Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of May 11, 2001 is entered into between SCC
Communications Corp., a Delaware corporation (the "Company"), Lucent
Technologies Inc., a Delaware corporation ("Lucent") and Lucent Technologies
Guardian I Corp., a Delaware corporation ("IP-Guardian").
RECITALS
WHEREAS, the Company and Lucent are entering into an Amended and
Restated Agreement for the Purchase and Sale of Assets dated as of May 11, 2001
(the "Purchase Agreement"); and
WHEREAS, the Company and Lucent desire to provide for certain
arrangements with respect to the registration under the Securities Act of 1933
of shares of common stock of the Company being issued pursuant to the Purchase
Agreement (the "Shares");
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"COMMON STOCK" means the common stock, $.001 par value per
share, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
SEC issued under such Act, as they each may, from time to time, be in effect.
"OTHER HOLDERS" means holders of securities of the Company
(other than the Stockholders) who are entitled, by contract with the Company
entered into prior to the date of this Agreement, to have securities included in
a registration statement.
"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"REGISTRATION STATEMENT" means a registration statement filed
by the Company with the SEC for a public offering and sale of securities of the
Company other than, (i) a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a similar limited purpose, (ii) any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation or (iii) a registration
statement
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filed pursuant to that certain registration rights agreement dated May 10,
2001 between the Company and RS Investment Management Co. LLC.
"REGISTRATION EXPENSES" means the expenses described in
Section 2.4.
"REGISTRABLE SHARES" means (i) the Shares and (ii) any other
shares of Common Stock issued in respect of such Shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events); PROVIDED, HOWEVER, that shares of Common Stock which are Registrable
Shares shall cease to be Registrable Shares upon any sale pursuant to a
Registration Statement or Rule 144 under the Securities Act. It is understood
that the term "Registrable Shares" does not include any shares of Preferred
Stock (as defined in the Purchase Agreement) that may be issued to Lucent or
IP-Guardian under the Purchase Agreement.
"SEC" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the SEC
issued under such Act, as they each may, from time to time, be in effect.
"SELLING STOCKHOLDER" means any Stockholder owning
Registrable Shares included in a Registration Statement.
"SHARES" shall have the meaning specified in preamble to this
Agreement.
"STOCKHOLDERS" means Lucent, IP-Guardian and any persons or
entities to whom the rights granted under this Agreement are transferred by
Lucent, IP-Guardian, their successors or assigns pursuant to Section 3 hereof.
2. REGISTRATION RIGHTS.
2.1 REQUIRED REGISTRATIONS.
(a) Subject to the limitations set forth below,
at any time following the date hereof, Lucent, or Stockholders holding not less
than a majority of the outstanding Registrable Shares, may request, in writing,
that the Company effect the registration (a "Demand Registration") of up to 25%
of the Registrable Shares having a value of a least $500,000 pursuant to either
(i) a Registration Statement on Form S-3 providing for a shelf offering or (ii)
an appropriate Registration Statement providing for an underwritten offering.
For purposes of the preceding sentence, the value of Registrable Shares shall be
based on the closing price of the Common Stock on the Nasdaq National Market on
the date on which the registration request is given. The Company shall maintain
the effectiveness of any such shelf Registration Statement for a period of up to
90 days after the same has been first declared effective by the SEC, subject to
the suspension provisions set forth in Sections 2.1(f) and 2.1(g).
(b) Upon receipt of any demand pursuant to this
Section 2.1, the Company shall promptly give written notice of such proposed
registration to all other Stockholders. Such Stockholders shall have the right,
by giving written notice to the Company
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within 30 days after the Company provides its notice, to elect to have
included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election, subject in the case of
an underwritten offering to the approval of the managing underwriter as
provided in Section 2.1(c) below. Thereupon, the Company shall, as
expeditiously as possible, use its reasonable efforts to effect the
registration on an appropriate registration form of all Registrable Shares
which the Company has been requested to so register.
