EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of August 6,
2002, between (a) PROGRESSIVE SOFTWARE HOLDING, INC., a Delaware corporation
(the "Company"), (b) ARK CLO 2000-1 LIMITED, a Cayman Islands exempted company,
("ARK") and Massachusetts Mutual Life Insurance Company, MassMutual Corporate
Investors, Mass Mutual Participation Investors, and MassMutual Corporate Value
Partners Limited, (collectively, "MassMutual").
RECITALS
--------
In order to induce ARK and MassMutual to acquire the Series B Common Stock
(as defined below) the Company desires to grant the Holders (as defined below)
certain rights as set forth herein.
AGREEMENT
---------
In consideration of the premises and the mutual covenants and the
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
-----------
Section 1.01. Definitions . As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ARK Holder Demand Registration" has the meaning provided in Section
2.01(b).
"ARK Holder" means ARK and any Person to whom ARK or any ARK Holder shall
sell, assign, transfer or otherwise convey its Registrable Securities pursuant
to Section 2.09 of this Agreement.
"ARK Warrant" means the Warrant to Purchase shares of Series B Common Stock
of the Company, dated August 6, 2002, originally issued by the Company to ARK.
"Common Stock" means the Series A Common Stock and the Series B Common
Stock.
"Demand Notice" means a written request by the MassMutual Holders pursuant
to Section 2.01(a) or by the ARK Holders pursuant to Section 2.01(b) for the
registration under the Securities Act of all or any portion of the Registrable
Securities held by such Holders for sale or distribution in the manner specified
in such notice.
"Demand Notice Date" means the date on which the Company receives a Demand
Notice as provided in Section 2.01 (a) or (b).
"Equity Securities" means the Common Stock and any other capital stock,
equity interest or other ownership interest or profit participation or similar
right with respect to the Company, including, without limitation, any
partnership or membership interest, any stock appreciation, phantom stock or
similar right or plan, and any note or debt security having or containing equity
or profit participation features, or any option, warrant or other security or
right which is directly or indirectly convertible into or exercisable or
exchangeable for any other Equity Securities of the Company.
"Holder" means any of the ARK Holders or the MassMutual Holders, as the
context may require.
"Initiating Holders" means Holders delivering a Demand Notice for a
MassMutual Holder Demand Registration or an ARK Holder Demand Registration, as
the case may be.
"IPO" means an underwritten initial public offering by the Company of
shares of Common Stock.
"MassMutual Holder Demand Registration" has the meaning provided in Section
2.01(a).
"MassMutual Holder" means MassMutual and any Person to whom MassMutual or
any MassMutual Holder shall sell, assign, transfer or otherwise convey its
Registrable Securities pursuant to Section 2.09 of this Agreement.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization.
"Piggyback Holders" means Holders exercising their right to include
Registrable Securities in a Registration Statement pursuant to Section 2.02(a)
hereof.
"Register", "registered" and "registration" means a registration effected
through the preparation and filing of a registration statement or similar
document in compliance with the Securities Act and the declaration or ordering
of effectiveness of such registration statement or document.
"Registering Holders" means the Initiating Holders and any other Holders
exercising their right to include Registrable Securities in a Registration
Statement in connection with a MassMutual Holder Demand Registration or an ARK
Demand Registration, as the case may be.
"Registrable Securities" means and includes all shares of Series A Common
Stock and Series B Common Stock (including, without limitation, all shares of
Common Stock issued or issuable upon exercise of the ARK Warrant); provided,
however, that Registrable Securities shall cease to be Registrable Securities
upon the consummation of any sale of such securities pursuant to a registration
statement or under Rule 144.
"Registration Expenses" means all expenses incurred by the Company in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration and the reasonable fees and disbursements (not to exceed
$15,000 in the case of a registration pursuant to Section 2.01 hereof and $5,000
in the case of a registration pursuant to Section 2.02 or Section 2.03 hereof)
of one special legal counsel to represent all of the Registering Holders,
Piggyback Holders or S-3 Holder as the case may be (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company).
"Registration Statement" means a registration statement on Form S-1, Form
S-3 or Form SB-2 (or such similar or successor forms as may be appropriate)
prepared and filed with the SEC by the Company pursuant to Article II of this
Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act, as such
rule shall be in effect from time to time.
