REGISTRATION RIGHTS AGREEMENT
by and among
iBEAM BROADCASTING CORPORATION,
XXXXXXXX COMMUNICATIONS, LLC,
XXXXX & COMPANY INCORPORATED,
TOUCH AMERICA, INC.
AND
XXXX iBEAM, LLC
___________________
Dated as of July 10, 2001
ii
TABLE OF CONTENTS
1. Prior Registration Rights.............................................1
1. 1
2. Certain Definitions 1
3. Demand Registrations 3
(a) Right to Request Registration 3
(b) Number of Demand Registrations 4
(c) Priority on Demand Registrations 4
(d) Restrictions on Demand Registrations 5
(e) Selection of Underwriters 5
(f) Other Registration Rights 5
(g) Effective Period of Demand Registrations 5
4. Piggyback Registrations 6
(a) Right to Piggyback 6
(b) Priority on Primary Registrations 6
(c) Priority on Secondary Registrations 7
(d) Selection of Underwriters 7
(e) Other Registrations 7
5. Holdback Agreements 7
6. Registration Procedures 8
7a Registration Expenses 11
8a Indemnification 12
9a Participation in Underwritten Registrations 14
10a Rule 144 14
11a Miscellaneous 15
(a) Notices. 15
(b) No Waivers. 17
(c) Successors and Assigns. 17
(d) Governing Law. 17
(e) Jurisdiction. 17
(f) Waiver of Jury Trial. 18
(g) Counterparts; Effectiveness. 18
(h) Entire Agreement. 18
(i) Captions. 18
(j) Severability. 18
(k) Amendments. 18
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of July 10, 2001,
among iBeam Broadcasting Corporation, a Delaware corporation (the "Company"),
and each of Xxxxxxxx Communications, LLC, a Delaware limited liability company,
Xxxxx & Company Incorporated, a New York corporation, Touch America, Inc., a
Montana corporation, and Xxxx iBeam, LLC, an Illinois limited liability company
(each, a "Stockholder" and collectively, the "Stockholders").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of June 24,
2001 (the "Purchase Agreement"), between the Company and the Stockholders, the
Company agreed to issue and sell to the Stockholders an aggregate of 2,400,939
shares of Series A Convertible Preferred Stock, par value $.0001 per share (the
"Series A Preferred Stock"), of the Company; and
WHEREAS, in consideration of and to induce the Stockholders to purchase the
shares of Series A Preferred Stock, the Company has agreed to grant registration
rights with respect to the Registrable Common Stock (as hereinafter defined).
In consideration of the mutual covenants and agreements herein contained
and other good and valid consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Prior Registration Rights.
The Company hereby represents and warrants to the Stockholders that the
grant of registration rights pursuant to this Agreement does not violate or
conflict with the provisions of any other agreements or other obligations of the
Company, including, without limitation, the registration rights granted to
parties to the Third Amended and Restated Investors' Rights Agreement dated as
of April 28, 2000, by and among the Company and the parties thereto, as in
effect on the date hereof (the "Investors' Rights Agreement"). The Company has
furnished or made available to the Stockholders a copy of the Investors' Rights
Agreement. The Company has obtained written consent, as required by Section 1.12
of the Investors' Rights Agreement, for the grant of registration rights
pursuant to this Agreement including, but not limited to, the grant of (i)
demand registration rights and (ii) piggyback registration rights, pursuant to
Section 4 of this Agreement, which supersede in all respects the provisions of
Section 1.3 of the Investors' Rights Agreement.
2. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the following
terms shall have the following meanings:
"Affiliate" means, with respect to any specified person, (i) any other
Person 50% or more of whose outstanding voting securities are directly or
indirectly owned, controlled or held with the power to vote by such specified
Person or (ii) any other Person directly or indirectly controlling, controlled
by or under direct or indirect common control with such specified Person. For
purposes of this definition, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person by virtue of ownership of voting securities, by contract
or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
business in New York, New York.
