REGISTRATION RIGHTS AGREEMENT
Exhibit 10.14
EXECUTION
VERSION
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
December 5, 2007 (the “Effective Date”), by and among Generations Holding, Inc., a Delaware
corporation (the “Company”), each of the Persons listed on Schedule I attached hereto (the
“Spectrum Group Stockholders”), and each of the Persons listed on Schedule II
attached hereto (each such Person, an “Other Stockholder” and collectively, the
“Other Stockholders”). The Spectrum Group Stockholders and the Other Stockholders are
collectively referred to herein as the “Stockholders,” and each as a “Stockholder”.
Unless otherwise indicated herein, capitalized terms used herein are defined in paragraph
9 hereof.
RECITALS
WHEREAS, in order to induce the Spectrum Group Stockholders and the Other Stockholders to
enter into the transactions pursuant to which each is acquiring Common Stock of the Company, the
Company has agreed to provide the registration rights set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree hereby as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time, the holders of a majority of the Spectrum
Registrable Securities may request registration under the Securities Act of all or part of their
Registrable Securities on Form S-I or any similar long-form registration statement
(“Long-Form Registrations”) or, if available, on Form S-2 or S-3 or any similar
short-form registration statement (“Short-Form Registrations”). Each request for a Demand
Registration shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such requested registration
to all other holders of Registrable Securities and, subject to paragraph 1(d) below, will
include in such registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt of the Company’s
notice. Subject to paragraph 5(b) below, a Demand Registration shall not count as a
request for registration pursuant to this paragraph 1(a) if at least 75% of the Registrable
Securities that the holders initiating such Demand Registration have requested to be registered in
such Demand Registration are not registered for reasons other than their voluntary decision not do
so. A registration requested pursuant to this paragraph 1(a) is referred to herein as a
“Demand Registration” and all such registrations are referred to herein as “Demand
Registrations.”
(b) Long-Form Registrations. The holders of a majority of the Spectrum Registrable
Securities will be entitled to request three Long-Form Registrations in which the Company will pay
all Registration Expenses. Subject to paragraph 5(b) below, a registration will not count
as one of the permitted Long-Form Registrations until it has become effective. Subject to
paragraph 5(b) below, the Company will pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration regardless of whether it becomes effective.
All Long-Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form Registrations provided
pursuant to paragraph 1(b) above, the holders of a majority of the Spectrum Registrable.
Securities will be entitled, subject to the limitations set forth herein, to request an unlimited
number of Short-Form Registrations in which the Company will pay all Registration Expenses;
provided that the aggregate offering value of the Registrable Securities requested to be
registered by the Spectrum Group Stockholders in any Short-Form Registration must equal at least
$1,500,000 in the aggregate. Subject to paragraph 5(b) below, the Company will pay all
Registration Expenses in connection with any registration initiated as a Short-Form Registration
regardless of whether it becomes effective. Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the Company has become
subject to the reporting requirements of the Securities Exchange Act, the Company will use its best
efforts to make Short-Form Registrations available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the prior written consent
of the holders of a majority of the Registrable Securities included in such Demand Registration.
If a Demand Registration is an underwritten offering and the managing underwriters advise the
Company in writing (with a copy to each party hereto requesting registration of Registrable
Securities) that in their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company will include in such registration prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable Securities
requested to be included which in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, pro rata among the respective holders thereof on the
basis of the number of shares of Registrable Securities owned by each such holder.
(e) Restrictions on Demand Registrations. The Company will not be obligated to effect
any Demand Registration within three months after the effective date of a previous Demand
Registration. The Company may postpone for up to three months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company’s board of directors determines in
its reasonable good faith judgment and the holders of at least a majority of the Spectrum
Registrable Securities agree that such Demand Registration would reasonably be expected to have a
material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage
in any acquisition of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction; provided that in such event, the
holders of a majority of Registrable Securities initially requesting such Demand Registration will
be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration
will not count as one of the permitted Demand Registrations hereunder and the Company will pay all
Registration Expenses in connection with such registration; provided, that the Company may
delay a Demand Registration hereunder only once in any twelve-month period.
