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CUSIP NO. 450707 10 4 13D PAGE 23 OF 39 PAGES
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EXHIBIT 3
---------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Registration Rights Agreement (the "Agreement"), dated as of October 31,
1995, by and between IVI Publishing, Inc., a Minnesota corporation (the
"Company"), and the Person(s) named in Schedule I hereto who execute
----------
counterparts of this Agreement.
R E C I T A L S:
- - - - - - - -
A. This Agreement is made pursuant the Subscription Agreement, dated as
of the date hereof (the "Subscription Agreement") between the Company and
Davidson & Associates, Inc. ("Davidson"), which agreement provides for the sale
and issuance by the Company to Davidson of 2,000 shares of the Company's 6.0%
Series A Convertible Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock") and warrants, par value $.01 (the "Warrants") to acquire
12,500 shares of the Company's common stock, $.01 par value (the "Common
Stock"). Shares of Series A Preferred Stock are convertible, at the option of
the holder, into shares of the Common Stock as provided in the Certificate of
Designation of the Series A Preferred Stock. The shares of Common Stock (i) into
which the Series A Preferred Stock have been convened and/or (ii) in respect of
which the Warrants have been exercised, are referred to herein as the "Shares".
The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Subscription Agreement.
B. In order to induce Davidson to enter into and perform its obligations
under the Subscription Agreement and the other Transaction Documents (as defined
in the Subscription Agreement), the Company has agreed to provide the
registration rights set forth in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Common Stock" has the meaning set forth in the Recitals.
------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
-----------
or any similar or successor federal statute and the rules and regulations of the
SEC promulgated thereunder, all as the same shall be in effect at the time.
"Holder" means any Person named in Schedule I hereto who executes a
------ ----------
counterpart of this Agreement and any Person who becomes a Holder after the date
of this Agreement pursuant to Paragraph 12(a).
"Indemnified Party" has the meaning set forth in Paragraph 7(c).
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CUSIP NO. 450707 10 4 13D PAGE 24 OF 39 PAGES
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"Indemnifying Party" has the meaning set forth in Paragraph 6(c).
-------------------
"Initiating Group" means one or more holders of Registerable
----------------
Securities which represent in the aggregate a Majority of Registerable
Securities.
"Majority of Registerable Securities" means a majority of Registerable
-----------------------------------
Securities which are outstanding as of the date of this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
----
"Person" means an individual, partnership, corporation, limited
------
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof, or any other entity of any kind.
"Registered Securities" means Registrable Securities which have been
---------------------
registered under the Securities Act pursuant to a registration statement filed
with and declared effective by the SEC.
"Registrable Securities" means (i) the Shares; (ii) the shares of
----------------------
Common Stock issued or issuable as dividends on, or other distributions with
respect to the Shares; and (iii) any other security issued or issuable in
exchange for, or in replacement of, any of the Shares, in each case until any
such security ceases to be a Registrable Security in accordance with Paragraph
2(a) hereof.
"Registration Expenses" means all expenses incident to the Company's
---------------------
performance of or compliance with Paragraphs 3 and 4 of this Agreement,
including without limitation all registration and filing fees, including fees
with respect to filings required to be made with any stock exchange or the NASD,
fees and expenses of compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), messenger, telephone and
delivery expenses, and the fees and expenses of counsel for the underwriter,
costs of printing prospectuses, and fees and disbursements of counsel for the
Company and of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance).
"Registration Statement" means any registration statement of the
----------------------
Company which includes any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus included or deemed
included in the Registration Statement and all amendments and supplements to the
Registration Statement or the prospectus, including post-effective amendments,
and all exhibits to, and all materials incorporated by reference in, the
Registration Statement.
"SEC" means the United States Securities and Exchange Commission or
---
any similar agency then having the authority to enforce the Exchange Act or the
Securities Act.
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CUSIP NO. 450707 10 4 13D PAGE 25 OF 39 PAGES
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"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
similar or successor statute, and the rules and regulations of the SEC
promulgated thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all fees and expenses of counsel for the
----------------
Holder(s) and all discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the Registrable Securities.
"Selling Holders" has the meaning set forth in Paragraph 5(b).
---------------
"Series A Preferred Stock" has the meaning set forth in the Recitals.
------------------------
"Shares" has the meaning set forth in the Recitals.
