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EXHIBIT 10.11
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
PROXICOM, INC.,
GENERAL ATLANTIC PARTNERS 34, L.P.,
GENERAL ATLANTIC PARTNERS 52, L.P.,
GAP COINVESTMENT PARTNERS, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
XXXX XXXXXXXXX,
THE XXXXX X. XXXXXX TRUST,
FBR VENTURE CAPITAL MANAGERS INC.,
GENERAL ELECTRIC CAPITAL CORPORATION,
GE CAPITAL EQUITY INVESTMENTS, INC.,
XXXXXX XXXX,
XXXXX XXXXXXXX,
XXXXXXX XXXXXXXXX,
XXXX XXXX,
XXXXXXXX X. LEONSIS,
XXXX XXXXXXXX,
THE WASHINGTON POST COMPANY
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AND
THE AD HOC STOCKHOLDERS
Dated: March ____, 1999
TABLE OF CONTENTS
Page
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. General; Securities Subject to this Agreement . . . . . . . . . . . . . 10
(a) Grant of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Holders of Registrable Securities . . . . . . . . . . . . . . . . . 10
3. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Request for Demand Registration . . . . . . . . . . . . . . . . . . 10
(b) Incidental or . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Effective Demand Registration . . . . . . . . . . . . . . . . . . . 12
(d) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Underwriting Procedures . . . . . . . . . . . . . . . . . . . . . . 12
(f) Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . 13
4. Incidental or . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Request for Incidental Registration . . . . . . . . . . . . . . . . 13
(b) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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5. Holdback Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Restrictions on Public Sale by Designated Holders . . . . . . . . . 14
(b) Restrictions on Public Sale by the Company . . . . . . . . . . . . . 14
6. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Obligations of the Company . . . . . . . . . . . . . . . . . . . . . 15
(b) Seller Information . . . . . . . . . . . . . . . . . . . . . . . . . 18
(c) Notice to Discontinue . . . . . . . . . . . . . . . . . . . . . . . 18
(d) Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . 18
7. Indemnification; Contribution . . . . . . . . . . . . . . . . . . . . . 19
(a) Indemnification by the Company . . . . . . . . . . . . . . . . . . . 19
(b) Indemnification by Designated Holders . . . . . . . . . . . . . . . 19
(c) Conduct of Indemnification Proceedings . . . . . . . . . . . . . . . 20
(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Recapitalizations, Exchanges, etc. . . . . . . . . . . . . . . . . . 21
(b) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . 22
(c) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(f) Successors and Assigns; Third Party Beneficiaries . . . . . . . . . . 27
(g) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(h) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(i) GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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(j) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(k) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(l) Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 28
(m) Appointment of Ad Hoc Stockholders' Representative . . . . . . . . . 28
(n) Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . 29
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THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated
March 26, 1999 (this "AGREEMENT"), among Proxicom, Inc., a Delaware
corporation (the "COMPANY"), General Atlantic Partners 34, L.P., a Delaware
limited partnership ("GAP LP"), General Atlantic Partners 52, L.P., a Delaware
limited partnership ("GAP 52"), GAP Coinvestment Partners, L.P., a New York
limited partnership ("GAP COINVESTMENT I"), GAP Coinvestment Partners II, L.P.,
a Delaware limited partnership ("GAP COINVESTMENT II"), Xxxx Xxxxxxxxx
("XXXXXXXXX"), The Xxxxx X. Xxxxxx Trust ("MORINO TRUST"), FBR Venture Capital
Managers Inc., a Delaware corporation ("FBR"), General Electric Capital
Corporation, a New York corporation ("GE CAPITAL"), GE Capital Equity
Investments, Inc., a Delaware corporation ("GE CAPITAL EQUITY"), Xxxxxx Xxxx,
Xxxxx XxXxxxxx and Xxxxxxx Xxxxxxxxx (the "IBIS STOCKHOLDERS"), and Xxxx Xxxx
("XXXX"), Xxxxxxxx X. Leonsis ("LEONSIS"), Xxxx XxXxxxxx ("XXXXXXXX"), and The
Washington Post Company, a Delaware corporation ("WPC", and together with Xxxx,
Leonsis, and XxXxxxxx, the "NEW STOCKHOLDERS") and the individuals listed on
Exhibit A hereto (the "AD HOC STOCKHOLDERS").
WHEREAS, this Agreement is made in connection with the Preferred Stock
and Warrant Purchase Agreement, dated August 30, 1996 (the "STOCK AND WARRANT
PURCHASE AGREEMENT"), among the Company, GAP LP and GAP Coinvestment I,
pursuant to which the Company has agreed to, among other things, issue and sell
to (i) GAP LP, and GAP LP has agreed to purchase from the Company, (x) an
aggregate of 1,389,218 shares, par value $.01 per share, of Series A
Convertible Preferred Stock of the Company (the "SERIES A PREFERRED STOCK") and
(y) a warrant (the "GAP LP WARRANT") to purchase, subject to the terms and
conditions thereof, an aggregate of 861,834 shares of Series A Preferred Stock
and (ii) GAP Coinvestment I, and GAP Coinvestment I has agreed to purchase from
the Company, (x) an aggregate of 240,751 shares of Series A Preferred Stock and
(y) a warrant (the "GAPCO WARRANT" and, together with the GAP LP Warrant, the
"WARRANTS") to purchase, subject to the terms and conditions thereof, an
aggregate of 149,544 shares of Series A Preferred Stock.
WHEREAS, this Agreement is made in connection with the Preferred Stock
Purchase Agreement, dated February 20, 1997, among the Company, GAP LP, GAP
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Coinvestment I, Morino Trust and FBR, pursuant to which the Company has agreed
to, among other things, issue and sell (i) GAP LP, and GAP LP has agreed to
purchase from the Company, an aggregate of 81,535 shares, par value $.01 per
share, of Series B Convertible Preferred Stock of the Company (the "SERIES B
PREFERRED STOCK"), (ii) GAP Coinvestment I and GAP Coinvestment I has agreed to
purchase from the Company an aggregate of 14,388 shares of Series B Preferred
Stock, (iii) Morino Trust, and Morino Trust has agreed to purchase from the
Company an aggregate of 239,808 shares of Series B Preferred Stock and (iv)
FBR, and FBR has agreed to purchase from the Company an aggregate of 23,981
shares of Series B Preferred Stock.