(f) Selection of Underwriters. The holders of a majority of the Spectrum Registrable
Securities included in any Demand Registration will have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to the Company’s approval, which will
not be unreasonably withheld.
(g) Other Registration Rights. The Company will not grant to any Persons the right to
request the Company to register any equity securities of the Company, or any securities convertible
or exchangeable into or exercisable for such securities (whether as a demand registration or a
piggyback registration), without the prior written consent of the holders of a majority of the
Spectrum Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Upon completion by the Company of an Initial Public Offering,
whenever the Company proposes to register any of its securities (including any proposed
registration of the Company’s securities by any third party) under the Securities Act (other than
pursuant to a registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable Securities (a
“Piggyback Registration”), whether or not for sale for its own account, the Company will
give prompt written notice to all holders of Registrable Securities of its intention to effect such
a registration and will include in such registration all Registrable Securities of the same class
or series of securities that the Company proposes to register with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt of the Company’s
notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable
Securities will be paid by the Company in all Piggyback Registrations regardless of whether such
registration is consummated.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing (with a copy to each party hereto requesting registration of Registrable Securities) that
in their opinion the number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the marketability of such
offering, the Company will include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such holder and (iii) third, any other securities requested
to be included in such registration pro rata among the holders thereof on the basis of the number
of such securities owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and the
managing underwriters advise the Company in writing (with a copy to each party hereto requesting
registration of Registrable Securities) that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein by the holders
requesting such registration and the Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of the number of
Registrable Securities owned by each such holder and (ii) second, any other securities requested to
be included in such registration.
(e) Other Registrations. If the Company has previously filed a registration statement
with respect to Registrable Securities pursuant to paragraph 1 above or pursuant to this
paragraph 2, and if such previous registration has not been withdrawn or abandoned, the
Company will not file or cause to be effected any other registration of any of its equity
securities or securities convertible or exchangeable into or exercisable for its equity securities
under the Securities Act (except on Form S-4 or S-8 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a period of at least
three months has elapsed from the effective date of such previous registration.
3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder of Registrable Securities
agrees not to effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities, options or rights convertible into or
exchangeable or exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of the Company’s initial public offering of Common Stock
under the Securities Act or during the seven days prior to and the 90-day period beginning on the
effective date of any underwritten registration filed under the Securities Act (in each case,
except as part of such underwritten registration and except for such shorter period as the
underwriters managing the registered public offering and the holders of a majority of the Spectrum
Registrable Securities otherwise agree in writing with respect to all holders of Registrable
Securities).
(b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form 8-4 or S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree, and (ii) to cause
each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such period (except as part of
such underwritten registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree in writing.
4. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within which requests for
registration may be given to the Company) file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and thereafter use its best
efforts to cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or supplements thereto, the Company
will furnish to the counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to be filed, which
documents will be subject to review of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for a period of either
(i) not less than 180 days (subject to extension pursuant to paragraph 7(b)) or, if such
registration statement relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer or (ii) such shorter period as will
terminate when all of the securities covered by such registration statement have been disposed of
in accordance with the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement (but in any event not before the expiration of any longer period
required under the Securities Act), and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration statement until such time
as all of such securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller
(provided that the Company will not be required to (1) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this subparagraph
(d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery that, or upon the
discovery of the happening of any event as a result of which, the prospectus included in such
registration statement contains an untrue statement of a material fact or omits any fact necessary
to make the statements therein not misleading in the light of the circumstances under which they
were made, and, at the request of any such seller, the Company will prepare and furnish to such
seller a reasonable number of copies of a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in the light of the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and, if not so listed, to be listed on the
NASD automated quotation system;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all applicable rules and regulations of the
Securities and Exchange Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company’s first full calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(k) notify each seller of such Registrable Securities in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of any securities
included in such registration statement for sale in any jurisdiction, and use its best efforts
promptly to obtain the withdrawal of such order;
(l) obtain one or more comfort letters, dated the effective date of such registration
statement (and, if such registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), signed by the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold reasonably request;
(m) permit any holder of Registrable Securities which holder, in its reasonable judgment,
might be deemed to be an underwriter or a controlling Person of the Company, to
participate in the preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the reasonable
judgment of such holder and its counsel should be included; and
(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such
registration statement (and, if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary form and covering
such matters of the type customarily covered by legal opinions of such nature.
