be filed (including exhibits), and any such
Holder shall have the opportunity to object to any information pertaining
solely to such Holder that is contained therein and the Company will make the
corrections reasonably requested by such Holder with respect to such
information prior to filing any such registration statement or amendment;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and any prospectus used in
connection therewith as may be necessary to maintain the effectiveness of
such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
included in such registration statement, in accordance with the intended
methods of disposition thereof, until the earlier of (i) such time as all of
such securities have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such
registration statement and (ii) one hundred eighty (180) days after such
registration statement becomes effective;
(c) promptly notify each Requesting Holder and the
underwriter or underwriters, if any:
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(i) when such registration statement or any
prospectus used in connection therewith, or any amendment or supplement
thereto, has been filed and, with respect to such registration statement
or any post-effective amendment thereto, when the same has become
effective;
(ii) of any written request by the Commission for
amendments or supplements to such registration statement or prospectus;
(iii) of the notification to the Company by the
Commission of its initiation of any proceeding with respect to the
issuance by the Commission of, or of the issuance by the Commission of,
any stop order suspending the effectiveness of such registration
statement; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the applicable securities or blue
sky laws of any jurisdiction;
(d) furnish to each seller of Registrable Securities
included in such registration statement such number of conformed copies of
such registration statement and of each amendment and supplement thereto (in
each case including all exhibits and documents incorporated by reference),
such number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary prospectus)
and any other prospectus filed under Rule 424 promulgated under the
Securities Act relating to such Holder's Registrable Securities, and such
other documents, as such seller may reasonably request to facilitate the
disposition of its Registrable Securities;
(e) use its best efforts to register or qualify all
Registrable Securities included in such registration statement under such
other securities or blue sky laws of such jurisdictions as each Holder
thereof shall reasonably request and to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and take any other action which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not for any such purpose be required (i) to qualify
generally to do business as a foreign corporation in any jurisdiction wherein
it would not but for the requirements of this paragraph (e) be obligated to
be so qualified, or (ii) to consent to general service of process in any such
jurisdiction;
(f) use its best efforts to cause all Registrable
Securities included in such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable each Holder thereof to consummate the disposition of such
Registrable Securities;
(g) to the extent any of the following are obtained by or
furnished to the Company or the underwriters, furnish to each Requesting
Holder a signed counterpart, addressed to such Holder (and the underwriters,
if any), of
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(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
includes an underwritten Public Offering, dated the date of any closing
under the underwriting agreement), reasonably satisfactory in form and
substance to such Holder, and
(ii) a "cold comfort" letter, dated the effective
date of such registration statement (and, if such registration includes
an underwritten Public Offering, dated the date of any closing under
the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to the underwriters in underwritten Public Offerings of
securities; and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial statements and such other
financial matters as such Holder (or the underwriters, if any) may reasonably
request;
(h) notify each Holder whose Registrable Securities are
included in 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 any prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at the request
of any such Holder promptly prepare and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus 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, in the light of the
circumstances under which they were made, not misleading;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than
eighteen (18) months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and not file any amendment or supplement to such
Registration Statement or prospectus to which any such seller or any
Requesting Holder shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations thereunder;
(j) make available for inspection by any Requesting Holder,
any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained
by such Holder or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the
Company
11
(collectively, the "RECORDS") reasonably necessary to enable the Inspectors
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(k) provide a transfer agent and registrar for all
Registrable Securities included in such registration statement not later than
the effective date of such registration statement; and
(l) use its best efforts to cause all Registrable
Securities included in such registration statement to be listed, upon
official notice of issuance, on any securities exchange on which any of the
securities of the same class as the Registrable Securities are then listed.
The Company may require each Holder whose Registrable
Securities are being registered to, and each such Holder, as a condition to
including Registrable Securities in such registration, shall, furnish the
Company and the underwriters with such information and affidavits regarding
such Holder and the distribution of such securities as the Company and the
underwriters may from time to time reasonably request in writing in
connection with such registration.
Upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (h) of this SECTION
4, each Holder will forthwith discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such Holder receives the copies of the
supplemented or amended prospectus contemplated by paragraph (h) of this
SECTION 4 and, if so directed by the Company, shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then
in such Holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period referred to in paragraph (b)
of this SECTION 4 shall be extended by a number of days equal to the number
of days during the period from and including the giving of notice pursuant to
paragraph (h) of this SECTION 4 and to and including the date when each
Holder whose Registrable Securities are included in such registration
statement receives the copies of the supplemented or amended prospectus
contemplated by paragraph (h) of this SECTION 4.
Section 5. UNDERWRITTEN OFFERINGS. If a Demand for Registration is
made pursuant to SECTION 2, or if the Company at any time proposes to
register any of its securities in a Piggyback Registration or otherwise, and,
in either case, the securities included in such registration are to be
distributed by or through one or more underwriters, such securities shall be
distributed by or through, and the Company shall enter into a firm commitment
underwriting agreement in customary form with, (i) a Managing Underwriter
selected in accordance with SECTION 10, (ii) such other underwriters,
reasonably satisfactory to the Company, as may be selected by the Managing
Underwriter to assist or participate in the distribution, and (iii) if a
Qualified Independent Underwriter is required for such registration pursuant
to Schedule E to the NASD By-Laws or otherwise, a Qualified Independent
Underwriter selected in accordance with SECTION 10.
12
(a) UNDERWRITTEN OFFERINGS IN CONNECTION WITH DEMAND
REGISTRATIONS. If a Demand for Registration is made pursuant to SECTION 2 and
the distribution of the Registrable Securities included in such Demand for
Registration is to be underwritten, the underwriting agreement shall include,
among other provisions, indemnities substantially to the effect and to the
extent provided in SECTION 7. The Holders whose Registrable Securities are to
be distributed by such underwriters shall be parties to such underwriting
agreement. No Requesting Holder may participate in such underwritten offering
unless such Holder agrees to sell its Registrable Securities on the basis
provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents
reasonably required under the terms of such underwriting agreement. If any
Requesting Holder disapproves of the terms of an underwriting, such Holder
may elect to withdraw therefrom and from such registration by notice to the
Company and the Managing Underwriter, and each of the remaining Requesting
Holders shall be entitled to increase the number of Registrable Securities
being registered to the extent of the Registrable Securities so withdrawn (i)
in the case of a Cutback Registration, in accordance with the priorities set
forth in SECTION 2(e) and (ii) in all other cases in the proportion which the
number of Registrable Securities being registered by such remaining
Requesting Holder bears to the total number of Registrable Securities being
registered by all such remaining Requesting Holders.
(b) UNDERWRITTEN PIGGYBACK OFFERINGS. If the Company at any
time proposes to register any of its securities in a Piggyback Registration
and such securities are to be distributed by or through one or more
underwriters, the Company will, subject to the provisions of SECTION 3(c),
use its best efforts, if requested by any Holder whose Registrable Securities
are included in such registration to arrange for such underwriters to include
the Registrable Securities to be offered and sold by such Holder among the
securities to be distributed by such underwriters, and such Holders shall be
obligated to sell their Registrable Securities in such Piggyback Registration
through such underwriters on the same terms and conditions as apply to the
other Company securities to be sold by such underwriters in connection with
such Piggyback Registration. The Holders whose Registrable Securities are to
be distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriter or underwriters. No
Requesting Holder may participate in such underwritten offering unless such
Holder agrees to sell its Registrable Securities on the basis provided in
such underwriting agreement and completes and executes all questionnaires,
powers of attorney, indemnities and other documents reasonably required under
the terms of such underwriting agreement. If any Requesting Holder
disapproves of the terms of an underwriting, such Holder may elect to
withdraw therefrom and from such registration by notice to the Company and
the Managing Underwriter, and each of the remaining Requesting Holders shall
be entitled to increase the number of Registrable Securities being registered
to the extent of the Registrable Securities so withdrawn (i) in the case of a
Cutback Registration, in accordance with the priorities set forth in SECTION
3(c) and (ii) in all other cases in the proportion which the number of
Registrable Securities being registered by such remaining Requesting Holder
bears to the total number of Registrable Securities being registered by all
such remaining Requesting Holders.
Section 6. HOLDBACK AGREEMENTS.
