Exhibit 4.3
XXXXXX WORLDWIDE, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
SEPTEMBER 30, 2005
TABLE OF CONTENTS
Page
----
1. Registration Rights................................................... 1
1.1 Definitions...................................................... 1
1.2 Request for Registration......................................... 2
1.3 Company Registration............................................. 4
1.4 Form S-3 Registration............................................ 5
1.5 Obligations of the Company....................................... 7
1.6 Information from Holder.......................................... 8
1.7 Expenses of Registration......................................... 8
1.8 Delay of Registration............................................ 9
1.9 Indemnification.................................................. 9
1.10 Reports Under the 1934 Act....................................... 11
1.11 Assignment of Registration Rights................................ 12
1.12 Limitations on Subsequent Registration Rights.................... 12
1.13 "Market Stand-Off" Agreemen...................................... 12
1.14 Termination of Registration Rights............................... 13
2. Covenants of the Company.............................................. 14
2.1 Delivery of Financial Statements................................. 14
2.2 Inspection....................................................... 14
2.3 Termination of Information and Inspection Covenants.............. 14
2.4 Right of First Offer............................................. 15
2.5 Confidential Information, Invention, Assignment and
Arbitration Agreement............................................ 17
2.6 Market Stand Off Agreements...................................... 17
2.7 Director and Officer Liability Insurance......................... 17
2.8 Compensation Committee........................................... 17
2.9 1934 Act Covenants............................................... 17
2.10 NASD Rule 2790................................................... 18
2.11 Negative Covenants............................................... 18
2.12 Termination of Certain Covenants................................. 21
3. Investor Redemptive Put Right......................................... 21
4. Miscellaneous......................................................... 24
4.1 Successors and Assigns........................................... 24
4.2 Governing Law.................................................... 24
4.3 Counterparts..................................................... 24
4.4 Titles and Subtitles............................................. 24
4.5 Notices.......................................................... 24
4.6 Expenses......................................................... 25
4.7 Entire Agreement; Amendments and Waivers......................... 25
4.8 Severability..................................................... 25
4.9 Specific Performance............................................. 25
4.10 Aggregation of Stock............................................. 25
i
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is made as of September 30, 2005, by and among Xxxxxx Worldwide,
Inc., a Delaware corporation (the "Company"), the holders of Series A Preferred
Stock or Series B Preferred Stock of the Company listed on Schedule A hereto,
each of which is herein referred to individually as an "Investor" and
collectively as the "Investors," and, for purposes of Section 2.11(b) and
Section 4 hereof, Xxxxxx Financial Services, Inc., a North Carolina corporation
("Xxxxxx Services"), Xxxxxx Financial Services Canada, Inc., a Canadian
corporation ("Xxxxxx Canada"), Xxxxxx Financial Services, Ltd., a private
limited company incorporated under the laws of England and Wales ("Xxxxxx UK"),
SAI Holdings, Inc., a Texas corporation ("SAI"), and Xxxxxx Holdings, Inc., a
Delaware corporation ("Xxxxxx Holdings," and together with Xxxxxx Services,
Xxxxxx Canada, Xxxxxx UK and SAI, the "Subsidiaries").
RECITALS
WHEREAS, the Company, the Subsidiaries and the Investors are parties
to the Series B Preferred Stock Purchase Agreement of even date herewith (the
"Purchase Agreement");
WHEREAS, the Investors have previously purchased shares of the
Company's Series A Preferred Stock (the "Series A Preferred Stock");
WHEREAS, the Company, the Subsidiaries and the Investors have
previously entered into that certain Investors' Rights Agreement dated as of
June 9, 2004 (the "Prior Agreement");
WHEREAS, in order to induce the Investors to purchase Series B
Preferred Stock (the "Series B Preferred Stock") pursuant to the Purchase
Agreement and invest funds in the Company pursuant to the Purchase Agreement,
the Investors, the Subsidiaries and the Company hereby agree that this Agreement
shall amend and restate the Prior Agreement and shall govern the rights of the
Investors to cause the Company to register shares of Common Stock issued or
issuable to them and certain other matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE TO AMEND AND RESTATE THE
PRIOR AGREEMENT IN ITS ENTIRETY AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC
that permits inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
(c) The term "Holder" means any Investor or any assignee
thereof in accordance with Section 1.11 hereof for so long as such person or
entity holds outstanding Registrable Securities.
(d) The term "Initial Offering" means the Company's first
firm commitment underwritten public offering of its Common Stock under the Act.
(e) The term "1934 Act" means the Securities Exchange Act of
1934, as amended.
(f) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(g) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Series A Preferred Stock or
Series B Preferred Stock, and (ii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for, or in replacement of, the shares referenced in (i) above,
excluding in all cases, however, any Registrable Securities sold by a person in
a transaction in which his rights under this Section 1 are not assigned.
(h) The number of shares of "Registrable Securities"
outstanding shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities.
(i) The term "Rule 144" shall mean Rule 144 under the Act.
(j) The term "Rule 144(k)" shall mean subsection (k) of Rule
144 under the Act.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 Request for Registration.
(a) Subject to the conditions of this Section 1.2, if the
Company shall receive at any time after six (6) months after the effective date
of the Initial Offering, a written request from the Holders of at least a
majority of the Registrable Securities then outstanding (for purposes of this
Section 1.2, the "Initiating Holders") that the Company file a registration
statement under the Act covering the registration of Registrable Securities with
an anticipated aggregate offering price (net of underwriting discounts and
commissions) of at least $10,000,000, then the Company shall, within twenty (20)
days of the receipt thereof, give written
2
notice of such request to all Holders, and subject to the limitations of this
Section 1.2, use its reasonable best efforts to effect, as soon as practicable,
the registration under the Act of all Registrable Securities that the Holders
request to be registered in a written request received by the Company within
twenty (20) days of the mailing of the Company's notice pursuant to this Section
1.2(a).
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 1.2 and the Company shall include such information in the written
notice referred to in Section 1.2(a). In such event the right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 1.2, if the underwriter
advises the Company that marketing factors require a limitation on the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated to the Holders of such Registrable
Securities pro rata based on the number of Registrable Securities held by all
such Holders (including the Initiating Holders). In no event shall any
Registrable Securities be excluded from such underwriting unless all other
securities are first excluded. Any Registrable Securities excluded or withdrawn
from such underwriting shall be withdrawn from the registration.
