EXHIBIT 10.5
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Fourth Amended and Restated Registration Rights Agreement (the
"Agreement") is entered as of April 13, 1999 among Xxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), and the persons listed on Exhibit A hereto
(collectively the "Purchasers" and individually a "Purchaser").
Recitals:
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The Company, Global Retail Partners, L.P., DLJ Diversified Partners, L.P.,
DLJ Diversified Partners-A, L.P., GRP Partners, L.P., Global Retail Partners
Funding, Inc., DLJ ESC II L.P., Pequot Private Equity Fund, LP, Pequot Offshore
Private Equity Fund, Inc., Nexus Capital Partners I, LP, Xxx Xxxxxxx Capital
Management, Inc., Xxxxxxxxx & Xxxxx California, H&Q Garden Escape Investors, LP,
Austin Ventures IV-A, L.P., Austin Ventures IV-B, L.P., Xxxxxxxx-Xxxxx Specialty
Retail Group III, L.P., Xxxxx X. Xxxxx, Scripps Ventures, LLC, Oak Investment
Partners, VII, Limited Partnership, and Oak VII Affiliates Fund, Limited
Partnership entered into a Third Amended and Restated Registration Rights
Agreement dated as of June 11, 1998 (the "Prior Registration Rights Agreement")
providing for the registration of shares of capital stock of the Company.
The Company and certain of the Purchasers have entered into a Stock
Purchase Agreement (the "Purchase Agreement") on this date, providing, among
other things, for the purchase by the Purchasers of shares of Series E Preferred
Stock. Terms defined in the Purchase Agreement and not otherwise defined herein
are used herein with the same meanings as defined in the Purchase Agreement.
This is the Registration Rights Agreement referred to in the Purchase
Agreement. The parties to the Prior Registration Rights Agreement desire to
amend and restate the Prior Registration Rights Agreement to read in its
entirety as set forth herein. The execution and delivery of this Agreement is a
condition to the closing of the issuance and sale of Shares under the Purchase
Agreement.
The parties agree as follows:
l. Registrable Stock. For purposes of this Agreement "Registrable Stock"
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means shares of Common Stock (i) issued or issuable pursuant to the conversion
of any Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock or Series E Preferred Stock, now or
hereafter owned and held by any Purchaser and Transferee of a Purchaser, and
(ii) issued in respect of securities issued pursuant to the conversion of any
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock now or hereafter owned or
held by any Purchaser and Transferee of a Purchaser upon any stock split, stock
dividend, recapitalization, substitution or similar event, provided, however,
that such shares shall cease to be Registrable Stock upon the first to occur of
the following: (i) they have been sold to the public pursuant to a registration
or pursuant to Rule 144 under the Securities Act (or any similar rule then in
effect), (ii) they have been exchanged, substituted or replaced by securities
which have been registered under the Securities Act or (iii) they have become
eligible for sale pursuant to Rule 144(k) under the Securities Act (or any
similar rule then in effect).
2. Demand Registrations.
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2A. Requests for Registration.
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(i) At any time after the completion of the initial public
offering of the Company's securities, the holders of a majority of the
Registrable Stock issued or issuable with respect to the Series E Preferred
Stock which are then outstanding may request registration under the Securities
Act of all or any part of the Registrable Stock (but only those shares issued or
issuable upon conversion of the Series E Preferred Stock) held by such holders
(the "Series E Demand Registration"), subject to the terms and conditions of
this Agreement. Any request for a Series E Demand Registration shall specify (a)
the approximate number of shares of Registrable Stock requested to be
registered, and (b) the intended method of distribution of such shares. Within
ten days after the date of sending of such request, the Company will give
written notice of such requested registration to all other holders of
Registrable Stock issued or issuable with respect to the Series E Preferred
Stock and will include in such registration all shares of Registrable Stock
which holders of Registrable Stock issued or issuable with respect to the Series
E Preferred Stock request the Company to include in such registration by written
notice given to the Company within 15 days after the date of sending of the
Company's notice.