"SEC" means the United States Securities and Exchange Commission and
includes any governmental body, authority or agency succeeding to the functions
thereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect at the time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
SEC promulgated thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts, selling commissions
and stock transfer taxes applicable to the Registrable Securities registered by
the Registering Holders, Piggyback Holders or S-3 Holders, as the case may be.
"Series A Common Stock" means the Series A Common Stock, par value $.01 per
share, of the Company.
"Series B Common Stock" means (a) the Company's Series B Common Stock, par
value $.01 per share, (b) any securities of the Company for which the Company's
Series B Common Stock, par value $.01 per share, are exchanged or converted, (c)
any securities of the Company which the holders of the Company's Series B Common
Stock, par value $.01 per share, shall be entitled to receive, or shall have
received, in connection with any stock splits, stock dividends or similar events
with respect to the Company's Series B Common Stock, par value $.01 per share,
and (d) any other securities into which or for which any of the Company's Series
B Common Stock, par value $.01 per share, may be converted or exchanged pursuant
to a plan of recapitalization, reorganization, merger, sale of assets or
otherwise.
ARTICLE II
Registration Rights
-------------------
Section 2.01. Demand Registration.
-------------------
(a) MassMutual Holder Demand Registration. If at any time after the date
which is 180 days after the IPO, the Company shall receive a Demand Notice from
the Holders of Registrable Securities constituting at least a majority of the
total shares of Registrable Securities then owned beneficially or of record by
the MassMutual Holders for the registration under the Securities Act of all or
any portion of the Registrable Securities held by such MassMutual Holders
(provided that the number of such Registrable Securities shall not be less than
25% of the Registrable Securities then held beneficially or of record by all
MassMutual Holders) for sale or distribution in the manner specified in such
notice (a "MassMutual Holder Demand Registration"), the Company shall promptly
(but in any event within 5 calendar days) after the Demand Notice Date, forward
a copy of the Demand Notice to all of the MassMutual Holders. Each of the
MassMutual Holders will have a period of 20 calendar days after receiving the
Demand Notice from the Company in which to elect to include some or all of such
MassMutual Holder's Registrable Securities in such Registration Statement. The
MassMutual Holders shall exercise their right to include Registrable Securities
in such Registration Statement by delivering a written notice to the Company
within such 20 calendar day period specifying the number of Registrable
Securities such MassMutual Holder wishes to include in such Registration
Statement.
(b) ARK Holder Demand Registration. If at any time after the date which is
180 days after the IPO, the Company shall receive a Demand Notice from the
Holders of Registrable Securities constituting at least a majority of the total
shares of Registrable Securities then owned beneficially or of record by the ARK
Holders for the registration under the Securities Act of all or any portion of
the Registrable Securities held by such ARK Holders (provided that the number of
such Registrable Securities shall not be less than 25% of the Registrable
Securities then held beneficially or of record by all ARK Holders) for sale or
distribution in the manner specified in such notice (an "ARK Holder Demand
Registration"), the Company shall promptly (but in any event within 5 calendar
days) after the Demand Notice Date, forward a copy of the Demand Notice to all
of the ARK Holders. Each of the ARK Holders will have a period of 20 calendar
days after receiving the Demand Notice from the Company in which to elect to
include some or all of such ARK Holder's Registrable Securities in such
Registration Statement. The ARK Holders shall exercise their right to include
Registrable Securities in such Registration Statement by delivering a written
notice to the Company within such 20 calendar day period specifying the number
of Registrable Securities such ARK Holder wishes to include in such Registration
Statement.
(c) Filing and Effectiveness of Registration Statement. Subject to the
limitations set forth in Section 2.01(e) hereof, the Company will prepare and
file with the SEC, no later than 60 calendar days after the Demand Notice Date,
a Registration Statement registering for resale by the Registering Holders a
sufficient number of shares of Common Stock for the Registering Holders to sell
the Registrable Securities requested to be registered. The Company will use its
best efforts to cause such Registration Statement to be declared effective no
later than five calendar days after the date on which the Company receives
notice from the SEC that such Registration Statement may be declared effective.
The Company will cause the Registration Statement filed pursuant to this Section
2.01 to remain effective until the earlier of (i) the date on which all
Registrable Securities registered pursuant to such Registration Statement shall
have been sold to the public and (ii) the date which is 120 calendar days after
the date on which such Registration Statement is declared effective by the SEC.