WHEREAS, this Agreement is made in connection with the Preferred Stock
Purchase Agreement, dated November 24, 1997, between the Company and GE
Capital, pursuant to which the Company has agreed to, among other things, issue
and sell GE Capital, and GE Capital has agreed to purchase from the Company,
419,302 shares, par value $.01 per share, of Series C Convertible Preferred
Stock of the Company (the "SERIES C PREFERRED STOCK").
WHEREAS, this Agreement is made in connection with the Agreement and
Plan of Merger by and among the Company, Proxicom Merger Sub, Inc., IBIS
Consulting, Inc. and the IBIS Stockholders, dated as of August 21, 1998 (the
"MERGER AGREEMENT"), pursuant to which the Company has agreed to, among other
things, issue a total of 4,988,297 shares of Common Stock to the IBIS
Stockholders.
WHEREAS, this Agreement is made in connection with the Stock Purchase
Agreement, dated as of February 1, 1999 (the "COMMON STOCK PURCHASE
AGREEMENT"), between the Company, certain selling stockholders named therein,
and the Purchasers named therein, pursuant to which, among other things,
certain selling stockholders named in the Common Stock Purchase Agreement agree
to sell and transfer to the Purchasers, and the Purchasers agree to purchase
from such selling stockholders, an aggregate of 758,667 shares of Common Stock
of the Company.
WHEREAS, this Agreement is made in connection with the Preferred Stock
Purchase Agreement, dated as February 1, 1999 (the "SERIES D STOCK PURCHASE
AGREEMENT"), between the Company and the Purchasers named therein, pursuant to
which, among other
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things, the Company agrees to issue and sell to the Purchasers, and the
Purchasers agree to purchase from the Company, an aggregate of 1,218,333
shares, par value $.01 per share, of Series D Convertible Preferred Stock of
the Company (the "SERIES D PREFERRED STOCK"; and, together with the Series A
Preferred Stock, the Series B Stock, and the Series C Stock, the "PREFERRED
STOCK").
WHEREAS, each share of Preferred Stock is convertible (subject to
adjustment) into one (1) share of Common Stock (as hereinafter defined).
WHEREAS, this Agreement is made in connection with the Agreement and
Plan of Merger by and among the Company, Proxicom Merger Sub II, Inc., ad hoc
Interactive, Inc. ("AD HOC"), and the Principal Stockholders named therein,
dated as of March 22, 1999 (the "AD HOC MERGER AGREEMENT"), pursuant to which
the Company has agreed to, among other things, issue a total of 831,716 shares
of Common Stock to the Ad Hoc Stockholders.
WHEREAS, the Company, GAP LP, GAP Coinvestment I, Xxxxxxxxx, Xxxxxx
Trust and FBR are parties to the Stockholders Agreement (as hereinafter
defined), pursuant to which the parties thereto have agreed to, among other
things, certain first offer, preemptive and corporate governance rights and
obligations.
WHEREAS, the Company, GAP LP, GAP Coinvestment I, Xxxxxxxxx, Morino
Trust, FBR and GE Capital are parties to Amendment No. 1 to the Stockholders
Agreement ("AMENDMENT NO. 1"), pursuant to which, among other things, GE
Capital became a party to the Stockholders Agreement.
WHEREAS, the Company, GAP LP, GAP Coinvestment I, Xxxxxxxxx, Xxxxxx
Trust, FBR, GE Capital and the IBIS Stockholders are parties to Amendment No. 2
to the Stockholders Agreement ("AMENDMENT NO. 2"), pursuant to which, among
other things, the IBIS Stockholders became a party to the Stockholders
Agreement (as amended by the Amendment No. 1).
WHEREAS, the Company, GAP LP, GAP Coinvestment I, GAP 52, GAP
Coinvestment II, Xxxxxxxxx, Morino Trust, FBR, GE Capital, GE Capital Equity,
the IBIS Stockholders, and the New Stockholders are parties to Amendment No. 3
to the Stockholders
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Agreement ("AMENDMENT NO. 3"), pursuant to which, among other things, the New
Stockholders, GAP 52, GAP Coinvestment II and GE Capital Equity became a party
to the Stockholders Agreement.
WHEREAS, concurrently with the execution hereof, the Company, GAP LP,
GAP Coinvestment I, GAP 52, GAP Coinvestment II, Xxxxxxxxx, Xxxxxx Trust, FBR,
GE Capital, GE Capital Equity, the IBIS Stockholders, the New Stockholders and
the Ad Hoc Stockholders are entering into Amendment No. 4 to the Stockholders
Agreement ("AMENDMENT NO. 4"), pursuant to which, among other things, the Ad
Hoc Stockholders shall become party to the Stockholders Agreement.
WHEREAS, as a condition precedent to the obligations of Ad Hoc and the
Principal Stockholders of Ad Hoc to consummate the merger pursuant to the Ad
Hoc Merger Agreement, the Company has agreed to amend and restate in its
entirety the Second Amended and Restated Registration Rights Agreement (as
hereinafter defined) by entering into this Agreement pursuant to which the
Company has agreed to grant registration rights with respect to the Registrable
Securities (as hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
as follows:
1. Definitions. As used in this Agreement the following terms have
the meanings indicated:
"Affiliate" shall mean, with respect to any Person, any other
Person who controls, is controlled by or is under common control with such
Person. In addition, the following shall be deemed to be Affiliates of GAP LP
and GAP 52: (a) GAP LLC, the members of GAP LLC, the limited partners of GAP
LP and the limited partners of GAP 52; (b) any Affiliate of GAP LLC, the
members of GAP LLC, the limited partners of GAP LP and the limited partners of
GAP 52; and (c) any limited liability company or partnership a majority of
whose members or partners, as the case may be, are members of GAP LLC. In
addition, GAP LP, GAP 52, GAP Coinvestment I and GAP Coinvestment II shall be
deemed to be Affiliates of one another.
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"Ad Hoc" has the meaning assigned to such term in the recital to
this Agreement.
"Ad Hoc Merger Agreement" has the meaning assigned to such term in
the recital to this Agreement.
"Ad Hoc Stockholders" has the meaning assigned to such term in the
recital to this Agreement.
"Ad Hoc Stockholders' Representative" shall mean Xxxx Xxxxx Xxxxxx,
or any successor thereto who is appointed by the Ad Hoc Stockholders holding at
least a majority of the Registrable Securities held by the Ad Hoc Stockholders.
