EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 19, 2002
by and among
CONCURRENT COMPUTER CORPORATION
and
THIRDSPACE LIVING LIMITED
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of March 19, 2002 by and among CONCURRENT COMPUTER CORPORATION, a
Delaware corporation (the "Company"), and THIRDSPACE LIVING LIMITED, a company
organized under the laws of England and Wales (the "Holder").
WHEREAS, this Agreement is made pursuant to the Share Purchase and Warrant
Issuance Agreement by and among Holder and the Company dated as of March 19,
2002 (the "Share Purchase Agreement");
WHEREAS, the Holder became the owner of Common Stock (as defined below) in
connection with the transactions described in the Share Purchase Agreement; and
WHEREAS, in order to induce the Holder to enter into the transactions
described in the Share Purchase Agreement, the Company has agreed, with respect
to the Common Stock issued pursuant to the Share Purchase Agreement, to provide
the Holder with the registration rights set forth in Section 2 hereof;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Common Stock" shall mean the Common Stock, par value $.01 per share, of
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the Company.
"Company" shall have the meaning set forth in the Preamble and also shall
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include the Company's successors.
"Entity" shall mean any general partnership, limited partnership,
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corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Holder" shall have the meaning set forth in the Preamble and shall include
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certain transferees to which registration rights are transferred or assigned
pursuant to Section 7 hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Person" shall mean any individual or Entity.
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"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
"Selling Expenses" shall mean all underwriting discounts and selling
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commissions and transfer taxes applicable to the sale of Shelf Registrable
Securities, disbursements of underwriters of the Holder and the fees and
expenses of all separate counsel, accountants or other advisors for Holder.
"Selling Period" shall have the meaning set forth in Section 3 hereof.
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"Shares" shall mean any Common Stock issued to the Holder pursuant to the
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Share Purchase Agreement.
"Shelf Prospectus" shall mean the prospectus included in the Shelf
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Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Shelf Registrable Securities covered by the Shelf
Registration Statement, and in each case including all material incorporated by
reference therein.
"Shelf Registration" shall mean a registration required to be effected
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pursuant to Section 2 hereof.
"Shelf Registrable Securities" shall mean the Shares held by the Holder and
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any shares of Common Stock issued as a dividend or other distribution with
respect to the Shares held by the Holder, excluding (i) Shares that have been
registered under any other effective registration statement, (ii) Shares sold or
otherwise transferred pursuant to Rule 144 under the Securities Act or
otherwise, and (iii) Shares held by the Holder if all of such Shares are
eligible for sale pursuant to Rule 144 under the Securities Act and could be
sold in one transaction in accordance with the volume limitations contained in
Rule 144(e)(1) under the Securities Act.
"Shelf Registration Expenses" shall mean any and all expenses, other than
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Selling Expenses, incident to performance of or compliance with this Agreement,
including, without limitation: (i) all SEC, stock exchange and NASD registration
and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing the Shelf Registration
Statement or any Shelf Prospectus, and (iv) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance.
"Shelf Registration Notice" shall have the meaning set forth in Section
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3(b) hereof.
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"Shelf Registration Statement" shall mean a registration statement of the
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Company (and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act) on
Form S-3 (or any successor form) that covers all of the Shelf Registrable
Securities to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments (including post-effective amendments) to such registration
statement, and all exhibits thereto and materials incorporated by reference
therein.
2. Shelf Registration Under the Securities Act for the Benefit of the
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Holder.
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(a) Filing of Shelf Registration Statement. The Company shall cause to
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be filed within 80 days after the date of this Agreement, a Shelf Registration
Statement providing for the sale by the Holder of all Shelf Registrable
Securities, in accordance with the terms hereof and will use its reasonable
efforts to cause such Shelf Registration Statement to be declared effective by
the SEC no later than August 1, 2002. The Company agrees to use its reasonable
efforts to keep the Shelf Registration Statement with respect to the Shelf
Registrable Securities continuously effective from the date such Shelf
Registration Statement is effective until the earlier of two years after the
date hereof or the date on which the Holder ceases to hold any Shelf Registrable
Securities, in each case so long as the Company is eligible to use Form S-3 (or
any successor form). The Shelf Registration Statement shall not include
securities of the Company other than the Shelf Registrable Securities and other
shares of Common Stock that the Company is obligated to register on behalf of
other holders of its Common Stock or securities convertible into Common Stock.