(c) Notwithstanding the foregoing, the Company shall not be
required to effect a registration pursuant to this Section 1.2:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and except as may be required under the Act; or
(ii) after the Company has effected two (2)
registrations pursuant to this Section 1.2, and such registrations have been
declared or ordered effective; or
(iii) during the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of the filing
of and ending on a date ninety (90) days following the effective date of a
Company-initiated registration subject to Section 1.3 below, provided that the
Company is actively employing in good faith all commercially reasonable efforts
to cause such registration statement to become effective; or
(iv) if the Initiating Holders propose to dispose of
Registrable Securities that may be registered on Form S-3 pursuant to Section
1.4 hereof; or
3
(v) if the Company shall furnish to Holders requesting
a registration statement pursuant to this Section 1.2 a certificate signed by
the Company's Chief Executive Officer or Chairman of the Board stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be effected at such time, in which event the Company shall have the
right to defer such filing for a period of not more than ninety (90) days after
receipt of the request of the Initiating Holders, provided that such right shall
be exercised by the Company not more than once in any twelve (12)-month period
and provided further that the Company shall not register any securities for the
account of itself or any other stockholder during such ninety (90) day period
(other than a registration relating solely to the sale of securities of
participants in a Company stock plan, a registration relating to a corporate
reorganization or transaction under Rule 145 of the Act, a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities, or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered).
1.3 Company Registration.
(a) If (but without any obligation to do so), the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Act in connection with the public offering of such
securities (other than (i) a registration relating to a demand made pursuant to
Section 1.2 or (ii) a registration relating solely to the sale of securities of
participants in a Company stock plan, a registration relating to a corporate
reorganization or transaction under Rule 145 of the Act, a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities, or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.5, the Company shall, subject to the provisions of
Section 1.3(c), use all commercially reasonable efforts to cause to be
registered under the Act all of the Registrable Securities that each such Holder
requests to be registered.
(b) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 1.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 1.7 hereof.
(c) Underwriting Requirements. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under this Section 1.3 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
the Company (or by other persons entitled to select
4
the underwriters) and enter into an underwriting agreement in customary form
with such underwriters, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities sold other than by the Company that
the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities,
that the underwriters determine in their sole discretion will not jeopardize the
success of the offering. The Company will include in such registration (i)
first, the securities the Company proposes to sell, and (ii) second, the
Registrable Securities proposed to be included in such registration. In no event
shall any Registrable Securities be excluded from such offering unless all other
stockholders' securities have been first excluded. In the event that the
underwriters determine that less than all of the Registrable Securities
requested to be registered can be included in such offering, then the
Registrable Securities that are included in such offering shall be apportioned
pro rata among the selling Holders based on the number of Registrable Securities
held by all selling Holders or in such other proportions as shall mutually be
agreed to by all such selling Holders. Notwithstanding the foregoing, in no
event shall the amount of securities of the selling Holders included in the
offering be reduced below twenty percent (20%) of the total amount of securities
included in such offering, unless such offering is the initial public offering
of the Company's securities, in which case the selling Holders may be excluded
if the underwriters make the determination described above and no other
stockholder's securities are included in such offering. For purposes of the
preceding sentence concerning apportionment, for any selling stockholder that is
a Holder of Registrable Securities and that is a venture capital fund,
partnership or corporation, the entities under common investment management with
and the partners, retired partners and stockholders of such Holder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of Registrable
Securities owned by all such related entities and individuals.
1.4 Form S-3 Registration. In case the Company shall receive from
the Holders of at least twenty five percent (25%) of the Registrable Securities
(for purposes of this Section 1.4, the "Initiating Holders") a written request
or requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) use all commercially reasonable efforts to effect, as
soon as practicable, such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holders' Registrable Securities
as are specified in such request, together with all or such portion of the
Registrable Securities of any other Holders joining in such request as are
specified in a written request given within fifteen (15) days after receipt of
such written notice from the Company, provided, however, that the Company shall
not be obligated to effect any such registration, qualification or compliance,
pursuant to this section 1.4:
5
(i) if Form S-3 is not available for such offering by
the Holders;
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public (net of any underwriters' discounts or
commissions) of less than $5,000,000;
(iii) if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 1.4 a certificate
signed by the Company's Chief Executive Officer or Chairman of the Board stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its stockholders for such
registration statement to be effected at such time, in which event the Company
shall have the right to defer such filing for a period of not more than ninety
(90) days after receipt of the request of the Initiating Holders, provided that
such right shall be exercised by the Company not more than once in any twelve
(12)-month period and provided further that the Company shall not register any
securities for the account of itself or any other stockholder during such ninety
(90) day period (other than a registration relating solely to the sale of
securities of participants in a Company stock plan, a registration relating to a
corporate reorganization or transaction under Rule 145 of the Act, a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered);
(iv) if the Company has, within the twelve (12) month
period preceding the date of such request, already effected one registration on
Form S-3 for the Holders pursuant to this Section 1.4;
(v) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance;
(vi) if the Company, within thirty (30) days of receipt
of the request of such Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request (other than a registration
effected solely to qualify an employee benefit plan or to effect a business
combination pursuant to Rule 145), provided that the Company is actively
employing in good faith all commercially reasonable efforts to cause such
registration statement to become effective; or
(vii) during the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of the filing
of and ending on a date ninety (90) days following the effective date of a
Company-initiated registration subject to Section 1.3 above, provided that the
Company is actively employing in good faith all commercially reasonable efforts
to cause such registration statement to become effective.
6
(c) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 1.4 and the Company shall include such information in the written
notice referred to in Section 1.4(a). The provisions of Section 1.2(b) shall be
applicable to such request (with the substitution of Section 1.4 for references
to Section 1.2).
(d) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Initiating Holders. Registrations effected pursuant
to this Section 1.4 shall not be counted as requests for registration effected
pursuant to Sections 1.2.
1.5 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to one
hundred twenty (120) days or, if earlier, until the distribution contemplated in
the Registration Statement has been completed;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement;
(c) furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them;
(d) use all commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions;
(e) in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a
7
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(g) cause all such Registrable Securities registered
pursuant to this Section 1 to be listed on a national exchange or trading system
and on each securities exchange and trading system on which similar securities
issued by the Company are then listed; and
(h) provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
Notwithstanding the provisions of this Section 1, the Company shall be
entitled to suspend, for a reasonable period of time, the filing, effectiveness
or use of, or trading under, any registration statement if the Company shall
determine that any such sale of any securities pursuant to such registration
statement would in the good faith judgment of the Board of Directors of the
Company:
(i) materially impede, delay or interfere with any
material pending or proposed financing, acquisition, corporate reorganization or
other similar transaction involving the Company for which the Board of Directors
of the Company has authorized negotiations;
(ii) materially adversely impair the consummation of
any pending or proposed material offering or sale of any class of securities by
the Company; or
(iii) require disclosure of material nonpublic
information that, if disclosed at such time, would be materially harmful to the
interests of the Company and its stockholders; provided, however, that during
any such period all executive officers and directors of the Company are also
prohibited from selling securities of the Company (or any security of any of the
Company's subsidiaries or affiliates).