(c) If any Stockholder intends to distribute the
Registrable Shares covered by their request by means of an underwriting, they
shall so advise the Company as a part of their request made pursuant to Section
2.1(a), and the Company shall include such information in its written notice
referred to in Section 2.1(b). The right of any Stockholder to include its
Registrable Shares in such registration pursuant to Section 2.1(a) shall be
conditioned upon such Stockholder's participation in such underwriting on the
terms set forth herein. If the managing underwriter determines that the
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares to be included in a Registration Statement
filed pursuant to this Section 2.1 shall be reduced pro rata among the
requesting Stockholders and the Other Holders requesting registration in
proportion, as nearly as practicable, to the respective number of shares that
were requested to be included in such registration.
(d) The Selling Stockholder initiating
registration shall have the right to select the managing underwriter(s) for any
underwritten offering requested pursuant to Section 2.1(a), subject to the
approval of the Company, which approval will not be unreasonably withheld.
(e) The Company shall not be required to effect
more than four registrations pursuant to Section 2.1. In addition, the Company
shall not be required to effect any Demand Registration within six months after
the effective date of the Registration Statement relating to any prior Demand
Registration.
(f) If at the time of any request to register
Registrable Shares pursuant to this Section 2.1, the Company is engaged or has
plans to engage in any activity or transaction or preparations or negotiations
for any activity or negotiation that the Company desires to keep confidential
for business reasons, and (i) the board of directors of the Company determines
in good faith that the public disclosure requirements imposed on the Company
pursuant to the Registration Statement would require disclosure of such activity
or transaction and (ii) the Chief Executive Officer of the Company provides a
certificate to Lucent setting forth such determination by the board of
directors, then the Company may defer such Demand Registration for a period not
in excess of 120 days from the date of the demand request; provided, that such
right to delay a request may be exercised by the Company not more than once in
any 12-month period.
(g) Notwithstanding the foregoing, the Company
may, by written notice to a Stockholder initiating registration, decline to take
any action to effect a Demand Registration during the period starting with the
date sixty (60) days prior to the Company's good faith estimate of the date of
filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a Registration Statement subject to Section 2.2 if the
Company files a Registration Statement with the SEC for the purpose of
registering under the Securities Act any
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securities to be publicly offered and sold by the Company; provided that the
Company is actively employing in good faith all reasonable efforts to cause
such Registration Statement to become effective.
2.2 INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a
Registration Statement (other than a Registration Statement filed pursuant to
Section 2.1 at any time and from time to time, it will, prior to such filing,
give written notice to all Stockholders of its intention to do so. Upon the
written request of a Stockholder or Stockholders given within 20 days after the
Company provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company shall use its reasonable
efforts to cause all Registrable Shares which the Company has been requested by
such Stockholder or Stockholders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Stockholder or Stockholders; provided that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
2.2 without obligation to any Stockholder.
(b) If the registration for which the Company
gives notice pursuant to Section 2.2(a) is a registered public offering
involving an underwriting, the Company shall so advise the Stockholders as a
part of the written notice given pursuant to Section 2.2(a). In such event, the
right of any Stockholder to include its Registrable Shares in such registration
pursuant to Section 2.2 shall be conditioned upon such Stockholder's
participation in such underwriting on the terms set forth herein. All
Stockholders proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for the underwriting by the Company.
Notwithstanding any other provision of this Section 2.2, if the managing
underwriter determines that the inclusion of all shares requested to be
registered would adversely affect the offering, the Company may limit the number
of Registrable Shares to be included in the registration and underwriting. The
Company shall so advise all holders of Registrable Shares requesting
registration, and the number of shares that are entitled to be included in the
registration and underwriting shall be allocated in the following manner. The
securities of the Company held by holders other than Stockholders and Other
Holders shall be excluded from such registration and underwriting to the extent
deemed advisable by the managing underwriter, and, if a further limitation on
the number of shares is required, the number of shares that may be included in
such registration and underwriting shall be allocated among all Stockholders and
Other Holders requesting registration in proportion, as nearly as practicable,
to the respective number of shares that were requested to be included in such
registration. If any holder of Registrable Shares or any Other Holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company, and any Registrable Shares
or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration and reallocated among any remaining selling
stockholders in accordance with the immediately preceding sentence.
(c) Notwithstanding the foregoing, the Company
shall not be required, pursuant to this Section 2.2, to include any Registrable
Shares in a Registration Statement if such
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Registrable Shares can be sold by the Stockholder within a 3-month period
pursuant to Rule 144 under the Securities Act.