(d) Underwritten Offering.
(i) If the Initiating Holders intend to distribute the Registrable
Securities covered by their Demand Notice by means of an underwriting, they
shall so advise the Company as a part of their Demand Notice. In such
event, the right of any Holder to include its Registrable Securities in
such registration shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed by Initiating Holders
holding a majority of the Registrable Securities held by the Initiating
Holders to be registered hereunder and such Holder) to the extent provided
herein. In connection with such an underwritten offering, Initiating
Holders holding a majority of the Registrable Securities held by the
Initiating Holders shall have the right to select the managing underwriter
or underwriters, subject to the reasonable approval of the Company. All
Registering Holders proposing to distribute their Registrable Securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters, and complete and
execute all questionnaires, powers of attorney, indemnities, and other
documents required under the terms of such underwriting arrangements,
subject to the limitations set forth in Section 2.07 hereof, and the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters, shall also be made
to and for the benefit of the Registering Holders.
(ii) Notwithstanding any other provision of this Section 2.01, if the
underwriter advises the Company that in the opinion of such underwriter,
the distribution of all of the Registrable Securities requested to be
registered would materially and adversely affect the distribution of all of
the securities to be underwritten, then (x) the Company shall notify the
Registering Holders in writing of such underwriter's opinion and (y) the
number of Equity Securities (including the Registrable Securities) that may
be included in such registration shall be allocated (A) first, to the
Initiating Holders, (B) second, to the other Holders electing to register
their Registrable Securities, on a pro rata basis based on the number of
Registrable Securities held by such other Holders, and (C) finally, to the
other Persons proposing to register securities in such registration, if
any; provided, however, that the number of shares of Registrable Securities
to be included in such underwriting shall not be reduced unless all other
securities are entirely excluded from such underwriting. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn
from the registration.
(e) Limitations on Registration. The Company shall not be required to
effect a registration pursuant to this Section 2.01 (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, unless the Company is
already subject to service in such jurisdiction, or (ii) after the Company has
effected (A) two registrations under this Section 2.01 for the account of the
MassMutual Holders, and (B) one registration (two if a Triggering Event shall
occur) under this Section 2.01 for the account of the ARK Holders. For purposes
of this Section 2.01(e), in the event that the number of Registrable Securities
of Initiating Holders included in any registration pursuant to this Section 2.01
is reduced by more than 40% of the number of Registrable Securities proposed to
be registered pursuant to Section 2.01(a) or (b) in any registration, then such
registration shall not count as a registration for purposes of this Section
2.01.
Section 2.02. Piggyback Registration.
----------------------
(a) Company Registration. If the Company proposes to register (including
for this purpose a registration effected by the Company for shareholders other
than the Holders) any of its Equity Securities under the Securities Act in
connection with the public offering (excluding the IPO) of such securities
(other than a registration (i) relating solely to the sale of securities to
participants in a Company stock plan, (ii) relating to a corporate transaction
under Rule 145 or any successor rule of the Securities Act, (iii) on any form
that does not include substantially the same information as would be required to
be included in a registration statement covering the sale of the Registrable
Securities, or (iv) in which the only Common Stock being registered is Common
Stock issuable upon conversion of debt securities that are also being
registered), the Company shall promptly give each Holder written notice of such
registration at least 30 calendar days prior to the filing of such Registration
Statement with the SEC. Each of the Holders will have a period of 20 calendar
days after receiving such written notice from the Company in which to elect to
include some or all of such Holder's Registrable Securities in such Registration
Statement. The Holders shall exercise their right to include Registrable
Securities in such Registration Statement by delivering a written notice to the
Company within such 20 calendar day period specifying the number of Registrable
Securities such Holder wishes to include in such Registration Statement. Subject
to the provisions of Sections 2.01(d) and 2.02(b) hereof, the Company will
include the Registrable Securities requested to be included by the Piggyback
Holders in the Company Registration Statement.
(b) Underwritten Offerings.