"Common Stock" means common stock, par value $.0001 per share, of the
Company.
"Conversion Shares" means any of (x) the shares of Common Stock issued or
issuable upon conversion of the outstanding shares of Series A Preferred Stock
or (y) any securities issued or issuable with respect to the Series A Preferred
Stock by way of conversion, exercise or exchange or any stock dividend or stock
split or other pro rata distribution, or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means each Stockholder and any other Person that holds Registrable
Common Stock, including their respective transferees, successors and assigns who
acquire Registrable Common Stock, directly or indirectly, from a Stockholder or
such other Person respectively. For purposes of this Agreement, the Company may
deem and treat the registered holder of Registrable Common Stock as the Holder
and absolute owner thereof, and the Company shall not be affected by any notice
to the contrary.
"Person" means an individual, partnership, corporation, trust, limited
liability company, or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Stock" means the Conversion Shares. For purposes of
determining the number of shares of Registrable Common Stock held by a Holder
and the number of shares of Registrable Common Stock outstanding, for purposes
of this Agreement (including the definition of "Holder") but not for any other
purpose, any holder of record of Series A Preferred Stock shall be deemed to be
a Holder of the number of Conversion Shares issuable upon conversion of such
Series A Preferred Stock and all such Conversion Shares shall be deemed to be
outstanding shares of Registrable Common Stock.
"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Common Stock pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"underwritten registration or underwritten offering" means a registration
in which securities of the Company are sold to underwriters for reoffering to
the public.
3. Demand Registrations.
(a) Right to Request Registration. Any time after the date hereof, subject
to the provisions of Section 3(b) hereof, any Holder or Holders of at least 10%
of the outstanding shares of Registrable Common Stock ("Initiating Holders") may
request registration under the Securities Act of all or part of the Registrable
Common Stock ("Demand Registration").
Within 10 days after receipt of any such request for Demand Registration,
the Company shall give written notice of such request to all other Holders of
Registrable Common Stock and shall, subject to the provisions of Section 3(d)
hereof, include in such registration all such Registrable Common Stock with
respect to which the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of Section
3(a), Holders of Registrable Common Stock shall be entitled to request an
aggregate of three (3) Demand Registrations; provided, however, that,
notwithstanding any other provision herein, Xxxxxxxx Communications, LLC or its
affiliates or any of their permitted assigns shall be entitled to request at
least two (2) Demand Registrations so long as such Holder or Holders hold at
least 10% of the outstanding shares of Registrable Common Stock but in no event
shall the aggregate number of Demand Registrations exceed three (3). A
registration shall not count as one of the permitted Demand Registrations (i)
until it has become effective, (ii) if the Initiating Holders requesting such
registration are not able to register and sell at least 50% of the Registrable
Common Stock requested by such Initiating Holders to be included in such
registration or (iii) in the case of a Demand Registration that would be the
last permitted Demand Registration requested hereunder, if the Initiating
Holders requesting such registration are not able to register and sell all of
the Registrable Common Stock requested to be included by such Initiating Holders
in such registration.