"Amendment No. 1" has the meaning assigned to such term in the
recital to this Agreement.
"Amendment No. 2" has the meaning assigned to such term in the
recital to this Agreement.
"Amendment No. 3" has the meaning assigned to such term in the
recital to this Agreement.
"Amendment No. 4" has the meaning assigned to such term in the
recital to this Agreement.
"Approved Underwriter" has the meaning set forth in Section 3(f) of
this Agreement.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company or any other equity securities of the Company into which such
securities are converted, reclassified, reconstituted or exchanged.
"Common Stock Purchase Agreement" has the meaning assigned to such
term in the recital to this Agreement.
"Company" has the meaning assigned to such term in the recital to
this
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Agreement.
"Company Underwriter" has the meaning set forth in Section 4(a) of
this Agreement.
"Demand Registration" has the meaning set forth in Section 3(a) of
this Agreement.
"Designated Holder" means each of the Xxxxxxxxx Stockholders, the
Morino Stockholders, the General Atlantic Stockholders, the FBR Stockholders,
the GE Capital Stockholders, the IBIS Stockholders, the Xxxx Stockholders, the
Leonsis Stockholders, the XxXxxxxx Stockholders, the WPC Stockholders and the
Ad Hoc Stockholders and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with the provisions of the
Stockholders Agreement (as hereinafter defined) and Section 9(f) of this
Agreement, other than a transferee to whom such securities have been
transferred pursuant to a registration statement under the Securities Act or
Rule 144 or Regulation S under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FBR" has the meaning assigned to such term in the recital to this
Agreement.
"FBR Stockholders" means FBR and any Permitted Transferee (as
defined in the Stockholders Agreement) thereof to which Registrable Securities
are transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Xxxxxxxxx" has the meaning assigned to such term in the recital to
this Agreement.
"Xxxxxxxxx Stockholders" means Xxxxxxxxx and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
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"GAP 52" has the meaning assigned to such term in the recital to
this Agreement.
"GAP Coinvestment I" has the meaning assigned to such term in the
recital to this Agreement.
"GAP Coinvestment II" has the meaning assigned to such term in the
recital to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP LP, and any successor to such
entity.
"GAP LP" has the meaning assigned to such term in the recital to
this Agreement.
"GAP LP Warrant" has the meaning assigned to such term in the
recital to this Agreement.
"GAPCO Warrant" has the meaning assigned to such term in the
recital to this Agreement.
"GE Capital" has the meaning assigned to such term in the recital
to this Agreement.
"GE Capital Equity" has the meaning assigned to such term in the
recital to this Agreement.
"GE Capital Stockholders" means GE Capital, GE Capital Equity and
any Affiliate thereof to which Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 52, GAP
Coinvestment I, GAP Coinvestment II and any Affiliate thereof to which
Registrable Securities
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are transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Holders' Counsel" has the meaning set forth in Section 6(a)(i) of
this Agreement.
"IBIS Stockholders" means the IBIS Stockholders as such term is
defined in the recital to this Agreement and any Permitted Transferee (as
defined in the Stockholders Agreement) thereof to which Registrable Securities
are transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Incidental Registration" has the meaning set forth in Section 4(a)
of this Agreement.
"Indemnified Party" has the meaning set forth in Section 7(c) of
this Agreement.
"Indemnifying Party" has the meaning set forth in Section 7(c) of
this Agreement.
"Initial Public Offering" means a firm commitment underwritten
initial public offering pursuant to an effective Registration Statement filed
under the Securities Act covering the offer and sale of shares of Common Stock
for the account of the Company at a price per share of Common Stock not less
than $6.60 and resulting in aggregate net proceeds (after expenses and
underwriting commissions and discounts) to the Company of at least $10,000,000.
"Initiating Holder" has the meaning set forth in Section 3(a) of
this Agreement.
"Inspector" has the meaning set forth in Section 6(a)(viii) of this
Agreement.
"IPO Effectiveness Date" means the date upon which the Company
commences its Initial Public Offering.
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"Xxxx" has the meaning assigned to such term in the recital to this
Agreement.
"Xxxx Stockholders" means Xxxx and any Permitted Transferee (as
defined in the Stockholders Agreement) thereof to which Registrable Securities
are transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Leonsis" has the meaning assigned to such term in the recital to
this Agreement.
"Leonsis Stockholders" means Leonsis and any Permitted Transferee
(as defined in the Stockholders Agreement) thereof to which Registrable
Securities are transferred in accordance with Section 2.2 of the Stockholders
Agreement.
"XxXxxxxx" has the meaning assigned to such term in the recital to
this Agreement.
"XxXxxxxx Stockholders" means XxXxxxxx and any Permitted Transferee
(as defined in the Stockholders Agreement) thereof to which Registrable
Securities are transferred in accordance with Section 2.2 of the Stockholders
Agreement.
"Morino Trust" has the meaning assigned to such term in the recital
to this Agreement.
"Morino Stockholders" means Morino Trust and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
"NASD" has the meaning set forth in Section 6(a)(xiv) of this
Agreement.
"New Stockholders" means the New Stockholders as such term is
defined in the recital to this Agreement and any Permitted Transferee (as
defined in the Stockholders Agreement) thereof to which Registrable Securities
are transferred in accordance
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with Section 2.2 of the Stockholders Agreement.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or
an agency or political subdivision thereof) or other entity of any kind, and
shall include any successor (by merger or otherwise) of such entity.
"Purchasers" means GAP LP, GAP Coinvestment I, Morino Trust, GE
Capital and the New Stockholders.
"Preferred Stock" has the meaning assigned to such term in the
recital to this Agreement.
"Records" has the meaning set forth in Section 6(a)(viii) of this
Agreement.
"Registrable Securities" means each of the following: (a) any and
all shares of Common Stock owned by the Designated Holders or issued or
issuable upon conversion of shares of Preferred Stock or exercise of the
Warrants, including, without limitation, any additional shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or warrants exercisable for shares of Common Stock or Series A
Preferred Stock or Series B Preferred Stock or Series C Preferred Stock or
Series D Preferred Stock acquired by any of the Designated Holders after the
date hereof, (b) any other shares of Common Stock acquired or owned by any of
the Designated Holders prior to the IPO Effectiveness Date, or acquired or
owned by any of the Designated Holders after the IPO Effectiveness Date if such
Designated Holder is an Affiliate of the Company and (c) any shares of Common
Stock issued or issuable to any of the Designated Holders with respect to
shares of Common Stock, shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise
and shares of Common Stock issuable upon conversion, exercise or exchange
thereof.