(i) If the registration for which the Company gives notice to the
Holders under Section 2.02(a) is an underwritten offering, the Company
shall not be required under this Section 2.02 to include any of the
Piggyback Holders' Registrable Securities in such underwriting unless the
Piggyback Holders accept the terms of the underwriting as agreed upon
between the Company and the underwriters. In connection with such an
underwritten offering, the Company (or other Persons who may be entitled to
select the underwriters) shall have the right to select the managing
underwriter or underwriters. All Piggyback Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters, and complete and execute all questionnaires, powers of
attorney, indemnities, and other documents required under the terms of such
underwriting arrangements, subject to the limitations set forth in Section
2.07 hereof, and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of the Piggyback
Holders. If any Piggyback Holder does not approve of the terms of such
underwriting, the Piggyback Holder may elect to withdraw from such offering
by providing written notice to the Company and the underwriter.
(ii) Notwithstanding any other provision of this Section 2.02, if the
underwriter advises the Company that in the opinion of such underwriter,
the distribution of all of the Registrable Securities requested to be
registered would materially and adversely affect the distribution of all of
the securities to be underwritten, then (x) the Company shall notify the
Piggyback Holders in writing of such underwriter's opinion and (y) the
number of Equity Securities (including the Registrable Securities) that may
be included in such registration shall be allocated (A) first, to the
Company, (B) second, to the Piggyback Holders on a pro rata basis based on
the number of Registrable Securities held by such Piggyback Holders, and
(C) finally, to the other Persons proposing to register securities in such
registration, if any, or if so determined by the underwriter, all
Registrable Securities shall be excluded from such registration and
underwritten offering. Any Registrable Securities excluded or withdrawn
from such underwriting shall be withdrawn from the registration.
Section 2.03. S-3 Registration.
----------------
(a) S-3 Registration. If, at any time after the first date on which the
Company is eligible to file a registration statement under the Securities Act on
Form S-3 (or, if applicable, Form SB-2), or such similar or successor form as
may be appropriate, the Company shall receive from (i) Holders of Registrable
Securities constituting at least a majority of the total shares of Registrable
Securities then owned beneficially or of record by the MassMutual Holders or
(ii) Holders of Registrable Securities constituting at least a majority of the
total shares of Registrable Securities then owned beneficially or of record by
the ARK Holders, a written request (an "S-3 Notice") that the Company effect a
registration on Form S-3 (or, if applicable, Form SB-2), or such similar or
successor form as may be appropriate, and any related qualification or
compliance with respect to the Registrable Securities (the date on which the
Company receives the S-3 Notice being the "S-3 Notice Date"), the Company shall
promptly (but in any event within 5 calendar days) after the S-3 Notice Date,
forward a copy of the S-3 Notice to all of the Holders. Each of the Holders will
have a period of 20 calendar days after receiving the S-3 Notice from the
Company in which to elect to include some or all of such Holder's Registrable
Securities in such Registration Statement, provided that the reasonably
anticipated aggregate price to the public (net of underwriting discounts and
commissions) of such Registrable Securities would exceed $500,000. The Holders
shall exercise their right to include Registrable Securities in such
Registration Statement by delivering a written notice to the Company within such
20 calendar day period specifying the number of Registrable Securities such
Holder wishes to include in such Registration Statement (such electing Holders,
together with the Holders delivering the S-3 Notice to the Company being the
"S-3 Holders").
(b) Filing and Effectiveness of Registration Statement. Subject to the
limitations set forth in Section 2.03(c) hereof, the Company will prepare and
file with the SEC, no later than 30 calendar days after the S-3 Notice Date, a
Registration Statement on Form S-3 (or, if applicable, Form SB-2), or such
similar or successor form as may be appropriate, covering, and shall obtain all
such qualifications and compliances as may be required and as would permit the
sale and distribution of, all Registrable Securities. The Company will use its
best efforts to cause such Registration Statement to be declared effective no
later than five calendar days after the date on which the Company receives
notice from the SEC that such Registration Statement may be declared effective.
The Company will cause the Registration Statement filed pursuant to this Section
2.03 to remain effective until the earlier of (A) the date on which all
Registrable Securities registered pursuant to such Registration Statement shall
have been sold to the public, (B) the date on which all of the Registrable
Securities requested to be registered by the S-3 Holders can be freely sold to
the public pursuant to Rule 144 without any volume limitations and (C) the date
which is 180 days after the date such Registration Statement is declared
effective.