(ii) At any time and from time to time after January 1, 2001, the
holders of at least 66-2/3% of the Registrable Stock then outstanding may
request registration under the Securities Act of all or any part of the
Registrable Stock (each, a "Demand Registration"), subject to the terms and
conditions of this Agreement. Any request (a "Registration Request") for a
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Demand Registration shall specify (a) the approximate number of shares of
Registrable Stock requested to be registered (but not less than 33-l/3% of the
outstanding Registrable Stock), and (b) the intended method of distribution of
such shares. Within ten days after the date of sending of such request, the
Company will give written notice of such requested registration to all other
holders of Registrable Stock and will include in such registration all shares of
Registrable Stock which holders of Registrable Stock request the Company to
include in such registration by written notice given to the Company within 15
days after the date of sending of the Company's notice.
(iii) Subject to paragraph 4, the holders of Registrable Stock
will be entitled to request up to three Demand Registrations at any time and
from time to time after January 1, 2001 and the holders of Registrable Stock
issued or issuable with respect to the Series E Preferred Stock will be entitled
to request one Series E Demand Registration at any time after the initial public
offering of the Company's securities.
(iv) A registration will not count as one of the Demand
Registrations paid for by the Company (as provided in paragraph 4) unless the
holders of Registrable Stock are able to register and sell at least 50% of the
Registrable Stock requested to be included in such registration.
(v) The Company will not include in any Series E Demand
Registration or Demand Registration any securities other than shares of
Registrable Stock and securities to be registered for offering and sale on
behalf of the Company without the prior written consent of the holders of a
majority of the shares of Registrable Stock included in such registration. If
the managing underwriter(s) advise the Company in writing that in their opinion
the number of shares of Registrable Stock and, if permitted hereunder, other
securities in such offering, exceeds the number of shares of Registrable Stock
and other securities, if any, which can be sold in an orderly manner in such
Offering within a price range acceptable to the holders of a majority of the
shares of Registrable Stock initially requesting registration, the Company will
include in such registration, prior to the inclusion of any securities which are
not shares of Registrable Stock, the number of shares of Registrable Stock
requested to be included which in the opinion of such underwriters can be sold
in an orderly manner within the price range of such offering, pro rata among the
respective holders thereof on the basis of the number of shares of Registrable
Stock which each such holder has requested the Company to include in such
registration.
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2B. Selection of Underwriter. The holders of a majority of the
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shares of Registrable Stock to be included in a registration will have the right
to select one or more underwriters to manage the offering, subject to the
Company's approval which will not be unreasonably withheld.
2C. Registrations on Forms X-0, X-0. Following its initial public
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offering of securities under the Securities Act, the Company shall use its
reasonable best efforts to qualify for registration on Forms S-2 or S-3 or any
comparable or successor form or forms. After the Company has qualified for the
use of Forms S-2 or S-3, in addition to the rights contained in paragraph 2A,
the holders of outstanding Registrable Stock with a Fair Market Value (as
defined in the Company's Restated Certificate of Incorporation) of at least
$750,000 shall have the right at any time and from time to time to request up to
two registrations on Form S-2 or an unlimited number on Form S-3. Such requests
shall be in writing and shall state the number of Shares of Registrable Stock
proposed to be disposed of and the intended method of distribution of such
shares by such holder or holders.
2D. Right to Defer Registration. The Company shall not be obligated
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to effect any registration within 180 days after the effective date of a
previous registration in which the holders of Registrable Securities
participated. The Company may postpone for up to 180 days the filing or the
effectiveness of a registration statement for a demand registration set forth
above if (i) the Company determines that such registration might have an adverse
effect on any proposal or plan by the Company to engage in any acquisition of
assets (other than in the ordinary course) or any merger, consolidation, tender
offer or similar transaction or (ii) any other material, nonpublic development
or transaction is pending; provided that the Company may not postpone the filing
or effectiveness of a registration statement pursuant to this sentence more
frequently than once during any period of 12 consecutive months.
3. Piggyback Registrations.
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3A. Right to Piggyback. If the Company proposes to register any of
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its securities on its behalf or on behalf of any selling securityholder under
the Securities Act (other than pursuant to a Demand Registration or registration
solely in connection with an employee benefit or stock ownership plan) and the
registration form to be used may be used for the registration of Registrable
Stock (a "Piggyback Registration"), the Company will give prompt written notice
to all holders of Registrable Stock of its intention to effect such a
registration (each a "Piggyback Notice"). Subject to subparagraphs 3B and 3C
below, the Company
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will include in such registration all shares of Registrable Stock which holders
of Registrable Stock request the Company to include in such registration by
written notice given to be Company within 15 days after the date of sending of
the Company's notice.
