EXHIBIT 10.1
PRIMUS COMMUNICATIONS CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is entered into as of the 9th day of
February, 1996, by and among PRIMUS COMMUNICATIONS CORPORATION, a Washington
corporation (the "Company"), and the parties listed on Schedule A hereto (the
"Investors"), as at any time amended.
RECITALS
The Investors are purchasing, as of the date of this Agreement, shares of
the Company's Series A Convertible Preferred Stock (the "Series A Stock").
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
l. Definitions
For purposes of this Agreement:
(a) The term "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of effectiveness of such registration
statement or document;
(b) The term "Registrable Securities" means (i) the Common Stock of
the Company issuable or issued upon conversion of the Series A Stock and (ii)
any Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such Series A Stock or Common Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding which
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities;
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities who is a party to this Agreement as of the date
hereof or who
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REGISTRATION RIGHTS AGREEMENT Page 1
may be added as a party hereto pursuant to the terms of this Agreement, and any
assignee thereof in accordance with Section 12; and
(e) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the Securities and Exchange Commission (the "SEC") that similarly permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
2. Request for Registration
(a) If the Company shall receive, at any time after the earlier of (i)
February 9, 2000 or (ii) six months after the effective date of the first
registration statement for a public offering of securities of the Company to the
general public, a written request from the Holders of at least 30% of the
Registrable Securities then outstanding that the Company file a registration
statement (other than on Form S-3) under the Act covering the registration (x)
of at least 25% of the Registrable Securities originally issued to the Holders
with an aggregate offering price to the public of such Registrable Securities
reasonably expected to be not less than $20,000,000 or (y) of at least
$7,500,000 of Registrable Securities with an aggregate offering price to the
public of such Registrable Securities and all other securities included in such
registration reasonably expected to be not less than $15,000,000, then the
Company shall, within ten days of the receipt of such request, give written
notice of such request to all Holders and shall, subject to the limitations of
Section 2(b), use its best efforts to effect as soon as practicable the
registration under the Act of all Registrable Securities that the Holders
request to be registered in a written request to be given within 30 days of the
mailing of such notice by the Company.
(b) The Holders initiating the registration request hereunder
("Initiating Holders") must distribute the Registrable Securities covered by
their request by means of a public offering underwritten by a reputable national
or regional underwriter. The right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall (together with the Company as provided in Section 4(e)) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by a majority in interest of the
Initiating Holders. Notwithstanding any other provision of this Section 2, if
the underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
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REGISTRATION RIGHTS AGREEMENT Page 2
(c) The Company is obligated to effect no more than two registrations
pursuant to this Section 2 or more than one such registration during any 12-
month period.
(d) Notwithstanding the foregoing, if the Company shall furnish to the
Holders requesting a registration statement pursuant to this Section 2: (i) a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for up to two periods of not more than 90 days each after receipt of the request
of the Initiating Holders; provided, however, that the Company may not use this
right more than once (for a total of up to 180 days) in any 12-month period or
(ii) within 30 days of receiving a request for registration pursuant to this
Section 2, a certificate signed by the President of the Company stating that the
Company intends within 45 days of the date of such certificate to file a
registration statement for the initial public offering of securities of the
Company to the general public, the Company shall not be obligated to effect the
registration requested pursuant to this Section 2; provided, however, that the
Company shall promptly notify the Holders requesting a registration pursuant to
this Section 2 of any decision by the Company to abandon or indefinitely delay
such initial public offering.
3. Company Registration
If (but without any obligation to do so) the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan, or a registration on any form that does
not include substantially the same information as would be required to be
included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at each such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within 20 days after mailing of such notice by the Company, the Company
shall, subject to the provisions of Section 8, cause to be registered under the
Act all of the Registrable Securities that each such Holder has requested to be
registered.
4. Obligations of the Company
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to 90 days.
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(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of all securities covered by such registration
statement.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) At the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, furnish on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement (i) an opinion, dated such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters.