(c) Limitations on Registration. The Company shall not be required to
effect a registration pursuant to this Section 2.03 (i) if at the time of the
request, Form S-3 or Form SB-2 (or such similar or successor form as may be
applicable) is not available to the Company for such offering, (ii) if the
reasonably anticipated aggregate price to the public (net of underwriting
discounts and commissions) of Registrable Securities to be included in such
Registration Statement would not exceed $500,000, (iii) if counsel for the
Company, reasonably acceptable to the S-3 Holders, shall deliver an opinion
reasonably acceptable to the S-3 Holders, stating that, pursuant to Rule 144 or
otherwise, such Holders can publicly sell their shares of Common Stock of the
Company as to which registration has been requested without registration under
the Securities Act and without any limitation with respect to offerees, manner
of offering or size of the transaction, or (iv) in any particular jurisdiction
in which the Company would be required to execute a general consent to service
of process in effecting such registration, unless the Company is already subject
to service in such jurisdiction. In addition, if the Company shall furnish the
S-3 Holders a certificate signed by the President of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than one hundred twenty (120) days after the S-3 Notice
Date.
Section 2.04. Expenses of Registration . All Registration Expenses incurred
in connection with any registration, filing, qualification or compliance
pursuant to Sections 2.01, 2.02 or 2.03 shall be borne by the Company. Unless
otherwise stated, all Selling Expenses relating to Registrable Securities
registered by the Holders shall be borne by the Holders holding such Registrable
Securities pro rata on the basis of the number of Registrable Securities so
registered.
Section 2.05. Further Obligations of the Company . Whenever the Company is
required to effect the registration of any Registrable Securities pursuant to
this Article II, the Company will:
(a) Filing and Effectiveness of Registration Statement. With respect to a
Registration Statement required by Section 2.01 or 2.03, (i) prepare and file
with the SEC a Registration Statement, (ii) use its reasonable best efforts to
cause such Registration Statement to become effective, and (iii) maintain the
effectiveness of such Registration Statement, in each case, as of the dates and
for the periods required by Section 2.01 or 2.03, as the case may be, which
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(b) Filing of Amendments and Supplements. Prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities and other securities of the
Company covered by the Registration Statement at all times during the period for
which the Company is required to maintain the effectiveness of such Registration
Statement pursuant to the terms of this Agreement.
(c) Notification of Certain Events. As promptly as practicable after
becoming aware thereof, notify each Holder of the happening of any event of
which the Company has knowledge, as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and promptly prepare and file with the SEC
a supplement or amendment to the Registration Statement or other appropriate
filing with the SEC to correct such untrue statement or omission, and deliver a
number of copies of such supplement or amendment to each Holder selling
Registrable Securities pursuant to such Registration Statement as such Holder
may reasonably request.
(d) SEC Stop Orders. As promptly as practicable after becoming aware
thereof, notify each Holder who holds Registrable Securities being sold (and, in
the event of an underwritten offering, the managing underwriters) of the
issuance by the SEC of any notice of effectiveness or any stop order or other
suspension of the effectiveness of the Registration Statement at the earliest
possible time.
(e) Listing Requirements. Use its best efforts to list such Registrable
Securities on each securities exchange on which the Equity Securities of the
Company are then listed.
(f) Underwriting Agreement. In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form and complying with the provisions of
Section 2.07, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform his or its
obligations under such agreement and complete and execute all questionnaires,
powers of attorney, indemnities and other documents required under the terms of
such underwriting arrangements.
(g) Section 11 Information. Make available to the Holders, as soon as
reasonably practicable, an earnings statement covering the period of at least 12
months, but not more than 18 months, beginning with the first month of the first
fiscal quarter after the effective date of such Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act, including, without limitation, Rule 158 promulgated thereunder.
(h) Other Actions. Take all other reasonable actions necessary to expedite
and facilitate disposition by the Holders of the Registrable Securities pursuant
to the Registration Statement.
Section 2.06. Preparation; Reasonable Investigation; Review by Counsel.