2.3 REGISTRATION PROCEDURES.
(a) If and whenever the Company is required by
the provisions of this Agreement to use its reasonable efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
shall:
(i) file with the SEC a Registration
Statement with respect to such Registrable Shares and use its reasonable efforts
to cause that Registration Statement to become effective as soon as possible;
(ii) as expeditiously as possible prepare
and file with the SEC any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement as may be
necessary to comply with the provisions of the Securities Act (including the
anti-fraud provisions thereof) and to keep the Registration Statement effective
for ninety (90) days from the effective date or such lesser period until all
such Registrable Shares are sold;
(iii) as expeditiously as possible furnish
to each Selling Stockholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its
reasonable efforts to register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws of such states as
the Selling Stockholders shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable the Selling Stockholders
to consummate the public sale or other disposition in such states of the
Registrable Shares owned by the Selling Stockholder; PROVIDED, HOWEVER, that the
Company shall not be required in connection with this paragraph (iv) to qualify
as a foreign corporation or execute a general consent to service of process in
any jurisdiction;
(v) as expeditiously as possible, cause
all such Registrable Shares to be listed on each securities exchange or
automated quotation system on which similar securities issued by the Company are
then listed;
(vi) promptly provide a transfer agent
and registrar for all such Registrable Shares not later than the effective date
of such Registration Statement;
(vii) as expeditiously as possible,
notify each Selling Stockholder, promptly after it shall receive notice thereof,
of the time when such Registration Statement has become effective or a
supplement to any Prospectus forming a part of such Registration Statement has
been filed; and
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(viii) as expeditiously as possible
following the effectiveness of such Registration Statement, notify each seller
of such Registrable Shares of any request by the SEC for the amending or
supplementing of such Registration Statement or Prospectus.
(b) If the Company has delivered a Prospectus
to the Selling Stockholders and after having done so the Prospectus is amended
to comply with the requirements of the Securities Act, the Company shall
promptly notify the Selling Stockholders and, if requested, the Selling
Stockholders shall immediately cease making offers of Registrable Shares and
return all Prospectuses to the Company. The Company shall as promptly possible
provide the Selling Stockholders with revised Prospectuses and, following
receipt of the revised Prospectuses, the Selling Stockholders shall be free to
resume making offers of the Registrable Shares.
(c) In the event that, in the judgment of the
Company, it is advisable to suspend use of a Prospectus included in a
Registration Statement due to pending material developments or other events that
have not yet been publicly disclosed and as to which the Company believes public
disclosure would be detrimental to the Company, the Company shall notify all
Selling Stockholders to such effect, and, upon receipt of such notice, each such
Selling Stockholder shall immediately discontinue any sales of Registrable
Shares pursuant to such Registration Statement until such Selling Stockholder
has received copies of a supplemented or amended Prospectus or until such
Selling Stockholder is advised in writing by the Company that the then current
Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus. Following public disclosure (or other resolution eliminating the
need for such public disclosure) of the development or event that caused
suspension of the use of a Prospectus, the Company shall use its reasonable best
efforts to update or supplement any Prospectus as soon as practicable so as to
enable Selling Stockholders to resume use thereof.
2.4 ALLOCATION OF EXPENSES. The Company will pay all
Registration Expenses for all registrations under this Agreement; PROVIDED,
HOWEVER, that if a registration under Section 2.1 is withdrawn at the request of
Lucent (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Stockholders after
the date on which such registration was requested), the requesting Stockholders
shall pay the Registration Expenses of such registration pro rata in accordance
with the number of their Registrable Shares included in such registration. For
purposes of this Section, the term "Registration Expenses" shall mean all
expenses incurred by the Company in complying with this Agreement, including,
without limitation, all registration and filing fees, exchange listing fees,
printing expenses, fees and expenses of counsel for the Company, state Blue Sky
fees and expenses, and the expense of any special audits or other accounting
fees incident to or required by any such registration, but excluding
underwriting commissions and expenses and any costs and expenses of any counsel
retained by Selling Stockholders.