In the event of the suspension of effectiveness of any registration
statement pursuant to this Section 1.5, the applicable time period during which
such registration statement is to remain effective shall be extended by that
number of days equal to the number of days the effectiveness of such
registration statement was suspended.
1.6 Information from Holder. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
such Holder's Registrable Securities.
1.7 Expenses of Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Sections 1.2, 1.3 and 1.4,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
8
Company and the reasonable fees and disbursements of one counsel for the selling
Holders (not to exceed $25,000) shall be borne by the Company. Notwithstanding
the foregoing, the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 1.2 or Section 1.4 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be included in the withdrawn registration),
unless, in the case of a registration requested under Section 1.2, the Holders
of a majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2 and provided, however, that if at
the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business or prospects of the Company from that known to
the Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.2 and 1.4.
1.8 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers, directors and
stockholders of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the 1934
Act, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Act, the 1934 Act, any state securities
laws or any rule or regulation promulgated under the Act, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state in such registration statement a material fact required to be stated
therein, or necessary to make the statements therein not misleading or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities laws or any rule or regulation promulgated under the Act, the
1934 Act or any state securities laws, and the Company will reimburse each such
Holder, underwriter, controlling person or other aforementioned person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the indemnity agreement
contained in this subsection l.9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information
9
furnished expressly for use in connection with such registration by any such
Holder, underwriter, controlling person or other aforementioned person; provided
further, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Holder or
underwriter or other aforementioned person, or any person controlling such
Holder or underwriter, from whom the person asserting any such losses, claims,
damages or liabilities purchased shares in the offering, if a copy of the most
current prospectus was not sent or given by or on behalf of such Holder or
underwriter or other aforementioned person to such person, if required by law to
have been so delivered, at or prior to the written confirmation of the sale of
the shares to such person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, legal counsel and
accountants for the Company, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act, any state securities laws or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities laws, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
person intended to be indemnified pursuant to this subsection l.9(b) for any
legal or other expenses reasonably incurred by such person in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the indemnity agreement
contained in this subsection l.9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld), and provided that in no event shall any indemnity
under this subsection l.9(b) exceed the net proceeds from the offering received
by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of liability to
10
the indemnified party under this Section 1.9 to the extent of such prejudice,
but the omission to so deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 1.9.
(d) If the indemnification provided for in this Section 1.9
is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other hand
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations; provided, however, that no contribution by any Holder, when
combined with any amounts paid by such Holder pursuant to Section 1.9(b), shall
exceed the net proceeds from the offering received by such Holder. The relative
fault of the indemnifying party and the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1 and otherwise.
1.10 Reports Under the 1934 Act . With a view to making available
to the Holders the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit a Holder to sell securities of the Company to
the public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times after the effective
date of the Initial Offering;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
11
registrant whose securities may be resold pursuant to Form S-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to
avail any Holder of any rule or regulation of the SEC that permits the selling
of any such securities without registration or pursuant to such form.
1.11 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities that (i) is a subsidiary, parent, partner, member,
limited partner, retired partner, retired member, affiliate or stockholder of,
or venture capital fund under common investment management with, a Holder, (ii)
is a Holder's family member or trust for the benefit of an individual Holder, or
(iii) after such assignment or transfer, holds at least ten percent (10%) of the
shares of Registrable Securities (subject to appropriate adjustment for stock
splits, stock dividends, combinations or the like) held by such Holder on the
date hereof (as adjusted for any stock splits, stock dividends, combinations,
subdivisions, recapitalizations or the like), provided: (a) the Company is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including, without limitation, the provisions
of Section 1.13 below; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.
1.12 Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would allow such holder or prospective holder (a) to include
any of such securities in any registration filed under Section 1.2, Section 1.3
or Section 1.4 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of such securities will not reduce the amount of
the Registrable Securities of the Holders that are included or (b) to demand
registration of their securities; provided, however, that the limitations on
subsequent registration rights shall not be applicable to registration rights
granted to holders of "Basket Securities" or "Post Offer Securities" (as those
terms are defined in Section 2.11 hereof).
1.13 "Market Stand-Off" Agreement.
(a) Each Holder hereby agrees that it will not, without the
prior written consent of the managing underwriter, during the period commencing
on the date of the final prospectus relating to the Company's Initial Offering
and ending on the date specified by the Company and the managing underwriter
(such period not to exceed one hundred eighty (l80) days) (i) lend, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock held immediately
12
prior to the effectiveness of the Registration Statement for such offering, or
(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise. The foregoing provisions of this Section 1.13 shall apply only to the
Company's initial offering of equity securities, shall not apply to the sale of
any shares to an underwriter pursuant to an underwriting agreement, and shall
only be applicable to the Holders if all officers, directors and greater than
one percent (1%) stockholders of the Company enter into similar agreements. The
underwriters in connection with the Company's Initial Offering are intended
third-party beneficiaries of this Section 1.13 and shall have the right, power
and authority to enforce the provisions hereof as though they were a party
hereto. Each Holder further agrees to execute such agreements as may be
reasonably requested by the underwriters in the Company's Initial Offering that
are consistent with this Section 1.13 or that are necessary to give further
effect thereto. Any discretionary waiver or termination of the restrictions of
any or all of such agreements by the Company or the underwriters shall apply to
all Holders subject to such agreements pro rata based on the number of shares
subject to such agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
(b) Each Holder agrees that a legend reading substantially
as follows shall be placed on all certificates representing all Registrable
Securities of each Holder (and the shares or securities of every other person
subject to the restriction contained in this Section 1.13):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP
PERIOD OF UP TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER'S
REGISTRATION STATEMENT FILED UNDER THE ACT, AS AMENDED, AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES,
A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER'S PRINCIPAL OFFICE. SUCH
LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.
1.14 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Section 1 (i) after six (6)
years following the consummation of the Initial Offering, (ii) as to any Holder,
such earlier time after the Initial Offering at which such Holder (A) can sell
all shares held by it in compliance with Rule 144(k) or (B) holds one percent
(1%) or less of the Company's outstanding Common Stock and all Registrable
Securities held by such Holder (together with any affiliate of the Holder with
whom such Holder must aggregate its sales under Rule 144) can be sold in any
three (3)-month period without registration in compliance with Rule 144 or (iii)
after the consummation of a Liquidation Event, as that term is defined in the
Company's Restated Certificate of Incorporation (as amended from time to time)
(the "Restated Certificate").
