EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, made as of the 19th day of March, 1997, by and among LOGICAL
DESIGN SOLUTIONS, INC., a New Jersey corporation (the "Company"), and those
persons set forth on Schedule I as Investors (each an "Investor" and
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collectively the "Investors").
WHEREAS, the Investors are acquiring warrants ("Warrants") to acquire an
aggregate of 215,000 Shares of Common Stock, no par value per share, of the
Company (the "Common Stock"), pursuant to the terms of a 9% Senior Subordinated
Debenture and Warrant Purchase Agreement dated as of the date hereof among the
Company, the Investors and certain shareholders of the Company (the "Purchase
Agreement"); and
WHEREAS, it is a condition to the obligations of the Investors under the
Purchase Agreement that this Agreement be executed by the parties hereto in
order to provide the Investors with certain registration rights with respect to
the shares of Common Stock issuable upon exercise of the Warrants being acquired
by the Investors under the Purchase Agreement or otherwise acquired by the
Investors, and the parties are willing to execute this Agreement and to be bound
by the provisions hereof,
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Act" means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holder" means the person who is then the record owner of Registrable
Securities which have not been sold to the public.
"Initiating Holders" means any Investors and their assignees who in the
aggregate are holders of at least twenty-five percent (25%) of the outstanding
Registrable Securities held by the Investors and their assignees.
"Registrable Securities" means all shares of Common Stock now owned or
hereafter acquired by any Investor.
The term "register" means to register under the Act and applicable state
securities laws for the purpose of effecting a public sale of securities.
"Registration Expenses" means all expenses incurred by the Company in
compliance with Sections 2, 3 or 5 hereof, including, without limitation, all
registration and filing fees, printing expenses, transfer taxes, fees and
disbursements of counsel for the Company, blue-sky fees and expenses, fees of
transfer agents and registrars, reasonable fees and disbursements of one counsel
for all the selling Holders, and the expense of any special audits incident to
or required by any such registration.
"Selling Expenses" means all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities.
2. Requested Registrations
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(a) If at any time after December 31, 1997 the Company shall receive
from one or more Initiating Holders a written request that the Company effect
the registration of Registrable Securities representing at least twenty-five
percent (25%) of the Registrable Securities held by or issuable to all the
Investors (or any lesser percentage if the reasonably anticipated aggregate
price to the public of the Registrable Securities to be included in such
registration would exceed $ 10,000,000), in connection with a firm commitment
underwriting, the Company will:
(i) promptly give written notice of the proposed registration to all
other Holders; and
(ii) as soon as practicable, use all commercially reasonable efforts
to effect such registration as may be so requested and as would permit or
facilitate the sale and distribution of such portion of such Registrable
Securities as are specified in such request, together with such portion of
the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request given within thirty days after receipt
of such written notice from the Company. If the underwriter managing the
offering advises the Holders who have requested inclusion of their
Registrable Securities in such registration that marketing considerations
require a limitation on the number of shares offered, such limitation shall
be imposed, subject to the immediately following sentence, pro rata among
such Holders who requested inclusion of Registrable Securities in such
registration according to the number of Registrable Securities then held by
such Holders. Neither the Company nor any other shareholder may include
shares in a registration effected under this Section 2(a) without the consent
of the Initiating Holders holding a majority of the Registrable Securities
sought to be included in such registration by the Initiating Holders if the
inclusion of shares by the Company or the other shareholders would limit the
number of Registrable Securities sought to be included by the Initiating
Holders or reduce the offering price thereof. The Investors may initiate two
registrations pursuant to this Section 2(a). No registration initiated by the
Initiating Holders hereunder shall count as a registration under this Section
2(a) unless and until it shall have been
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declared effective (an "Effective Registration") and the Initiating Holders
shall have sold all of the Registrable Securities included in such
registration.
(b) The underwriter of any underwriting requested under this Section 2
shall be selected by the Company; provided that such underwriter must be
reasonably acceptable to the Holders of a majority of the Registrable Securities
included therein.
3. "Piggy Back" Registrations.