13
(a) BY THE HOLDERS. Unless the Managing Underwriter (or, in
the case of a non-underwritten Public Offering, the Company) otherwise
agrees, no Holder shall effect any public sale or distribution (including a
sale under Rule 144) of, or any demand for Registration of, any Registrable
Securities, or any securities convertible into or exchangeable or exercisable
for Registrable Securities, during the fourteen (14) days prior to and (i)
the earlier of (A) the one hundred eighty (180) days after the effective date
of the registration statement filed in connection with an initial Public
Offering (or for such shorter period of time as is sufficient and
appropriate, in the opinion of the Managing Underwriter, (or, in the case of
a non-underwritten Public Offering, the Company) in order to complete the
sale and distribution of the securities included in such registration), or
(B) in the case of an underwritten Public Offering, the date on which the
Managing Underwriter's lock-up with respect to such offering is waived by the
Managing Underwriter with respect to stockholders holding in the aggregate
more than twenty percent (20%) of the outstanding capital stock of the
Company. or (ii) the ninety (90) days after the effective date of the
registration statement filed in connection with any registration statement
filed by the Company with respect to all other Public Offerings (or for such
shorter period of time as is sufficient and appropriate, in the opinion of
the Managing Underwriter, (or, in the case of a non-underwritten Public
Offering, the Company) in order to complete the sale and distribution of the
securities included in such registration), except as part of such
registration statement, whether or not such Holder participates in such
registration.
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS. Unless the
Managing Underwriter otherwise agrees, the Company (i) shall not effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during
the fourteen (14) days prior to and the ninety (90) days after the effective
date of the registration statement filed in connection with an underwritten
offering made pursuant to a Demand Registration or a Piggyback Registration
(or for such shorter period of time as is sufficient and appropriate, in the
opinion of the Managing Underwriter, in order to complete the sale and
distribution of the securities included in such registration), except as part
of such underwritten registration and except pursuant to registrations on
Form S-4 or Form S-8 promulgated by the Commission or any successor or
similar forms thereto, and (ii) shall cause each holder of its equity
securities, or of any securities convertible into or exchangeable or
exercisable for such securities, in each case purchased from the Company at
any time after the date of this Agreement (other than in a Public Offering),
to agree not to effect any such public sale or distribution of such
securities (including a sale under Rule 144), during such period, except as
part of such underwritten registration.
Section 7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to
the full extent permitted by law, indemnify and hold harmless each seller of
Registrable Securities included in any registration statement filed in
connection with a Demand Registration or a Piggyback Registration, its
directors, officers, and partners, and each other Person, if any, who
controls any such seller within the meaning of the Securities Act, against
any losses, claims, damages, expenses or liabilities, joint or several
(together, "LOSSES"), to which such seller or any such director, officer,
partner or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened,
14
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case
of a prospectus, in the light of the circumstances under which they were
made) not misleading, and the Company will reimburse such seller and each
such director, officer, partner and controlling Person for legal and other
expenses reasonably incurred by them in connection with investigating or
defending any such Loss (or action or proceeding in respect thereof) in
accordance with paragraph (c) below; PROVIDED, that the Company shall not be
liable in any such case to the extent that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such seller
specifically stating that it is for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, partner or controlling Person, and shall survive the transfer of
such securities by such seller. The Company shall also indemnify each other
Person who participates (including as an underwriter) in the offering or sale
of Registrable Securities, their officers and directors, and partners, and
each other Person, if any, who controls any such participating Person within
the meaning of the Securities Act to the same extent as provided above with
respect to sellers of Registrable Securities.
(b) INDEMNIFICATION BY THE SELLERS. Each Holder whose
Registrable Securities are included or are to be included in any registration
statement filed in connection with a Demand Registration or a Piggyback
Registration, as a condition to including Registrable Securities in such
registration statement, shall, to the full extent permitted by law, indemnify
and hold harmless the Company, its directors and officers, and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, against any Losses to which the Company or any such director or officer
or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, if such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; PROVIDED, HOWEVER,
that the obligation to provide indemnification pursuant to this SECTION 7(b)
shall be several, and not joint and several, among such Indemnifying Parties
on the basis of the number of Registrable Securities of each such
Indemnifying Party included in such registration statement; PROVIDED FURTHER,
HOWEVER, that in no event shall any indemnity by a Holder under this SECTION
7(b) exceed the net proceeds from the offering received by such Holder. Such
indemnity
15
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling
Person and shall survive the transfer of such securities by such seller. Such
Holders shall also indemnify each other Person who participates (including as
an underwriter) in the offering or sale of Registrable Securities, their
officers and directors and each other Person, if any, who controls any such
participating Person within the meaning of the Securities Act to the same
extent as provided above with respect to the Company.