Subject to Section 3(b) and Section 3(g), the Company further agrees to
supplement or amend the Shelf Registration Statement (i) if and as required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities Act or
any rules and regulations thereunder and (ii) to include in the Shelf
Registration Statement any additional securities that become Shelf Registrable
Securities by operation of the definition thereof (but in the case of clause
(ii), only after a Shelf Registration Notice has been delivered by Holder
pursuant to Section 3(b)).
(b) Expenses. The Company shall pay all Shelf Registration Expenses in
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connection with the registration of the Shelf Registrable Securities pursuant to
Section 2(a). The Holder shall pay all Selling Expenses relating to the sale or
disposition of such Shelf Registrable Securities pursuant to the Shelf
Registration Statement.
(c) Offering. Subject to the provisions of this Agreement, Holder may,
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at its election, effect offers and sales under the Shelf Registration Statement
by means of one or more offerings.
3. Shelf Registration Procedures.
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In connection with the obligations of the Company with respect to the Shelf
Registration Statement contemplated by Section 2 hereof, the Company shall:
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(a) prepare and file with the SEC, within the time period set forth in
Section 2 hereof, the Shelf Registration Statement, which Shelf
Registration Statement (i) shall be available for the sale of the Shelf
Registrable Securities in accordance with the intended method or methods of
distribution by the Holder covered thereby and (ii) shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith;
(b) subject to the last three sentences of this Section 3(b) and
Section 3(g) hereof, (i) prepare and file with the SEC such amendments to
such Shelf Registration Statement as may be necessary to keep such Shelf
Registration Statement effective for the applicable period; (ii) cause the
Shelf Prospectus to be amended or supplemented as required and to be filed
as required by Rule 424 or any similar rule that may be adopted under the
Securities Act; (iii) respond as promptly as practicable to any comments
received from the SEC with respect to the Shelf Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
Holder covered thereby. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to take any of the actions
described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d)
or Section 3(g) with respect to the Shelf Registrable Securities (x) to the
extent that the Company is in possession of material non-public information
that it deems advisable not to disclose or is engaged in negotiations or
planning for a merger or acquisition or disposition transaction and it
delivers written notice to the Holder to the effect that the Holder may not
make offers or sales under the Shelf Registration Statement for a period (a
"Suspension Period") not to exceed sixty (60) days from the date of such
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notice; provided however that such Suspension Period shall be terminated by
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the Company as soon as reasonably practicable before the end of such
Suspension Period (Holder acknowledges that this proviso shall not require
the Company to make any public disclosure at any time the Company deems
such disclosure, in its discretion, to not be advisable); provided further,
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that the Holder shall not be precluded from effecting sales pursuant to
this clause (x) for more than one hundred twenty (120) days during any
360-day period, and (y) unless and until the Company has received a written
notice (a "Shelf Registration Notice") from the Holder that it intends to
make offers or sales under the Shelf Registration Statement as specified in
such Shelf Registration Notice; provided, however, that the Company shall
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have ten (10) business days to prepare and file any such amendment or
supplement after receipt of the Shelf Registration Notice. Once the Holder
has delivered a Shelf Registration Notice to the Company, the Holder shall
promptly provide and shall cause any underwriter participating in any
disposition pursuant to the Shelf Registration Statement to promptly
provide to the Company such information as the Company reasonably requests
in order to identify the method of distribution in a post-effective
amendment to the Shelf Registration Statement or a supplement to the Shelf
Prospectus. The Holder also shall notify the Company in writing upon
completion of such offer or sale or at such time as the Holder no longer
intends to make offers or sales under the Shelf Registration Statement;
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(c) after the Holder has delivered a Shelf Registration Notice to the
Company, furnish to the Holder, without charge, as many copies of the Shelf
Registration Statement, the Shelf Prospectus and any amendments or
supplements thereto, (not including any documents incorporated therein by
reference or exhibits thereto unless specifically requested), as the Holder