3B. Priority on Primary Registrations. If a Piggyback Registration
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relates to an underwritten public offering of equity securities by the Company
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company will include in such
registration (i) first, the securities proposed to be sold by the Company, (ii)
second, the Registrable Stock requested to be included in such registration, pro
rata among the holders of such Registrable Stock on the basis of the number of
shares owned by each such holder and (iii) third, other securities requested to
be included in such registration.
3C. Priority on Secondary Registrations. If a Piggyback Registration
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relates to an underwritten public offering of equity securities by holders of
the Company's securities and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the holders initially
requesting such registration, the Company will include in such registration (i)
first, the securities requested to be included therein by the holders requesting
such registration, and (ii) second, the Registrable Stock requested to be
included in such registration, pro rata among the holders of such Registrable
Stock on the basis of the number of shares owned by each such holder.
4. Registration Procedures. Whenever the holders of Registrable Stock
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have requested that any Registrable Stock be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Stock in accordance with the intended method of
distribution thereof and will as expeditiously as possible:
(i) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Stock and
use its best efforts to cause such registration statement to become effective,
provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Stock covered by such
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registration statement copies of all such documents proposed to be filed which
documents will be subject to the review of such counsel;
(ii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of up to six months, and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of distribution by the sellers thereof set
forth in such registration statement;
(iii) furnish to each seller of Registrable Stock such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Stock owned by
such seller;
(iv) use its best efforts to register or qualify such
Registrable Stock under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such setter
to consummate the disposition in such jurisdictions of the Registrable Stock
owned by such seller, provided that the Company will not be required (i) to
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) to subject
itself to taxation in any such jurisdiction or (iii) to consent to general
service of process in any such jurisdiction;
(v) notify each seller of such Registrable Stock, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
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(vi) cause all such Registrable Stock to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to be qualified for trading on each system on which similar
securities issued by the Company are from time to time qualified;
(vii) provide a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such registration
statement and thereafter maintain such a transfer agent and registrar;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the shares of Registrable Stock being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Stock;
(ix) make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in connection with such registration
statement:
(x) otherwise use its best effort to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) permit any holder of Registrable Stock which might be
deemed, in the sole and exclusive judgment of such holder, to be an underwriter
or a controlling person of the Company, to participate in the preparation of
such registration or comparable statement and to require the insertion therein
of material, furnished to the Company in writing, which in the reasonable
judgment of such holder and its counsel should be included; and
(xii) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending
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or preventing the use of any related prospectus or suspending the qualification
of any Registrable Stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (a) the inclusion in
such registration statement of language, in form and substance reasonably
satisfactory to such holder, to the effect that the holding of such securities
by such holder is not to be construed as a recommendation by such holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such holder will assist in meeting any future
financial requirements of the Company, or (b) in the event that such reference
to such holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
holder; provided, that with respect to this clause (b) such holder shall furnish
to the Company an opinion of counsel to such effect, which opinion and counsel
shall be reasonably satisfactory to the Company.
5. Registration Expenses.
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5A Definition. The term "Registration Expenses" means any expenses
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incident to the Company's performance of or compliance with this Agreement,
including without limitation all registration and filing fees, fees and expenses
of compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, and fees and expenses of counsel for the Company and all
independent certified public accountants, including the expense of any special
audits required by such registration, underwriters (excluding discounts and
commissions, if any, attributable to the sale of Registrable Stock, stock
transfer taxes and fees and disbursements of counsel to the selling
stockholders, other than the one special counsel chosen by the holders of a
majority of the Registrable Stock initially requesting registration, all of
which shall be paid by the selling stockholders pro rata on the basis of the
number of their shares of Registrable Stock so registered) and other Persons
retained by the Company.
5B Payment. The Company shall pay the Registration Expenses in
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connection with one Series E Demand Registration, three Demand Registrations, up
to two registrations on Form S-2 and any and all registrations on
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Form S-3 pursuant to paragraph 2C, and any and all Piggyback Registrations. In
connection with one Series E Demand Registration, the three Demand Registrations
and each Piggyback Registration, the Company will reimburse the holders of
Registrable Stock covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Stock initially requesting such registration.
6. Indemnification.
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6A. Indemnification by the Company. The Company agrees to indemnify,
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to the extent permitted by law, each holder of Registrable Stock, its officers
and directors and each Person who controls such holder (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Stock.