5. Furnish Information
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that the selling Holders shall furnish to
the Company such information regarding themselves, the Registrable Securities
held by them and the intended method of disposition of such securities as shall
be reasonably required to effect the
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registration of their Registrable Securities and to execute such documents in
connection with such registration as the Company may reasonably request.
6. Expenses of Demand Registration
All expenses other than underwriting discounts and commissions and transfer
taxes incurred in connection with the underwriting, registrations, filings or
qualifications pursuant to Section 2, including, without limitation, all
registration, filing and qualification fees, printing and accounting fees, the
fees and disbursements of counsel for the Company and the fees and disbursements
of one counsel for the selling Holders shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2 if the registration request
is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (which Holders shall bear such
expenses), unless the Holders of a majority of the Registrable Securities agree
to forfeit the right to one registration pursuant to Sections 2 and 15.
7. Expenses of Company Registration
The Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 3 for each Holder, including, without
limitation, all registration, filing and qualification fees, printing and
accounting fees, the fees and disbursements of counsel for the Company and the
fees and disbursements of one counsel for the selling Holders; provided,
however, that the selling Holders shall bear the expenses of any underwriting
discounts and commissions and transfer taxes relating to the Registrable
Securities.
8. Underwriting Requirements
The Company shall not be required under Section 3 to include any of the
Holders' securities in an underwritten offering of the Company's securities
unless such Holders accept the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters believe
will not jeopardize the success of the offering. The securities to be included
in the registration in the event of such a reduction shall be apportioned first
to the Company, then pro rata among the selling Holders according to the total
amount of securities requested to be sold in such registration by such Holders
and then pro rata among any other selling shareholders according to the total
amount of securities otherwise entitled to be included therein owned by each
such other selling shareholder, or in such other proportions as shall mutually
be agreed to by such selling shareholders; provided that in no event shall the
amount of securities of the selling Holders included in the offering be reduced
below 20% of the total amount of securities included in such offering, unless
such offering is the initial public offering of the Company's securities, in
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which case the selling Holders may be excluded if the underwriters make the
determination described above and provided no other shareholder's securities are
included.
9. Delay of Registration
No Holder shall have any right to obtain or seek an injunction restraining
or otherwise delaying any such registration as the result of any controversy
that might arise with respect to the interpretation or implementation of this
Agreement.
10. Indemnification
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein, in light of the circumstances under which they
were made, or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will reimburse each such Holder, underwriter or
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 indemnity agreement contained
in this Section 10(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by,
or on behalf of, any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its officers, directors, agents or
employees, each person, if any, who controls the Company within the meaning of
the Act, any underwriter and any other Holder selling securities in such
registration statement or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the
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Company or any such officer, director, agent, employee, controlling person, or
underwriter, or other such Holder or its controlling person may become subject,
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by, or on behalf of, such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such partner,
officer, director, agent, employee, controlling person, underwriter or other
such Holder or its controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, deliver to the
indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the opinion of counsel for the indemnifying
party, representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable period of time of the commencement of any
such action shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10 to the extent prejudicial to its ability
to defend such action, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 10.
11. Reports Under the Act
With a view to making available to the Holders the benefits of SEC Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after 90 days from the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
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(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after 90 days from the effective date of the first registration statement filed
by the Company), the Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
12. Assignment of Registration Rights
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be assigned by a Holder to a transferee or assignee of
such securities who shall, upon such transfer or assignment, be deemed a
"Holder" under this Agreement; provided that the Company is, within a reasonable
period of time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act and that such transferee or assignee is either (a) a
partner or retired partner of any Holder that is a partnership, (b) a member of
the immediate family or a trust for the benefit of any Holder that is an
individual, or (c) the transferee or assignee of at least 150,000 shares of the
Registrable Securities.
l3. Limitations on Registration Rights
(a) No Holder shall have the right to cause the Company to register
Registrable Securities pursuant to this Agreement if (i) such Holder holds
Registrable Securities having a fair market value of $750,000 or less or (ii)
such Registrable Securities may be sold under the Act without volume limitation
and without an effective registration statement under the Act; provided,
however, that during the five-year period after the effective date of the first
registration statement for a public offering of the Company's securities, any
Holder that continues to hold at least $5,000,000 of Registrable Securities
shall maintain such Holder's registration rights notwithstanding the provisions
at clause (ii).