(c) Priority on Demand Registrations. Except as provided in Section 3(g),
the Company shall not include in any Demand Registration any securities which
are not Registrable Common Stock without the written consent of the Initiating
Holders, or, if such Demand Registration is an underwritten offering, without
the written consent of the managing underwriters. If the managing underwriters
of the requested Demand Registration advise the Company in writing that in their
opinion the number of shares of Registrable Common Stock proposed to be included
in any such registration exceeds the number of securities which can be sold in
such offering and/or that the number of shares of Registrable Common Stock
proposed to be included in any such registration would adversely affect the
price per share of the Company's equity securities to be sold in such offering,
the Company shall include in such registration only the number of shares of
Registrable Common Stock which in the opinion of such managing underwriters can
be sold. If the number of shares which can be sold is less than the number of
shares of Registrable Common Stock proposed to be registered, the amount of
Registrable Common Stock to be so sold shall be allocated first, to the shares
of Registrable Common Stock requested to be registered by the Initiating Holders
and then pro rata among the other Holders of Registrable Common Stock desiring
to participate in such registration on the basis of the amount of such
Registrable Common Stock initially proposed to be registered by such other
Holders. If the number of shares which can be sold exceeds the number of shares
of Registrable Common Stock proposed to be sold, such excess shall be allocated
pro rata among the other holders of securities, if any, desiring to participate
in such registration based on the amount of such securities initially requested
to be registered by such holders or as such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration or a previous registration
under which the Initiating Holders have piggyback rights pursuant to Section 4
hereof wherein the Initiating Holders were permitted to register, and sold, at
least 50% of the shares of Registrable Common Stock requested to be included
therein. The Company may (i) postpone for up to ninety (90) days the filing or
the effectiveness of a Registration Statement for a Demand Registration if,
based on the good faith judgment of the Company's board of directors, such
postponement or withdrawal is necessary in order to avoid premature disclosure
of a matter the board has determined would not be in the best interest of the
Company to be disclosed at such time or (ii) postpone the filing of a Demand
Registration in the event the Company shall be required to prepare audited
financial statements as of a date other than its fiscal year end (unless the
stockholders requesting such registration agree to pay the expenses of such an
audit); provided, however, that in no event shall the Company withdraw a
Registration Statement under clause (i) after such Registration Statement has
been declared effective; and provided, further, however, that in any of the
events described in clause (i) or (ii) above, the Initiating Holders requesting
such Demand Registration shall be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall not count as one of the
permitted Demand Registrations. The Company shall provide written notice to the
Initiating Holders requesting such Demand Registration of (x) any postponement
or withdrawal of the filing or effectiveness of a Registration Statement
pursuant to this Section 3(d), (y) the Company's decision to file or seek
effectiveness of such Registration Statement following such withdrawal or
postponement and (z) the effectiveness of such Registration Statement. The
Company may postpone the filing of a particular Registration Statement pursuant
to this Section 3(d) only once.
(e) Selection of Underwriters. If any of the Registrable Common Stock
covered by a Demand Registration is to be sold in an underwritten offering, the
Initiating Holders shall have the right to select the managing underwriter(s) to
administer the offering subject to the approval of the Company, which will not
be unreasonably withheld.
(f) Other Registration Rights. The Company shall not grant to any Person
the right, other than as set forth herein and except to employees of the Company
with respect to registrations on Form S-8 (or any successor forms thereto), to
require the Company to register any securities of the Company except such rights
as are not more favorable than or inconsistent with the rights granted to the
Holders herein.
(g) Effective Period of Demand Registrations. After any Demand Registration
filed pursuant to this Agreement has become effective, the Company shall use its
best efforts to keep such Demand Registration effective for a period equal to
180 days from the date on which the SEC declares such Demand Registration
effective (or if such Demand Registration is not effective during any period
within such 180 days, such 180-day period shall be extended by the number of
days during such period when such Demand Registration is not effective), or such
shorter period which shall terminate when all of the Registrable Common Stock
covered by such Demand Registration has been sold pursuant to such Demand
Registration. If the Company shall withdraw any Demand Registration pursuant to
subsection (d) of this Section 3 (a "Withdrawn Demand Registration"), the
Initiating Holders of the Registrable Common Stock remaining unsold and
originally covered by such Withdrawn Demand Registration shall be entitled to a
replacement Demand Registration which (subject to the provisions of this Section
3) the Company shall use its best efforts to keep effective for a period
commencing on the effective date of such Demand Registration and ending on the
earlier to occur of the date (i) which is 180 days from the effective date of
such Demand Registration and (ii) on which all of the Registrable Common Stock
covered by such Demand Registration has been sold. Such additional Demand
Registration otherwise shall be subject to all of the provisions of this
Agreement.