------
"Stockholders" means any holder of equity securities issued by the
------------
Company.
"Warrant" has the meaning set forth in the Recitals.
-------
2. Securities Subject to this Agreement. The securities entitled to the
------------------------------------
benefits of this Agreement are the Registrable Securities, but such benefits
shall continue with respect to each such security only so long as such security
continues to be a Registrable Security. A security ceases to be a Registrable
Security when (i) a Registration Statement covering the sale of such Registrable
Security has been declared effective under the Securities Act and the
Registrable Security has been sold in accordance with the Registration
Statement; (ii) it is distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act; (iii) a new
certificate representing such security has been delivered (to the original
Holder or any subsequent transferee) by the Company free from any restrictive
legend and without issuance of stop transfer or other instructions to the
Company's transfer agent and the Holder of such security has been advised by
counsel acceptable to it that subsequent disposition of such security will not
require registration or qualification under the Securities Act or any state
"blue sky" or similar law then in effect; or (iv) the security has ceased to be
outstanding.
3. Registration under Securities Act: Demand Registration.
-------------------------------------------------------
(a) Demand for Registration. At any time on or after the 270th day
-----------------------
following the issuance to the Holder of one or more Registerable Securities, any
Initiating Group may request in writing that the Company effect the registration
under the Securities Act all or any portion of such Registrable Securities, in
which case the Company will (i) within 30 days of such request, file with the
SEC all documentation necessary to effect such registration and (ii) thereafter
use its reasonable best efforts to effect such registration.
(b) Limitations on Company's Obligation. The Company is obligated to
-----------------------------------
effect two registrations pursuant to this Paragraph 3; and thereafter the
Company shall have no obligation to include any Registrable Securities in any
registration pursuant to this Paragraph 3.
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CUSIP NO. 450707 10 4 13D PAGE 26 OF 39 PAGES
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In the event that a registration requested pursuant to this Paragraph 3 fails to
become effective or if a stop order shall have been issued or the registration
shall have been terminated prior to the sale of the Registrable Securities
(other than as a result of revocation by the Initiating Group), a request for
registration shall be deemed not to have been made for the purposes of this
Paragraph 3.
(c) Underwritten Offer. If an Initiating Group desires to distribute
------------------
Registrable Securities covered by its request by means of an underwriting, it
shall so advise the Company as a part of its request made pursuant to this
Paragraph 3. The Initiating Group shall select an underwriter (which shall be
reasonably acceptable to the Company) for such underwriting and shall together
with the Company enter into an underwriting agreement in customary form with the
underwriter.
4. Registration under the Securities Act; Piggy-Back Registration.
--------------------------------------------------------------
(a) Piggy-Back Registration. If (but without any obligation to do so)
-----------------------
at any time prior to October 31, 2000, the Company proposes to register for
itself or any of its stockholders (other than (1) the Holders and (2) in
connection with any demand registration requested pursuant to the Registration
Rights Agreement, dated October 14, 1993 between the Company and Invemed
Associates, Inc.) any of its capital stock under the Securities Act in
connection with the public offering of such securities on a form and in a manner
that would permit registration of Registrable Securities for sale to the public
under the Securities Act, then:
(i) the Company in each case will notify in writing each Holder
of its intention to effect such a registration at least 30 days prior to the
proposed filing of a Registration Statement in connection therewith;
(ii) the Company will offer each Holder the opportunity to include
in such registration all or such lesser amount of Registrable Securities as each
Holder may request. Upon the request of one or more Holders which in the
aggregate own at least a majority of the outstanding Registrable Securities,
given in writing within 20 days after receipt of the notice described under
clause (i) above, the Company will use its reasonable best efforts as soon as
practicable thereafter to cause any of the Registrable Securities specified by
such Holder to be included in the Registration Statement; and
(iii) if the registration of which the Company gives written notice
under clause (i) above involves an underwriting, the Company shall use its
reasonable best efforts to cause the managing underwriter(s) of the proposed
underwritten offering to permit Holders to include their Registrable Securities
in the underwriting on the same terms and conditions as similar terms of the
Company included therein.