"Registration Expense Cap" has the meaning set forth in Section
3(d) of
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this Agreement.
"Registration Expenses" has the meaning set forth in Section 6(d)
of this Agreement.
"Registration Statement" means a registration statement filed
pursuant to the Securities Act.
"SEC" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Second Amended and Restated Registrations Rights Agreement" means
the Second Amended and Restated Registration Rights Agreement dated February 1,
1999, among the Company, GAP LP, GAP 52, GAP Coinvestment I, GAP Coinvestment
II, Xxxxxxxxx, Xxxxxx Trust, FBR, GE Capital, GE Capital Equity, the IBIS
Stockholders and the New Stockholders.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Series A Preferred Stock" has the meaning assigned to such term in
the recital to this Agreement.
"Series B Preferred Stock" has the meaning assigned to such term in
the recital to this Agreement.
"Series C Preferred Stock" has the meaning assigned to such term in
the recital to this Agreement.
"Series D Preferred Stock" has the meaning assigned to such term in
the recital to this Agreement.
"Series D Stock Purchase Agreement" has the meaning assigned to
such term in the recital to this Agreement.
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"Stockholders Agreement" means, collectively, the Amended and
Restated Stockholders Agreement, dated February 20, 1997, among the Company,
GAP LP, GAP Coinvestment I, Xxxxxxxxx, Morino Trust and FBR, as amended by
Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 4.
"WPC" has the meaning assigned to such term in the recital to this
Agreement.
"WPC Stockholders" means WPC and any Permitted Transferee (as
defined in the Stockholders Agreement) thereof to which Registrable Securities
are transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Warrants" has the meaning assigned to such term in the recital to
this Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration
rights to the Xxxxxxxxx Stockholders, the Morino Stockholders, the General
Atlantic Stockholders, the FBR Stockholders, the GE Capital Stockholders, the
IBIS Stockholders, the New Stockholders and the Ad Hoc Stockholders upon the
terms and conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective under the Securities Act by the SEC and such Registrable Securities
have been disposed of pursuant to such effective registration statement, (ii)
the entire amount of Registrable Securities proposed to be sold in a single
sale, in the opinion of counsel satisfactory to the Company and the Designated
Holder thereof, each in their reasonable judgment, may be distributed to the
public without any limitation as to volume for such sale pursuant to Rule 144
(or any successor provision then in effect) under the Securities Act or (iii)
the Registrable Securities are proposed to be sold or distributed by a Person
not entitled to the registration rights granted by this Agreement.
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(c) Holders of Registrable Securities. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If
the Company receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Securities, the Company may
act upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities
issuable upon exercise of an option or upon conversion of another security
shall be deemed outstanding for the purposes of this Agreement.
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3. Demand Registration.
(a) Request for Demand Registration. At any time after the IPO
Effectiveness Date, one or more of the General Atlantic Stockholders as a
group, acting through GAP LLC or its written designee (the "INITIATING
HOLDER(S)"), may make a written request to the Company to register, under the
Securities Act (other than pursuant to a registration statement on Form S-4 or
S-8 or any successor thereto) and under the securities or "blue sky" laws of
any jurisdiction designated by such holder or holders (a "DEMAND
REGISTRATION"), the number of Registrable Securities stated in such request;
provided, however, that the Company shall not be obligated to effect more than
one (1) Demand Registration pursuant to this Section 3. If at the time of any
request to register Registrable Securities pursuant to this Section 3(a), the
Company is engaged in, or has fixed plans to engage in within ninety (90) days
of the time of such request, a registered public offering or is engaged in any
other activity which, in the good faith determination of the Board of Directors
of the Company, would be materially adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a reasonable period not in
excess of (i) one hundred eighty (180) days from the effective date of such
offering or (ii) ninety (90) days from the date of completion of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period. In
addition, the Company shall not be required to effect any registration within
sixty (60) days after the effective date of any other Registration Statement of
the Company. Each request for a Demand Registration by the Initiating
Holder(s) shall state the amount of the Registrable Securities proposed to be
sold and the intended method of disposition thereof. Upon a request for a
Demand Registration, the Company shall promptly take such steps as are
necessary or appropriate to prepare for the registration of the Registrable
Securities to be registered.
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than the Initiating
Holders) may offer such Designated Holder's Registrable Securities under any
Demand Registration pursuant to this Section 3. Within ten (10) days after the
receipt from an Initiating Holder of a request for a Demand Registration, the
Company shall (i) give written notice thereof to all of the Designated Holders
(other than the Initiating Holder) and (ii) subject to Section 3(e), include in
such registration all of the Registrable Securities held by such Designated
Holders from whom
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the Company has received a written request for inclusion therein within ten
(10) days of the receipt by such Designated Holders of such written notice
referred to clause (i) above. Each such request by such Designated Holders
shall specify the number of Registrable Securities proposed to be registered
and the intended method of disposition thereof. The failure of any Designated
Holder to respond within such 10-day period referred to in clause (ii) above
shall be deemed to be a waiver of such Designated Holder's rights under this
Section 3, provided that any Designated Holder may waive such Designated
Holder's rights under this Section 3 prior to the expiration of such 10-day
period by giving written notice to the Company, with a copy to the Initiating
Holder. The Ad Hoc Stockholders acknowledge and agree that the Company shall
be permitted to satisfy the Company's notice requirement pursuant to clause (i)
above with respect to the Ad Hoc Stockholders by providing such written notice
to the Ad Hoc Stockholders' Representative only (and not all of the Ad Hoc
Stockholders). Any request by an Ad Hoc Stockholder to have his or her
Registrable Securities included in a Demand Registration pursuant to this
Section 3(b) shall be submitted to the Ad Hoc Stockholders' Representative, and
the Ad Hoc Stockholders' Representative shall submit all such requests to the
Company prior to the expiration of the 10-day period referred to in clause (ii)
above. In addition to and without limiting the provisions of Section 3(e)
hereof, the Company shall have no obligation to include in any Demand
Registration pursuant to this Section 3(b), any Registrable Securities of the
Ad Hoc Stockholders, unless prior to the expiration of the 10-day period
referred to in clause (ii) above, the Company shall have received from the Ad
Hoc Stockholders' Representative a written request or requests to include in
such registration at least 60% of the Registrable Securities owned in the
aggregate by all of the Ad Hoc Stockholders.