6B. Indemnification by Holders. In connection with any registration
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statement in which a holder of Registrable Stock is participating, each such
holder will furnish to the Company in writing such information and affidavits as
the Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so
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furnished in writing by such holder; provided, that the obligation to indemnify
will be individual to each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Stock pursuant to
such registration statement.
6C. Notice; Defense of Claims. Any Person entitled to indemnification
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hereunder will (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
6D. Contribution. If the indemnification provided for in this part 6
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is held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and of the indemnified party, on the other,
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The obligation to contribute will be individual to each
holder of Registrable Stock and will be limited to the amount by which the net
amount of proceeds received by such holder from the sale of Registrable Stock
exceeds the amount of losses, liabilities, damages, and expenses
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which such holder has otherwise been required to pay by reason of such
statements or omissions.
6E. Survival. The indemnification provided for under this Agreement
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will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of securities.
7. Participation in Underwritten Registrations; "Lock-Up" Agreements. No
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Person may participate in any registration hereunder which is underwritten
unless such Person (i) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements;
provided, that no holder of Registrable Stock included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties regarding
such holder and such holder's intended method of distribution, and (iii) if
requested by the managing underwriter or underwriters, agrees not to sell,
pledge or otherwise transfer or dispose of Registrable Stock or other securities
of the Company held by such Person (other than securities purchased in the
public markets or from the Company or the underwriters in a registered offering)
in any transaction other than pursuant to such underwriting for such period (not
to exceed 120 days) as determined at the discretion of the Board of Directors of
the Company; provided, that no holder of Registrable Stock shall be required to
enter into such an agreement unless each other holder of Registrable Stock, each
director and executive officer of the Company and each other holder of at least
five percent of the Common Stock then outstanding enters into a substantially
identical agreement relating to such underwriting. Each holder of Registrable
Stock, if requested by the managing underwriter or underwriters for the
Company's initial public offering, also agrees to the lock-up provisions set
forth in clause (iii) of this paragraph 7 with respect to such offering
regardless of whether any of such holder's Registrable Stock is registered
pursuant to such offering.
8. Miscellaneous.
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8A. Limitation on Subsequent Registration Rights. From and after the
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date of this Agreement, the Company shall not, without the consent of the
holders of at least a majority of the then outstanding shares of Registrable
Stock,
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enter into any agreement granting any holder or prospective holder of any
securities of the Company registration rights with respect to such securities
unless the holders of such new registration rights may only participate in a
registration on a basis that is pari passu with or subordinate to the rights
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granted to the holders of Registrable Stock hereunder.
8B. Adjustments Affecting Registrable Stock. The Company will not take
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any action, or permit any change to occur, with respect to its securities for
the purpose of materially and adversely affecting the ability of the holders of
Registrable Stock to include such Registrable Stock in a registration undertaken
pursuant to this Agreement or materially and adversely affecting the
marketability of such Registrable Stock in any such registration (including,
without limitation, effecting a stock split or a combination of shares),
provided that this subparagraph 8B shall not apply to actions or changes with
respect to the Company's business, balance sheet, earnings or revenue where the
effect of such actions or changes on the Registrable Stock is merely incidental.
8C. Notices. All notices, requests, consents, and other communications
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under this agreement shall be in writing and shall be deemed to be delivered
when delivered personally or by facsimile transmission or by overnight delivery
service or 72 hours after having been mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
If to the Company, at Xxxxxx.xxx, Inc., 000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxx
00000, Attention: President, (fax (000) 000-0000), or at such other address or
addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxxx X. XxXxxxxxxx, Reinhart, Boerner, Van Deuren,
Xxxxxx & Rieselbach, S.C., 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000 (fax (000) 000-0000).
If to a Purchaser, at its address set forth on Exhibit A to the Purchase
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Agreement, or at such other address or addresses as may have been furnished to
the Company in writing by such Purchaser.
8D. Remedies. Any Person having rights under any provision of this
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Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or
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other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
8E. Amendments and Waivers. Except as otherwise provided herein, no
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amendment, modification, termination or cancellation of this Agreement shall be
effective unless made in writing signed by the Company and the holders of a
majority of the then outstanding shares of Registrable Stock and, with respect
to any matter solely concerning the Series E Demand Registration, a majority of
the then outstanding shares of Registrable Stock issued or issuable with respect
to the Series E Preferred Stock.