(c) NOTICES OF CLAIMS. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraph (a) or (b) of this
SECTION 7, such Indemnified Party shall, if a claim in respect thereof is to
be made against an Indemnifying Party pursuant to such paragraphs, give
written notice to the latter of the commencement of such action, PROVIDED
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under the
preceding paragraphs of this SECTION 7, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, the
Indemnifying Party shall be entitled to participate in and, unless, in the
reasonable judgment of any Indemnified Party, a conflict of interest between
such Indemnified Party and any Indemnifying Party exists with respect to such
claim, to assume the defense thereof, jointly with any other Indemnifying
Party similarly notified to the extent that it may wish, 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 the
defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation; PROVIDED that the Indemnified Party may participate in such
defense at the Indemnified Party's expense; and PROVIDED FURTHER that the
Indemnified Party or Indemnified Parties shall have the right to employ one
counsel to represent it or them if, in the reasonable judgment of the
Indemnified Party or Indemnified Parties, it is advisable for it or them to
be represented by separate counsel by reason of having legal defenses which
are different from or in addition to those available to the Indemnifying
Party, and in that event the reasonable fees and expenses of such one counsel
shall be paid by the Indemnifying Party. If the Indemnifying Party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
Indemnified Parties with respect to such claim, unless in the reasonable
judgment of any Indemnified Party a conflict of interest may exist between
such Indemnified Party and any other Indemnified Parties with respect to such
claim, in which event the Indemnifying Party shall be obligated to pay the
fees and expenses of up to one such additional counsel for the Indemnified
Parties. No Indemnifying Party shall consent to entry of any judgment or
enter into any settlement without the consent of the Indemnified Party which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. No Indemnifying Party shall be subject
to any liability for any settlement made without its consent, which consent
shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this SECTION 7 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses
(or actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified
16
Party as a result of such Losses (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations; PROVIDED,
HOWEVER, that in no event shall any contribution by a Holder under this
SECTION 7(d) exceed the net proceeds from the offering received by such
Holder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, then the Indemnifying Party shall contribute to
the amount paid or payable by the Indemnified Party as a result of such
Losses (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect not only the relative fault of, but also the
relative benefits received by, the Indemnifying Party on the one hand and the
Indemnified Party on the other hand in connection with statements or
omissions which resulted in such Losses, as well as any other relevant
equitable considerations. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph were to be determined by PRO RATA allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this paragraph. The
amount paid by an Indemnified Party as a result of the Losses referred to in
the first sentence of this paragraph shall be deemed to include any legal and
other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any Loss which is the subject of this
paragraph.
No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this SECTION 7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification
of securities under any federal or state law or regulation of any
governmental authority other than the Securities Act. The provisions of this
SECTION 7 shall be in addition to any other rights to indemnification or
contribution which an Indemnified Party may have pursuant to law, equity,
contract or otherwise.
(f) INDEMNIFICATION PAYMENTS. The indemnification required
by this SECTION 7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or Losses are incurred.
(g) UNDERWRITING AGREEMENT. Notwithstanding the foregoing,
to the extent that the provisions concerning indemnification and contribution
contained in the underwriting agreement entered into in connection with an
underwritten Public Offering are in conflict with the foregoing provisions,
the provisions in the underwriting agreement shall control.
17
Section 8. COVENANTS RELATING TO RULE 144. If at any time the
Company is required to file reports in compliance with either Section 13 or
Section 15(d) of the Exchange Act, the Company will (a) file reports in
compliance with the Exchange Act, (b) comply with all rules and regulations
of the Commission applicable in connection with the use of Rule 144 and take
such other actions and furnish each Holder with such other information as
such Holder may request in order to avail itself of such rule or any other
rule or regulation of the Commission allowing such Holder to sell any
Registrable Securities without registration, and (c) at its expense,
forthwith upon the reasonable request of any Holder, deliver to such Holder a
certificate, signed by the Company's principal financial officer, stating (i)
the Company's name, address and telephone number (including area code), (ii)
the Company's Internal Revenue Service identification number, (iii) the
Company's Commission file number, (iv) the number of shares of each class of
stock outstanding as shown by the most recent report or statement published
by the Company, and (v) whether the Company has filed the reports required to
be filed under the Exchange Act for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any time the
Company is not required to file reports in compliance with either Section 13
or Section 15(d) of the Exchange Act, the Company at its expense will,
forthwith upon the written request of the Holder of any Registrable
Securities, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144.
