Exhibit 10.18
EXECUTION COPY
PEOPLEPC INC.
REGISTRATION RIGHTS AGREEMENT
DECEMBER 17, 2001
TABLE OF CONTENTS
Page
SECTION 1 GENERAL........................................................... 1
1.1 Definitions............................................... 1
SECTION 2 REGISTRATION...................................................... 3
2.1 Shelf Registration........................................ 3
2.2 Expenses of Registration.................................. 6
2.3 Obligations of the Company................................ 6
2.4 Furnishing Information.................................... 7
2.5 Indemnification........................................... 7
2.6 Assignment of Registration Rights......................... 10
2.7 Amendment of Registration Rights.......................... 10
2.8 Rule 144 Reporting........................................ 10
2.9 Termination............................................... 11
SECTION 3 MISCELLANEOUS..................................................... 11
3.1 Governing Law............................................. 11
3.2 Successors and Assigns.................................... 11
3.3 Entire Agreement.......................................... 12
3.4 Severability.............................................. 12
3.5 Amendment and Waiver...................................... 12
3.6 Delays or Omissions....................................... 12
3.7 Notices................................................... 12
3.8 Titles and Subtitles...................................... 13
3.9 Counterparts.............................................. 13
3.10 Expenses.................................................. 13
3.11 Specific Enforcement...................................... 14
3.12 Attorneys' Fees........................................... 14
3.13 Survival.................................................. 14
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PEOPLEPC INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
the 17th day of December 2001 by and among PEOPLEPC INC., a Delaware corporation
(the "Company"), and the holders of the Company's Series B Preferred Stock, par
value $0.0001 per share ("Series B Stock"), set forth on Exhibit A hereto (the
"Investors").
Recitals
WHEREAS, the Company and the Investors have entered into the Series B
Preferred Stock Purchase Agreement, dated as of December 17, 2001 (the "Stock
Purchase Agreement") providing for, among other things, the sale by the Company
and the purchase by the Investors of an aggregate of 6,400,000 shares of Series
B Stock;
WHEREAS, as a condition of entering into the Stock Purchase Agreement, the
Investors have requested that the Company extend to them registration rights for
shares issued in accordance with the Stock Purchase Agreement; and
WHEREAS, the Company's and Investors' obligations under the Stock Purchase
Agreement are conditioned upon the execution and delivery of this Agreement by
such parties.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Stock Purchase Agreement, the parties hereto agree as follows:
SECTION 1
GENERAL
1.1 Definitions. As used in this Agreement the following terms shall have
the following respective meanings:
"Affiliate" means, with respect to a specified person or entity, a person
or entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person or
entity specified.
"Closing" means the consummation of the purchase of the shares of Series B
Stock contemplated by the Stock Purchase Agreement.
"Common Stock" means shares of Common Stock, par value $0.001 per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any person owning of record Registrable Securities that
have not been sold to the public or any assignee of record of such Registrable
Securities.
"Prospectus" means the prospectus included in any Registration Statement,
all amendments and supplements to such prospectus, including post-effective
amendments, and all other material incorporated by reference in such prospectus.
"Put Option" has the meaning set forth in the definition of Put Option
Stock.
"Put Option Stock" means the Common Stock issuable upon exercise of the
put option (the "Put Option")granted by the Company in the Put Option Agreement,
dated May 30, 2001, entered into by the Company, @viso Limited, Bowerbrook
Limited, SOFTBANK Capital Partners LP, SOFTBANK Capital LP and SOFTBANK Capital
Advisors Fund LP.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering by the SEC of effectiveness of
such registration statement or document.
"Registrable Securities" means (a) shares of Common Stock issued or
issuable upon conversion of the Series B Stock or the Put Option Stock; and (b)
any securities issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Common Stock, the Series B Stock or the Put Option Stock. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public pursuant to an effective Registration Statement or that can
be sold under Rule 144(k) pursuant to the Securities Act (or any successor
provision).
"Registrable Securities then outstanding" shall be the number of shares
determined by calculating the total number of shares of the Company's Common
Stock that are Registrable Securities and either (a) are then issued and
outstanding or (b) are issuable upon conversion of Series B Stock, upon exercise
of the Put Option or upon the exercise or conversion of then exercisable or
convertible securities.