4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its common equity securities under the Securities Act (other than a registration
statement on Form S-8 or on Form S-4 or any similar successor forms thereto),
whether for its own account or for the account of one or more securityholders of
the Company, and the registration form to be used may be used for any
registration of Registrable Common Stock (a "Piggyback Registration"), the
Company shall give prompt written notice (in any event within 10 business days
after its receipt of notice of any exercise of other demand registration rights)
to all Holders of its intention to effect such a registration and, subject to
Sections 4(b) and 4(c), shall include in such registration all Registrable
Common Stock with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice. The
Company may postpone or withdraw the filing or the effectiveness of a Piggyback
Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering and/or that the number of shares of
Registrable Common Stock proposed to be included in any such registration would
adversely affect the price per share of the Company's equity securities to be
sold in such offering, the Company shall include in such registration (i) first,
the securities the Company proposes to sell, (ii) second, the Registrable Common
Stock requested to be included therein by the Holders, pro rata among the
Holders of such Registrable Common Stock on the basis of the number of shares
requested to be registered by such Holders, and (iii) third, other securities
requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of shares requested to be registered by
such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Stock, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering and/or that the number of shares of Registrable Common
Stock proposed to be included in any such registration would adversely affect
the price per share of the Company's equity securities to be sold in such
offering, the Company shall include in such registration (i) first the
securities requested to be included therein by the holders requesting such
registration and the Registrable Common Stock requested to be included in such
registration by the Holders, pro rata among the holders of such securities on
the basis of the number of shares requested to be registered by such holders,
and (ii) second, other securities requested to be included in such registration
pro rata among the holders of such securities on the basis of the number of
shares requested to be registered by such holders or as such holders may
otherwise agree.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a Registration
Statement with respect to Registrable Common Stock pursuant to Sections 3 hereof
or pursuant to this Section 4, and if such previous registration has not been
withdrawn or abandoned, the Company shall not be obligated to cause to become
effective any other registration of any of its securities under the Securities
Act, whether on its own behalf or at the request of any holder or holders of
such securities, until a period of at least three months has elapsed from the
effective date of such previous registration.
5. Holdback Agreements.
The Company agrees not to effect any public sale or distribution of any of
its equity securities during the 10 days prior to and during the 180 days
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or S-4 or any successor
forms thereto) unless the underwriters managing the offering otherwise agree.
6. Registration Procedures.
Whenever any Holder requests that any Registrable Common Stock be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Stock in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to
such Registrable Common Stock and use its best efforts to cause such
Registration Statement to become effective as soon as practicable thereafter;
and before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, furnish to the Holders of Registrable Common Stock covered
by such Registration Statement and the underwriter or underwriters, if any,
copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by such Holders,
the exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining to such Holders that is
contained therein and the Company will make the corrections reasonably requested
by such Holders with respect to such information prior to filing any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto;
(b) prepare and file with the SEC 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 a period of not less
than 180 days, in the case of a Demand Registration, or such shorter period as
is necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Stock such number of
copies of such Registration Statement, each amendment and supplement thereto,
the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Common Stock
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Common
Stock under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Common Stock owned by such
seller (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 subparagraph (d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Common Stock, at any time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event as a result of which the Prospectus included
in such Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company shall prepare a supplement or
amendment to such Prospectus so that, as thereafter delivered to the purchasers
of such Registrable Common Stock, such Prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;
(f) in the case of an underwritten offering, enter into such customary
agreements (including underwriting agreements in customary form) and take all
such other actions as the Holders of a majority of number of shares of the
Registrable Common Stock being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Common Stock (including, without limitation, effecting a stock split or a
combination of shares and making members of senior management of the Company
available to participate in, and cause them to cooperate with the underwriters
in connection with, "road-show" and other customary marketing activities
(including one-on-one meetings with prospective purchasers of the Registrable
Common Stock) and cause to be delivered to the underwriters and the sellers, if
any, opinions of counsel to the Company in customary form, covering such matters
as are customarily covered by opinions for an underwritten public offering as
the underwriters may request and addressed to the underwriters and the sellers;
(g) make available, for inspection by any seller of Registrable Common
Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(h) use its best efforts to cause all such Registrable Common Stock to be
listed on each securities exchange on which securities of the same class issued
by the Company are then listed or, if no such similar securities are then
listed, on Nasdaq or a national securities exchange selected by the Company;
(i) provide a transfer agent and registrar for all such Registrable Common
Stock not later than the effective date of such Registration Statement;
(j) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an underwritten
offering, at the time of delivery of any Registrable Common Stock sold pursuant
thereto), letters from the Company's independent certified public accountants
addressed to each selling Holder (unless such selling Holder does not provide to
such accountants the appropriate representation letter required by rules
governing the accounting profession) and each underwriter, if any, stating that
such accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(k) make generally available to its securityholders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a Registration Statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy the
requirements of an earning statement under Section 11(a) of the Securities Act;
(l) promptly notify each seller of Registrable Common Stock and the
underwriter or underwriters, if any:
(i) when the Registration Statement, any pre-effective amendment, the
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any written request by the SEC for amendments or supplements to the
Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC of its initiation of
any proceeding with respect to the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement; and
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Common Stock for sale under
the applicable securities or blue sky laws of any jurisdiction.