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(a) If the Company shall determine to register any of its securities,
either for its own account or the account of a security holder or holders
exercising their registration rights (subject to the provisions of Section 2),
other than a registration relating solely to employee benefit plans or a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable Securities
or pursuant to Form S-4, the Company will:
(i) Promptly give to each Holder of Registrable Securities written
notice thereof (which shall include the number of shares the Company or other
security holder proposes to register and, if known, the name of the proposed
underwriter); and
(ii) Use its best efforts to include in such registration all the
Registrable Securities specified in a written request or requests, made by
any Holder within twenty (20) days after the date of delivery of the written
notice from the Company described in clause (i) above. If the underwriter
advises the Company that marketing considerations require a limitation on the
number of shares offered pursuant to any registration statement, then the
Company may offer all of the securities it proposes to register for its own
account and such limitation on any remaining securities that may, in the
opinion of the underwriter, be sold will be imposed: (a) first, so as to
exclude all Registrable Securities of Holders other than the Investors and
their assignees; and (b) thereafter, pro rata among the Holders who requested
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inclusion of Registrable Securities in such registration according to the
number of Registrable Securities then held by such Holders.
(b) The Company shall select the underwriter for an offering made
pursuant to this Section 3, but shall not be required to register under the
Exchange Act prior to such date.
4. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to
Xxxxxxx 0, 0 xx 0 xxxxx xx paid by the Company. All Selling Expenses incurred in
connection with any such registration, qualification or compliance shall be
borne by the holders of the securities registered, pro rata on the basis of the
number of their shares so registered.
5. Registration on Form S-3. The Company shall use its best efforts to
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qualify for registration on Form S-3 or any comparable or successor form; and to
that end the Company shall register (whether or not required by law to do so)
the Common Stock under the Exchange
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Act in accordance with the provisions of the Exchange Act following the
effective date of the first registration of any securities of the Company on
Form S- I or any comparable or successor form, but shall not be required to
register under the Exchange Act prior to such date. After the Company has
qualified for the use of Form S-3, in addition to the rights contained in the
foregoing provisions of this Agreement, the Holders of Registrable Securities
shall have the right to request registrations on Form S-3 (such requests shall
be in writing and shall state the number of shares of Registrable Securities to
be disposed of and the intended methods of disposition of such shares by such
Holder or Holders); provided that the Company shall not be obligated to effect
any such registration pursuant to this Section 5 more than once in any twelve
month period, and in no event shall the Company be required to register shares
with an aggregate market value of less than $5,000,000.
6. Registration Procedures. In the case of each registration effected by the
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Company pursuant to this Agreement, the Company will keep each Holder of
Registrable Securities included in such registration advised in writing as to
the initiation of each registration and as to the completion thereof. At its
expense, the Company will do the following for the benefit of such Holders:
(a) Keep such registration effective for a period of 120 days or until the
Holder or Holders have completed the distribution described in the registration
statement relating thereto, whichever first occurs, and amend or supplement such
registration statement and the prospectus contained therein from time to time to
the extent necessary to comply with the Act and applicable state securities
laws;
(b) Use its best efforts to register or qualify the Registrable Securities
covered by such registration under the applicable securities or "blue sky" laws
of such jurisdictions as the selling shareholders may reasonably request;
provided, that the Company shall not be obligated to qualify to do business in
any jurisdiction where it is not then so qualified or otherwise required to be
so qualified or to take any action which would subject it to the service of
process in suits other than those arising out of such registration;
(c) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(d) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and is entered into by the Holder and provided
further that, if the underwriter so requests, the underwriting agreement will
contain customary contribution provisions on the part of the Company;
(e) To the extent then permitted under applicable professional guidelines
and standards, use its best efforts to obtain a comfort letter from the
Company's independent public accountants in customary form and covering
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such matters of the type customarily covered by comfort letters and an opinion
from the Company's counsel in customary form and covering such matters of the
type customarily covered in a public issuance of securities, in each case
addressed to the Holders, and provide copies thereof to the Holders; and
(f) Permit the counsel to the selling shareholders whose expenses are being
paid pursuant to Section 4 hereof to inspect and copy such corporate documents
as he may reasonably request.