may reasonably request, in order to facilitate the public sale or other
disposition of the Shelf Registrable Securities;
(d) use its reasonable efforts to register or qualify the Shelf
Registrable Securities by the time the Shelf Registration Statement is
declared effective by the SEC under applicable state securities or blue sky
laws of such jurisdictions in the United States and its territories and
possessions as the Holder shall reasonably request in writing, keep each
such registration or qualification effective during the period such Shelf
Registration Statement is required to be kept effective by the terms of
this Agreement or during the aggregate of the periods in which offers or
sales are being made by the Holder after it has delivered one or more Shelf
Registration Notices to the Company, whichever is shorter; provided,
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however, that in connection therewith, the Company shall not be required to
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(i) qualify as a foreign corporation to do business or to register as a
broker or dealer in any such jurisdiction where it would not otherwise be
required to qualify or register but for this Section 3(d), (ii) subject
itself to taxation in any such jurisdiction where it is not otherwise
subject to taxation, or (iii) file a general consent to service of process
in any such jurisdiction;
(e) notify the Holder, (i) when the Company requests effectiveness by
the SEC of the Shelf Registration Statement and any post-effective
amendments thereto, (ii) when the Shelf Registration Statement and any
post-effective amendments thereto have become effective, (iii) when any
amendment or supplement to the Shelf Prospectus has been filed with the
SEC, (iv) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of the Shelf Registration
Statement or any part thereof or the initiation of any proceedings for that
purpose, and (v) if the Company receives any notification with respect to
the suspension of the qualification of the Shelf Registrable Securities for
offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement or any
part thereof or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Shelf Registrable Securities
for sale in any jurisdiction;
(g) subject to the last three sentences of Section 3(b) hereof, upon
the occurrence of any event contemplated by clause (x) of Section 3(b)
hereof or upon the happening of any event as a result of which the Shelf
Prospectus contains an untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading,
use its reasonable efforts promptly to prepare and file an amendment or a
supplement to the Shelf Prospectus or any document incorporated therein by
reference
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or prepare, file and obtain effectiveness of a post-effective amendment to
the Shelf Registration Statement, or file any other required document, in
any such case to the extent necessary so that, as thereafter delivered to
the purchasers of the Shelf Registrable Securities, such Shelf Prospectus
as then amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
are made, not misleading;
(h) make available at all reasonable times when the Holder intends to
sale any or all of the Shelf Registrable Securities pursuant to the Shelf
Registration Statement for inspection by the Holder, and any underwriter
participating in any disposition pursuant to the Shelf Registration
Statement and any counsel or accountants retained by the Holder or any such
underwriter all financial and other records, pertinent corporate documents
and properties of the Company and cause the officers, directors and
employees of the Company to supply all such records, documents or
information reasonably requested by the Holder, any such underwriter,
counsel or accountants in connection with the Shelf Registration Statement;
provided, however, that such records, documents or information which
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the Company determines in good faith to be confidential and notifies the
Holder, any such underwriter, counsel or accountants in writing that such
records, documents or information are confidential shall not be disclosed
by the Holder, any such underwriter, counsel or accountants unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or governmental agency, or (ii) such records,
documents or information become generally available to the public other
than through a breach of this Agreement;
(i) prior to the initial filing of the Shelf Registration Statement
and after each delivery of a Shelf Registration Notice to the Company by
the Holder, as applicable, furnish copies of the Shelf Registration
Statement or any amendment thereto, or the Shelf Prospectus or any
amendment or supplement thereto (not including any documents incorporated
by reference therein unless specifically requested) to the Holder and any
underwriter sufficiently in advance of its use and/or filing with the SEC
to allow the Holder and any underwriter an opportunity to comment thereon,
but in no event less than four (4) business days prior to such use or
filing, and not file any such Shelf Registration Statement, or any
amendment thereto, or the Shelf Prospectus or any amendment or supplement
thereto as to which the Holder or such underwriter may reasonably object