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(b) From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder to (a) include such securities in any registration filed
under Section 2, 3 or 15, unless under the terms of such agreement, such holder
or prospective holder may include such securities in any such registration only
to the extent that the inclusion of its securities will not reduce the amount of
the Registrable Securities of the Holders which is included or (b) make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in Section 2(a)
or within 180 days of the effective date of any registration effected pursuant
to Section 2.
14. "Market Stand-Off" Agreement
The Holders hereby agree that they shall not, to the extent requested by
the Company and an underwriter of Common Stock (or other securities) of the
Company, sell or otherwise transfer or dispose (other than to donees who agree
to be similarly bound) of any Registrable Securities for 180 days following the
effective date of a registration statement of the Company filed under the Act;
provided, however, that all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of the Holders
(and the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
15. Form S-3 Registration
In case the Company shall receive from the Holders of Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to Registrable Securities owned by such Holders, reasonably
expected to generate gross proceeds of not less than $2,000,000, the Company
will:
(a) promptly give written notice of the proposed registration and
any related qualification or compliance to all other Holders;
(b) as soon as practicable effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holders'
Registrable Securities as are specified in such request together with all or
such portion of the Registrable Securities of any other Holders joining in such
request as are specified in a written request given within 15 days after receipt
of written notice from the Company; provided, however, that the Company
shall not be obligated to effect any such registration, qualification or
compliance pursuant to this
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Section 15: (i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that, in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its shareholders for such Form S-3 registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 90 days after receipt
of the request of the Holders under this Section 15; provided, however, that the
Company shall not use this right more than once in any 12-month period; (iii) if
the Company has, within the six month period preceding the date of such request,
already effected one such registration on Form S-3 for the Holders pursuant to
this Section 15; (iv) if the Company within the six month period preceding the
date of such request has effected a registration of securities in which the
Holders of Registrable Securities requesting registration pursuant to this
Section 15 were entitled to participate to the fullest extent they desired
pursuant to Section 2 or 3; or (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration qualification or
compliance; and
(c) subject to the foregoing, file a registration statement covering
the Registrable Securities and other securities so requested to be registered as
soon as practical after receipt of the request or requests of the Holders. All
expenses incurred in connection with a registration requested pursuant to this
Section 15, including, without limitation, all registration, filing,
qualification, printing and accounting fees and the reasonable fees and
disbursements of one counsel for the selling Holders and counsel for the
Company, shall be borne by the Company; provided, however, that the selling
Holders shall bear the expenses of any underwriting discounts and commission and
transfer taxes relating to the securities to be registered on behalf of the
Holders.
16. Notices
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or upon deposit with the United
States Post Office, postage prepaid, registered or certified with return receipt
requested and addressed to the party to be notified at the address indicated for
such party on the signature page hereof or on Schedule A hereto, or at such
other address as such party may designate by ten days' advance written notice to
the other parties given in the foregoing manner.
17. Amendments and Waivers
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the holders of a majority of the shares of Series A Stock and Common Stock that
are Registrable Securities themselves or upon which Registrable Securities are
based. Additional Holders may be added to this Agreement with
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such consent by amending Schedule A hereto and adding a signature page executed
by such additional Holder.
18. Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
19. Governing Law
This Agreement shall be governed by and construed under the laws of the
State of Washington as applied to agreements among Washington residents entered
into and to be performed entirely within the State of Washington.
20. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
21. Entire Agreement
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements with respect to the subject matter hereof.
