EXHIBIT 10.4
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (the
"Agreement") is made and entered into as of June 30, 1999 by and among
IntraLinks, Inc., a Delaware corporation (the "Company"), the persons named at
the foot hereof under the caption "Series E Investors" (collectively, the
"Series E Investors"), Ernst & Young U.S. LLP (the "Series D Investor") and the
persons named at the foot hereof under the caption "Series C Investors"
(collectively, the "Series C Investors" and, together with the Series E
Investors and the Series D Investor, the "Investors"). This Agreement provides
for the registration rights of the investors in the Company's Series C
Convertible Preferred Stock, par value $.01 (the "Series C Preferred Stock"),
Series D Convertible Preferred Stock, par value $.01 (the "Series D Preferred
Stock" and Series E Convertible Preferred Stock, par value $.01 (the "Series E
Preferred Stock"), who are signatories hereto.
In connection with the Investors executing an agreement dated as of
the date hereof with the Company with respect to the acquisition concurrently
herewith of Series E Preferred Stock and the amendment and restatement of that
certain Amended and Restated Registration Rights Agreement dated as of April 13,
1999 by and among the Company, the Series C Investors and the Series D Investor,
the Company hereby covenants and agrees with the Investors and with each
subsequent holder of Restricted Stock (as such term is defined herein) as
follows:
1. Certain Definitions. As used herein, the following terms shall
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have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock of the Company, $.01 par
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value, as constituted as of the date of this Agreement, subject to
adjustment pursuant to the provisions of Section 8 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
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Section 6 hereof.
"Restricted Stock" shall mean any shares of Series C Preferred Stock,
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Series D Preferred Stock or Series E Preferred Stock or any shares of
Common Stock issued upon conversion of such shares, in each case which are
not freely tradable under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933 or any similar
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federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 6
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hereof.
2. Required Registration.
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(a) At any time on or after the first anniversary of a Qualified IPO
(as defined herein) of the Company, Investors holding in the aggregate at least
30% of the Restricted Stock (as adjusted for stock splits, stock dividends,
recapitalizations and the like) may request, in writing, that the Company effect
the registration of Restricted Stock having an anticipated aggregate offering
price of at least $2.0 million (based on the then current market price or fair
value and including any shares to be registered pursuant to any incidental
registration rights described in paragraph 2(b) hereof) in accordance with the
intended methods of distribution as specified by the Investors in such notice;
provided, however, that the only securities which the Company shall be required
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to register pursuant hereto shall be shares of Common Stock. A "Qualified IPO"
shall mean the completion of a firm commitment initial public offering of the
Company's Common Stock.
(b) Promptly following receipt of any notice under Section 2(a), the
Company shall immediately notify (the "Company Notice") all holders of
Restricted Stock and all other securityholders that pursuant to the Registration
Rights Agreement (the "1997 Registration Rights Agreement") dated December 18,
1997 (as amended) have incidental registration rights in such registration (the
shares requested to be registered pursuant to such agreement, the "Additional
Shares") and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in the
notice from the Investors, the number of shares of Restricted Stock specified in
such notice (and in any notices received from other holders of Restricted Stock
within 20 days after their receipt of such notice from the Company) and any
Additional Shares which the Company is notified of within 20 days of the Company
Notice. The Company shall be entitled to include in any registration statement
referred to in this Section 2 shares of Common Stock to be sold by the Company
for its own account. Notwithstanding the foregoing, if the proposed method of
disposition specified by the Investors shall be an underwritten public offering,
the number of shares of Restricted Stock and Additional Shares (if any) to be
included in such an offering will be reduced, first by the Company with respect
to shares it wishes to register in such registration (if such registration is
the first demand registration requested by the holders of the Restricted Stock
or Additional Shares, if any) and then pro rata among the requesting holders of
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Restricted Stock and Additional Shares (if any), based on the total number of
shares of Restricted Stock and Additional Shares (if any) so requested to be
registered, if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
Restricted Stock and Additional Shares (if any) to be sold. Notwithstanding the
foregoing, the first registration of shares pursuant to Section 2(a) above shall
not include any Additional Shares without the approval of the holders of a
majority of the then-outstanding Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock on an as converted basis. If such method of
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disposition shall be an underwritten public offering, a majority of the holders
of the Restricted Shares may designate the managing underwriter of such
offering. Notwithstanding the foregoing, the Company shall be cut back pro rata
with the holders of the Restricted Stock and Additional Shares (if any), if the
Company has successfully effected one demand registration for holders of the
Restricted Stock.