(b) Limitations on Company's Obligations to Effect Additional Piggy-
----------------------------------------------------------------
Back Registration. Notwithstanding the provisions of Paragraph 4(a) above:
-----------------
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CUSIP NO. 450707 10 4 13D PAGE 27 OF 39 PAGES
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(i) the Company shall not be obligated to include Registrable
Securities in more than three Registration Statements pursuant to Paragraph 4(a)
in which Registrable Securities are included and thereafter, the Company shall
have no obligation to include any Registrable Securities in any registration
pursuant to this Paragraph 4; provided, however, in the event that a
-------- -------
registration requested pursuant to Paragraph 4(a) fails to become effective or
if a stop order shall have been issued or the registration shall have been
terminated prior to the sale of the Registrable Securities, or in the event that
the number of Registrable Securities requested to be included in any such
registration is reduced as a result of the operation of Paragraph 4(b)(ii)
(other than as a result of a revocation by a Holder), a request for registration
shall be deemed not to have been made for the purposes of Paragraph 4(a);
(ii) if and to the extent that the managing underwriter(s) advise
the Company in writing that, in its good faith determination, inclusion of the
number of Registrable Securities held by Holders requesting inclusion in the
Registration Statement would materially interfere with the underwriter's ability
to effectuate the registration and sale of securities proposed to be offered and
sold pursuant to the Registration Statement, the managing underwriter(s) shall
select the permissible quantity of Registrable Securities to be sold by the
Holders (which may be none) by reducing the total number of securities to be
sold by the holders of securities other than Registrable Securities and the
Holders (but not the number of securities to be sold by the Company) on a pro
---
rata basis. For purposes of apportionment pursuant to this Paragraph 4(b), for
----
any selling Holder that is a partnership or a corporation, the affiliates of
such partnership or shareholder shall collectively, with such Holder be deemed
to be one "selling Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by entities and individuals included in such "selling
Holder;"
(iii) if, at any time after giving such written notice of its
intention to register any of its securities and prior to the effective date of
the applicable Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and thereupon shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration; and
(iv) the Company shall not be obligated to effect any registration
of Registrable Securities under Paragraph 4(a) in connection with mergers,
acquisitions, exchange offers, dividend reinvestment plans or stock option plans
or other employee benefit plans; provided, that the securities to be included in
--------
such registration are limited to shares to be issued in such transaction and/or
pursuant to such benefit plans.
(c) Underwritten Offer. If the registration of which the Company gives
------------------
written notice under Paragraph 4(a)(i) above involves an underwriting, the
Company shall so advise in such written notice. In such event the right of any
Holder to registration pursuant to Paragraph 4(a) shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in such underwriting. All Holders proposing to distribute
their Registrable Securities through such underwriting shall (together with the
Company and the other holders distributing their Registrable Securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter or
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CUSIP NO. 450707 10 4 13D PAGE 28 OF 39 PAGES
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underwriters selected for such underwriting by the Company. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw from the underwriting by prompt written notice to the Company and the
underwriter.
5. Registration Obligations of the Company. In connection with the filing
---------------------------------------
of a Registration Statement pursuant to Paragraphs 3 or 4, the Company shall:
(a) Use its reasonable best efforts to cause such Registration
Statement to remain in effect until the earlier of (i) the completion of the
distribution of the Registrable Securities included in the Registration
Statement, and (ii) two years after the date on which the Registration Statement
is declared effective.