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with Section 2.1 hereof, including, without limitation, all
registration and filing fees, printing expenses, accounting fees, fees and
disbursements of counsel for the Company, reasonable fees and disbursements of a
single special counsel for the Holders, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"Registration Statement" means any registration statement of the Company
filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the Securities Act, including the related Prospectus,
amendments and supplements to such registration statement,
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including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale and stock transfer taxes.
"Underwritten Offering" means a registration in which securities of the
Company are sold to an underwriter or underwriters on a firm commitment basis
for reoffering to the public.
SECTION 2
REGISTRATION
2.1 Shelf Registration.
(a) Filing. No later than 30 calendar days following the Closing,
the Company shall file with the SEC a Registration Statement pursuant to Rule
415 under the Securities Act (the "Shelf Registration Statement") covering the
offer and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in the Shelf Registration Statement and, thereafter, shall use its best
efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act no later than 90 calendar days following the Closing,
or sooner, if practicable
(b) Postponement of Registration. Notwithstanding Section 2.1(a),
the Company shall be entitled to postpone the declaration of effectiveness of
the Shelf Registration Statement for a reasonable period of time, but not in
excess of 60 days after the date the SEC has informed the Company that the Shelf
Registration Statement will not be reviewed or that the SEC has no further
comments with regard to the Shelf Registration Statement, if the board of
directors of the Company (the "Board"), acting in good faith and following
consultation with legal counsel, determines that there exists material
non-public information about the Company which the Board does not wish to
disclose in a Registration Statement (due to the fact that such disclosure would
result in a significant adverse impact on the Company or its stockholders),
which information would otherwise be required to be disclosed in any
Registration Statement filed with the SEC by the Company.
(c) Continued Effectiveness. Subject to Sections 2.1(b), (d) and
(f), the Company shall use its best efforts to keep such Shelf Registration
Statement continuously effective under the Securities Act in order to permit the
Prospectus forming a part thereof to be usable by Holders until such time as
there are no outstanding Registrable Securities (such period of effectiveness,
the "Shelf Period").
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(d) Selling Procedures. Any sale of Registrable Securities pursuant
to the Shelf Registration Statement filed in accordance with Section 2.1(a)
hereof shall be subject to the following conditions and procedures:
(i) The selling Holder shall provide written notice
("Stockholder Notice") to the Company no less than three full trading days prior
to such Holder's intended sale. Within the three trading-day period following
receipt of the Stockholder Notice, which notice shall include a working
facsimile number for purposes of delivery of the Company's response, the Company
shall either (A) inform such Holder in writing if the Registration Statement and
final prospectus then on file with the SEC is current and otherwise complies
with the Securities Act such that sales may be made thereunder or (B) delay the
resale by such Holder by delivering to such Holder a written notification that
the Suspension Right has been exercised and is then in effect (the "Suspension
Notice"). In the event that the selling Holder receives notice from the Company
that the Registration Statement is current and complies with the Securities Act,
such Holder shall then have 15 business days after the date of the intended
sale, as specified in the Stockholder Notice, to sell the Registrable Securities
proposed to be sold. After such 15 day period, the selling Holder shall once
again comply with the procedures set forth in this Section 2.1(d) prior to any
further sales. In the event that a selling Holder receives a Suspension Notice,
such Holder shall refrain from selling any Registrable Securities until his, her
or its receipt of a supplemented or amended prospectus pursuant to Subsections
2.1(d)(ii) and 2.1(d)(iii) below, or written notice from the Company that the
suspension period has ended and use of the prospectus previously furnished to
such Holder may be resumed. Notwithstanding the foregoing, it shall be
understood that a selling Holder who is an Affiliate of the Company as a result
of the fact that such Holder has appointed a member of the Board (as defined
below) shall not be required to deliver a Stockholder Notice and, rather, shall
be permitted to provide prior oral notice in person (including person to person
telephone communications) to the Company's Chief Executive Officer, Chief
Financial Officer or General Counsel (or the person performing the function and
duties normally associated with such positions) in advance of such Holder's
sale, in which case, the Company shall be entitled to deliver an oral Suspension
Notice to such Affiliate.