within four (4) business days after the receipt thereof;
(j) if requested by the Holder, or any underwriter, incorporate in the
Shelf Registration Statement or Shelf Prospectus, pursuant to a supplement
or post effective amendment if necessary, after the delivery of a Shelf
Registration Notice, such information as the Holder and any underwriter may
reasonably request to have included therein, including, without limitation,
information relating to the "plan of distribution" of the Shelf Registrable
Securities, information with respect to the principal amount or number of
shares of Shelf Registrable Securities being sold, the purchase price being
paid therefor and any other terms of the offering of the Shelf Registrable
Securities to be sold in such offering and make all required filings of any
such Shelf Prospectus
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supplement or post-effective amendment as soon as reasonably practicable
after the Company is notified of the matters to be incorporated in such
Shelf Prospectus supplement or post effective amendment;
(k) in connection with an underwritten offering, (i) use its
reasonable efforts to furnish to the Holder, addressed to it, an opinion of
counsel for the Company, dated the date of the closing under the
underwriting agreement (in such form as is customarily delivered to
underwriters by issuer's counsel in underwritten public offerings of
securities), and (ii) use its reasonable best efforts to furnish to Holder,
addressed to it, a comfort letter, dated the date of the underwriting
agreement, signed by the Company's independent certified public
accountants, who have certified the Company's financial statements included
in such offering (covering substantially the same matters with respect to
the offering as are customarily covered in accountants' letters delivered
to underwriters in underwritten public offerings of securities);
(l) use its reasonable efforts to cause all Shelf Registrable
Securities to be listed on any securities exchange on which similar
securities issued by the Company are then listed; and
(m) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the SEC as related to the Company's obligations
hereunder, and use its reasonable efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder or any similar
rule as may be adopted by the SEC.
The Company may require the Holder to furnish to the Company in writing
such information regarding the proposed distribution by the Holder as the
Company may from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 3, the Holder covenants and agrees that (i) it will not offer or
sell any Shelf Registrable Securities under the Shelf Registration Statement
until it has provided a Shelf Registration Notice pursuant to Section 3(b) and
has received copies of the Shelf Prospectus as then amended or supplemented as
contemplated by Section 3(c) and notice from the Company that the Shelf
Registration Statement and any post-effective amendments thereto have become
effective as contemplated by Section 3(e); (ii) upon receipt of any notice from
the Company contemplated by Section 3(b) or the receipt of a notice from the
Company of the happening of an event as a result of which (a) the Shelf
Registration Statement contains an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein not
misleading or (b) the Shelf Prospectus contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, the Holder shall not offer or sell any Shelf Registrable
Securities pursuant to the Shelf Registration Statement until the Holder
receives copies of a supplemented or amended Shelf Prospectus contemplated by
Section 3(g) hereof and receives notice that any
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post-effective amendment has become effective, and, if so directed by the
Company, the Holder will deliver to the Company (at the expense of the Company)
all copies in its possession, other than permanent file copies then in the
Holder's possession, of the Shelf Prospectus as amended or supplemented at the
time of receipt of such notice; (iii) all offers and sales by the Holder under
the Shelf Registration Statement shall be completed within twenty (20) days
after the first date on which offers or sales can be made pursuant to clause (i)
above, and upon expiration of such twenty (20) day period, the Holder will not
offer or sell any Shelf Registrable Securities under the Shelf Registration
Statement until it has again complied with the provisions of clause (i) above
(each a "Selling Period"); (iv) the Holder and any of its beneficial owners,
officers, directors or affiliates, if any, will comply with the provisions of
Regulation M promulgated by the SEC as applicable to them in connection with
sales of Shelf Registrable Securities pursuant to the Shelf Registration
Statement; (v) the Holder and any of its beneficial owners, officers, directors
or affiliates, if any, will comply with the prospectus delivery requirements of
the Securities Act as applicable to them in connection with sales of Shelf
Registrable Securities pursuant to the Shelf Registration Statement; and (vi)
the Holder and any of its beneficial owners, officers, directors or affiliates,
if any, will enter into such written agreements as the Company shall reasonably
request to ensure compliance with clause (iv) and (v) above.