2.5 INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any of
the Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Selling Stockholder, each
underwriter of such Registrable Shares, and each other
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person, if any, who controls such Selling Stockholder or underwriter within
the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities, joint or several, to which such Selling
Stockholder, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
reimburse such Selling Stockholder, underwriter and each such controlling
person for any legal or any other expenses reasonably incurred by such
Selling Stockholder, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or omission made in such Registration
Statement, preliminary prospectus or prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to
the Company by or on behalf of such Selling Stockholder, underwriter or
controlling person for use in the preparation thereof.
(b) In the event of any registration of any of
the Registrable Shares under the Securities Act pursuant to this Agreement, each
Selling Stockholder, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such Selling Stockholder
furnished to the Company by or on behalf of such Selling Stockholder for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement; PROVIDED, HOWEVER, that the obligations of a Selling
Stockholder hereunder shall be limited to an amount equal to the net proceeds to
such Selling Stockholder of Registrable Shares sold in connection with such
registration.
(c) Each party entitled to indemnification
under this Section (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
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defense of any such claim or any litigation resulting therefrom; PROVIDED,
that 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); and, PROVIDED, FURTHER, that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section
except to the extent that the Indemnifying Party is adversely affected by
such failure. The Indemnified Party may participate in such defense at such
party's expense; PROVIDED, HOWEVER, that the Indemnifying Party shall pay
such expense if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding; PROVIDED FURTHER that
in no event shall the Indemnifying Party be required to pay the expenses of
more than one law firm per jurisdiction as counsel for the Indemnified Party.
The Indemnifying Party also shall be responsible for the expenses of such
defense if the Indemnifying Party does not elect to assume such defense. No
Indemnifying Party, in the defense of any such claim or litigation shall,
except with the 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 of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment
or settle such claim or litigation without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 2.5 is due in accordance with its terms but for any reason is held to be
unavailable to an Indemnified Party in respect to any losses, claims, damages
and liabilities referred to herein, then the Indemnifying Party shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Selling Stockholders on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Company and
the Selling Stockholders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact related
to information supplied by the Company or the Selling Stockholders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Selling
Stockholders agree that it would not be just and equitable if contribution
pursuant to this Section 2.5 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph of Section 2.5, (a) in no case shall any one Selling Stockholder be
liable or responsible for any amount in excess of the net proceeds received by
such Selling Stockholder from the offering of Registrable Shares and (b) the
Company shall be liable and responsible for any amount in excess of such
proceeds; PROVIDED, HOWEVER, that 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. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify such party or
parties from whom
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contribution may be sought, but the omission so to notify such party or
parties from whom contribution may be sought shall not relieve such party
from any other obligation it or they may have thereunder or otherwise under
this Section. No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled without its prior written consent,
which consent shall not be unreasonably withheld.
2.6 OTHER MATTERS WITH RESPECT TO UNDERWRITTEN OFFERINGS.
In the event that Registrable Shares are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Section 2.1, the Company
agrees to (a) enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of
the Company and customary covenants and agreements to be performed by the
Company, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering; (b) use
its reasonable efforts to cause its legal counsel to render customary
opinions to the underwriters with respect to the Registration Statement; and
(c) use its reasonable efforts to cause its independent public accounting
firm to issue customary "cold comfort letters" to the underwriters with
respect to the Registration Statement.
2.7 INFORMATION BY HOLDER. Each holder of Registrable
Shares 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 and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
2.8 "STAND-OFF" AGREEMENT; CONFIDENTIALITY OF NOTICES.
Each Stockholder, if requested by the Company and the managing underwriter of
an underwritten public offering by the Company of Common Stock, shall not
sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Stockholder for a period of 90 days
following the effective date of a Registration Statement; provided that all
stockholders of the Company then holding at least 5% of the outstanding
Common Stock and all officers and directors of the Company enter into similar
agreements. Any Stockholder receiving any written notice from the Company
regarding the Company's plans to file a Registration Statement shall treat
such notice confidentially and shall not disclose such information to any
person other than as necessary to exercise its rights under this Agreement.
2.9 TERMINATION. All of the Company's obligations to
register Registrable Shares of any Stockholder (including Lucent) under this
Agreement shall terminate when all of the Registrable Shares on such
Stockholder can be sold within a 3-month period pursuant to Rule 144 of the
Securities Act.