7. Indemnification.
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(a) The Company will, and hereby does, indemnify each Holder, each of its
officers, directors and partners, and each person controlling such Holder within
the meaning of the Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls such underwriter within the meaning of the
Act, against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any final prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any 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 any material violation by the Company of the Act or
the Exchange Act or securities act of any state or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers, directors
and partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action, whether or not resulting in any
liability, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement (or alleged untrue statement) or omission (or
alleged omission) based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by him are included in
the securities as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors and officers and
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of the Act and the rules and regulations thereunder, each
other such Holder and each of their officers, directors and partners, and each
person controlling such Holder, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, each person controlling the Company,
each underwriter and each person who controls any such
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underwriter, each Holder and each person controlling such Holder, and their
respective directors, officers, partners, persons, underwriters and control
persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, whether or not resulting in liability, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each Holder hereunder shall be limited to an amount equal to the
net proceeds received by such Holder upon sale of his securities.
(c) Each party entitled to indemnification under this Section 7 (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, but the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this Section 7 (except and to the
extent the Indemnifying Party has been prejudiced as a consequence thereof). The
Indemnifying Party will be entitled to participate in, and to the extent that it
may elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, at its expense to
assume, the defense of any such claim or any litigation resulting therefrom,
with counsel reasonably satisfactory to such Indemnified Party, provided that
the Indemnified Party may participate in such defense at its expense,
notwithstanding the assumption of such defense by the Indemnifying Party, and
provided, further, that if the defendants in any such action shall include both
the Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, the Indemnified Party or Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties and the fees and expenses of such counsel shall be
paid by the Indemnifying Party. 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
to such claim or litigation. Each Indemnified Party shall (i) furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom and
(ii) shall reasonably assist the Indemnifying Party in any such defense,
provided that the Indemnified Party shall not be required to expend its funds in
connection with such assistance.
(d) No Holder shall be required to participate in a registration pursuant
to which it would be required to execute an underwriting agreement in connection
with a registration effected under Section 2 or 3 which imposes indemnification
or contribution obligations on such Holder more onerous than those imposed
hereunder; provided, however, that
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the Company shall not be deemed to breach the provisions of Section 2 or 3 if a
Holder is not permitted to participate in a registration on account of his
refusal to execute an underwriting agreement on the basis of this subsection
(d).
8. Information by Holder Each Holder of Registrable Securities included
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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
or otherwise required by applicable state or federal securities laws.
9. Limitations on Registration Rights. From and after the date of this
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Agreement, the Company shall not, without the prior written consent of the
Investors, enter into any agreement with any holder or prospective holder of any
securities of the Company which would give any such holder or prospective holder
the right to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities owned by such holder, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of its securities will
not limit the number of Registrable Securities sought to be included by the
Holders of Registrable Securities.
10. Exception to Registration. The Company shall not be required to
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effect a registration under this Agreement if (i) in the written opinion of
counsel for the Company, which counsel and the opinion so rendered shall be
reasonably acceptable to the Holders of Registrable Securities, such Holders may
sell without registration under the Act all Registrable Securities for which
they requested registration under the provisions of the Act and in the manner
and in the quantity in which the Registrable Securities were proposed to be
sold, or (ii) the Company shall have obtained from the Commission a "no-action"
letter to that effect; provided that this Section 10 shall not apply to sales
made under Rule 144(k) or any successor rule promulgated by the Commission until
after the effective date of the Company's initial registration of shares under
the Act or (iii) if the Company determines in its good faith judgment that the
use of any prospectus would require the disclosure of material information that
the Company has a bona fide business purpose for preserving as confidential or
the disclosure of which would impede the Company's ability to consummate a
transaction, and that the Company is not otherwise required by applicable
securities laws or regulations to disclose, upon written notice of such
determination by the Company, the rights of the Holders to offer, sell or
distribute any Registrable Securities or to require the Company to take action
with respect to the registration or sale of any Registrable Securities pursuant
to this Agreement shall be suspended until the date upon which the Company
notifies the Holders in writing (the "Suspension Termination Notice") that
suspension of such rights for the grounds set forth in this paragraph is no
longer necessary, and the Company agrees to give such notice as promptly as
practicable following the date that such suspension of rights is no longer
necessary (but in any event any such suspension shall be effective for a period
not in excess of 60 consecutive days and for no more than 180 days in any
calendar year). If the Company shall give any such notice, the time periods set
forth in Section 2 above shall be extended by the number of days during which
the period from and including the date of the
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giving of such notice of suspension to and including the date the Company
delivers the Suspension Termination Notice. Notwithstanding the foregoing, in no
event shall the provisions of this Section 10 be construed to preclude a Holder
of Registrable Securities from exercising rights under Section 3 for a period of
three years after the effective date of the Company's initial registration of
shares under the Act.