-----------------------------------------------------------
In connection with the preparation and filing of each Registration
Statement registering Registrable Securities under the Securities Act, the
Holders on whose behalf such Registrable Securities are to be so registered,
their underwriters, if any, and one counsel for all of the Holders holding such
Registrable Securities (and one counsel in each applicable jurisdiction) shall:
(a) be permitted to review such Registration Statement, each prospectus
included therein or filed with the SEC, and each amendment thereof or supplement
thereto a reasonable period of time (but not less than 3 business days) prior to
their filing with the SEC; and
(b) be given reasonable access to the Company's books and records and such
opportunities to discuss the business of the Company with its officers, counsel
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders, such
underwriters, if any, or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
In addition, the Company agrees not to file any Registration Statement,
prospectus included therein, or any amendment thereof or supplement thereto, in
a form to which such Holders, their underwriters, if any, or their counsel
reasonably objects.
Section 2.07. Indemnification . In the event any Registrable Securities are
included in a Registration Statement under this Article II, the following
indemnification provisions shall apply.
(a) Indemnification by the Company.
(i) Indemnification. To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, each of the employees, officers,
directors, partners, members, managers and other agents of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each
Person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or Securities Exchange Act (collectively, the "Holder
Indemnified Persons") against and hold each Holder Indemnified Person
harmless from any and all liabilities, obligations, losses, damages,
lawsuits, investigations, arbitrations, actions, judgments, costs, expenses
or claims, including, without limitation, reasonable attorneys' fees and
expenses incurred in investigation or defending any of the foregoing
(collectively, "Losses"), that the Holder Indemnified Persons may suffer or
sustain arising out of or due to any of the following (any of the following
being a "Violation") (A) any untrue statement or alleged untrue statement
of a material fact contained in such Registration Statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (B) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (C) any violation or
alleged violation by the Company of the Securities Act, the Securities
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Securities Exchange Act or any
state securities law.
(ii) Limitations on Indemnification. Notwithstanding the foregoing,
the Company shall not be liable for (A) any amounts paid in settlement of
any such Losses if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld or delayed), or
(B) any Losses to the extent that such Losses arise out of or are based
upon a Violation which occurs in reliance upon and in strict conformity
with written information furnished by a Holder expressly for use in
connection with such registration.
(b) Indemnification by the Holders.
(i) Indemnification. To the extent permitted by law, the Holders,
severally and not jointly and severally, will indemnify and hold harmless
the Company, each of the Company's employees, officers, directors and other
agents, any underwriter (as defined in the Securities Act) for the Company
and each Person, if any, who controls the Company or underwriter within the
meaning of the Securities Act or Securities Exchange Act (collectively, the
"Company Indemnified Persons"), against and hold each Company Indemnified
Person harmless from any and all Losses that the Company Indemnified
Persons may suffer or sustain arising out of or due to any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in strict conformity with written information
furnished by such Holder expressly for use in connection with such
registration.
(ii) Limitations on Indemnification. Notwithstanding the foregoing, no
Holder shall be liable for (A) indemnification pursuant to this Agreement
in excess of the aggregate net cash proceeds received by such Holder from
the offering of Registrable Securities in such registration, (B) any
amounts paid in settlement of any such Losses if such settlement is
effected without the consent of such Holder (which consent shall not be
unreasonably withheld or delayed), or (C) any Losses to the extent that
such Losses do not arise out of or are not based upon a Violation which
occurs in reliance upon and in strict conformity with written information
furnished by such Holder expressly for use in connection with such
registration.
(c) Indemnification Mechanics. If there occurs an event which a Company
Indemnified Person or a Holder Indemnified Person (any such Person being the
"Indemnitee") hereto asserts is an indemnifiable event pursuant to this Section,
the Indemnitee will promptly notify the party obligated to provide
indemnification hereunder (the "Indemnitor") in writing of such event. Delay or
failure to so notify the Indemnitor will only relieve the Indemnitor of its
obligations to the extent, if at all, that it is actually prejudiced by reason
of such delay or failure. The Indemnitor will have a period of 20 calendar days
in which to respond thereto. If the Indemnitor assumes the defense of such
matter within such 20 calendar day period, then the Indemnitor will be obligated
to compromise or defend, at its own expense, such matter, and the Indemnitor
will provide the Indemnitee with such assurances as may be reasonably required
by the Indemnitee to assure that the Indemnitor will assume and be responsible
for the Losses at issue (subject to the limitations set forth in this
Agreement). If the Indemnitor fails to assume the defense of such matter within
such 20 calendar day period or does not respond within such 20 calendar day
period, the Indemnitee against which such matter has been asserted will (upon
delivering notice to such effect to the Indemnitor) have the right to undertake,
at the Indemnitor's cost and expense, the defense, compromise or settlement of
such matter on behalf of the Indemnitee. In any event, the Indemnitee will have
the right to participate at its own expense in the defense of such asserted
liability; provided, however, that the Indemnitor will pay the expenses of such
defense if the Indemnitee is advised by counsel in writing that there are one or
more legal defenses available to the Indemnitee that are different from or
additional to those available to the Indemnitor (in which case, if the
Indemnitee notifies the Indemnitor in writing, the Indemnitor will not have the
right to assume the defense of such asserted liability on behalf of the
Indemnitee).