(m) At all times after the Company has filed a registration statement with
the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and take such further action as any Holder may
reasonably request, all to the extent required to enable such Holder to be
eligible to sell Registrable Common Stock pursuant to Rule 144 (or any similar
rule then in effect).
(n) The Company may require each seller of Registrable Common Stock as to
which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(o) Each seller of Registrable Common Stock agrees by having its stock
treated as Registrable Common Stock hereunder that, upon notice of the happening
of any event as a result of which the Prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any material
fact necessary to make the statements therein not misleading (a "Suspension
Notice"), such seller will forthwith discontinue disposition of Registrable
Common Stock until such seller is advised in writing by the Company that the use
of the Prospectus may be resumed and is furnished with a supplemented or amended
Prospectus as contemplated by Section 6(e) hereof, and, if so directed by the
Company, such seller will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such seller's possession, of
the Prospectus covering such Registrable Common Stock current at the time of
receipt of such notice; provided, however, that any postponement of sales of
Registrable Common Stock pursuant to this Section 6(o) by the Holders shall not
exceed ninety (90) days in the aggregate in any one year. If the Company shall
give any notice to suspend the disposition of Registrable Common Stock pursuant
to a Prospectus, the Company shall extend the period of time during which the
Company is required to maintain the Registration Statement effective pursuant to
this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date such seller either
is advised by the Company that the use of the Prospectus may be resumed or
receives the copies of the supplemented or amended Prospectus contemplated by
Section 6(e). In any event, the Company shall not be entitled to deliver more
than three (3) Suspension Notices in any one year.
7 Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses") (but not
including any underwriting discounts or commissions attributable to the sale of
Registrable Common Stock or fees and expenses of more than one counsel
representing the Holders of Registrable Common Stock), shall be borne by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which they are to be listed.
(b) In connection with each registration initiated hereunder (whether a
Demand Registration or a Piggyback Registration), the Company shall reimburse
the Holders covered by such registration or sale for the reasonable fees and
disbursements of one law firm chosen by the Holders of a majority of the number
of shares of Registrable Common Stock included in such registration or sale.
(c) The obligation of the Company to bear the expenses described in Section
7(a) and to reimburse the Holders for the expenses described in Section 7(b)
shall apply irrespective of whether a registration, once properly demanded, if
applicable, becomes effective, is withdrawn or suspended, is converted to
another form of registration and irrespective of when any of the foregoing shall
occur; provided, however, that Registration Expenses for any Registration
Statement withdrawn solely at the request of a Holder of Registrable Common
Stock (unless withdrawn following postponement of filing by the Company in
accordance with Section 3(d)(i) or (ii)) or any supplements or amendments to a
Registration Statement or Prospectus resulting from a misstatement furnished to
the Company by a Holder shall be borne by such Holder.