(c) The Company shall not be required to effect more than two
registrations pursuant to Section 2(a) above. In addition, the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this Agreement or the 1997 Registration Rights Agreement more than
once in any six (6) month period. Subject to the foregoing, the Company shall
file a registration statement covering the Restricted Stock so requested to be
registered as soon as practicable after receipt of the request or requests of
the holders of the Restricted Stock. Anything to the contrary in this Section 2
notwithstanding, a registration shall not be effected pursuant to this Section 2
with respect to any Restricted Stock once such Restricted Stock other wise may
be sold to the public without restriction.
(d) Notwithstanding anything to the contrary contained in this
Section 2, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration statement
covering Restricted Stock and a holder of Restricted Stock does not elect to
sell his Restricted Stock to the underwriters of the Company's securities in
connection with such offering or elects to sell only a portion of its Restricted
Stock to the underwriters in connection with such offering, such holder shall
agree to refrain from selling or otherwise transferring its Restricted Stock or
portion thereof as the case may be for a period, to be determined by the
managing underwriter of the offering, of up to 180 days provided that the
Company's shares and any cut-back shares are subject to the same lock-up period.
3. Form S-3 Registration.
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(a) At the time that the Company is qualified to use a Form S-3 (or
successor short form registration form, if applicable) for registration for
shares of its own stock or for shares of its stockholders and if the Company
shall receive from any holder or holders of Restricted Stock a written request
or requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to Restricted Stock owned by such
holder or holders, the Company will:
(i) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other holders of Restricted
Stock; and
(ii) as soon as practicable, effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other government
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
holder's or holders' Restricted Stock as are specified in such request,
together with all or such portion of the
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Restricted Stock of any holder or holders joining in such request as are
specified in a written request given within thirty (30) days after receipt
of such written notice from the Company, provided that (i) the Company may
defer such registration for one period of up to 90 days during any 12-month
period and (ii) the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Agreement (A)
more than once in any twelve month period, or (B) if the Company is not
entitled to use Form S-3 for registration for shares of its own stock or
for shares of its stockholders. Subject to the foregoing, the Company shall
file a registration statement covering the Restricted Stock so requested to
be registered as soon as practicable after receipt of the request or
requests of the holders of the Restricted Stock.
(b) Registrations effected pursuant to this Section 3 shall not be
counted as requests for registration effected pursuant to Section 2.
(c) Anything to the contrary in this Section 3 notwithstanding, a
registration shall not be effected pursuant to this Section 3 (i) for Restricted
Stock with an aggregate market value of less than $2,000,000, or (ii) once the
Restricted Stock otherwise may be sold to the public without restriction.
(d) Notwithstanding anything to the contrary contained in this
Section 3, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration covering
Restricted Stock and a holder of Restricted Stock does not elect to sell his
Restricted Stock to the underwriters of the Company's securities in connection
with such offering, such holder shall agree to refrain from selling or otherwise
transferring its Restricted Stock for a period, to be determined by the managing
underwriter that such sale would adversely effect the marketing of the
securities of the Company, of up to 180 days.
4. Incidental Registration. If the Company at any time (other than
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pursuant to Section 2 hereof) proposes to register any of its Common Stock under
the Securities Act for sale to the public, whether for its own account or for
the account of other securityholders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not available for
registering the Restricted Stock for sale to the public), it will give written
notice at such time to all holders of outstanding Restricted Stock of its
intention to do so. Upon the written request of any such holder, given within
30 days after receipt of any such notice by the Company, to register any of its
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its best efforts to cause the Restricted Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed by
the Company, all to the extent requisite to permit the sale or other disposition
by the holder (in accordance with its written request) of such Restricted Stock
so registered; provided that nothing herein shall prevent the Company from
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abandoning or delaying such registration at any time. In the event that any
registration pursuant to this Section 4 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 4 to register Restricted Stock shall specify that either (i)
such Restricted Stock is to be included in the underwriting on the same terms
and conditions as the shares of Common Stock otherwise being sold through
underwriters under such
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registration or (ii) such Restricted Stock is to be sold in the open market
without any underwriting. The number of shares of Restricted Stock to be
included in such an underwriting may be reduced (pro rata among the requesting
holders of Restricted Stock and other requesting securityholders who request
pursuant to their demand or incidental registration rights or other similar
rights, based upon the total number of shares so requested to be registered) if
and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities to be sold
by the Company therein.
Notwithstanding anything to the contrary contained in this Section 4,
in the event that there is a firm commitment underwritten public offering of
securities of the Company pursuant to a registration covering Restricted Stock
and a holder of Restricted Stock does not elect to sell his Restricted Stock to
the underwriters of the Company's securities in connection with such offering,
such holder shall agree to refrain from selling or otherwise transferring its
Restricted Stock for a period, to be determined by the managing underwriter, of
up to 180 days.