Section 9. OTHER RIGHTS.
(a) NO EXISTING AGREEMENTS. The Company represents and
warrants to each other party hereto that immediately after the effectiveness
of this Agreement, there will not be in effect any agreement by the Company
(other than this Agreement) pursuant to which any holders of securities of
the Company have a right to cause the Company to register or qualify such
securities under the Securities Act or any securities or blue sky laws of any
jurisdiction.
(b) FUTURE AGREEMENTS. The Company shall not hereafter
agree with the holders of any securities issued or to be issued by the
Company to register or qualify such securities under the Securities Act or
any securities or blue sky laws of any jurisdiction unless such agreement
specifically provides that (i) such holder of such securities may not
participate in any Demand Registration except as provided in SECTION 2; and
(ii) the holder of such securities may not participate in any Piggyback
Registration except as provided in SECTION 3.
Section 10. SELECTION OF UNDERWRITERS. It is acknowledged and
agreed by the Company and the other parties hereto that the Managing
Underwriter for any registration of Registrable Securities effected pursuant
to this Agreement shall be selected, in the case of a Piggyback Registration,
by the Board, and, in the case of a Demand Registration, by the Holders of a
majority of the Registrable Securities to be sold in such offering after
consultation with, and with the consent of, the Company, which consent shall
not be unreasonably withheld. If a Qualified Independent Underwriter is
required for any registration of Registrable Securities effected pursuant to
this Agreement, such Qualified Independent Underwriter shall be an investment
banking firm, selected by the Managing Underwriter and reasonably
satisfactory to the Company which (i) meets the criteria for a "qualified
independent underwriter" set forth in Section 2(1) of Schedule E to the NASD
By-Laws as the same may be amended from time to time and any other
18
applicable rule or regulation of the NASD or otherwise, and (ii) agrees to
act in such capacity for compensation and upon other terms and conditions
substantially consistent with the compensation and other terms and conditions
that could reasonably be expected to be required by similar investment
banking firms acting in such capacity in similar transactions.
Section 11. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only
if delivered personally, by courier or by facsimile transmission or mailed
(first class postage prepaid) to the parties at the addresses or facsimile
numbers set forth below.
(i) If to the Company, to:
Xxxxx.xxx Inc.
000 Xxxxx XxXxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(ii) if to an Investor, to such Investor at its address set
forth in the stock ledger of the Company, with copies to:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ms. Kaca Xxxxxxx
Facsimile: (000) 000-0000
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
19
Facsimile: (000) 000-0000
netWorth Partners I, LLC
One Buckhead Plaza
Suite 780
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
Facsimile: (000) 000-0000
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: B. Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile: (210)
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Mount
Facsimile: (000) 000-0000
All such notices, requests and other communications will
(x) if delivered personally or by courier to the address provided in this
SECTION 11(a), be deemed given upon delivery, (y) if delivered by facsimile
transmission to the facsimile number provided in this SECTION 11(a), be
deemed given when receipt of transmission has been electronically confirmed
by the sending party if given prior to 5:00 p.m., local time of the
recipient, otherwise on the next Business Day, and (z) if delivered by first
class or registered mail in the manner described above to the address as
provided in this SECTION 11(a), be deemed given three (3) Business Days after
deposit in the United States Mail (in each case regardless of whether such
notice, request or other communication is received by any other Person to
whom a copy of such notice is to be delivered pursuant to this Section). Any
party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
20
(b) ENTIRE AGREEMENT. This Agreement amends and restates
the First Amended and Restated Registration Rights Agreement in its entirety
and supersedes all prior discussions and agreements between the parties with
respect to the subject matter hereof and of the First Amended and Restated
Registration Rights Agreement, and contains the sole and entire agreement
between the parties hereto with respect to the subject matter hereof and of
the First Amended and Restated Registration Rights Agreement.