The Company may require each seller of Registrable Securities as to which any registration is being
effected to furnish the Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing,
5. Registration Expenses.
(a) All expenses incidental to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by the Company (all
such expenses being herein called “Registration Expenses”), will be borne as provided in
this Agreement, except that the Company, will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to he registered on each
securities exchange on which similar securities issued by the Company are then listed or on the
NASD automated quotation system.
(b) Notwithstanding anything in this Agreement to the contrary, the Company shall not be
required to pay for any Registration Expenses in connection with a registration proceeding begun
pursuant to paragraph 1 above if the registration request is subsequently withdrawn at the
request of the initiating holders, unless such holders agree to forfeit their right to one Demand
Registration pursuant to paragraph 1(a) (in which case such right shall be forfeited by the
holders initiating such request and all holders exercising their Piggyback Registration rights with
respect to such request); provided, however, that if at or prior to the time of
such withdrawal, such holders have learned of a material adverse change in the condition, business,
or prospects of the Company not known to such holders at the time of their request for such
registration (it being understood that a change in the Company’s stock price shall not constitute
in and of itself a material adverse change) and withdrawn their request for registration with
reasonable promptness after learning of such material adverse change, then such holders shall not
be required to pay any of such expenses and shall retain their rights pursuant to paragraph
1.
(c) In connection with each Demand Registration and each Piggyback Registration, the Company
will reimburse the holders of Registrable Securities covered by such registration
for the reasonable fees and disbursements of one counsel chosen by the holders of a majority
of the Registrable Securities included in such registration and of any such other counsel retained
for the purpose of rendering opinions and reviewing documents on behalf of one or more holders of
Registrable Securities on behalf of whom such first counsel does not act.
(d) To the extent Registration Expenses are not required to be paid by the Company, each
holder of securities included in any registration hereunder will pay those Registration Expenses
allocable to the registration of such holder’s securities so included, and any Registration
Expenses not so allocable will be borne by all sellers of securities included in such registration
in proportion to the aggregate selling price of the securities to be so registered for each seller.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person that controls such
holder (within the meaning of the Securities Act) against any losses, claims, damages, liabilities,
joint or several, to which such holder or any such director or officer or controlling Person may
become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon (i) any untrue or alleged untrue statement of material fact contained (A)
in any registration statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or (B) in any application or other document or communication (in this
paragraph 6 collectively called an “application”) executed by or on behalf of the Company
or based upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such registration statement under the
“blue sky” or securities laws thereof, or (ii) any omission or alleged omission of a material fact
required to be stated therein or -necessary to make the statements therein not misleading, and the
Company will reimburse such holder and each such director, officer and controlling Person for any
legal or any other expenses incurred by them in connection with investigating or defending any such
loss, claim, liability, action or proceeding; provided that the Company will not be liable
in any such case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission, made in such registration statement, any
such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information prepared and furnished
to the Company by such holder expressly for use therein or by such holder’s failure to deliver a
copy of the registration statement or prospectus or any amendments or supplements thereto after the
Company has timely furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person that controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the indemnification of the
holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law, will indemnify
and hold harmless the Company, its directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, to which the Company or any such director or officer or controlling
Person may become subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or in any application or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is made in such
registration statement, any such prospectus or preliminary prospectus or any amendment or
supplement thereto, or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such holder expressly for use therein, and
such holder will reimburse the Company and each such director, officer and controlling Person for
any legal or any other expenses incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the obligation to
indemnify will be individual, not joint and several, to each holder and will be limited to the net
amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (1) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give such prompt notice shall not impair any Person’s right
to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party)
and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the transfer of
securities. If the indemnification provided for in paragraph 6(a) from the Company is
unavailable to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then the Company, in lieu of indemnifying the
indemnified party, shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Company and the indemnified party, as well as any
other relevant equitable considerations. The relative faults of the indemnifying party and
indemnified
party shall be determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact, was made by, or relates to information supplied by, the Company or such
indemnified party, and the Company’s and indemnified party’s relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities or expenses referred to above shall
be deemed to include, any legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this paragraph 6(d) were determined
by pro rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to in the preceding sentences. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution pursuant to this paragraph 6(d).