PRIMUS COMMUNICATIONS CORPORATION
By /s/ XXXXXX X. XXXXXX
------------------------------
Its President & CEO
----------------------------
Address: 0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
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OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By its General Partner,
Oak Associates VI,
Limited Partnership
By /s/ Xxxxxxxx Xxxxxx
----------------------------
General Partner
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By its General Partner,
Oak VI Affiliates, LLC
By /s/ Xxxxxxxx Xxxxxx
----------------------------
Member
NORWEST EQUITY PARTNERS, V
A Minnesota Limited Liability Partnership,
By: Itasca Partners V, L.L.P., General Partner
By:
----------------------------
Xxxxxx Xxxxx, Partner
TRANS COSMOS, INC.
By
----------------------------
Its
-------------------------
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REGISTRATION RIGHTS AGREEMENT Page 12
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By its General Partner,
Oak Associates VI,
Limited Partnership
By
----------------------------
General Partner
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By its General Partner,
Oak VI Affiliates, LLC
By
----------------------------
Member
NORWEST EQUITY PARTNERS, V
A Minnesota Limited Liability Partnership,
By: Itasca Partners V, L.L.P., General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, Partner
TRANS COSMOS, INC.
By
----------------------------
Its
-------------------------
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OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By its General Partner,
Oak Associates VI,
Limited Partnership
By
----------------------------
General Partner
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By its General Partner,
Oak VI Affiliates, LLC
By
----------------------------
Member
NORWEST EQUITY PARTNERS, V
A Minnesota Limited Liability Partnership,
By: Itasca Partners V, L.L.P., General Partner
By:
----------------------------
Xxxxxx Xxxxx, Partner
TRANS COSMOS, INC.
/s/ Xxxx Xxxxx
By Xxxx Xxxxx
----------------------------
Its President
-------------------------
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REGISTRATION RIGHTS AGREEMENT Page 12
Schedule A
Oak Investment Partners VI, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx, General Partner
Oak VI Affiliates Fund, Limited Partnership
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx, General Partner
Norwest Equity Partners, V
c/o Xxxxxx Xxxxx
Norwest Venture Capital
Xxxxxxxx 0, Xxxxx 000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Trans Cosmos, Inc.
Sumitomo Seimei Xxxx
0-0 Xxxxxxx 0 Xxxxx
Xxxxxx-Xx
Xxxxx, Xxxxx 107
Attn: Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT Page 13
PRIMUS COMMUNICATIONS CORPORATION
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Amendment") is made
as of the 27th day of March 1997, by and among PRIMUS COMMUNICATIONS
CORPORATION, a Washington corporation (the "Company") and the persons listed as
shareholders in the signature pages to this Amendment (collectively, the
"Shareholders" and individually, a "Shareholder").
RECITALS
A. The Shareholders are holders of outstanding shares of the Company's
Series A Preferred Stock, $.001 par value (the "Series A Stock"), and holders of
outstanding shares of the Company's Series C Convertible Preferred Stock, $.001
per value (the "Series C Stock").
B. The Company and the Shareholders are parties to a Registration Rights
Agreement, dated as of February 9, 1996 (the "Registration Rights Agreement").
C. The Shareholders are acquiring shares of Series C Stock pursuant to the
terms of a Series C Preferred Stock Purchase Agreement dated the date hereof
between the Company and the Shareholders (the "Purchase Agreement").
D. It is a condition to the obligations of the Shareholders under the
Purchase Agreement that this Amendment be executed by the parties hereto, and
the parties are willing to execute this Amendment and to be bound by the
provisions of this Amendment and the Registration Rights Agreement, as amended
hereby.
AGREEMENT
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Definitions
Capitalized terms used but not defined in this Amendment shall have the
respective definitions ascribed to such terms in the Registration Rights
Agreement.
2. Amendment to Section 1
The definition of "Registrable Securities" contained in Section 1 of the
Registration Rights Agreement is amended and restated in its entirety to read as
follows:
(b) The term "Registrable Securities" means (i) the Common Stock of the
Company issuable or issued upon conversion of the Series A Stock or Series C
Stock and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise
--------------------------------------------------------------------------------
Amendment to Registration Rights Agreement Page 1
of any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Series A Stock or Series C Stock or Common Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
its rights under this Agreement are not assigned.