(c) Effective Demand Registration. The Company shall use its best
efforts to cause any such Demand Registration to become and remain effective
not later than ninety (90) days after it receives a request under Section 3(a)
hereof. A registration shall not constitute a Demand Registration until it has
become effective and remains continuously effective for the lesser of (i) the
period during which all Registrable Securities registered in the Demand
Registration are sold and (ii) 120 days; provided, however, that a registration
shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not attributable to the Initiating
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Holders and such interference is not thereafter eliminated or (y) the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such Demand Registration are not satisfied or waived,
other than by reason of a failure by the Initiating Holders.
(d) Expenses. In any registration initiated as a Demand
Registration pursuant to Section 3(a), the Company shall pay 50% of all
Registration Expenses (other than underwriting discounts and commissions) in
connection therewith (the "REGISTRATION EXPENSE CAP"), whether or not such
Demand Registration becomes effective.
(e) Underwriting Procedures. If the Initiating Holders holding a
majority of the Registrable Securities held by all of the Initiating Holders to
which the requested Demand Registration relates so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the
form of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter (as
hereinafter defined) selected in accordance with Section 3(f). In connection
with any Demand Registration under this Section 3 involving an underwriting,
none of the Registrable Securities held by any Designated Holder making a
request for inclusion of such Registrable Securities pursuant to Section 3(b)
hereof shall be included in such underwriting unless such Designated Holder
accepts the terms of the underwriting as agreed upon by the Company, the
Initiating Holders and the Approved Underwriter, and then only in such quantity
as will not, in the opinion of the Approved Underwriter, jeopardize the success
of such offering by the Initiating Holders. If the Approved Underwriter
advises the Company in writing that in its opinion the aggregate amount of such
Registrable Securities requested to be included in such offering is
sufficiently large to have a material adverse effect on the success of such
offering, then the Company shall include in such registration only the
aggregate amount of Registrable Securities that in the opinion of the Approved
Underwriter may be sold without any such material adverse effect and shall
reduce, first as to the Designated Holders who requested to participate in such
registration pursuant to Section 3(b) hereof) as a group, if any (other than
the Initiating Holders and the GE Capital Stockholders); and second as to the
Initiating Holders and the GE Capital Stockholders as a group, pro rata within
each group based on the number of Registrable Securities included in the
request for Demand Registration.
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(f) Selection of Underwriters. If any Demand Registration of
Registrable Securities is in the form of an underwritten offering, the
Initiating Holders holding a majority of the Registrable Securities held by all
such Initiating Holders shall select and obtain an investment banking firm of
national reputation to act as the managing underwriter of the offering (the
"APPROVED UNDERWRITER"); provided, however, that the Approved Underwriter
shall, in any case, be acceptable to the Company in its reasonable judgment.
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4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the
IPO Effectiveness Date, if the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the Company
for its own account (other than a registration statement on Form S-4 or S-8 or
any successor thereto), then the Company shall give written notice of such
proposed filing to each of the Designated Holders of Registrable Securities at
least twenty (20) days before the anticipated filing date, and such notice
shall describe the proposed registration and distribution and offer such
Designated Holders the opportunity to register the number of Registrable
Securities as each such holder may request (an "INCIDENTAL REGISTRATION"). The
Ad Hoc Stockholders acknowledge and agree that the Company shall be permitted
to satisfy such notice requirement with respect to the Ad Hoc Stockholders by
providing such written notice to the Ad Hoc Stockholders' Representative only
(and not all of the Ad Hoc Stockholders). The Company shall, and shall use its
best efforts (within ten (10) days of the notice provided for in the preceding
sentence) to cause the managing underwriter or underwriters of a proposed
underwritten offering (the "COMPANY UNDERWRITER") to permit each of the
Designated Holders who have requested in writing to participate in the
Incidental Registration to include such Designated Holder's Registrable
Securities in such offering on the same terms and conditions as the securities
of the Company included therein. Any request by an Ad Hoc Stockholder to have
his or her Registrable Securities included in such Incidental Registration
shall be submitted to the Ad Hoc Stockholders' Representative, and the Ad Hoc
Stockholders' Representative shall submit all such requests to the Company.
The Company shall have no obligation to include in any Incidental Registration
pursuant to this Section 4(a), any Registrable Securities of the Ad Hoc
Stockholders, unless the Company shall have received from the Ad Hoc
Stockholders' Representative written requests to include in such registration
at least 60% of the Registrable Securities owned in the aggregate by all of the
Ad Hoc Stockholders. In connection with any Incidental Registration under this
Section 4(a) involving an underwriting, the Company shall not be required to
include any Registrable Securities in such underwriting unless the holders
thereof accept the terms of the underwriting as agreed upon between the Company
and the Company Underwriter, and then only in such quantity as will not, in the
opinion of the Company Underwriter, jeopardize the success of the offering by
the Company. If in the written opinion of the Company Underwriter the
registration of all or part of the Registrable Securities which the Designated
Holders have requested to be included would materially
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adversely affect such offering, then the Company shall be required to include
in such Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such adverse effect, first,
all of the securities to be offered for the account of the Company; second, the
Registrable Securities to be offered for the account of the Designated Holders
pursuant to this Section 4, pro rata based on the amount recommended by the
Company Underwriter; and third, any other securities requested to be included
in such underwriting.
(b) Expenses. The Company shall bear all Registration Expenses
(other than underwriting discounts and commissions) in connection with any
Incidental Registration pursuant to this Section 4, whether or not such
Incidental Registration becomes effective; provided, however, that each
Designated Holder participating in such registration shall bear the costs and
expenses (including disbursements) of its own legal counsel.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. Each of
the Designated Holders agrees not to effect any public sale or distribution of
any Registrable Securities being registered or of any securities convertible
into or exchangeable or exercisable for such Registrable Securities, including
a public sale pursuant to Rule 144 under the Securities Act, during the ninety
(90) day period beginning on the effective date of such registration statement
(except as part of such registration), (i) in the case of a non-underwritten
public offering, if and to the extent requested by the Initiating Holders (in
the event of a Demand Registration pursuant to Section 3) or the Company (in
the event of an Incidental Registration pursuant to Section 4(a)), as the case
may be, or (ii) in the case of an underwritten public offering, if and to the
extent requested by the Approved Underwriter (in the event of a Demand
Registration pursuant to Section 3) or the Company Underwriter (in the event of
an Incidental Registration pursuant to Section 4(a)), as the case may be.