5. Registration Procedures and Expenses. If and whenever the
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Company is required by the provisions of Sections 2, 3 and 4 to use its best
efforts to effect the registration of any of the Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public
offering pursuant to Section 2 hereof, shall be on a form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause
such registration statement to become and remain effective for the period
of the distribution contemplated thereby (deter mined as herein after
provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period specified in paragraph (a)
above and as comply with the provisions of the Securities Act with respect
to the disposition of all Restricted Stock covered by such registration
statement in accordance with the sellers' intended method of disposition
set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the sellers of Restricted Stock or, in the
case of an underwritten public offering, the
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managing underwriter, shall reasonably request (provided that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) immediately notify each seller under such registration statement
and each underwriter, 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 contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any underwriter, on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to
form in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder
(except that such counsel need express no opinion as to financial
statements, the notes thereto, and the financial schedules and other
financial and statistical data contained therein) and (C) to such other
effects as may reasonably be requested by counsel for the underwriters or
by such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of
such letter) with respect to the registration in respect of which such
letter is being given as such underwriters or seller may reasonably
request; and
(g) during normal business hours and with reasonable notice, make
available for inspection by each seller, any underwriter participating in
any distribution pursuant to such registration statement, and any attorney,
accountant or other agent retained by such seller or underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
registration statement and permit such seller,
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attorney, accountant or agent to participate in the preparation of such
registration statement.
For purposes of paragraphs (a) and (b) above, the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Restricted Stock covered thereby or six months after the effective
date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 2, 3 and 4
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, provided, however, that
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such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and provided, further, however,
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that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company and such managing underwriter.
Notwithstanding anything to the contrary contained herein, the Company
shall not be required to include any class of securities in a registration
statement other than Common Stock.
6. Expenses. All expenses incurred by the Company in complying with
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Sections 2, 3 and 4 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees, but excluding any Selling Expenses, are herein called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock and fees and expenses of counsel for
the sellers of Restricted Stock are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Sections 2, 3 and 4 hereof.
7. Indemnification. In the event of a registration of any of the
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Restricted Stock under the Securities Act pursuant to Sections 2, 3 and 4
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock thereunder
and each other person, if any, who controls such seller or underwriter within
the meaning of the Securities Act, against any losses, claims,
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damages or liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Restricted Stock was registered under the Securities Act pursuant to
Sections 2, 3 and 4 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon 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, and will reimburse each such seller, each such underwriter and each
such controlling person for 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 Company will not be liable in
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any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
In the event of a registration of any of the Restricted Stock under
the Securities Act pursuant to Sections 2, 3 or 4 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 2, 3 or 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon 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, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
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 such seller will be liable hereunder in any such case if
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and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus;
provided, further, however, that the liability of each seller hereunder shall be
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limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of shares sold
by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not to exceed the proceeds
(net of underwriting discounts and commissions) received by such seller from the
sale of Restricted Stock covered by such registration statement.
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Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 7. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 7 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
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any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of
this Section 7 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party con
tribute to the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including
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the failure to give any notice under the third paragraph of this Section 7. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact relates to information
supplied by the Company, on the one hand, or the underwriters and the sellers of
such Restricted Stock, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation (even if all of the sellers of such Restricted Stock were
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treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or action in respect thereof,
referred to above in this paragraph, shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, the sellers of such Restricted Stock shall not be
required to contribute any amount in excess of the amount, if any, by which the
total price at which the Common Stock sold by each of them was offered to the
public exceeds the amount of any damages which they would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act), shall be entitled to contribution from
any person who is not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 7
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock in such underwriting shall at the sellers'
request be modified to conform to such terms and conditions.
8. Changes in Common Stock. If, and as often as, there are any
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changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
9. Representations and Warranties of the Company. The Company
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represents and warrants to you 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, the Certificate of Incorporation as amended or By-
laws as amended of the Company, or any provision of any indenture,
agreement or other instrument to which it or any of its properties or
assets is bound, or 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.
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(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to
considerations of public policy in the case of the indemnification
provisions hereof.
10. Rule 144 Reporting. The Company agrees with you as follows:
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(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities
Act, at all times from and after the date it is first required to do so.
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section
13(a) or 15(d) of the Exchange Act at any time after the Company has become
subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from
and after the date it first becomes subject to such reporting requirements,
and of the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
11. 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 whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock
shall inure to the benefit of any and all subsequent holders from time to
time of the Restricted Stock.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at 0000 Xxxxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000, Attn: President;
if to any of the Investors, to him or it at his or its address listed
in the Company's records;
11
if to any subsequent holder of Restricted Stock, 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 Restricted
Stock) or to the holders of Restricted Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or
amended except in writing signed by the Company and the holders of not less
than two-thirds in interest of the holders of Restricted Stock then out
standing; provided that any such amendment which would adversely affect the
rights of any holder(s) of Restricted Stock must also be approved in
writing by holder(s) who would be so adversely affected.