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements
(including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option
requested by the managing underwriter(s); provided that no holder of Registrable Securities
will be required to sell more than the number of Registrable Securities that such holder has
requested the Company to include in any registration) and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall he required to
make any representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder’s intended method of
distribution) or to undertake any indemnification or “holdback” obligations to the Company or the
underwriters with respect thereto, except as otherwise provided in paragraphs 3 and
6 hereof.
(b) Each Person that is participating in any registration hereunder agrees that, upon receipt
of any written notice from the Company of the happening of any event of the kind described in
paragraph 4(e) and 4(k) above, such Person will forthwith discontinue the
disposition of its Registrable Securities pursuant to the registration statement until such
Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by such
paragraph 4(e). If the Company gives any such written notice, the applicable time period
mentioned in paragraph 4(b) during which a registration statement is to remain effective
will be extended by the number of days during the period from and including the date of the giving
of such written notice pursuant to this paragraph to and including the date when each seller of a
Registrable Security covered by such registration statement has received the copies of the
supplemented or amended prospectus contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has filed a
registration statement with the Securities and Exchange Commission pursuant to the requirements of
either the Securities Act or the Securities Exchange Act, the Company will file all reports
required to be filed by it under the Securities Act and the Securities Exchange Act and
the rules and regulations adopted by the Securities and Exchange Commission thereunder, and
will take such further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable Securities pursuant
to Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such
rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the
Securities and Exchange Commission.
9. Definitions.
“Common Stock” means the Company’s common stock, par value $0.01 per share.
“Spectrum Registrable Securities” means (i) any shares of Common Stock now or
hereafter issued or issuable to, or otherwise held by, the members of the Spectrum Group
Stockholders, and (ii) any equity securities issued or issuable directly or indirectly with respect
to the securities referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange; provided, that in the event that
pursuant to such recapitalization or exchange, equity securities are issued which do no participate
in the residual equity of the Company (“Non-Participating Securities”), such
Non-Participating Securities will not be Registrable Securities. As to any particular shares
constituting Spectrum Registrable Securities, such shares will cease to be Spectrum Registrable
Securities when they have been (x) effectively registered under the Securities Act and disposed of
in accordance with the registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision then in force) under
the Securities Act.
“Initial Public Offering” means an initial public offering by the Company of its
Common Stock to the public effected pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or any comparable statement under any similar United States
federal statute then in effect.
“Other Stockholder Registrable Securities” means (i) any shares of Common Stock now or
hereafter issued or issuable to, or otherwise held by, any of the Other Stockholders, and (ii) any
equity securities issued or issuable directly or indirectly with respect to the securities referred
to in clause (i) by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization, including a
recapitalization or exchange; provided, that in the event that pursuant to such
recapitalization or exchange Non-Participating Securities are issued, such Non-Participating
Securities will not be Registrable Securities. As to any particular shares constituting Other
Stockholder Registrable Securities, such shares will cease to be Other Stockholder Registrable
Securities when they have been (x) effectively registered under the Securities Act and disposed of
in accordance with the registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision then in force) under
the Securities Act.