(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its securities,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
registration statement in which the Designated Holders of Registrable
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Securities are participating and ending on the earlier of (i) the date on which
all Registrable Securities registered on such registration statement are sold
and (ii) 90 days after the effective date of such registration statement.
6. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or Section 4 of
this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) use its best efforts to prepare and file with the SEC a
registration statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall be
available for the sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and use its best efforts to cause such
registration statement to become effective; provided, however, that (x) before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall provide counsel selected by the Designated Holders
holding a majority of the Registrable Securities being registered in such
registration ("HOLDERS' COUNSEL") and any other Inspector (as hereinafter
defined) with an adequate and appropriate opportunity to participate in the
preparation of such registration statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the SEC, which
documents shall be subject to the review of Holders' Counsel, and (y) the
Company shall notify the Holders' Counsel and each seller of Registrable
Securities of any stop order issued or threatened by the SEC and take all
reasonable action required to prevent the entry of such stop order or to remove
it if entered;
(ii) 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 the lesser of (x) twelve (12) months and (y) such shorter period
which will terminate when all Registrable Securities covered by such
registration statement have been sold, and comply with the provisions of the
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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;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a registration statement,
copies of such registration statement as is proposed to be filed, and
thereafter such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as each such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such seller;
(iv) use its reasonable best efforts to register or
qualify such Registrable Securities under such other securities or "blue sky"
laws of such jurisdictions as any seller of Registrable Securities may request,
and to continue such qualification in effect in such jurisdiction for as long
as permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (x)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6(a)(iv), (y) subject
itself to taxation in any such jurisdiction or (z) consent to general service
of process in any such jurisdiction;
(v) use its reasonable best efforts to cause the Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the seller or
sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon 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
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to state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances under which
they were made, and the Company shall promptly prepare a supplement or
amendment to such prospectus and furnish to each seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, after delivery to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3
or Section 4, as the case may be) and take such other actions as are prudent
and reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (x)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (z) the information in such Records was known to the Inspectors
on a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable Securities
agrees that it shall, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action
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to prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten offering,
use its best efforts to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably request;
(x) use its reasonable best efforts to furnish, at the request
of any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or, if
such securities are not being sold through underwriters, on the date the
registration statement with respect to such securities becomes effective, an
opinion, dated such date, of counsel representing the Company for the purposes
of such registration, addressed to the underwriters, if any, and to the seller
making such request, covering such legal matters with respect to the
registration in respect of which such opinion is being given as such seller may
reasonably request and are customarily included in such opinions;
(xi) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the registration statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the registration statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed, provided that the applicable listing requirements are satisfied;
(xiii) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Section 3 or Section 4
hereunder;
(xiv) cooperate with each seller of Registrable Securities
and each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National
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Association of Securities Dealers, Inc. (the "NASD"); and
(xv) use reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities contemplated
hereby.
The Ad Hoc Stockholders acknowledge and agree that the Company shall
be permitted to satisfy the Company's notice and delivery requirements pursuant
to this Section 6(a) with respect to the Ad Hoc Stockholders by providing
notices and documents to the Ad Hoc Stockholders' Representative only (and not
all of the Ad Hoc Stockholders). All requests to the Company by the Ad Hoc
Stockholders pursuant to this Section 6(a) shall be made to the Ad Hoc
Stockholders' Representative, and the Ad Hoc Stockholders' Representative shall
promptly forward all such requests to the Company. The Company shall have no
obligation to satisfy any request of the Ad Hoc Stockholders made pursuant to
this Section 6(a), unless such request is made by the Ad Hoc Stockholders'
Representative on behalf of Ad Hoc Stockholders holding at least 60% of the
Registrable Securities owned in the aggregate by all of the Ad Hoc
Stockholders.
(b) Seller Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to
furnish to the Company such information regarding the seller and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
(c) Notice to Discontinue. Each Designated Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Designated Holder's possession, of the prospectus covering such
Registrable Securities which is current at the time of receipt of such notice.
If the Company shall give any such notice, the Company shall extend the period
during which such registration statement shall be maintained effective pursuant
to this Agreement (including, without limitation, the period referred to in
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Section 6(a)(ii)) by the number of days during the period from and including
the date of the giving of such notice pursuant to Section 6(a)(vi) to and
including the date when the Designated Holder shall have received the copies of
the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 6(a)(vi).
(d) Registration Expenses. Subject to the Registration Expense
Cap in the case of a Demand Registration pursuant to Section 3 and subject to
Section 4(b) in the case of an Incidental Registration, the Company shall pay
all expenses arising from or incident to the performance of, or compliance
with, this Agreement, including, without limitation, (i) SEC, stock exchange
and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable fees,
charges and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (iii) all printing, messenger
and delivery expenses, (iv) the fees, charges and disbursements of counsel to
the Company and of its independent public accountants and any other accounting
fees, charges and expenses incurred by the Company (including, without
limitation, any expenses arising from any special audits incident to or
required by any registration or qualification) and any legal fees, charges and
expenses incurred by the Company and, in the case of a Demand Registration, the
Initiating Holders and (v) any liability insurance or other premiums for
insurance obtained in connection with any Demand Registration or Incidental
Registration pursuant to the terms of this Agreement, regardless of whether
such registration statement is declared effective. All of the expenses
described in this Section 6(d) are referred to herein as "REGISTRATION
EXPENSES".
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7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any registration statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection with any
registration statement in which a Designated Holder is participating pursuant
to Section 3 or Section 4 hereof, each such Designated Holder shall furnish to
the Company in writing such information with respect to such Designated Holder
as the Company may reasonably request or as may be required by law for use in
connection with any such registration statement or prospectus and each
Designated Holder agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, any underwriter retained by the Company and
their respective directors, officers, employees and each Person who controls
the Company or such underwriter (within the meaning of the Securities Act and
the Exchange Act) to the same extent as the foregoing indemnity from the
Company to the Designated Holders, but only with respect to any such
information with respect to such Designated Holder furnished in writing to the
Company by such Designated Holder expressly for use therein.