The Initiating Investors each agree not to offer, sell, contract to sell or
otherwise dispose of any Registrable Securities, or any securities convertible
into or exchangeable or excisable for such securities during any period when,
and to the same extent that, any officers of the Company are restricted in
connection with an offering of securities by the Company. The Company shall give
reasonable advance notice to each such Initiating Investor of such offering.
11. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may permit the sale of
restricted securities (as that term is used in Rule 144 under the Act) to the
public without registration, the Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Act, at all times from and after
ninety days following the effective date of the first registration under the Act
filed by the Company for an offering of its securities to the general public;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the Act and
the Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so long as an Investor owns any restricted securities, furnish
to the Investor forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after ninety days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Act and Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
by the Company as an Investor may reasonably request in availing itself of any
rule or regulation of the Commission allowing an Investor to sell any such
securities without registration.
12. Listing Application. If shares of any class of stock of the Company
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shall be listed on a national securities exchange, the Company shall, at its
expense, include in its listing application all of the shares of the listed
class then owned by any Investor.
13. Damages. The Company recognizes and agrees that the Holder of
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Registrable Securities shall not have an adequate remedy if the Company fails to
comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Company expressly agrees that in the event of
such failure any Holder of Registrable Securities shall be
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entitled to seek specific performance of the Company's obligations hereunder and
that the Company will not oppose an application seeking such specific
performance.
14. Representations and Warranties of the Company. The Company represents
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and warrants to the Investors as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government by which the Company or any of its properties or assets is bound, the
Articles of Incorporation or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which the Company or any or its
properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
15. Miscellaneous.
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(a) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including without
limitation transferees of any Registrable Securities), whether so expressed or
not.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or telecopied or sent by other
facsimile method addressed as follows:
If to the Company or any Investor, at the address of such party set
forth on Schedule I hereto or the most recent address as is shown on the
stock records of the Company; and
If to any subsequent Holder of Registrable Securities, to it at such
address as may have been furnished to the Company in writing by such
Holder; or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a Holder of
Registrable Securities) or to the Holders of Registrable Securities (in the
case of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
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(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company, the Investors
and the holders of at least a majority of the then outstanding Registrable
Securities.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
* * * * * * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
excited as an instrument under SEAL as of the date for first above written.
LOGICAL DESIGN SOLUTIONS, INC.
/s/ Xxxx Xxx Xxxxxx
By:________________________________
Name: Xxxx Xxx Xxxxxx
Title: President
SUMMIT VENTURES IV, L.P.,
By: Summit Partners IV, L.P.,
its General Partner
By: Stamps, Xxxxxxx & Co. IV,
Its General Partner
/s/ Xxxxx Xxxxx
By: _______________________
General Partner
SUMMIT INVESTORS, III, L.P.
/s/ Xxxxx Xxxxx
By:_________________________
Authorized Signatory
/s/ Xxxx X. Xxxxxx
____________________________
Xxxx X. Xxxxxx
SCHEDULE I
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Company
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Logical Design Solutions, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Investors
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Name and Address
----------------
Summit Ventures IV, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Summit Investors III, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