(ii) Subject to this Section 2.1(d), if the Shelf Registration
Statement or final prospectus then on file with the SEC is not current or
otherwise does not comply with the Securities Act, the Company shall use
commercially reasonable efforts to provide to the selling Holder a current
prospectus that complies with the Securities Act on or before the date of the
intended sale of the Registrable Securities as disclosed in the Stockholder
Notice; provided, however, that if (A) the board of directors of the Company
(the "Board"), acting in good faith and following consultation with legal
counsel, determines that there exists material nonpublic information about the
Company which the Board does not wish to disclose in the Shelf Registration
Statement (due to the fact that such disclosure would result in a significant
adverse impact on the Company or its stockholders) which information would
otherwise be required by the Securities Act to be disclosed in the Registration
Statement to be filed pursuant to Section 2.1(a), or (B) upon the occurrence of
any event described in clause (D) of Subsection 2.1(d)(iii) hereof, no more than
two times during any 12 month period, the Company shall have the right to delay
the preparation of a current prospectus that complies with the Securities Act
for up to 60 days on each occasion without explanation to such Holder (each, a
"Suspension Right"). The Company shall be entitled to exercise its Suspension
Right consecutively.
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(iii) Notwithstanding the foregoing, the Company shall notify
each Holder (A) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of the Shelf
Registration Statement for amendments or supplements to the Shelf Registration
Statement or related prospectus or for additional information relating to the
Shelf Registration Statement, (B) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose, (C) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (D) of the happening of any event which makes any statement made in
the Shelf Registration Statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in the Shelf
Registration Statement or prospectus so that, in the case of the Registration
Statement, it will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In any such event,
the Company may suspend use of the prospectus on written notice to each Holder,
in which case each Holder shall not dispose of Registrable Securities covered by
the Shelf Registration Statement or prospectus until copies of a supplemented or
amended prospectus are distributed to the Holders or until the Holders are
advised in writing by the Company that the use of the applicable prospectus may
be resumed. The Company shall use its best efforts to ensure that the use of the
Prospectus may be resumed as soon as practicable. The Company shall use its best
efforts to obtain the withdrawal of any order suspending the effectiveness of
the Shelf Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the securities for
sale in any jurisdiction, at the earliest practicable moment. The Company shall,
upon the occurrence of any event contemplated by clause (D), prepare a
supplement or post-effective amendment to the Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Underwritten Offering. If the holders of not less than 66?% of
the Registrable Securities included in any offering pursuant to such Shelf
Registration Statement so elect, such offering of Registrable Securities shall
be in the form of an Underwritten Offering, and the Company shall, from time to
time, amend (including, to the extent required, through a post-effective
amendment) or supplement the Shelf Registration Statement for such purpose. The
Holders of a majority of such Registrable Securities included in such
Underwritten Offering shall have the right to select the managing underwriter or
underwriters to administer such offering; provided, that such managing
underwriter or underwriters shall be reasonably acceptable to the Company. The
right of any Holder to include its Registrable Securities in such Underwritten
Offering shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall enter into an
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underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding anything to the contrary in this
Agreement, in no event shall the aggregate number of days pursuant to which: (i)
the Shelf Registration Statement may be postponed pursuant to Section 2.1(b)
hereto, (ii) a Holder's sales of Registrable Securities may be suspended
pursuant to Section 2.1(d)(i) hereto, (iii) a Holder's sales of Registrable
Securities may be delayed pursuant to Section 2.1(d)(ii) hereto; and (iv) the
Shelf Registration Statement may be suspended pursuant to Section 2.1(f) hereto,
exceed 120 days in any twelve (12) month period.
(f) Piggyback Rights. If, at any time, the Company proposes to
register any of its Common Stock or any other equity securities under the
Securities Act on a Registration Statement on Form S-1, Form S-2 or Form S-3 (or
an equivalent general registration form then in effect) for purposes of an
offering or sale by or on behalf of the Company of its Common Stock or such
equity securities for its own account (a "Primary Offering"), the Company may
suspend the use of the Shelf Registration Statement for no more than 120 days;
provided, that if the Company exercises its right pursuant to the foregoing, the
Company shall afford the Holders the opportunity to register their Registrable
Securities on the Registration Statement for the Primary Offering on terms and
conditions no less favorable to the Holders than those set forth in Section 2.4
of the Second Amended and Restated Investor Rights Agreement, dated as of May
30, 2001, by and among the Company and the Investors (as defined therein).