4. Holdback Agreements. If the Company proposes to commence an
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underwritten offering of any equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, and any managing
underwriter shall advise the Company, that, in its opinion, the public sale or
distribution of the Shelf Registrable Securities could materially and adversely
affect the proposed underwritten offering, then the Holder will not effect any
public sale or distribution of the Shelf Registrable Securities (other than
pursuant to Rule 144), during the period beginning 7 days prior to (provided
that such Holder receives a written notice from the Company of the commencement
of such 7-day period) and ending 30-days after the effective date of the
Registration Statement for such underwritten offering of securities by the
Company (except where the Shelf Registrable Securities are included as part of
such underwritten registration).
5. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless the Holder and the beneficial owners, officers and directors of
the Holder and each Person, if any, who controls the Holder within the meaning
of Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to which the Holder, or any beneficial owner,
officer, director or controlling Person of the Holder may become subject
under the Securities Act or otherwise (A) that arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or any amendment thereto, or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading or (B) that arise out of or are based upon any untrue statement
or alleged untrue
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statement of a material fact contained in any Shelf Prospectus or any
amendment or supplement thereto, or the omission or alleged omission to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (C) that arise out of or are based upon any violation by the
Company of the Securities Act, the Exchange Act, or any rule or regulation
promulgated thereunder in connection with its obligations hereunder;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or alleged untrue statement
or any omission or alleged omission or violation, if such settlement is
effected with the written consent of the Company; and
(iii) subject to the limitations set forth in Section 5(c), against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not a party, or any claim whatsoever based upon any such untrue
statement or alleged untrue statement or omission or alleged omission or
violation, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that the indemnity provided pursuant to this Section 5(a)
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shall not apply with respect to any loss, liability, claim, damage or expense
that arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Holder
expressly for use in the Shelf Registration Statement or any amendment thereto,
or the Shelf Prospectus or any amendment or supplement thereto.
(b) Indemnification by the Holder. The Holder agrees to indemnify and
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hold harmless the Company, and each of its respective directors and officers
(including each director and officer of the Company who signed the Shelf
Registration Statement), and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, to the same extent as
the indemnity contained in Section 5(a) hereof, but only insofar as such loss,
liability, claim, damage or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or any amendment thereto, or the Shelf
Prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the Holder
expressly for use therein; provided, however, that in no event shall an
indemnity under this Section 5(b) exceed the gross proceeds from the offering
received by the Holder.
(c) Conduct of Indemnification Proceedings. Each indemnified party
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shall give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the
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indemnity agreement provided in Section 5(a) or (b) above, unless the lack of
notice by the indemnified party materially prejudices the indemnifying party or
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided under Section 5(a) or (b) above. After receipt of such
notice, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, jointly with any other indemnifying party so notified, to
assume the defense of such action or proceeding at such indemnifying party's own
expense with counsel chosen by such indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld; provided,
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however, that, if the defendants in any such action or proceeding include both
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the indemnified party and the indemnifying party and the indemnified party
reasonably determines, based upon advice of counsel, that a conflict of interest
exists or that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, then the indemnified party shall be entitled to separate
counsel (which shall be limited to a single law firm), the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel (which
shall be limited to a single law firm) for the indemnified party. In such event,
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party. If the indemnifying
party assumes the defense of any such action or proceeding in accordance with
this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding, except as set forth in the proviso in the second
sentence of this Section 5(c).