13
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall, upon
request, deliver to each Investor (or transferee of an Investor):
(a) as soon as practicable, but in any event within one
hundred twenty (120) days after the end of each fiscal year of the Company, an
income statement for such fiscal year, a balance sheet of the Company and
statement of stockholders' equity as of the end of such year, and a statement of
cash flows for such year, such year-end financial reports to be in reasonable
detail, prepared in accordance with generally accepted accounting principles
("GAAP"), and audited and certified by independent public accountants of
nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within
forty-five (45) days after the end of each of the first three (3) quarters of
each fiscal year of the Company, an unaudited statement of cash flows for such
fiscal quarter.
(c) within thirty (30) days of the end of each month, an
unaudited income statement and balance sheet for and as of the end of such
month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty
(30) days prior to the end of each fiscal year, a budget and business plan for
the next fiscal year, prepared on a monthly basis, including balance sheets,
income statements and statements of cash flows for such months and, as soon as
prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial
condition, business or corporate affairs of the Company as the Investor may from
time to time request, provided, however, that the Company shall not be obligated
under this subsection (f) or any other subsection of Section 2.1 to provide
information that it deems in good faith to be a trade secret or similar
confidential information.
2.2 Inspection. The Company shall permit each Investor, at such
Investor's expense, to visit and inspect the Company's properties, to examine
its books of account and records and to discuss the Company's affairs, finances
and accounts with its officers, all at such reasonable times as may be requested
by the Investor; provided, however, that the Company shall not be obligated
pursuant to this Section 2.2 to provide access to any information that it
reasonably considers to be a trade secret or similar confidential information.
2.3 Termination of Information and Inspection Covenants. The
covenants set forth in Sections 2.1 and 2.2 shall terminate and be of no further
force or effect upon the earlier to occur of (i) the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the firm commitment underwritten offering of its
securities to the general public, (ii) when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
and (iii) the consummation of a Liquidation Event, as that term is defined in
the Company's Restated Certificate of Incorporation (as amended from time to
time).
14
2.4 Right of First Offer. Subject to the terms and conditions
specified in this Section 2.4, the Company hereby grants to each Investor, for
so long as it holds Registrable Securities, a right of first offer with respect
to future sales by the Company of its Shares (as hereinafter defined). For
purposes of this Section 2.4, the term "Investor" includes any general partners,
members, retired partners, retired members and affiliates of, and venture
capital funds under common investment management with, an Investor. An Investor
shall be entitled to apportion the right of first offer hereby granted it among
itself and its partners, members and entities under common investment management
in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exchangeable or exercisable for any shares of, its capital
stock ("Shares"), the Company shall first make an offering of such Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with
Section 4.5 ("Notice") to the Investors stating (i) its bona fide intention to
offer such Shares, (ii) the number of such Shares to be offered and (iii) the
price and terms upon which it proposes to offer such Shares.
(b) By written notification received by the Company within
twenty (20) calendar days after the giving of Notice, each Investor may elect to
purchase, at the price and on the terms specified in the Notice, up to that
portion of such Shares that equals the proportion that the number of shares of
Common Stock that are Registrable Securities issued and held by such Investor
(assuming full conversion and exercise of all convertible and exercisable
securities then outstanding) bears to the total number of shares of Common Stock
of the Company then outstanding (assuming full conversion and exercise of all
convertible and exercisable securities then outstanding). The Company shall
promptly, in writing, inform each Investor that elects to purchase all the
shares available to it (a "Fully-Exercising Investor") of any other Investor's
failure to do likewise. During the ten (10) day period commencing after such
information is given, each Fully-Exercising Investor may elect to purchase that
portion of the Shares for which Investors were entitled to subscribe, but which
were not subscribed for by the Investors, that is equal to the proportion that
the number of shares of Registrable Securities issued and held by such
Fully-Exercising Investor bears to the total number of shares of Common Stock of
the Company then outstanding (assuming full conversion and exercise of all
convertible and exercisable securities then outstanding).
(c) If all Shares that Investors are entitled to obtain
pursuant to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the ninety (90) day period
following the expiration of the period provided in subsection 2.4(b) hereof,
offer the remaining unsubscribed portion of such Shares to any person or persons
at a price not less than that, and upon terms no more favorable to the offeree
than those, specified in the Notice. If the Company does not enter into an
agreement for the sale of the Shares within such period, or if such agreement is
not consummated within sixty (60) days of the execution thereof, the right
provided hereunder shall be deemed to be revived and such Shares shall not be
offered unless first reoffered to the Investors in accordance herewith.
15
(d) The right of first offer in this Section 2.4 shall not
be applicable to (i) the issuance or sale of shares of Common Stock (or options
therefor) to employees, directors, consultants and other service providers for
the primary purpose of soliciting or retaining their services pursuant to plans
or agreements approved by the Company's Board of Directors; (ii) the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities, (iii) the issuance and sale of Series B Preferred Stock pursuant to
the Purchase Agreement, (iv) the issuance of stock, warrants or other securities
or rights in connection with bank or other institutional debt financing, (v) the
issuance of the Basket Securities (as defined herein), (vi) the issuance of
securities in connection with any stock split, stock dividend or similar event
by the Company or as a dividend or distribution on capital stock of the Company,
(vii) the issuance of securities in consideration of the acquisition of a bona
fide commercial operating entity or all or substantially all of the assets of
any such entity, (viii) issuances to an individual or entity which, in
connection with such issuance, enters into a strategic business transaction with
the Company or any affiliate of the Company which is directly related to the
Company's business, which transaction is (1) approved by the Board and (2) other
than primarily for equity financing purposes, or (ix) issuances of Post Offer
Securities (as defined below) that were offered in compliance with Section
2.4(a) and Section 2.11(a)(iv). In addition to the foregoing, the right of first
offer in this Section 2.4 shall not be applicable with respect to any Investor
in any subsequent offering of Shares if (i) at the time of such offering, the
Investor is not an "accredited investor," as that term is then defined in Rule
501(a) of the Act and (ii) such offering of Shares is otherwise being offered
only to accredited investors.
(e) The rights provided in this Section 2.4 may not be
assigned or transferred by any Investor; provided, however, that a Investor that
is a venture capital fund may assign or transfer such rights to entities under
common investment management.