2.2 Expenses of Registration. All Registration Expenses shall be borne by
the Company. All Selling Expenses, in any, incurred in connection with any
registrations hereunder, shall be borne by the Holders of the securities so
registered pro rata on the basis of the number of shares so registered.
2.3 Obligations of the Company.
Subject to the limitations of Sections 2.1 and 2.9, whenever required to
effect the registration of or maintain the effectiveness of the Shelf
Registration Statement for the Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement for the period set forth in Section 2.1 above.
(b) Furnish to the Holders such number of copies of a Prospectus,
including a preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(c) Use its commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
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(d) In the event of any Underwritten Offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(e) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such Prospectus
is, or is to be, used, not misleading.
(f) Use its commercially reasonable efforts to furnish, on the date
that such Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters, if any.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
2.4 Furnishing Information. It shall be a condition precedent to the
obligations of the Company to register Registrable Securities held by any Holder
that such selling Holder shall furnish to the Company such information regarding
such Holder, the Registrable Securities held by such Holder and the intended
method of disposition of such securities and shall take all such action as may
be required to effect the registration of their Registrable Securities.
2.5 Indemnification.
(a) To the extent permitted by law, the Company shall indemnify and
hold harmless each Holder and any underwriter (as defined in the Securities Act)
for such Holder against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement filed as
set forth in this Agreement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) 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
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will pay as reasonably incurred to each
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such Holder or underwriter any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 2.5(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action (i) to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder or underwriter of such Holder or (ii) with respect to any
preliminary prospectus to the extent such loss, claim, damage, liability or
action results from the fact that Holder or underwriter sold Registrable
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus (excluding
documents incorporated by reference) in any case where such delivery is required
by the Securities Act if the Company has previously furnished copies thereof to
such Holder or underwriter on a timely basis, and the loss, claim, damage or
liability of such Holder or underwriter results from an untrue statement or
omission of a material fact contained in the preliminary prospectus which was
corrected in the final prospectus.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, any underwriter and any other Holder selling securities
under such registration statement against any losses, claims, damages or
liabilities (joint or several) to which the Company, underwriter or other such
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder to be specifically for use in connection with such registration; and each
such Holder will pay as reasonably incurred any legal or other expenses
reasonably incurred by the Company, underwriter or other Holder in connection
with investigating or defending any such loss, claim, damage, liability or
action if it is judicially determined that there was such a Violation; provided,
however, that the indemnity agreement contained in this Section 2.5(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; provided further, that in no
event shall any indemnity under this Section 2.5 exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the indemnified party; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, 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 such
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indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.5, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.5.
(d) If the indemnification provided for in this Section 2.5 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that in no event shall any
contribution by a Holder hereunder exceed the net proceeds from the offering
received by such Holder.
(e) The obligations of the Company and Holders under this Section
2.5 shall survive completion of any offering of Registrable Securities in the
Shelf Registration Statement and the termination of this Agreement. 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.
(f) The obligations of the Company under this Section 2.5 shall
extend, upon the same terms and conditions, to each officer, director and
partner of each Holder and underwriter and each person, if any, who controls any
Holder or underwriter within the meaning of the Securities Act; and the
obligations of the Holders or underwriters contemplated by this Section 2.5
shall extend, upon the same terms and conditions, to each officer and director
of the Company (including any person who, with his consent, is named in any
registration statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
2.6 Assignment of Registration Rights.
The rights pursuant to this Section 2 may be assigned by a Holder to a
transferee or assignee of Registrable Securities which (a) is a subsidiary,
parent, general partner, limited partner, retired partner, member or retired
member of a Holder, or is an affiliate or donee of such Holder, including
without limitations, any partnership or other entity of which any affiliate of
such Holder is a general
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partner or over which such Holder has investment discretion, or any employee of
any of the foregoing, (b) is a Holder's family member or trust for the benefit
of an individual Holder, or (c) acquires at least ten percent (10%) of the
Registrable Securities (as adjusted for stock splits and combinations);
provided, however, (i) the transferor shall, within ten (10) days after such
transfer, furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned, (ii) such transferee shall agree to be
subject to all restrictions set forth in this Agreement and (iii) such
transferee provides the Company with such information as the Company may
reasonably request.