(b) Notify the Holders whose Registrable Securities are included in
such Registration Statement (the "Selling Holders") as to the filing of the
Registration Statement and of all amendments or supplements thereto filed prior
to the effective date of such Registration Statement;
(c) Notify the Selling Holders, promptly after the Company shall
receive notice thereof, of the time when such Registration Statement became
effective or when any amendment or supplement to any prospectus forming a part
of said Registration Statement has been filed;
(d) Notify the Selling Holders promptly of any request by the SEC for
the amending or supplementing of such Registration Statement or prospectus or
for additional information;
(e) During the period in which the Company is obligated to use its
reasonable best efforts to keep a Registration Statement effective pursuant to
this Paragraph 5, prepare and promptly file with the SEC and promptly notify the
Selling Holders of the filing of any amendments or supplements to such
Registration Statement or prospectus as may be necessary to correct any
statements or omissions if, at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities Act, any
event with respect to the Company shall have occurred as a result of which any
such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading; and, in addition, during such
period, prepare and file with the SEC, promptly upon the Selling Holders'
written request, any amendments or supplements to such Registration Statement or
prospectus which may be reasonably necessary or advisable in connection with the
distribution of the Registrable Securities;
(f) Prepare, promptly upon request of the Selling Holders or any
underwriters for the Selling Holders made during the period in which the Company
is obligated to use its reasonable best efforts to keep a Registration Statement
effective, such amendment or amendments to such Registration Statement and such
prospectus or prospectuses as may be
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CUSIP NO. 450707 10 4 13D PAGE 29 OF 39 PAGES
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reasonably necessary to permit compliance with the requirements of Section
10(a)(3) of the Securities Act;
(g) Advise the Selling Holders promptly after the Company shall receive
notice or obtain knowledge of the issuance of any stop order by the SEC
suspending the effectiveness of any such Registration Statement or amendment
thereto or of the initiation or threatening of any proceeding for that purpose,
and promptly use its reasonable best efforts to prevent the issue of any stop
order or obtain its withdrawal promptly if such stop order should be issued;
(h) Use its reasonable best efforts to qualify as soon as reasonably
practicable the Registrable Securities for sale under the securities or blue sky
laws of such states and jurisdictions within the United States as shall be
reasonably requested by the Selling Holders; provided that the Company shall not
be required in connection therewith or as a condition thereto to qualify to do
business, to become subject to taxation or to file a consent to service of
process generally in any of the aforesaid states or jurisdictions;
(i) Furnish the Selling Holders, as soon as available, copies of any
Registration Statement and each preliminary or final prospectus, or supplement
or amendment required to be prepared pursuant hereto, all in such quantities as
the Selling Holders may from time to time reasonably request;
(j) Furnish each Selling Holder with copies of such opinions of counsel
and accountants' "comfort" letters as it reasonably may request with respect to
the registration of its Registrable Securities, the Registration Statement
covering such Registrable Securities and the financial statements included
therein; and
(k) Apply for listing and use its reasonable best efforts to list the
Registrable Securities, if any, being registered on any national securities
exchange on which a class of the Company's equity securities is listed (and to
maintain such listing during the pendency of the relevant registration period)
or, if the Company does not have a class of equity securities listed on a
national securities exchange, apply for qualification and use its reasonable
best efforts to qualify the Registrable Securities, if any, being registered for
inclusion on the automated quotation system of the NASD (and to maintain such
qualification during the pendency of the relevant registration period).
6. Expenses. The Company will pay all Registration Expenses in connection
--------
with registrations of Registrable Securities effected pursuant to Paragraphs 3
and 4. All Selling Expenses in connection with any registration effected
pursuant to this Agreement shall be borne by the Company and the holders of the
Registrable Securities so registered, pro rata on the basis of the number of
Shares included in the registration for the account of the Company and the
number of Registrable Securities so registered by each such holder.
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CUSIP NO. 450707 10 4 13D PAGE 30 OF 39 PAGES
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7. Indemnification.
---------------
(a) To the extent permitted by applicable law, the Company will
indemnify each Holder of the Registrable Securities requesting or joining in a
registration, each Person who controls such Holder within the meaning of Section
15 of the Securities Act, and each underwriter of the securities so registered
and each Person who controls such underwriter, and their respective officers,
directors, partners, agents, employees and successors, against all costs,
expenses, demands, claims, losses, damages, liabilities, fines and penalties (or
actions in respect thereof), to which such holder or such other Person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such claims, losses, damages, liabilities, fines and penalties arise out of
or are based on any untrue statement (or alleged untrue statement) of a material
fact contained in any Registration Statement or prospectus; or arise out of or
are based upon any omission (or alleged omission) to state therein a fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law (other than with respect to violations or alleged violations
caused by the Person seeking indemnification under this Paragraph 7(a)) and will
reimburse each such Holder, each Person who controls such Holder within the
meaning of Section 15 of the Securities Act and each such underwriter, and
their respective officers, directors, partners, agents, employees and successors
for (and will make periodic advances to cover) any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
demand, claim, loss, damage, liability or action promptly after submission of
supporting materials with respect to such expenses; provided, however, that the
-------- -------
Company shall not be required to indemnify any holder or underwriter or Person
which controls any holder or underwriter for any cost, expense, demand, claim,
loss, damage, liability, fine or penalty which arises out of or is based upon
any written information provided by such holder or underwriter, respectively,
expressly for inclusion in the Registration Statement.