(d) Contribution. In order to provide for just and equitable
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contribution in circumstances in which the indemnity agreement provided for in
this Section 5 is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company and the Holder shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the Holder,
in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Holder on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the 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 been made by, or relates to
information supplied by, such indemnifying party or the indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 5(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 immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), the Holder shall not
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be required to contribute any amount in excess of the gross proceeds from the
offering received by the Holder.
Notwithstanding the foregoing, 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. For purposes of this Section 5(d), each Person, if
any, who controls the Holder within the meaning of Section 15 of the Securities
Act and beneficial owners, directors and officers of the Holder shall have the
same rights to contribution as the Holder, and each director of the Company,
each officer of the Company who signed the Shelf Registration Statement, and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the Company.
(e) In the event any sale pursuant to a Shelf Registration is an
underwritten offering, then the Company agrees to indemnify and hold harmless
each underwriter (as defined in the Securities Act) of Shelf Registrable
Securities to the same extent and on substantially similar terms as the
Company's indemnification of the Holder as set forth in Section 5(a) above.
(f) The obligations of the Company and Holder under this Section 5 shall
survive the completion of any offering of Shelf Registrable Securities under
this Agreement.
6. Rule 144 Sales. The Company covenants that, so long as it is
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subject to the reporting requirements of the Exchange Act and the Holder holds
Shares, it will (a) make and keep public information available (as those terms
are defined in Rule 144 under the Securities Act) at all times; and (b) file
with the Securities and Exchange Commission all of the reports and other
documents required to be filed by it under the Securities Act and the Exchange
Act so as to enable the Holder to sell Shares pursuant to Rule 144 under the
Securities Act.
7. Transfer of Registration Rights. The registration rights under this
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Agreement may be transferred or assigned by a Holder only to a transferee or
assignee which (a) is a subsidiary, parent, general partner, limited partner or
member of the Holder or (b) is an "affiliate" of the Holder (as such term is
---------
defined in Rule 405 promulgated under the Securities Act); provided that the
Company is given written notice at the time of or within a reasonable time after
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and, provided further, that the
transferee or assignee of such rights assumes the obligations of the Holder
under this Agreement in a writing delivered to the Company.
8. Miscellaneous.
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(a) Amendments and Waivers. The provisions of this Agreement,
------------------------
including the provisions of this sentence, may not be amended, modified,
supplemented or waived, nor may consent to departures therefrom be given,
without the written consent of the Company and the Holder.
-11-
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery:
(i) if to the Holder, to it at:
Thirdspace Living Limited
Xxxxxxx Xxxxx
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx
XX0 0XX XX
Attention: General Counsel
Chief Executive Officer
Fax Number: x00(0) 0000 000000
(ii) if to the Company, to it at:
Concurrent Computer Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
XXX
Fax Number: (000) 000-0000
Attention: Xxxx Xxxxxx
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
XXX
Fax Number: (000) 000-0000
Attention: Xxxx X. Xxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
(c) No Assignment. This Agreement shall inure to the benefit of and be
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binding upon the parties hereto and, where applicable, their successors and
permitted assigns. Except as otherwise permitted herein, no party to this
Agreement may assign or delegate all or any portion of its rights, obligations,
or liabilities under this Agreement without the prior written consent of the
other party to this Agreement.
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(d) Third Party Beneficiaries. There shall be no third party
---------------------------
beneficiaries or intended beneficiaries of this Agreement
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Delaware without giving effect to
the conflicts of law provisions thereof.
(h) Specific Performance. The parties hereto acknowledge that there
---------------------
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
(i) Entire Agreement. This Agreement 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. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above
CONCURRENT COMPUTER CORPORATION
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
THIRDSPACE LIVING LIMITED
By: /s/ Xxxxxx Xxxx
-----------------
Name: Xxxxxx Xxxx
Title: Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