(f) The covenants set forth in this Section 2.4 shall
terminate and be of no further force or effect upon the consummation of (i) the
Company's sale of its Common Stock or other securities pursuant to Registration
Statement under the Act, at an offering price of at least $7.84 per share
(appropriately adjusted for any stock split, dividend, combination or the like)
and resulting in proceeds to the Company of at least $40,000,000 in the
aggregate (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to its stock option, stock
purchase or similar plan or a SEC Rule 145 transaction) (a "Qualified IPO") or
(ii) a Liquidation Event, as that term is defined in the Restated Certificate.
(g) Notwithstanding anything herein to the contrary, if an
Investor elects to purchase Shares by exercising its respective right of first
offer as set forth in this Section 2.4 and such Investor has determined upon the
advice of counsel that its purchase of the Shares would cause it to be deemed a
"restricted person" under NASD (as defined below) Rule 2790 (or any successor
rule or interpretation thereto), such Investor may require the Company to issue
and sell to it alternative securities that are substantially identical to the
Shares being offered, except that the rights, preferences and privileges of such
alternative securities (including, without limitation, the voting rights
thereof) may be modified, subject to the approval of the Company (such approval
not to be unreasonably withheld), in order for such Investor to not be deemed a
"restricted person" under NASD Rule 2790 (or any successor rule or
interpretation thereto) as reasonably determined in good faith by such Investor.
The Company
16
and each of the parties hereto agree to take any actions reasonably required to
effect the authorization, designation and sale of the alternative securities
contemplated by this subsection 2.4(g), including, without limitation, amending
the Restated Certificate, this Agreement and the Ancillary Agreements (as
defined in the Purchase Agreement), as applicable.
2.5 Confidential Information, Invention, Assignment and
Arbitration Agreements. The Company shall use commercially reasonable efforts to
cause (a) all executive officers of the Company or any subsidiary with a
substantially equivalent title to, or duties of a, senior vice president or
higher, (b) all employees of the Company or any subsidiary primarily responsible
for the research and development of the Company or any subsidiary's proprietary
software products or material business processes and (c) such other employees as
management of the Company in its reasonable judgment determines should be bound
by such agreements, to execute and deliver a Confidential Information,
Invention, Assignment and Arbitration Agreement or a Confidential Information
and Inventions Assignment Agreement (or other agreement with substantially
similar terms) in substantially the form delivered to counsel to the Investors
prior to the date hereof.
2.6 Market Stand Off Agreements. The Company shall use its
reasonable best efforts to obtain from all future persons who shall purchase, or
receive options to purchase, shares of the Company's Common Stock following the
date hereof an executed stock purchase or option agreements providing for a
180-day lockup period in connection with the Company's initial public offering
on terms and conditions at least as restrictive as those set forth in Section
1.13 hereof.
2.7 Director and Officer Liability Insurance. The Company has as
of the date hereof and shall thereafter continue to maintain in full force and
effect for so long as the TCV Director (as such term is defined in that certain
Amended and Restated Voting Agreement by and among the Company, the Investors
and certain other stockholders of the Company of even date herewith (the "Voting
Agreement")) remains on the Board of Directors, from financially sound and
reputable insurers, director and officer liability insurance in the amount of at
least $5,000,000.
2.8 Compensation Committee. The Company has as of the date hereof
and shall thereafter continue to maintain a Compensation Committee of the Board
of Directors consisting of no more than three (3) persons, one of whom shall be
the TCV Director (as defined in the Voting Agreement) and one (1) of whom shall
be a non-employee director who is unaffiliated with any entity which is a
stockholder of the Company.
2.9 1934 Act Covenants. If the Company reasonably determines than
an Investor could be deemed a "Material Associated Person" of Xxxxxx Services
for purposes of Section 17(h) of the 1934 Act and the rules and regulations
thereunder, then the Company shall (a) inform the Investor in writing to such
effect and (b) consult in advance with each Investor regarding the information
the Company shall be required to provide to any governmental authority,
including, without limitation, the SEC, and each Investor shall have a
commercially reasonable time period to review and comment on such information.
The Company and each Subsidiary shall act in good faith and use commercially
reasonable efforts in the performing the steps required by this Section 2.9.
Each Investor shall furnish to the Company such information,
17
and shall keep records, as shall be reasonably required in order to make reports
to the SEC under Section 17(h) of the 0000 Xxx.
2.10 NASD Rule 2790. If the Company or any of the Investors
becomes aware of any change, amendment or modification of National Association
of Securities Dealers, Inc. ("NASD") Rule 2790 (or any successor rule or
interpretation thereof) or any interpretation thereof (the "New Rule or
Interpretation") which could reasonably cause an Investor to be deemed a
"restricted person" under the New Rule or Interpretation as a result of such
Investor holding capital stock of the Company, then such party shall promptly
inform the other party in writing of such New Rule or Interpretation. The
Company hereby covenants and agrees to use its reasonable best efforts to not
take any action that would reasonably be expected to result in any Investor
being deemed a "restricted person" under NASD Rule 2790 (or any successor rule
or interpretation thereof). At any time after the date hereof, if an Investor
has determined in good faith upon the advice of counsel to such effect that it
will be deemed to be a "restricted person" under NASD Rule 2790 (or any
successor rule or interpretation thereof) as a result of such Investor holding
capital stock of the Company, such Investor shall so notify the Company in
writing and the Company and such Investor shall negotiate in good faith, and
shall make all commercially reasonable efforts, to restructure the investment
made by such Investor in the Company, including, without limitation, the
conversion of all or a portion of the Series A Preferred Stock held by such
Investor into a voting security of the Company and the amendment of the Voting
Agreement to reflect such conversion, in order so that such Investor shall (a)
no longer be deemed, as determined in good faith by such Investor, to be a
"restricted person" under NASD Rule 2790 (or any successor rule or
interpretation thereof) and (b) continue, following such restructuring, to
benefit from the rights of the Series A Preferred Stock and Series B Preferred
Stock (as the case may be) (whether statutory, contractual or economic) in a
substantially equivalent manner as compared to such rights prior to such
restructuring.