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(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give prompt
written notice to the indemnifying party (the "INDEMNIFYING PARTY") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying Party shall not relieve the Indemnifying Party of
any liability that it may have to the Indemnified Party hereunder. If notice
of commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to
the extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and satisfactory to such Indemnified Party. The Indemnified Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
(other than reasonable costs of investigation) shall be paid by the Indemnified
Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the
Indemnifying Party fails to assume the defense of such action with counsel
satisfactory to the Indemnified Party in its reasonable judgment or (iii) the
named parties to any such action (including any impleaded parties) have been
advised by such counsel that either (x) representation of such Indemnified
Party and the Indemnifying Party by the same counsel would be inappropriate
under applicable standards of professional conduct or (y) there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party. In either of such cases, the
Indemnifying Party shall not have the right to assume the defense of such
action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for in this
Section 7 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party 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 and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable
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considerations. The relative faults of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Sections 7(a), 7(b) and 7(c), any legal or other fees,
charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person.
8. Rule 144. The Company covenants that it shall file (a) any reports
required to be filed by it under the Exchange Act and (b) take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rules 144
and 144A under the Securities Act), all to the extent required from time to
time to enable such Designated Holder to sell Registrable Securities 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 rules or regulations hereafter adopted
by the SEC. The Company shall, upon the request of any Designated Holder of
Registrable Securities, deliver to such Designated Holder a written statement
as to whether it has complied with such requirements. The Ad Hoc Stockholders
acknowledge and agree that the Company shall have no obligations under this
Section 8 to any Ad Hoc Stockholder for any request submitted to the Company
pursuant to this Section 8 unless such request is submitted by the Ad Hoc
Stockholders' Representative on behalf of Ad Hoc Stockholders holding at least
60% of the Registrable Securities owned in the aggregate by all of the Ad Hoc
Stockholders.
-28-
33
9. Miscellaneous.
(a) Recapitalizations, Exchanges, etc.. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to (i)
the shares of Common Stock and (ii) any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after
the date hereof. The Company shall cause any successor or assign (whether by
merger, consolidation or otherwise) to enter into a new registration rights
agreement with the Designated Holders on terms substantially similar to this
Agreement as a condition of any such transaction.
(b) No Inconsistent Agreements. The Company shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or
inconsistent with the rights granted in this Agreement.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement;
provided, however, that the Ad Hoc Stockholders shall not be entitled to
exercise any such right of specific performance unless such right is exercised
by the Ad Hoc Stockholders' Representative on behalf of Ad Hoc Stockholders
holding at least 60% of the Registrable Securities owned in the aggregate by
all of the Ad Hoc Stockholders. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive in any action
for specific performance the defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless consented to in writing by (i) the Company, (ii) the Xxxxxxxxx
Stockholders holding Registrable Securities
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34
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the Xxxxxxxxx
Stockholders, (iii) the General Atlantic Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least 60%
of the aggregate number of Registrable Securities owned by all of the General
Atlantic Stockholders, (iv) the Morino Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least 60%
of the aggregate number of Registrable Securities owned by all of the Morino
Stockholders, (v) the FBR Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the FBR
Stockholders, (vi) the GE Capital Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the GE Capital
Stockholders, (vii) the IBIS Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the IBIS
Stockholders, (viii) the Xxxx Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the Xxxx
Stockholders, (ix) the Leonsis Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the Leonsis
Stockholders, (x) the XxXxxxxx Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the XxXxxxxx
Stockholders, (xi) the WPC Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the WPC
Stockholders, and (xii) the Ad Hoc Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number Registrable Securities owned by all of the Ad Hoc
Stockholders. Any such written consent shall be binding upon the Company and
all of the Designated Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
-30-
35
(i) if to the Company:
Proxicom, Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
(ii) if to the Xxxxxxxxx Stockholders:
c/o Proxicom, Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
-31-
36
and
Xxxxxxxx & Xxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(iii) if to GAP LP, GAP 52, GAP Coinvestment
I or GAP Coinvestment II:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
-32-
37
(iv) if to Morino Trust:
The Xxxxx X. Xxxxxx Trust
c/o Morino Institute
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Trustee
with a copy to:
Xxxxxxxx & Xxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(v) if to FBR:
x/x XXX Xxxxxxx Capital Managers Inc.
0000 00xx Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
-33-
38
(vi) if to GE Capital or GE Capital Equity:
GE Capital Equity Capital Group, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
Legal Department
(vii) if to the IBIS Stockholders:
Xxxxxx Xxxx
Xxxxx XxXxxxxx
Xxxxxxx Xxxxxxxxx
c/o IBIS Consulting, Inc.
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
Xxx Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Low
-34-
39
(viii) if to the Xxxx Stockholders:
Xxxx Xxxx
Xxxxxxx Xxxxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
(ix) if to the Leonsis Stockholders:
Xxxxxxxx X. Leonsis
America Online
00000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxxx & Xxxxxx
Xxxxx 000
0000 Xxxxxxxxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: T. Xxxxx Xxxx, Esq.
(x) if to the XxXxxxxx Stockholders:
Xxxx XxXxxxxx
Xxxxxxx Xxxxx & Co.
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
-35-
40
(xi) if the WPC Stockholders:
The Washington Post Company
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxx Xxxxx
(xii) if to the Ad Hoc Stockholders:
c/o Saul Xxxxx Xxxxxx
Ad Hoc Stockholders' Representative
ad hoc Interactive, Inc.
Libertyship Building
00 Xxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin
0 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
(xiii) if to any other Designated Holder, at its address as
it appears on the record books of the Company.
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically
-36-
41
acknowledged, if telecopied.