2.7 Amendment of Registration Rights.
Any provision of this Section 2 may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Holders of at least a majority in interest of the Registrable Securities
then outstanding; provided, however, that if such amendment adversely affects
the Registrable Securities held by a non-consenting Holder in a manner different
than that of a consenting Holder, then such amendment or waiver shall require
the consent of such adversely affected non-consenting party; provided, further,
that any waiver or amendment of this Section 2.7 shall require the consent of
all parties to this Agreement. Any amendment or waiver effected in accordance
with this Section 2.7 shall be binding upon each Holder and the Company. By
acceptance of any benefits under this Section 2, Holders of Registrable
Securities hereby agree to be bound by the provisions hereunder.
2.8 Rule 144 Reporting.
With a view to making available to the Holders the benefits of certain
rules and regulations of the SEC which may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the 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 to the extent such reports are not available on the web site
maintained by the SEC; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
-10-
2.9 Termination. The registration rights set forth herein shall terminate
with respect to a Holder (and the shares held by such Holder shall cease to
constitute Registrable Securities) at such time as all of the Registrable
Securities then held by such Holder can be sold by such Holder in a three-month
period in accordance with Rule 144 of the Securities Act.
SECTION 3
MISCELLANEOUS
3.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware without regard to principles of conflict of laws.
3.2 Successors and Assigns. Except as otherwise expressly provided herein,
the rights and obligations hereunder may not be assigned or delegated by the
Investors or the Company without the prior written consent of the other;
provided, however, that the Investors may assign their rights and delegate their
obligations hereunder, in whole or in part, to any affiliates of the Investors,
including, without limitation, any other partnership or other entity of which
any direct or indirect subsidiary of such Investor or any affiliate thereof is a
general partner or has investment discretion, or any employees of any of the
foregoing subject to applicable securities laws; provided, further, that any
such assignee that acquires any Shares shall, as a condition to acquiring such
Shares, agree to be bound by the provisions of any agreement applicable to the
Shares. The provisions hereof shall inure to the benefit of, be enforceable by
and be binding upon, the successors and permitted assigns of the parties hereto
and each person who shall be a Holder of Registrable Securities from time to
time.
3.3 Entire Agreement. This Agreement and the Stock Purchase Agreement and
the Exhibits and Schedules hereto and thereto, including the Certificate of
Designations of the Company, in the form attached as Exhibit B to the Stock
Purchase Agreement (the "Certificate"), and the other documents delivered
pursuant hereto and thereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof.
3.4 Severability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
3.5 Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the written
consent of the Company and holders of at least a majority of the Registrable
Securities as of the date of such amendment.
(b) The obligations of the Company and the rights of the holders of
the Registrable Securities under this Agreement may be waived only with the
written consent of the holders of at least a majority of the Registrable
Securities as of the date of such waiver.
-11-
3.6 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any Holder upon any breach,
default or noncompliance by the Company under this Agreement, the Stock Purchase
Agreement or the Certificate shall impair any such right, power or remedy, nor
shall it be construed to be a waiver of any such breach, default or
noncompliance thereafter occurring. It is further agreed that any waiver,
permit, consent or approval of any kind of character on any Holder's part of any
breach, default or noncompliance under this Agreement, the Stock Purchase
Agreement or the Certificate or any waiver on such Holder's part of any
provisions or conditions of this Agreement, the Stock Purchase Agreement or the
Certificate must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, under this Agreement, the
Stock Purchase Agreement or the Certificate, by law or otherwise afforded to any
Holder shall be cumulative and not alternative.