(e) This Agreement may be executed in two or more counter parts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By: Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title:President
AGREED TO AND ACCEPTED as of the date first above written:
---------------------------------- Number of Shares of Series E
SERIES E INVESTOR: Convertible Preferred Stock:
---------------------------------
By:
------------------------------
Name:
Title:
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:
---------------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
Catalyst Investments[Belgium] NV
---------------------------------- Number of Shares of Series E
[SERIES E INVESTOR:] Convertible Preferred Stock:
38,462
---------------------------------
By: /s/
------------------------------
Name: MeesPierson Trust (Belgie) NV
Title: Xxxxxx Xxxxxxx
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By: /s/
---------------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
Xxxxxxxxx and Xxxx Xxxx-Xxxxxxxx
---------------------------------- Number of Shares of Series E
SERIES E INVESTOR: Convertible Preferred Stock:
1,154
-----------------------------
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-In-Fact
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:
---------------------------------
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
Xxxxxxx & Xxxxxxx Development Corp.
----------------------------------- Number of Shares of Series E
[SERIES E INVESTOR:] Convertible Preferred Stock:
230,769
---------------------------------
By: /s/ Ting Pau Oei
------------------------------
Name: Ting Pau Oei
Title: Vice President
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:_______________________________
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
Reuters Holdings Switzerland SA Number of Shares of Series E
-----------------------------------------
SERIES E INVESTOR: Convertible Preferred Stock:
384,615
----------------------------
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title:
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:_______________________________
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
XXXXXX XXXXXXXX Number of Shares of Series E
-----------------------------------------
SERIES E INVESTOR: Convertible Preferred Stock:
23,077
----------------------------
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: XXXXXX XXXXXXXX
Title:
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:_______________________________
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
XXX XXXXXXXX TRUST Number of Shares of Series E
-----------------------------------------
SERIES E INVESTOR: Convertible Preferred Stock:
7,692
----------------------------
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: XXXXX XXXXXXXX
Title: TRUSTEE
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:_______________________________
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
XXXXX AND XXXXXXX XXXXXXXX FAMILY TRUST Number of Shares of Series E
-----------------------------------------
SERIES E INVESTOR: Convertible Preferred Stock:
15,385
----------------------------
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: XXXXX XXXXXXXX
Title: TRUSTEE
[Signature Page to Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this Agreement, whereupon this Agreement
shall be a binding agreement between the Company and you.
Very truly yours,
INTRALINKS, INC.
By:_______________________________
Name:
Title:
AGREED TO AND ACCEPTED as of the date first above written:
XXXXXX XXXXXXXX BARBADARN TRUST Number of Shares of Series E
-----------------------------------------
SERIES E INVESTOR: Convertible Preferred Stock:
7,692
----------------------------
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: XXXXX XXXXXXXX
Title: TRUSTEE
[Signature Page to Registration Rights Agreement]
SERIES D INVESTOR:
Ernst & Young U.S. LLP
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: XXXXXX X. XXXXXXXX
Title: PARTNER
SERIES C INVESTORS:
Euclid Partners IV, L.P.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name:
Title:
Perseus Capital, LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
Catalyst Investments (Belgium) NV)
By: ____________________________
Name:
Title:
Xxxxxxx Brothers LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: MANAGER
22
[Signature Page to Registration Rights Agreement]
/s/ X. X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
XXXXXX X. XXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name:
Title: Power of Attorney
P/A FUND III, L.P.
By: APA Pennsylvania Partners III, L.P.
its General Partner
By: Patricof & Co. Managers, Inc.
its General Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name:
Title:
PATRICOF PRIVATE INVESTMENT CLUB II, L.P.
By: APA Excelsior V Partners, L.P.,
P.A. Fund III, L.P., its General Partner
By: Patricof & Co. Managers, Inc.
its General Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name:
Title:
23
[Signature Page to Registration Rights Agreement]
By: APA Excelsior V Partners, L.P.
its General Partner
By: Patricof & Co. Managers, Inc.
its General Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name:
Title:
Smart Technology Ventures I, LLC
By:
_______________________________
Name: Xxxxx Xxxxxxxx
Title: Chief Investment Officer
Xxxx Xxxxx, XXX
By:
-------------------------------
Name:
Title:
New York Small Business Venture Fund, LLC
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: President
Solar Group
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Secretary
[Signature Page to Registration Rights Agreement]
Hull Overseas, Ltd.
By: _____________________________
Name:
Title:
Xxxxxx Xxxxx, XXX
By: _____________________________
Name:
Title:
X.X. Xxxxxxxxx, Towbin LLC
By: /s/
-----------------------------
Name:
Title: Member
25