2.11 Negative Covenants.
(a) So long as at least a majority of the combined number of
shares of Series A Preferred Stock purchased pursuant to that certain Series A
Preferred Stock Purchase Agreement dated as of June 9, 2004 (the "Series A
Agreement") and the Series B Preferred Stock purchased pursuant to the Purchase
Agreement remain outstanding (as adjusted for stock splits, stock dividends,
combinations, subdivisions, recapitalizations and the like), the Company shall
not (by amendment, merger, consolidation or otherwise) without first obtaining
the written approval of the holders of at least a majority of the Series A
Preferred Stock and Series B Preferred Stock (voting together as a class and not
as separate series):
(i) consummate a "Liquidation Event" (as defined in the
Restated Certificate) other than a Liquidation Event in which the holders of
Series A Preferred Stock and Series B Preferred Stock receive "Proceeds" (as
defined in the Restated Certificate) by reason of their ownership of such shares
of Series A Preferred Stock and Series B Preferred Stock, respectively, that
results in such holders achieving a per share internal rate of return (an "IRR"
and as calculated as set forth below) on such Series A Preferred Stock or Series
B Preferred Stock, respectively, of at least twenty three percent (23%) (such
amount of Proceeds resulting in a per share twenty three percent (23%) IRR being
referred to as the "Target Return"). The IRR shall be calculated using the
following formula:
18
IRR= (FV/PV)carat(1/n)-1, where
"FV" equals the fair market value (determined in accordance with Article
IV(B)(2)(c)(ii) of the Restated Certificate) of the Proceeds per share to be
distributed to the holders of the Series A Preferred Stock or Series B Preferred
Stock (as applicable) purchased pursuant to the Series A Agreement and the
Purchase Agreement, respectively, by reason of their ownership of such shares at
the closing of such Liquidation Event pursuant to Article IV(B)(2) of the
Restated Certificate, including, without limitation, accrued dividends paid on
such Series A Preferred Stock or Series B Preferred Stock (as applicable) in
connection with such Liquidation Event;
"PV" equals $3.92 in the case of the Series A Preferred Stock and $4.4373
in the case of the Series B Preferred Stock; and
"n" equals the quotient of (A) the number of days from the date hereof to
the date of the closing of the Liquidation Event divided by (B) three hundred
sixty-five (365);
(ii) amend or waive any provision of the Restated
Certificate or Bylaws that adversely affects the rights, preferences or
privileges of the shares of Series A Preferred Stock or Series B Preferred
Stock;
(iii) increase or decrease (other than by repurchase or
conversion) the total number of authorized shares of Series A Preferred Stock or
Series B Preferred Stock;
(iv) authorize or issue, or obligate itself to issue,
any equity security (including any other security convertible into or
exercisable for any such equity security) having a preference over, or being on
a parity with, the Series A Preferred Stock or Series B Preferred Stock with
respect to liquidation preference, dividend preference, redemption or voting;
provided, however, that this restriction shall not apply to (A) the issuance of
equity securities for bank or other institutional debt financing, provided such
issuances are primarily for other than equity financing purposes; (B) the
issuance of equity securities that are on parity with the Series A Preferred
Stock and Series B Preferred Stock with respect to liquidation preference,
dividend preference, redemption and voting, provided that either (1) (x) prior
to the issuance of such equity securities the Company provides the Investors
with a Notice pursuant to Section 2.4(a) offering the Investors the opportunity
to purchase one hundred percent (100%) of such equity securities on the same
terms and conditions as are offered to the applicable third party (the "Post
Offer Securities") and (y) the Investors do not elect to obtain one hundred
percent (100%) of such Post Offer Securities within twenty (20) calendar days
following receipt of such Notice or (2) the issuance of such securities (the
"Basket Securities") (x) will not result in gross proceeds to the Company in
excess of fifteen percent (15%) of the stated stockholders' equity on the
Company's most recent quarterly balance sheet (prepared in accordance with GAAP)
immediately prior to such issuance and (y) will not amount to, in the aggregate
(and assuming the exercise or conversion of such Basket Securities into Common
Stock), greater than eight percent (8%) of the Company's outstanding Common
Stock immediately following the Closing (as defined in the Series A Agreement)
(assuming the exercise or conversion of all outstanding Preferred Stock);
provided, however, that in the event of an issuance of such Basket Securities
pursuant to this clause (B)(2), no more than fifty percent (50%) of such Basket
Securities (based
19
solely on the amount of Basket Securities issuable pursuant to clause (y) above)
may be issued by the Company in any twelve (12) month period; and (C) the
issuance of equity securities for the sole purpose of financing the repurchase
of an Investor's shares pursuant to Section 3 hereof, provided that the terms of
such equity securities do not allow any payments to be made to the holders
thereof until the payment in full of any redemption price payable to an Investor
pursuant to Section 3 hereof, without regard to when such payment is due;
(v) redeem, purchase or otherwise acquire (or pay into
or set aside for a sinking fund for such purpose) any share or shares of
Preferred Stock or Common Stock; provided, however, that this restriction shall
not apply to (A) the repurchase of shares of Common Stock at cost from
employees, officers, directors, consultants or other persons performing services
for the Company or any subsidiary pursuant to agreements under which the Company
has the option to repurchase such shares upon the occurrence of certain events,
such as the termination of employment or service, (B) the repurchase of shares
from the Investors pursuant to Section 3 hereof or (C) the repurchase of shares
of Preferred Stock from the Investors pursuant to Section 2 of that certain
Amended and Restated First Refusal and Co-Sale Agreement of even date herewith
by and among the Company, the Investors and the Founders (as defined therein).
(vi) pay or declare any dividend or distribution on the
Common Stock or Preferred Stock of the Company or any series thereof other than
as expressly set forth in the Restated Certificate in connection with a
"Liquidation Event" (as defined in the Restated Certificate);
(vii) enter into any transaction with an officer,
director or holder of greater than five percent (5%) of the Company's
outstanding Common Stock (assuming the exercise, exchange or conversion of all
outstanding securities exercisable, exchangeable or convertible for or into
Common Stock), including the amendment of any agreement with any such person
which is in effect as of the date hereof; provided, however, that this
restriction shall not apply to (A) ordinary course compensation arrangements for
the Company's executive officers which are approved by the Compensation
Committee of the Board of Directors and (B) ordinary course transactions with
any of the Subsidiaries; and
(vii) authorize, permit or allow any subsidiary (other
than the Subsidiaries) to authorize or issue, or obligate itself to issue, any
equity security of such subsidiary (including any other security convertible
into or exercisable for any such equity security) in excess of one percent (1%)
of such subsidiary's outstanding stock (other than issuances to the Company or a
direct or indirect wholly-owned subsidiary of the Company).