3.7 Notices. Subject to Section 2.1(d)(i), all notices, requests, demands
or other communications which are required or may be given pursuant to the terms
of this Agreement shall be in writing and shall be deemed to have been duly
given: (i) on the date of delivery if personally delivered by hand, (ii) upon
the third day after such notice is (a) deposited in the United States mail, if
mailed by registered or certified mail, postage prepaid, return receipt
requested, or (b) sent by a nationally recognized overnight express courier, or
(iii) by facsimile upon written confirmation (other than the automatic
confirmation that is received from the recipient's facsimile machine) of receipt
by the recipient of such notice:
If to any Investor: To the address or facsimile number
of such Purchaser specified on
Exhibit A hereto.
With a copy to: Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Company: PeoplePC Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.:
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Xxx X. Xxxxxxxx
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
-12-
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 3.7.
3.8 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.10 Expenses. The Company and each of the Investors shall pay all costs
and expenses that it incurs with respect to the negotiation, execution, delivery
and performance of this Agreement and all of the transactions contemplated
herein; provided, however, that if the Investors consummate the purchase of the
Registrable Securities contemplated by the Stock Purchase Agreement, the Company
shall reimburse the reasonable legal fees and expenses of counsel to SOFTBANK
Capital Partners LP incurred in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and all of the
transactions contemplated hereby.
3.11 Specific Enforcement. Any Holder shall be entitled to specific
enforcement of its rights under this Agreement. The Company acknowledges that
money damages would be an inadequate remedy for its breach of this Agreement and
consents to an action for specific performance or other injunctive relief in the
event of any such breach.
3.12 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
3.13 Survival. The representations, warranties, covenants, and agreements
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby until the registration rights set forth
herein terminate as provided in Section 2.9; provided, however, that Section 2.5
and this Section 3 shall survive and remain in effect indefinitely.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY:
PEOPLEPC INC.
By:
---------------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chief Executive Officer
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
INVESTOR:
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK Capital Partners LLC
Its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
SOFTBANK CAPITAL LP
By: SOFTBANK Capital Partners LLC
Its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK Capital Partners LLC
Its General Partner
By: _____________________________
Name: _______________________
Title:_______________________
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
SOFTBANK TECHNOLOGY VENTURES IV LP
By: SOFTBANK Technology Ventures IV LLC
By: _____________________________
Name: _______________________
Title:_______________________
SOFTBANK TECHNOLOGY ADVISORS FUND LP
By: SOFTBANK Technology Ventures IV LLC
By: _____________________________
Name: _______________________
Title:_______________________
XXXX XXXXXX
-----------------------------------
XXXXX XXXXXX
-----------------------------------
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
@VISO LIMITED
By: _____________________________
Name: _______________________
Title:_______________________
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
CMS TECH CO-INVESTMENT SUBPARTNERSHIP
By: ___________________________
Authorized Representative
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
BIB INVESTMENT PARTNERS
By: ___________________________
Xxx Xxxxx, Partner
REGISTRATION RIGHTS AGREEMENT
SIGNATURE PAGE
Exhibit A
SERIES B:
Schedule of Purchasers
NAME AND ADDRESS SHARES
---------------- ------
Softbank Capital Partners LP 1,799,928
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
(fax) 000-000-0000
Softbank Capital LP 1,769,004
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
(fax) 000-000-0000
Softbank Capital Advisors Fund LP 31,068
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
(fax) 000-000-0000
Softbank Technology Ventures IV LP 49,060
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxxx Xxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
(fax) 000-000-0000
Softbank Technology Advisors Fund LP 940
Attention: Xxxxxxx X. Xxxx
000 Xxxxxxxx Xxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
(fax) 000-000-0000
Xxxx Xxxxxx 600,000
c/o Xxx Xxxxxxx
0000 Xxxxx Xxx.
Xxx Xxxxxxx, XX 00000
(fax) 000-000-0000
Xxxxx Xxxxxx 60,000
c/o Mayfair Management
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(fax) 000-000-0000
NAME AND ADDRESS SHARES
---------------- ------
@viso Limited All shares of Common Stock
c/o Macfarlanes issued upon exercise of the
00 Xxxxxxx Xxxxxx Put Option
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Xxxxxxx Xxxxxx
(fax) 00-000-000-0000
50,000
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx 15,000
(fax) 000-000-0000
CMS Tech Co-Investment Subpartnership
c/o CMS Affiliated Partnerships
Xxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
BIB Investment Partners
c/o Xxx Xxxxx
CMS Companies
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
-2-