“Person” means an individual, a limited liability company, an association, a joint
stock company, a partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
“Registrable Securities” means the Spectrum Registrable Securities and the Other
Stockholder Registrable Securities. For purposes of this Agreement, a Person will he deemed to be
a holder of Registrable Securities whenever such Person has the right to acquire such Registrable
Securities (upon conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal
law then in force.
“Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, or
any similar federal law then in force.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with or violates the rights granted
to the holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not take any
action, or permit any change to occur, with respect to its securities which would materially and
adversely affect the ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or which would adversely affect
the marketability of such Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
(c) Remedies. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that any party hereto
will have the right to seek injunctive relief, in addition to all of its other rights and remedies
at law or in equity, to enforce the provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the provisions of
this Agreement may be amended or waived only upon the prior written consent of the Company together
with the holders of a majority of the Registrable Securities; provided, that if such
amendment or waiver would treat a holder or group of holders of Registrable Securities in a manner
different from any other holders of Registrable Securities (other than as already provided herein),
then such amendment or waiver will require the consent of such holder or the holders of a majority
of the Registrable Securities of such group adversely treated. The Company will give prompt
written notice to the parties hereto of any amendments, modifications, or waivers of the provisions
of this Agreement.
(e) Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective successors and assigns.
In addition, and whether or not any express assignment has been made, the provisions of this
Agreement that are for the benefit of the holders of Registrable Securities (or any portion
thereof) as such will be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof), subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities (or of such portion thereof)
required in order to be entitled to certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(i) Governing Law. The corporate law of the State of Delaware shall govern all issues
and questions concerning the relative rights and obligations of the Company and its stockholders.
All other issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(j) Notices. Any notice provided for in this Agreement will be in writing and will be
either personally delivered, or delivered by certified mail, return receipt requested, or sent by
reputable overnight courier service (charges prepaid) to the Stockholders at the addresses
indicated in the Stockholders Agreement or at any address listed in the Company’s records and to
the Company at the address indicated below, or at such address or to the attention of such other
person as the recipient party has specified by prior written notice to the sending party. Notices
will be deemed to have been given hereunder when delivered personally, three days after deposit in
the U.S. mail and one day after deposit with a reputable overnight courier service.
To the Company:
Generations Holding, Inc.
c/o Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
c/o Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
To any of the Spectrum Group Stockholders:
See the information listed on Schedule I.
To any of the Other Stockholders:
Sec the information listed on Schedule II.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement on the
day and year first above written.
| GENERATIONS HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Chief Executive Officer and President | ||||
| SPECTRUM GROUP STOCKHOLDERS: | ||||
| SPECTRUM EQUITY INVESTORS V, L.P. | ||||
| By: | Spectrum Equity Associates V, L.P. | |||
| Its: | General Partner | |||
| By: | SEA V Management LLC | |||
| Its: | General Partner | |||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx Managing Director |
||||
| SPECTRUM V INVESTMENT MANAGERS’ FUND, L.P. | ||||