(f) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. The Demand Registration rights of the
General Atlantic Stockholders contained in Section 3 hereof and the other
rights of each of the General Atlantic Stockholders with respect thereto shall
be, with respect to any Registrable Security, (i) automatically transferred
among the General Atlantic Stockholders and (ii) in all other cases,
transferred only with the consent of the Company. The incidental or
"piggy-back" registration rights of the Designated Holders contained in
Sections 3(b) and 4 hereof and the other rights of each of the Designated
Holders with respect thereto shall be, with respect to any Registrable
Security, automatically transferred by such Designated Holder to any Person who
is the transferee of such Registrable Security. All of the obligations of the
Company hereunder shall survive any such transfer. No Person other than the
parties hereto and their successors and permitted assigns is intended to be a
beneficiary of any of the rights granted hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, it being intended
that all of the rights and privileges of the Designated Holders shall be
-37-
42
enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement, the other Transaction
Documents (as defined in the Series D Stock Purchase Agreement) and, as between
the Company and the IBIS Stockholders, the Merger Agreement, and, as between
the Company and the Ad Hoc Stockholders, the Ad Hoc Merger Agreement, are
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, representations, warranties or undertakings,
other than those set forth or referred to herein or therein. This Agreement,
the other Transaction Documents and, as between the Company and the IBIS
Stockholders, the Merger Agreement, and, as between the Company and the Ad Hoc
Stockholders, the Ad Hoc Merger Agreement, supersede all prior agreements and
understandings between the parties with respect to such subject matter,
including, without limitation, the Second Amended and Restated Registration
Rights Agreement.
(l) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
(m) Appointment of Ad Hoc Stockholders' Representative. Each Ad
Hoc Stockholder hereby appoints Xxxx Xxxxx Xxxxxx as attorney-in-fact with full
power and authority to act for and on behalf of any or all of the Ad Hoc
Stockholders (with full power of substitution in the premises), in connection
with the provisions of this Agreement as they relate to the Ad Hoc Stockholders
generally and such other matters as are reasonably necessary for the
consummation of the transactions contemplated hereby including, without
limitation, (i) to execute, deliver and receive on behalf of the Ad Hoc
Stockholders any notice, document or agreement contemplated by or necessary or
desirable in connection with this Agreement, (ii) to execute and deliver on
behalf of the Ad Hoc Stockholders any amendments, modifications, supplements,
waivers and consents obtained pursuant to and in accordance with Section 9(d)
of this Agreement, and (iii) to take such further actions including
coordinating and administering matters related to the rights and obligations of
the Ad Hoc Stockholders pursuant to this Agreement. The Ad Hoc Stockholders'
Representative is willing to act in the capacity of the representative of the
Ad Hoc Stockholders hereunder, and hereby accepts such appointment
-38-
43
and agrees to act in accordance with the terms and conditions of this
Agreement. The Company and the Designated Holders shall be entitled to rely on
such appointment and treat the Ad Hoc Stockholders' Representative as the duly
appointed attorney-in-fact of each Ad Hoc Stockholder.
(n) Limitation of Liability. The Ad Hoc Stockholders'
Representative shall have no liability to the Ad Hoc Stockholders with respect
to any action taken by him or her under this Agreement, except with respect to
the Ad Hoc Stockholders' Representative's gross negligence or willful
misconduct. The Ad Hoc Stockholders' Representative may act in reliance upon
the advice of counsel in reference to any matter in connection with this
Agreement and shall not incur any liability to the Ad Hoc Stockholders or any
one of them, for any action taken in good faith in accordance with such advice.
-39-
44
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement on the date first written above.
PROXICOM, INC.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxx Xxxxxxxxx
----------------------------------------------
Xxxx Xxxxxxxxx
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-40-
45
GENERAL ATLANTIC PARTNERS 34, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 52, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, Its General
Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: A Managing Member
-41-
46
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
Title: A General Partner
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
Title: A General Partner
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-42-
47
THE XXXXX X. XXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trustee
FBR VENTURE CAPITAL MANAGERS INC.
By: /s/ (signature illegible)
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ (signature illegible)
--------------------------------------
Name:
------------------------------------
-43-
48
Title:
----------------------------------
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ (signature illegible)
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-44-
49
/s/ Xxxxxx Xxxx
----------------------------------------
Xxxxxx Xxxx
/s/ Xxxxx XxXxxxxx
----------------------------------------
Xxxxx XxXxxxxx
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxx
----------------------------------------
Xxxx Xxxx
/s/ Xxxxxxxx X. Leonsis
----------------------------------------
Xxxxxxxx X. Leonsis
/s/ Xxxx XxXxxxxx
----------------------------------------
Xxxx XxXxxxxx
-45-
50
THE WASHINGTON POST COMPANY
By: /s/ (signature illegible)
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-46-
51
THE AD HOC STOCKHOLDERS:
-----------------------
/s/ XXXX XXXXX XXXXXX
-------------------------------------
XXXX XXXXX XXXXXX
/s/ XXXXX XXXXXXX
-------------------------------------
XXXXX XXXXXXX
/s/ XXXXX XXXX
-------------------------------------
XXXXX XXXX
/s/ XXXXX XXXXX
-------------------------------------
XXXXX XXXXX
/s/ XXX XXXXXXX
-------------------------------------
XXX XXXXXXX
-47-
52
/s/ XXXXX XXXXXXXX
--------------------------------------
XXXXX XXXXXXXX
/s/ XXXXXX XXXXX
--------------------------------------
XXXXXX XXXXX
/s/ XXXXX XXXXX
--------------------------------------
XXXXX XXXXX
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-48-
53
/s/ XXXXX XXXXXXX
-------------------------------------
XXXXX XXXXXXX
/s/ XXXXX XXXXX
-------------------------------------
XXXXX XXXXX
/s/ XXXXXX XXXXXXX
-------------------------------------
XXXXXX XXXXXXX
/s/ XXXXXX XXXXXX
-------------------------------------
XXXXXX XXXXXX
/s/ XXXXX XXXXXXX
-------------------------------------
XXXXX XXXXXXX
-49-
54
/s/ XXXXXX XXXXX
-----------------------------------
XXXXXX XXXXX
/s/ XXX XXXX
-----------------------------------
XXX XXXX
/s/ XXXXXXX XXXX
-----------------------------------
XXXXXXX XXXX
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
-50-
55
/s/ XXXXXX XXXXXXXX
-----------------------------------
XXXXXX XXXXXXXX
/s/ THY THAN
-----------------------------------
THY THAN
/s/ XXXX XXXXXXX
-----------------------------------
XXXX XXXXXXX
[END OF SIGNATURE PAGES]
-51-
56
EXHIBIT A
AD HOC STOCKHOLDERS
Xxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx XxXxx
Xxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxx Xxxx
Xxxxxxx Xxxx
Xxxxxx Xxxxxxxx
Thy Than
Xxxx Xxxxxxx
-52-