3. Amendment of Section 17
Section 17 of the Registration Rights Agreement is amended and restated in
its entirety to read as follows:
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the holders of a majority of the shares of Series A Stock. Series C Stock and
Common Stock that are Registrable Securities themselves or upon which
Registrable Securities are based. Additional Holders may be added to this
Agreement with such consent by amending Schedule A hereto and adding a signature
page executed by such additional Holder.
4. Effectiveness
This Amendment shall be effective upon execution by the Company and
Shareholders owning at least a majority of the Shares owned by all of the
Shareholders.
5. Counterparts
This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
--------------------------------------------------------------------------------
Amendment to Registration Rights Agreement Page 2
IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
COMPANY:
PRIMUS COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, President
Address:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SHAREHOLDERS:
TRANS COSMOS USA INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx, President
Address:
0000 Xxxx Xxxxxxxxxx Xxxx. X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
ENCOMPASS GROUP INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxxx, President
Address:
0000 Xxxx Xxxxxxxxxx Xxxx. X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Amendment to Registration Rights Agreement Page 3
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By its General Partner,
Oak Associates VI,
Limited Partnership
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxx, General Partner
Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By its General Partner,
Oak VI Affiliates, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxx, Member
Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
Amendment to Registration Rights Agreement Page 4
NORWEST EQUITY PARTNERS, V
A Minnesota Limited Liability Partnership,
By: Itasca Partners V, L.L.P., General Partner
By: /s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx, Partner
Address:
Norwest Venture Capital
c/o Xxxxxx Xxxxx
000 Xxxxxx Xxx.
Xxxxx 000
Xxxx Xxxx, XX 00000-0000
PRIMUS KNOWLEDGE SOLUTIONS, INC.
SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Amendment")
is made as of the 22nd day of July 1998, by and among PRIMUS KNOWLEDGE
SOLUTIONS, INC. (formerly Primus Communications Corporation), a Washington
corporation (the "Company"), the persons listed as shareholders in the signature
pages to this Amendment (collectively, the "Shareholders" and individually, a
"Shareholder"), and the persons listed as investors in the signature pages to
this Amendment (collectively, the "Investors" and individually, an "Investor").
RECITALS
A. The Shareholders are holders of outstanding shares of the Company's
Series A Preferred Stock, $.001 par value (the "Series A Stock"), and holders of
outstanding shares of the Company's Series C Convertible Preferred Stock, $.001
par value (the "Series C Stock").
B. The Company and the Shareholders are parties to a Registration Rights
Agreement, dated as of February 9, 1996 and amended as of March 27, 1997 (the
"Registration Rights Agreement").
C. The Investors and certain of the Shareholders are acquiring shares of
the Company's Series D Convertible Preferred Stock, $.001 par value (the "Series
D Stock") pursuant to the terms of a Series D Preferred Stock Purchase Agreement
dated the date hereof between the Company and the Investors (the "Purchase
Agreement").
D. It is a condition to the obligations of the Investors under the
Purchase Agreement that this Amendment be executed by the parties hereto, and
the parties are willing to execute this Amendment and to be bound by the
provisions of this Amendment and the Registration Rights Agreement, as amended
hereby.
AGREEMENT
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Definitions
Capitalized terms used but not defined in this Amendment shall have the
respective definitions ascribed to such terms in the Registration Rights
Agreement.
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 1
2. Amendment to Section 1
The definition of "Registrable Securities" contained in Section 1 of the
Registration Rights Agreement is amended and restated in its entirety to read as
follows:
(b) The term "Registrable Securities" means (i) the Common Stock of the
Company issuable or issued upon conversion of the Series A Stock, Series C Stock
or Series D Stock and (ii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Series A Stock, Series C Stock, Series D
Stock or Common Stock, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which its rights under this
Agreement are not assigned.