| By: | SEA V Management, LLC | |||
| Its: | General Partner | |||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx Managing Director |
||||
| SPECTRUM ONLINE PARTNERS, LLC | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx Authorized Signatory |
||||
| OTHER STOCKHOLDERS | ||||
| CSFB STRATEGIC PARTNERS III VC HOLDINGS, L.P. | ||||
| By: | DLJ MB Advisors, Inc. | |||
| Its: | Indirect General Partner | |||
| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx Vice President |
||||
| INDUSTRY VENTURES FUND IV, L.P. | ||||
| By: | Industry Ventures Management IV, L.L.C. | |||
| Its: | General Partner | |||
| By: | /s/ Xxxx X. Swildens | |||
| Xxxx X. Swildens Managing Member |
||||
| INDUSTRY VENTURES ACQUISITION FUND, L.P. | ||||
| By: | Industry Ventures Management IV, L.L.C. | |||
| Its: | General Partner | |||
| By: | /s/ Xxxx X. Swildens | |||
| Xxxx X. Swildens Managing Member |
||||
| INDUSTRY VENTURES DIGITAL, L.L.C. | ||||
| By: | Industry Ventures Management IV, L.L.C. | |||
| By: | Industry Ventures Fund IV, L.P. | |||
| By: | Industry Ventures Acquisition Fund, L.P. | |||
| By: | /s/ Xxxx X. Swildens | |||
| Xxxx X. Swildens Managing Member |
||||
| W CAPITAL PARTNERS II, L.P. | ||||
| By: | WCP XX XX, L.P., its General Partner | |||
| By: | WCP XX XX, LLC., its General Partner | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx Managing Member |
||||
| AMBERBROOK IV LLC | ||||
| By: Willowridge IV LLC | ||||
| Its: Managing Member | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Xxxxxxx Xxxxxx Manager |
||||
| CROSSLINK VENTURES IV, L.P. | ||||
| By: | Crosslink Ventures IV Holdings, L.L.C. | |||
| Its: | General Partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Member | |||
| CROSSLINK CROSSOVER FUND IV, LP. | ||||
| By: | Crossover Fund IV Management, L.L.C. | |||
| Its: | General Partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Member | |||
| OFFSHORE CROSSLINK OMEGA VENTURES IV (a Cayman Islands Unit Trust) |
||||
| By: | Crosslink Ventures IV Holdings, L.L.C. | |||
| Its: | Investment Manager | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Member | |||
| OMEGA BAYVIEW IV, L.L.C. | ||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Member | |||
| CROSSLINK OMEGA VENTURES IV GMBH & CO. KG | ||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Title: |
Xxxxx X. Xxxxxxxx Member |
|||
| AG 91 TRUST U/A/D 12/18/91 | ||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Trustee | |||
| XXXXXXXX MEDIA, INC. | ||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Name: | Xxx Xxxxxxxx | |||
| Title: | CEO | |||
| CIT LENDING SERVICES CORPORATION | ||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Vice President | |||
| HERCULES TECHNOLOGY GROWTH CAPITAL, INC. | ||||
| By: | /s/ X. Xxxxxxxx Mariltsch | |||
| Name: | X. Xxxxxxxx Mariltsch | |||
| Title: | Associate General Counsel | |||
| ZION’S SBIC | ||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| WASATCH VENTURE CORPORATION | ||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| JBSE, LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Managing Member | ||||
| XXXXX STREET 2006 DIRECT FUND, LP. | ||||
| By: ASP 2006 Direct Management, LLC | ||||
| Its: General Partner | ||||
| By: Xxxxx Street Partners, LLC Its: Managing Member |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Partner | |||
| XXXXX STREET 2007 DIRECT FUND, LP. | ||||
| By: ASP 2007 Direct Management, LLC | ||||
| Its: General Partner | ||||
| By: Xxxxx Street Partners, LLC | ||||
| Its: Managing Member | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Partner | |||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Xxxxxxx Xxxxxxxx |
| /s/ Xxxxx Xxxxxx | ||||
| Xxxxx Xxxxxx |
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx |
| /s/ Xxxxx X. Xxxxxxxxx | ||||
| Xxxxx X. Xxxxxxxxx |
| /s/ Xxx Xxxxxxxxx | ||||
| Xxx Xxxxxxxxx |
| /s/ Xxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx |
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Xxxxxxx Xxxxxxxx |
| /s/ Xxxxx X. Xxxxxxxxx | ||||
| Xxxxx X. Xxxxxxxxx |
| XXXXXX & XXXXXXXXX XXXXXXX GIFT TRUST dtd 5/17/1995 | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Trustee | |||
| XXXXXXXXX X. XXXXXXX
IRREVOCABLE GIFT TRUST dtd 11/20/1992 |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx Crisp | |||
| Name: | Xxxxxx X. Xxxxxxx Crisp | |||
| Title: | Trustee | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Trustee | |||