(b) To the extent permitted by applicable law, each Holder requesting
or joining in a registration will indemnify the Company, each of its officers,
directors, successors and controlling persons, and each underwriter, if any, of
the Company's securities covered by a registration statement, each Person who
controls the Company or such underwriter within the meaning of Section 15 of the
Exchange Act, and any other Holder selling securities in such registration
statement or any of its directors, officers, partners, agents or employees or
any other person who controls, within the meaning of Section 15 of the Exchange
Act, such Holder against all costs, expenses, demands, claims, losses, damages,
liabilities, fines and penalties (or actions in respect thereof) to which such
indemnified party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities arise out
of or are based upon an untrue statement (or alleged untrue statement) of a
material fact contained in any Registration Statement or prospectus, or arise
out of or are based upon the omission (or alleged omission) to state therein a
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged omission)
was
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CUSIP NO. 450707 10 4 13D PAGE 31 OF 39 PAGES
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made in any Registration Statement or prospectus in reliance upon and in
conformity with written information furnished to the Company by such Holder
requesting or joining in a registration specifically for use in the preparation
thereof.
(c) Each party entitled to indemnification under this Paragraph 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has received written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided such counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld or delayed). The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall bear the expense of such defense of the Indemnified Party if (i) the
Indemnifying Party has agreed in writing to pay such expenses, (ii) the
Indemnifying Party shall have failed to assume the defense of such claim or
employ counsel reasonably satisfactory to the Indemnified Party, or (iii) in the
reasonable judgment of the Indemnified Party, based upon the written advice of
such indemnified Party's counsel, representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts of interest.
In the event that the Indemnifying Party properly does not assume such defense,
the Indemnifying Party shall not be subject to any liability for any settlement
made without its prior written consent, which consent shall not be unreasonably
withheld or delayed. The failure of any Indemnified Party to give notice as
provided herein shall relieve the Indemnifying Party of its obligations under
this Paragraph 7 only to the extent that such failure to give notice shall
materially adversely prejudice the Indemnifying Party in the defense of any such
claim or any such litigation. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the prior written consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation in form and substance reasonably
satisfactory to such Indemnified Party.
8. Contribution.
------------
(a) If the indemnification provided for in Paragraph 7 from the
Indemnifying Party is unavailable to or unenforceable by the Indemnified Party
in respect to any losses, claims, damages, liabilities or expenses referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such 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 Indemnifying
Party and Indemnified Parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Parties 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,
has
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CUSIP NO. 450707 10 4 13D PAGE 32 OF 39 PAGES
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been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Parties, and the parties' 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
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Paragraph 7, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(b) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Paragraph 8 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(c) If indemnification is available under Paragraph 7, the Indemnifying
Parties shall indemnify each Indemnified Party to the full extent provided in
Paragraph 7 without regard to the relative fault of the Indemnifying Party or
Indemnified Party or any other equitable consideration provided for in this
Paragraph 8.
9. Hold-Back Agreements.
--------------------
(a) Restrictions on Public Sale by Holder of Registrable Securities.
---------------------------------------------------------------
To the extent consistent with applicable law, each holder of Registrable
Securities whose Registrable Securities are included in a Registration Statement
filed pursuant to Paragraphs 3 and 4 hereof agrees not to effect any public sale
or distribution of the issue being registered or any similar security of the
Company, including a sale pursuant to Rule 144 or Rule 144A under the Securities
Act, during the 7-day period prior to, and during the 90-day period (or such
longer period as is required by the managing underwriter with respect to the
applicable Registration Statement) beginning on, the effective date of such
Registration Statement, to the extent such sales may prevent the Company from
being in compliance with the Exchange Act; provided, however, that no such
restriction shall apply to sales of Registrable Securities made pursuant to that
Registration Statement, which may be made at any time following the effective
date of that Registration Statement.
(b) Restrictions on Public Sale by the Company and Others. The Company
-----------------------------------------------------
shall not effect any public or nonpublic sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable or exercisable for any such securities or similar securities,
during the 7-day period prior to, and during the 90-day period beginning on, the
effective date of any Registration Statement in which holders of Registrable
Securities are participating or the commencement of a public distribution of
Registrable Securities pursuant to any such Registration Statement (except (i)
as part of such registration or pursuant to registrations on XXX Xxxxx X-0 or S-
8 or any similar or successor form, or on any form filed in connection with an
exchange offer or an offering of securities solely to the existing
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CUSIP NO. 450707 10 4 13D PAGE 33 OF 39 PAGES
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stockholders or employees of the Company or (ii) for sales or other issuances of
securities pursuant to outstanding options, warrants, rights or similar
obligations).