8 Indemnification.
(a) The Company agrees to indemnify, to the fullest extent permitted by
law, each Holder, its officers, directors and affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or applicable "blue sky" laws, except insofar
as the same are made in reliance and in conformity with information relating to
such Holder furnished in writing to the Company by such Holder expressly for use
therein or caused by such Holder's failure to deliver to such Holder's immediate
purchaser a copy of the Registration Statement or Prospectus or any amendments
or supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Holder with a sufficient number
of copies of the same. In connection with an underwritten offering, the Company
shall indemnify such underwriters, their officers and directors and each Person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
(b) In connection with any Registration Statement in which a Holder of
Registrable Common Stock is participating, each such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses arising out of or based upon any untrue or alleged untrue statement
of material fact contained in the Registration Statement, Prospectus or
preliminary Prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in reliance on and in conformity
with information or affidavit so furnished in writing by such Holder expressly
for use in the Registration Statement; provided, however, that the obligation to
indemnify shall be several, not joint and several, among such Holders and the
liability of each such Holder shall be in proportion to and limited to the net
amount received by such Holder from the sale of Registrable Common Stock
pursuant to such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party there may
be one or more legal or equitable defenses available to such indemnified party
which are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt written
notice shall not release the indemnifying party from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 8 is
due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified person as a result of such losses,
claims, damages, liabilities or expenses 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 statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of any selling Holder be
greater in amount than the amount of net proceeds received by such Holder upon
such sale or the amount for which such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under Section 8(a) or 8(b) hereof had been available under the circumstances.
9 Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
10 Rule 144.
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as any
Holder may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act, to the extent required to
enable such Holder to sell Registrable Common Stock without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
11 Miscellaneous.
(a) Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall
be given,
If to the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If to Xxxxxxxx Communications, LLC:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Fax:
Attention:
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxx, Esq.
If to Xxxxx & Company Incorporated:
Xxxxx & Co.
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
If to Touch America, Inc.:
Touch America, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: General Counsel
If to Xxxx iBeam, LLC:
Xxxx Partners
Xxx Xxxxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxx
If to a transferee Holder, to the address of such Holder set forth in the
transfer documentation provided to the Company;
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and the appropriate facsimile confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
(b) No Waivers. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, it being understood that subsequent Holders of the
Registrable Common Stock are intended third party beneficiaries hereof;
provided, however, that, subject to the restrictions on the right to initiate a
Demand Registration set forth in Section 3(a) and Section 3(b) hereof, the
rights of a Holder under this Agreement may be assigned by a Holder only to a
transferee or assignee of at least 50,000 shares of Registrable Common Stock (as
constituted on the date hereof), and then only if the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee of the Registrable Common Stock with
respect to which such rights are assigned and a written undertaking by such
transferee or assignee by which the obligations and liabilities of a Holder
hereunder are assumed by such transferee or assignee.
(d) Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of Delaware, without regard to principles of
conflicts of law.
(e) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the State of New York, and each of the parties hereby
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without limiting
the foregoing, each party agrees that service of process on such party as
provided in Section 11(a) shall be deemed effective service of process on such
party.
(f) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) Counterparts; Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the transactions contemplated herein. No
provision of this Agreement or any other agreement contemplated hereby is
intended to confer on any Person other than the parties hereto any rights or
remedies.
(i) Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
(j) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(k) Amendments. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given without the
prior written consent of the holders of a majority of the Conversion Shares (as
constituted on the date hereof); provided, however, that the consent or
agreement of the Company shall be required with regard to any termination,
amendment, modification or supplement of, or waivers or consents to departures
from, the terms hereof, which affect the Company's obligations hereunder.
[Execution Page Follows]
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
iBEAM BROADCASTING CORPORATION
By:
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXXXXXX COMMUNICATIONS, LLC
By:
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXXX & COMPANY INCORPORATED
By:
Name:
Title:
(SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
TOUCH AMERICA, INC.
By:
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXX iBEAM, LLC
By:
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