(c) AMENDMENT. This Agreement may be amended, supplemented
or modified only by a written instrument (which may be executed in any number
of counterparts) duly executed by or on behalf of each of the Company and the
Holders of two-thirds (2/3) or more of the Registrable Securities then
outstanding or subject to issuance.
(d) WAIVER. Subject to paragraph (e) of this SECTION 11,
any term or condition of this Agreement may be waived at any time by the
party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall
be deemed to be or construed as a waiver of the same term or condition of
this Agreement on any future occasion.
(e) CONSENTS AND WAIVERS BY HOLDERS. Any consent of Holders
pursuant to this Agreement, and any waiver by Holders of any provision of
this Agreement, shall be in writing (which may be executed in any number of
counterparts) and may be given or taken by the Holders of two-thirds (2/3) or
more of the Registrable Securities then outstanding or subject to issuance,
and any such consent or waiver so given or taken will be binding on all the
Holders.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention
of the parties to confer third-party beneficiary rights upon any other Person
other than any Person entitled to indemnification under SECTION 7.
(g) SUCCESSORS OR ASSIGNS. The registration rights
contained in this Agreement shall be transferable by any Holder to any Person
that acquires Registrable Securities from such Holder (excluding any Person
that acquires such Registrable Securities in a transaction pursuant to which
such securities cease to be Registrable Securities).
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(i) INVALID PROVISIONS. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future
law, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom and
21
(iv) in lieu of such illegal, invalid or unenforceable provision, there will
be added automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
(j) REMEDIES. Except as otherwise expressly provided for
herein, no remedy conferred by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter if, existing at law or in equity or by
statute or otherwise. The election of any one or more remedies by any party
hereto shall not constitute a waiver by any such party of the right to pursue
any other available remedies.
Damages in the event of breach of this Agreement by any
party hereto or any of their respective successors or permitted assigns would
be difficult, if not impossible, to ascertain, and it is therefore agreed
that each such Person, in addition to and without limiting any other remedy
or right it may have, will have the right to an injunction or other equitable
relief in any court of competent jurisdiction, enjoining any such breach, and
enforcing specifically the terms and provisions hereof and each party hereto,
on its own behalf and on the behalf of its respective successors and
permitted assigns, hereby waives any and all defenses it may have on the
ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief. The existence of this right will not
preclude any such Person from pursuing any other rights and remedies at law
or in equity which such Person may have.
(k) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois applicable to
a contract executed and performed therein, without giving effect to the
conflicts of laws principles thereof.
(l) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(m) TERMINATION OF REGISTRATION RIGHTS. All registration
rights granted under Sections 2 and 3 of this Agreement shall terminate and
be of no further force and effect twenty-five (25) years after the date of
the Company's initial Public Offering.
(n) LEGENDS. Each certificate representing Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) bear the following legends:
The securities represented by this certificate were issued in
a transaction exempt from registration under the Securities
Act of 1933 (as then in effect), and in reliance upon the
holder's representation that such securities were being
acquired for investment and not for resale. No transfer of
such securities may be made on the books of the Company unless
accompanied by an opinion of counsel, satisfactory to the
Company, that such transfer may be effected without
registration under the Securities Act of 1933 (as amended) or
that such securities have been so registered under a
registration statement which is in effect at the date of such
transfer.
22
The sale, assignment, pledge, encumbrance or other transfer of
the securities represented by this certificate is subject to
the provisions of an Amended and Restated Registration Rights
Agreement, dated as of May 4, 1999, among the Company and the
Investors named therein, a copy of which is on file at the
principal executive office of the Company.
(o) EFFECTIVE DATE. This Second Amended and Restated
Registration Rights Agreement shall be effective upon the closing of an
initial Public Offering of the Common Stock pursuant to a registration
statement on Form S-1; provided, however, that if such closing does not occur
on or before August 20, 1999, this Second Amended and Restated Registration
Rights Agreement shall be null and void and without any further effect.
SIGNATURES ON FOLLOWING PAGES
23
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Registration Rights Agreement as of the day and year first above
written.
THE COMPANY:
XXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: CEO
---------------------------------------
INVESTORS:
NETWORTH PARTNERS I, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Title: Authorized Person
--------------------------------------
GS CAPITAL PARTNERS II, L.P., a Delaware
limited partnership
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general
partner
By: /s/ GS Advisors, Inc.