10. Rule 144 and Stock Exchange Listings.
------------------------------------
To the extent that the Company is subject to the filing and reporting
requirements of the Securities Act and the Exchange Act, and so long as there
are Registrable Securities outstanding:
(a) The Company will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 or Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any holder of Registrable Securities,
the Company will deliver to such holder a written statement as to whether it has
complied with such information and requirements.
(b) The Company will use its reasonable best efforts to avoid taking
any action which would cause the Common Stock to cease to be eligible for
inclusion on either of the NASD Automated Quotation System or for listing on any
securities exchange on which it may become listed.
11. Obligations of Holder.
---------------------
(a) Each Holder of Registrable Securities included in any registration
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
(b) Each Holder of the Registrable Securities agrees by acquisition of
such Registered Securities that upon receipt of any notice from the Company
pursuant to Paragraph 5(g), such Holder will forthwith discontinue such Holder's
disposition of Registered Securities pursuant to the Registration Statement
relating to such Registered Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Paragraph 5(g) and if
so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the prospectus relating to such Registered Securities at the time
of receipt of such notice.
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CUSIP NO. 450707 10 4 13D PAGE 34 OF 39 PAGES
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12. Miscellaneous.
-------------
(a) Transfer of Certain Rights. The rights granted to the Holders under
--------------------------
this Agreement may be transferred only to a transferee who delivers to the
Company, within a reasonable time after such transfer, a written instrument by
which such transferee agrees to be bound by the applicable terms of this
Agreement. Notwithstanding the foregoing, nothing herein shall prohibit: (i) any
Holder from transferring any of its rights under this Agreement to any wholly-
owned subsidiary of such Holder or to any entity which merges or consolidates
with or acquires all or substantially all of the equity securities or assets of
such Holder, (ii) any Holder which is a partnership from transferring any of its
rights under this Agreement to a partner of such partnership where such partner
receives Registrable Securities in a distribution from such partnership, (iii)
any Holder who is an individual from transferring any of its rights under this
Agreement to such Holder's spouse or to other relatives, or to a trust for the
benefit of the Holder, or his or her spouse or other relatives; or (iv) any
trustee of a trust which holds Registerable Securities from distributing such
Registrable Securities to the beneficiaries of such trusts; provided that any
--------
such transferee under subparagraphs (i), (ii), (iii) or (iv) above will hold the
Registrable Securities subject to the terms and conditions of this Agreement and
the applicable Stockholders Agreements. Upon any transfer of the rights of a
Holder permitted by and completed in compliance, with the terms of this
Agreement, the transferee shall become a "Holder" for purposes of this Agreement
and the Company shall add the name and address of the transferee to Schedule I
----------
(and, to the extent the transferor no longer holds Registrable Securities, shall
delete the name and address of the transferor).
(b) Remedies. In the event of a breach by the Company of its
--------
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(c) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written consent of the
Company and Holders of at least a majority of the Registrable Securities
affected by such amendment, modification, supplementation, waiver or consent.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter which relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and which does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by the
Holders of a majority of the Registrable Securities being sold by such Holders,
provided that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
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CUSIP NO. 450707 10 4 13D PAGE 35 OF 39 PAGES
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(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing and shall be delivered by hand,
overnight courier service, registered or certified first-class mail, return
receipt requested, or telecopier; if to a Holder, at the address set forth
opposite such Holder's name on Schedule I attached hereto or such other address
----------
as may have been furnished to the Company in writing; if to the Company, at 0000
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Paragraph 12(d).
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; one business day
after sent if sent by courier service.
(e) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Minnesota without regard to the
conflict of laws provisions thereof.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement and the Subscription Agreement
----------------
(and all exhibits and/or schedules attached hereto and thereto) is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the securities now or hereafter owned by the Holders.
(j) Attorneys' Fees. In any action or proceeding brought to enforce any
---------------
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the successful party shall be entitled to recover, and
the court shall award, reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
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CUSIP NO. 450707 10 4 13D PAGE 36 OF 39 PAGES
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as
of the date first above written.