8F. Successors and Assigns. This Agreement, and the rights and
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obligations of each Purchaser hereunder, may be assigned by such Purchaser to
any person or entity to which Shares are transferred by such Purchaser, and such
transferee shall be deemed a "Purchaser" for Purposes of this Agreement;
provided that the transferee provides written notice of such assignment to the
Company.
8G. Severability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
8H. Entire Agreement. This Agreement embodies the entire agreement of the
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parties hereto with respect to the subject matter hereof and supersedes all
prior agreements relating to such subject matter. This Agreement amends and
restates, in its entirety, the Prior Registration Rights Agreement.
8I. Headings. The headings of this Agreement are for convenience only and
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do not constitute a part of this Agreement.
8J. Governing Law. The construction, validity and interpretation of this
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Agreement will be governed by the internal laws of the State of Delaware without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
8K. Further Assurances. Each party to this Agreement hereby covenants and
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agrees without the necessity of any further consideration, to execute and
deliver any and all such further documents and take any and all such other
actions as may be necessary or appropriate to carry out the intent and purposes
of this Agreement and to consummate the transactions contemplated hereby.
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8L. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document. Facsimile signatures of this Agreement
shall be deemed of equal validity and as fully enforceable as original
signatures hereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the first written above.
COMPANY:
XXXXXX.XXX, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
PURCHASERS:
P/A FUND III, L.P.
By APA Pennsylvania Partners III, L.P.,
General Partner
By Patricof & Co. Managers, Inc.,
General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
APA EXCELSIOR V, L.P.
By APA Excelsior V Partners, L.P.,
General Partner
By Patricof & Co. Managers, Inc.,
General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
15
PATRICOF PRIVATE INVESTMENT
CLUB II, L.P.
By APA Excelsior V Partners, L.P.,
General Partner
By Patricof & Co. Managers, Inc.,
General Partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ATTRACTOR LP
By Attractor Ventures LLC,
General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
ATTRACTOR INSTITUTIONAL LP
By Attractor Ventures LLC,
General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
COMCAST INTERACTIVE CAPITAL
GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx, Managing Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
16
GLOBAL RETAIL PARTNERS, L.P.
By Global Retail Partners, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS, L.P.
By DLJ Diversified Partners, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
By DLJ Diversified Partners, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
GRP PARTNERS, L.P.
By Global Retail Partners, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
17
GLOBAL RETAIL PARTNERS FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
DLJ ESC II L.P.
By DLJ LBO Plans Management
Corporation, General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
PEQUOT PRIVATE EQUITY FUND, LP
By Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
PEQUOT OFFSHORE PRIVATE EQUITY FUND,
INC.
By Pequot Capital Management, Inc.,
Investment Advisor
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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NEXUS CAPITAL PARTNERS I, LP
By Nexus Group LLC, General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
XXX XXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxx Xxxxxxx
Title: President
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Tax Director, Attorney-in-Fact
--------------------------------
H & Q GARDEN ESCAPE INVESTORS, LP
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Tax Director, Attorney-in-Fact
--------------------------------
XXXXXXXXX & XXXXX EMPLOYEE VENTURE
FUND, X.X. XX
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its: Tax Director, Attorney-in-Fact
--------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
19
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx
SCRIPPS VENTURES, LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive
Officer
XXXXXXXX-XXXXX SPECIALTY RETAIL
GROUP III, L.P.
By Xxxxxxxx-Xxxxx Management
Company, L.P., General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
/s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
20
AUSTIN VENTURES IV-A, L.P.
By AV Partners IV, L.P., General Partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Xxxx X. Xxxxxxxx, Partner
AUSTIN VENTURES IV-B, L.P.
By AV Partners IV, L.P., General Partner
By: /s/ Xxxx X. Xxxxxxxx,
------------------------------------------
Xxxx X. Xxxxxxxx, Partner
OAK INVESTMENT PARTNERS, VII, LIMITED
PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx, Managing Member
of Oak Associates, VII, LLC
The General Partner of Oak Investment
Partners VII, Limited Partnership
OAK VII AFFILIATES FUND, LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx, Managing Member
of Oak VII Affiliates, LLC
The General Partner of Oak VII Affiliates
Fund, Limited Partnership
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
21
ATTRACTOR VENTURES LP
By Attractor Ventures LLC, General
Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
22
NEXUS PARTNERS LLC
By Nexus Group LLC, Its General
Partner
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: General Partner
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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