(b) So long as at least a majority of the combined number of
shares of Series A Preferred Stock purchased pursuant to the Series A Agreement
and Series B Preferred Stock purchased pursuant to the Purchase Agreement remain
outstanding (as adjusted for stock splits, stock dividends, combinations,
subdivisions, recapitalizations and the like), no (i) Subsidiary or (ii) direct
or indirect subsidiary of the Company which following the date hereof accounts
for either (1) at least ten percent (10%) of the total assets of the Company (as
determined on a consolidated basis) or (2) ten percent (10%) of the gross
revenues of the Company (as determined on a consolidated basis) shall (by
amendment, merger, consolidation or
20
otherwise), without first obtaining the written approval of the holders of at
least a majority of the Series A Preferred Stock and Series B Preferred Stock
(voting together as a class and not as separate series):
(i) consummate (A) the sale, transfer or other
disposition of all or substantially all of such Subsidiary's assets or (B) the
merger or consolidation of such Subsidiary, in each case, with or into another
entity other than the Company or a direct or indirect wholly-owned subsidiary of
the Company; and
(ii) authorize or issue, or obligate itself to issue,
any equity security of such Subsidiary (including any other security convertible
into or exercisable for any such equity security), in each case, other than to
the Company or a direct or indirect wholly-owned subsidiary of the Company.
2.12 Termination of Certain Covenants. The covenants set forth in
Sections 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11 shall terminate and be of no
further force or effect upon the consummation of (i) a Qualified IPO or (ii) a
Liquidation Event, as that term is defined in the Restated Certificate.
3. Investor Redemptive Put Right.
(a) At any time after June 9, 2010, but within ninety (90)
days after the receipt by the Company of a written request (the "Repurchase
Request") from the holders of not less than a majority of the combined number of
then outstanding Series A Preferred Stock and Series B Preferred Stock (the
"Triggering Holders") that all of the then outstanding shares of Series A
Preferred Stock and Series B Preferred Stock be repurchased, the Company shall
repurchase in three (3) annual installments (each payment date being referred to
herein as a "Repurchase Date") the then outstanding shares of Series A Preferred
Stock and Series B Preferred Stock by paying in cash therefor an aggregate sum
per share equal to the greater of (i) the applicable "Original Issue Price" (as
defined below) for each such share of Series A Preferred Stock and Series B
Preferred Stock, plus all accrued but unpaid dividends on each such share
(whether or not declared) and (ii) the then fair market value (the "Repurchase
FMV") of each such share of Series A Preferred Stock and Series B Preferred
Stock as of the close of business on the date the Company receives the
Repurchase Request (the "Repurchase Price"). The Company's Board of Directors
and the Triggering Holders shall mutually agree on a nationally recognized
independent appraiser (the "First Appraiser") who shall calculate the Repurchase
FMV within twenty (20) days of its appointment (i) in good faith, (ii) without
applying any minority interest discount or any other discount of any kind and
(iii) as though the buyer is under no compulsion to buy and the sellers are
under no compulsion to sell. If the Company's Board of Directors and the
Triggering Holders shall fail to appoint the First Appraiser within ten (10)
days of the delivery of the Repurchase Request, the Company's Board of Directors
and the Triggering Holders, by written notice to the other within ten (10) days
of the lapse of such prior ten (10) day period, shall each appoint an
alternative nationally recognized independent appraiser (each, the "Alternative
Appraiser") who shall each calculate the Repurchase FMV within twenty (20) days
of their appointment in accordance with the foregoing
21
assumptions. If either the Company's Board of Directors or the Triggering
Holders shall fail to appoint such an Alternative Appraiser within the time
period set forth in the immediately preceding sentence, then the Alternative
Appraiser appointed by the party that does so appoint an Alternative Appraiser
shall make the determination of the Repurchase FMV within twenty (20) days of
its appointment in accordance with the foregoing assumptions and such
determination shall govern. If two (2) Alternative Appraisers are appointed and
they agree upon the Repurchase FMV, their joint determination shall govern. If
said two (2) Alternative Appraisers fail to reach agreement within twenty (20)
days of their appointment, the two (2) Alternative Appraisers shall, within ten
(10) days following such twenty (20) day period, select a fourth nationally
recognized independent appraiser (the "Final Appraiser"). Such Final Appraiser
shall, within twenty (20) days following its appointment, select one of the
determinations of the Repurchase FMV determined by the two (2) Alternative
Appraisers and such selected determination shall govern. All decisions of the
First Appraiser, Alternative Appraisers or Final Appraiser shall be rendered in
writing and shall be signed by such appraiser. The Repurchase FMV determined as
herein provided shall be conclusive, final and binding on the Company's
stockholders and the Company and shall be enforceable in any court having
jurisdiction over a proceeding brought to seek such enforcement. The cost of the
Repurchase FMV determination shall not be taken into account in determining the
Repurchase FMV and shall be borne by the Company. The number of shares of Series
A Preferred Stock and Series B Preferred Stock that the Company shall be
required to repurchase on any one Repurchase Date shall be equal to the amount
determined by dividing (i) the number of shares of such Series A Preferred Stock
and Series B Preferred Stock outstanding immediately prior to such Repurchase
Date by (ii) the number of remaining Repurchase Dates (including the Repurchase
Date to which such calculation applies). Any repurchase of Series A Preferred
Stock and Series B Preferred Stock effected pursuant to this subsection 3(a)
shall be made on a pro rata basis among the holders of such Series A Preferred
Stock and Series B Preferred Stock in proportion to the aggregate Repurchase
Price (together with any accrued but unpaid interest thereon as contemplated by
Section 3(c), if any) that each such holder of Series A Preferred Stock and
Series B Preferred Stock would otherwise be entitled to receive on the
applicable Repurchase Date in regards to such Series A Preferred Stock and
Series B Preferred Stock. For purposes of this Agreement, the "Original Issue
Price" of the Series A Preferred Stock shall mean $3.92 per share for each share
of Series A Preferred Stock and of the Series B Preferred Stock shall mean
$4.4373 per share for each share of Series B Preferred Stock (each as adjusted
for any stock splits, stock dividends, combinations, subdivisions,
recapitalizations and the like).
(b) At least fifteen (15) but no more than thirty (30) days
prior to each Repurchase Date, written notice shall be mailed, first class
postage prepaid, to each holder of record (at the close of business on the
business day next preceding the day on which notice is given) of Series A
Preferred Stock and Series B Preferred Stock, at the address last shown on the
records of the Company for such holder, notifying such holder of the repurchase
to be effected on the applicable Repurchase Date, specifying the number of the
shares of Series A Preferred Stock or Series B Preferred Stock to be repurchased
from such holder, the Repurchase Price and the place at which payment may be
obtained and calling upon such holder to surrender to the Company, in the manner
and at the place designated, his, her or its certificate or certificates
representing the shares to be repurchased (the "Repurchase Notice"). Except as
provided in subsection 3(c), on or after each Repurchase Date, each holder of
Series A Preferred Stock or Series B Preferred Stock on such Repurchase Date
shall surrender to the Company the
22
certificate or certificates representing such shares, in the manner and at the
place designated in the Repurchase Notice, and thereupon the applicable
Repurchase Price of such shares shall be payable to the order of the person
whose name appears on such certificate or certificates as the owner thereof and
each surrendered certificate shall be cancelled. In the event less than all the
shares represented by any such certificate are repurchased, a new certificate
shall be issued representing the nonrepurchased shares.