3. TRANSFERS OF RIGHTS. This Agreement, and the rights and
obligations of Lucent hereunder, may be assigned by Lucent or its successors
to (i) any person or entity to which at least 25% of the Registrable Shares
are transferred or (ii) to any partner, stockholder or affiliate of Lucent,
and such transferee shall be deemed a "Stockholder" for purposes of this
Agreement; provided that the transferee provides written notice of such
assignment to the Company and agrees in writing to be bound hereby.
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4. GENERAL.
(a) SEVERABILITY. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(b) SPECIFIC PERFORMANCE. In addition to any
and all other remedies that may be available at law in the event of any breach
of this Agreement, each Purchaser shall be entitled to specific performance of
the agreements and obligations of the Company hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the internal laws of New York
(without reference to the conflicts of law provisions thereof).
(d) NOTICES. All notices, requests, consents,
and other communications under this Agreement shall be in writing and shall be
deemed delivered (i) two business days after being sent by registered or
certified mail, return receipt requested, postage prepaid or (ii) one business
day after being sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, in each case to the intended recipient
as set forth below:
If to the Company, at SCC Communications Corp., 0000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Chief Executive Officer, or at such other
address or addresses as may have been furnished in writing by the Company to
Lucent, with a copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxx X. Xxxxxxx, Esq.; or
If to Lucent or IP-Guardian, at Lucent Technologies Inc., New
Ventures Group, 000 Xxxxxxxx Xxx., Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention:
Group President, NVG, or at such other address or addresses as may have
been furnished to the Company in writing by Lucent, with a copy to
Lucent Technologies Inc., 000 Xxxxxxxx Xxx., Room 2F-107, Xxxxxx Xxxx,
Xxx Xxxxxx 00000, Attention: Xxxx Xxxxxx, Esq.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) COMPLETE AGREEMENT. This Agreement
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
(f) AMENDMENTS AND WAIVERS. Any term of this
Agreement may be amended or terminated and the observance of any term of this
Agreement may be waived with respect to all parties to this Agreement (either
generally or in a particular instance and either
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retroactively or prospectively), with the written consent of the Company and
the holders of at least 50% of the Registrable Shares held by all of the
Stockholders. Notwithstanding the foregoing, this Agreement may be amended or
terminated, and any right hereunder may be waived with respect to all parties
to this Agreement with the consent of the holders of less than all
Registrable Shares only in a manner which applies to all such holders in the
same fashion. Any such amendment, termination or waiver effected in
accordance with this Section 4(f) shall be binding on all parties hereto,
even if they do not execute such consent and the Company. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one
or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
(g) PRONOUNS. Whenever the context may require,
any pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
(h) COUNTERPARTS; FACSIMILE SIGNATURES. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which together shall constitute one and the
same document. This Agreement may be executed by facsimile signatures.
(i) SECTION HEADINGS. The section headings are
for the convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
(j) PUBLICITY. Except for the press release
contemplated by the Purchase Agreement, neither Lucent nor Company shall,
without the approval of the other, make any press release or other announcement
concerning the existence of this Agreement or the terms of the transactions
contemplated by this Agreement, except as and to the extent that any such party
shall be so obligated by applicable law, in which case the other party shall be
advised and the parties shall use their reasonable commercial efforts to cause a
mutually agreeable release or announcement to be issued; PROVIDED, HOWEVER, that
the foregoing shall not preclude communications or disclosures necessary to
comply with accounting, stock exchange, Nasdaq National Market or applicable
federal and state securities law disclosure obligations.
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Executed as of the date first written above.
COMPANY:
SCC COMMUNICATIONS CORP.
By:___________________________________
Name:_________________________________
Title:________________________________
LUCENT:
LUCENT TECHNOLOGIES INC.
By:___________________________________
Name:_________________________________
Title:________________________________
IP-GUARDIAN:
LUCENT TECHNOLOGIES
GUARDIAN I CORP.
By:___________________________________
Name:_________________________________
Title:________________________________
(SIGNATURE PAGE REGISTRATION RIGHTS AGREEMENT)
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