3. Amendment to Section 14
The first paragraph of Section 14 of the Registration Rights Agreement is
amended and restated in its entirety to read as follows:
The Holders hereby agree that they shall not, to the extent requested by
the Company and an underwriter of Common Stock (or other securities) of the
Company, sell or otherwise transfer or dispose (other than to donees who agree
to be similarly bound) of any Registrable Securities for 180 days following the
effective date of a registration statement of the Company filed under the Act;
provided, however, that all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements. Notwithstanding the foregoing, in the event that
an underwriter determines that it is willing to waive the provisions of any such
agreement with respect to any number of Registrable Securities, the parties
hereto agree that such waiver shall first be granted with respect to shares of
the Series D Stock (or shares of capital stock of the Company into which the
Series D Stock may be converted) and, if the waiver extends to less than the
full number of shares of Series D Stock, to the Holders of Series D Stock (or
shares of capital stock of the Company into which the Series D Stock my be
converted) on a pro rata basis according to the number of shares of Series D
Stock held by such persons. The Company hereby agrees to use its commercially
reasonable best efforts to ensure that any such waiver is allocated in
accordance with the terms of this paragraph.
4. Amendment of Section 17
Section 17 of the Registration Rights Agreement is amended and restated in
its entirety to read as follows:
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the holders of a majority of the shares of Series A Stock, Series C Stock,
Series D Stock and Common Stock that are Registrable Securities themselves or
upon which Registrable Securities are based. Additional Holders
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Page 2
may be added to this Agreement with such consent by amending Schedule A hereto
and adding a signature page executed by such additional Holder.
5. Effectiveness
This Amendment shall be effective upon execution by the Company, the
Investors and Shareholders owning at least a majority of the Shares owned by all
of the Shareholders.
6. Counterparts
This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
--------------------------------------------------------------------------------
Second Amendment to Registration Agreement Page 3
IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
COMPANY:
PRIMUS KNOWLEDGE SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
__________________________________________
Xxxxxxx X. Xxxxxx, Chief Executive Officer
Address:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 4
SHAREHOLDERS:
TRANS COSMOS USA INC.
By: /s/ Xxxxx Xxxxx
_______________________________
President
Address:
000-000xx Xxx. XX
Xxxxx 0000
Xxxxxxxx, XX 00000
TRANS COSMOS INC.
By: /s/ Xxxxx Xxxxx
_______________________________
President
Address:
000-000xx Xxx. XX
Xxxxx 0000
Xxxxxxxx, XX 00000
ENCOMPASS GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxxx
_______________________________
President
Address:
000-000xx Xxx. XX
Xxxxx 0000
Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 5
OAK INVESTMENT PARTNERS VI, LIMITED PARTNERSHIP
By its General Partner,
Oak Associates VI, LLC
By: /s/ Xxxxxxx X. Xxxxxx
________________________________________
Xxxxxxx X. Xxxxxx, General Partner
Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
OAK VI AFFILIATES FUND, LIMITED PARTNERSHIP
By its General Partner,
Oak VI Affiliates, LLC
By: /s/ Xxxxxxx X. Xxxxxx
________________________________________
Xxxxxxx X. Xxxxxx, Member
Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 6
NORWEST EQUITY PARTNERS, V
A Minnesota Limited Liability Partnership,
By: Itasca Partners V, L.L.P., General Partner
By: /s/ Xxxxxx Xxxxx
________________________________________
Xxxxxx Xxxxx, Partner
Address:
Norwest Venture Capital
c/o Xxxxxx Xxxxx
000 Xxxxxx Xxx.
Xxxxx 000
Xxxx Xxxx, XX 00000-0000
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 7
INVESTORS:
XXXXX XXXXXXX INC.
By: /s/ Buzz Banson
________________________________________
Its: Managing Director
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 8
SNOWDON, L.P.
By Nevis Capital Management, Inc. its
General Partner
By: /s/ Xxxxx Wilmerdin
________________________________________
Xxxxx Xxxxxxxxxx, President
--------------------------------------------------------------------------------
Second Amendment to Registration Rights Agreement Page 9