(c) From and after each Repurchase Date, unless there shall
have been a default in payment of the Repurchase Price, all rights of the
holders of shares of Series A Preferred Stock and Series B Preferred Stock
designated for repurchase on such Repurchase Date in the Repurchase Notice as
holders of Series A Preferred Stock and Series B Preferred Stock (except the
right to receive the applicable Repurchase Price without interest upon surrender
of their certificate or certificates) shall cease with respect to such shares,
and such shares shall not thereafter be transferred on the books of the Company
or be deemed to be outstanding for any purpose whatsoever. If the funds of the
Company legally available for the repurchase of shares of Series A Preferred
Stock and Series B Preferred Stock on a Repurchase Date are insufficient to
repurchase the total number of shares of Series A Preferred Stock and Series B
Preferred Stock to be repurchased on such date, the Company shall cause the
appropriate direct or indirect subsidiaries to make the assets of such
subsidiaries available to the Company in order to fulfill the Company's
obligations pursuant to this Section 3. If the funds of the Company and the
subsidiaries legally available for the repurchase of shares of Series A
Preferred Stock and Series B Preferred Stock on a Repurchase Date are
insufficient to repurchase the total number of shares of Series A Preferred
Stock and Series B Preferred Stock to be repurchased on such date, those funds
that are legally available will be used to repurchase the maximum possible
number of such shares ratably among the holders of such shares to be repurchased
in proportion to the aggregate Repurchase Price that each such holder would be
entitled to receive pursuant to Section 3(a); provided, further, the unpaid
balance of such Repurchase Price shall accrue interest at the rate of ten
percent (10%) per annum, payable quarterly in arrears. The shares of Series A
Preferred Stock and Series B Preferred Stock not repurchased shall remain
outstanding and entitled to all the rights and preferences provided herein and
in the Restated Certificate. At any time thereafter when additional funds of the
Company are legally available for the repurchase of shares of capital stock of
the Company, such funds will immediately be used to repurchase the balance of
the shares that the Company has become obliged to repurchase on any Repurchase
Date but that it has not repurchased, together with all accrued but unpaid
interest thereon.
(d) On or prior to each Repurchase Date, the Company shall
deposit the Repurchase Price (together with any accrued but unpaid interest
thereon as contemplated by Section 3(c), if any) of all shares of Series A
Preferred Stock and Series B Preferred Stock designated for repurchase on such
Repurchase Date in the Repurchase Notice, and not yet repurchased or converted,
with a bank or trust corporation having aggregate capital and surplus in excess
of $100,000,000 as a trust fund for the benefit of the respective holders of the
shares designated for repurchase and not yet repurchased, with irrevocable
instructions and authority to the bank or trust corporation to publish the
notice of repurchase thereof and pay the Repurchase Price (together with any
accrued but unpaid interest thereon as contemplated by Section 3(c), if any) for
such shares to their respective holders on or after the Repurchase Date, upon
receipt of notification from the Company that such holder has surrendered his,
her or its
23
share certificate to the Company pursuant to subsection 3(b) above. As of the
date of such deposit (even if prior to the Repurchase Date), the deposit shall
constitute full payment of such shares to their holders, and from and after the
date of the deposit, the shares so called for repurchase shall be repurchased
and shall be deemed to be no longer outstanding, and the holders thereof shall
cease to be stockholders with respect to such shares and shall have no rights
with respect thereto except the rights to receive from the bank or trust
corporation payment of the Repurchase Price for the shares, without interest
except as contemplated by Section 3(c) hereof, upon surrender of their
certificates therefor. Such instructions shall also provide that any moneys
deposited by the Company pursuant to this subsection 3(d) for the repurchase of
Series A Preferred Stock and Series B Preferred Stock converted into shares of
the Company's Common Stock pursuant to Article IV(B)(4) of the Restated
Certificate prior to the Repurchase Date shall be returned to the Company
forthwith upon such conversion. The balance of any moneys deposited by the
Company pursuant to this subsection 3(d) remaining unclaimed at the expiration
of two (2) years following the Repurchase Date shall thereafter be returned to
the Company upon its request expressed in a resolution of its Board of
Directors.
(e) The provisions of this Section 3 shall terminate and be
of no further force or effect upon the consummation of the Company's sale of its
Common Stock or other securities pursuant to a Qualified IPO.
4. Miscellaneous.
4.1 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
4.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage
24
prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the respective parties at the
addresses set forth on the signature pages attached hereto (or at such other
addresses as shall be specified by notice given in accordance with this Section
4.5).
4.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
4.7 Entire Agreement; Amendments and Waivers. This Agreement
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof. Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the holders of a majority of the Registrable
Securities. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities, each future
holder of all such Registrable Securities, and the Company.
4.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
4.9 Specific Performance. It is agreed and understood that
monetary damages would not adequately compensate an injured party for the breach
of this Agreement by any other party, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
4.10 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities (including entities under common
investment management) or persons shall be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
XXXXXX WORLDWIDE, INC.
----------------------------------------
By: Xxxxx X. Xxxxxxxx, Xx.
Its: Chairman
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXXXXX WORLDWIDE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
- SIGNATURE PAGE -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SUBSIDIARIES:
XXXXXX FINANCIAL SERVICES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
XXXXXX FINANCIAL SERVICES CANADA, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
XXXXXX FINANCIAL SERVICES, LTD.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
XXXXXX WORLDWIDE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
- SIGNATURE PAGE -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SUBSIDIARIES:
SAI HOLDINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
XXXXXX HOLDINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
XXXXXX WORLDWIDE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
- SIGNATURE PAGE -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INVESTORS:
TCV V, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management V,
L.L.C.,
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title: Attorney in Fact
TCV V MEMBER FUND, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management V,
L.L.C.,
Its: General Partner
By:
------------------------------------
Name:
----------------------------------
Title: Attorney in Fact
Mailing Address:
Technology Crossover Ventures
000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXXX WORLDWIDE, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
- SIGNATURE PAGE -