THE COMPANY:
-----------
IVI PUBLISHING, INC., a Minnesota Corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
THE HOLDER(S):
-------------
DAVIDSON & ASSOCIATES, INC.
By: /s/ J.R. Allewaert
-----------------------------------------
Title: CHIEF FINANCIAL OFFICER
14
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CUSIP NO. 450707 10 4 13D PAGE 37 OF 39 PAGES
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SCHEDULE I
to
Registration Rights Agreement
of
IVI Publishing, Inc.
--------------------
Holder Address:
------ -------
DAVIDSON & ASSOCIATES, INC. 00000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxx 00000
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CUSIP NO. 450707 10 4 13D PAGE 38 OF 39 PAGES
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SCHEDULE A
----------
CONTROL PERSONS, EXECUTIVE OFFICERS AND DIRECTORS
-------------------------------------------------
The following information sets forth the name, business address and present
principal occupation or employment of CUC International Inc., a Delaware
corporation ("CUC") and the control person of Davidson, and each director and
executive officer of Davidson and CUC. The business address of CUC is 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, and the business address of each person
named below is the address of the company for whom such person is a director or
an executive officer, as the case may be, as set forth in this Schedule 13D. To
the best of Davidson's knowledge, during the last five years, none of such
persons has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, Federal
or State securities laws or finding any violation with respect to such laws.
Each of such persons is a citizen of the United States of America.
CUC INTERNATIONAL INC.
DIRECTORS OF CUC INTERNATIONAL INC.
XXXXXXXX XXXXXX, independent investor; President of the Xxxxx X. Xxxxxx
Foundation; President of CIB Associates.
XXXXXX X. XXXXXX, Chairman of the Board of Directors and Chief Executive
Officer; Director of NFO Research, Inc.
XXXXXX X. XXXXXXXXXXX, Chairman of the Board of Directors and Chief
Executive Officer of Gruntal Financial Corp.; Chairman of Yorkville Associates
Corp.; Director of Ferrofluidics Corporation, Interchange Financial Services
Corp. and Xxxxxxx Computer Services, Inc.
X. XXXXXX DONNELLEY, independent investor.
XXXXXXX X. XXXXXXX, Professor of marketing/communications at the Harvard
Business School; Director of Edelman Worldwide and Opinion Research Corporation.
XXXXXXXXXXX X. XXXXXX, Executive Vice President and a member of the Office
of the President; Chief Executive Officer of CUC Software.
XXXXXX X. XXXXXX, retired Senior Vice President of Xxxx Xxxxxx Corporation.
XXXXXXX X. XXXXXXXX, XX., independent investor; Director of International
Flavors and Fragrances, Inc.
E. XXXX XXXXXXX, President and Chief Operating Officer.
16
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CUSIP NO. 450707 10 4 13D PAGE 39 OF 39 PAGES
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XXXXXXX X. XXXXXXXX, Vice Chairman of the Board of Directors; member of the
Office of the President; Chief Executive Officer of Sierra-On-Line, Inc., a
wholly owned subsidiary of CUC.
EXECUTIVE OFFICERS OF CUC INTERNATIONAL INC.
XXXXXX X. XXXXXX, see above.
---------
E. XXXX XXXXXXX, see above.
---------
XXXXXXXXXXX X. XXXXXX, see above.
---------
XXXXX XXXXXXXXXX, Senior Vice President and Chief Financial Officer.
XXX X. XXXXXX, Senior Vice President and General Counsel.
DAVIDSON & ASSOCIATES, INC.
DIRECTORS OF DAVIDSON & ASSOCIATES, INC.
XXXXXXXXXXX X. XXXXXX, see above.
---------
XXXXXXX X. XXXXXXXXX, Chief Financial Officer.
XXXXX XXXXXXXXXX, see above.
---------
XXXXXX XXXXXXXX, Vice President of Financial Reporting.
XXXXXXXX X. XXXXX, President.
EXECUTIVE OFFICERS OF XXXXX & ASSOCIATES, INC.
XXXXXXXX X. XXXXX, see above.
---------
XXXXXXX X. XXXXXXXXX, see above.
---------
XXXXX X. XXXXX, Vice President, General Counsel and Secretary.
17