----------------------------------
Its:
---------------------------------
GS CAPITAL PARTNERS II OFFSHORE, L.P.,
a limited partnership organized under
the laws of the Cayman Islands
By: GS Advisors II (Cayman), L.P., its
general partner
By: GS Advisors II, Inc., its general
partner
By: /s/ GS Advisors II, Inc.
----------------------------------
Its:
---------------------------------
S-1
[SIGNATURE PAGE TO AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
XXXXXXX XXXXX & CO. VERWALTUNGS GMBH,
a company organized under the laws of
Germany
By: /s/ Xxxxxxx Sachs & Co. Verwaltungs GmBH
Its:
-----------------------------------------
By:
------------------------------------------
Its:
-----------------------------------------
STONE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., General
Partner
By: /s/ Stone Street Asset Corp.
----------------------------------
Its:
---------------------------------
BRIDGE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., Managing
General Partner
By: /s/ Stone Street Asset Corp.
----------------------------------
Its:
---------------------------------
S-2
Schedule 1
to
Second Amended and Restated Registration Rights Agreement
Dated as of August 9, 1999
INVESTORS, AS OF JUNE 2, 1997, UNDER THE ORIGINAL REGISTRATION RIGHTS AGREEMENT:
GS Capital Partners II, L.P.
GS Capital Partners II Offshore, X.X.
Xxxxxxx Xxxxx & Co., Verwaltungs GmbH
Stone Street Fund 0000, X.X.
Xxxxxx Xxxxxx Fund 1997, X.X.
Xxxxx X. Xxxxxxxx
D. Xxxxx Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx-Internet, L.P.
Xxxxx X. Xxxxx XX
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Golan Productions, Inc.
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxxxxxxx
Xxxxx Xxxxx Revocable Trust
Xxxxx X. Xxxxxxx
Schedule 1
(Page 1 of 1)
Schedule 2
to
Second Amended and Restated Registration Rights Agreement
Dated as of August 9, 1999
INVESTORS, SUBSEQUENT TO JUNE 2, 1997, UNDER THE ORIGINAL REGISTRATION RIGHTS
AGREEMENT:
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx Trust dated 9/14/90
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
The Xxxxxxxxx X. Xxxx Trust dated November 25, 1991
Xxxx X. Xxxx, XXX R/O
Xxxxxxx X. Xxxx
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
FDP Music, L.L.C.
Xxxxxxx X. Xxxx
Heartland Internet Music, L.L.C.
Xxxxx X. Xxxxxx
JAMtv Venture Partners, L.L.C.
K. A. Steel Chemicals Inc.
Xxxx X. Xxxx
Xxxx Xxxx
Xxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxxx X. Xxxxx
Xxxxxx X. XxXxxxxx
Music Convergence, L.L.C.
Music Funding L.L.C.
Music Infusion, L.L.C.
Xxxxx X. Xxxx
Renrel V Investments Limited Partnership
Resolute Partners, L.P.
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxxx, XXX R/O
Xxxxxx X. Xxxxxx
Schedule 2
(Page 1 of 2)
SCHEDULE 2 (CONT.):
Xxxxxx X. Xxxxxxxx
WNC Corporation
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
An "Investor" under and as defined in this Agreement shall include,
without limitation, each of the following Holders of Series E Convertible
Preferred Stock of the Company and any of the other Holders of Series E
Convertible Preferred Stock of the Company; provided that such Holder has agreed
to be bound by the terms and conditions of this Agreement (by executing an
additional counterpart signature page to the First Amended and Restated
Registration Rights Agreement, a joinder, or such other document evidencing such
Person's agreement to be bound hereby):
netWorth Partners I, LLC
FDP Music II, L.L.C.
Music Infusion II, L.L.C.
Xxxxx X. Xxxx
Xxxxx Xxxxx
Xxxxxxxx X. Xxxxxxxxxx
Xxxx X. Bank
The Xxxxxxx Living Trust
Music Funding II, L.L.C.
An "Investor" under and as defined in this Agreement shall include
Clear Channel Communications, Inc. and xxxxxxxxxx.xxx, Inc.
Schedule 2
(Page 2 of 2)