(d) Contribution. If the indemnification provided for in this Section is
held by a court of competent jurisdiction to be unavailable to an Indemnitee
with respect to any Losses, then the Indemnitor, in lieu of indemnifying such
Indemnitee hereunder, shall contribute to the amount paid or payable by such
Indemnitee as a result of such Losses in such proportion as is appropriate to
reflect the relative fault of the Indemnitor on the one hand and of the
Indemnitee on the other in connection with the Violation that resulted in such
Losses, as well as any other relevant equitable considerations; provided,
however, that in no event shall any contribution under this Section 2.07(d) from
a Holder, together with the amount of any indemnification payments made by such
Holder pursuant to Section 2.07(b) above, exceed the net proceeds from the
offering received by such Holder. The relative fault of the Indemnitor and of
the Indemnitee shall be determined by reference to, among other things, whether
the Violation relates to information supplied by the Indemnitor or the
Indemnitee and the parties relative intent, knowledge, access to information,
and opportunity to correct or prevent such Violation.
(e) No Inconsistent Underwriting Agreements. Notwithstanding any provision
of this Agreement to the contrary, the Holders shall not be required to enter
into an underwriting agreement that contains indemnification and contribution
provisions which, in the reasonable judgment of the Holders, materially differ
from those contained in this Section.
Section 2.08. Rule 144 Reporting. With a view to making available to the
Holders the benefits of Rule 144 and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 at all times after 90 calendar days after the
effective date of the first registration statement filed by the Company;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Securities Exchange Act
(at any time after it has become subject to such reporting requirements);
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144 (at any time after 90
calendar days after the effective date of the first registration statement filed
by the Company), the Securities Act and the Securities Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form;
and
(d) to take such action, including the voluntary registration of its Common
Stock under Section 12 of the Securities Exchange Act, as is necessary to enable
the Holders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the public is declared effective.
Section 2.09. Transfer of Registration Rights . The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned by a Holder to a transferee or assignee of such Holder's Registrable
Securities; provided, that (x) the Company is, within 15 calendar days after
such transfer, furnished a written notice of the name and address of such
transferee or assignee and the Registrable Securities with respect to which such
registration rights are being assigned, and (y) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of this
Agreement.
Section 2.10. "Market Stand-off" Agreement. If requested in writing by the
underwriters for an underwritten public offering of securities of the Company,
each Holder shall agree not to sell publicly any shares of Registrable
Securities or any other shares of Common Stock (other than shares of Registrable
Securities or other shares of Common Stock being registered in such offering),
without the consent of such underwriters, for a period following the effective
date of the Registration Statement relating to such offering to be reasonably
determined by the underwriters not to exceed 180 days, provided that the Company
shall use commercially reasonable efforts to limit such period to 90 days;
provided, however, that all persons entitled to registration rights with respect
to shares of Common Stock who are not parties to this Agreement, all other
Persons selling shares of Common Stock in such offering and all executive
officers and directors of the Company shall also have agreed not to sell
publicly their Common Stock for a like period under the circumstances and
pursuant to the terms set forth in this Section 2.10.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 2.10.
Notwithstanding the foregoing, the obligations described in this Section
2.10 shall not apply to registrations pursuant to registration statements on
Forms S-4 and S-8, or similar or successor Forms, or registrations in which the
only stock being registered is Common Stock issuable upon conversion of debt
securities which are also being registered.
Section 2.11. Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided in this Agreement after such time as
Rule 144 or another similar exemption under the Securities Act is available for
the public sale of all of such Holder's Registrable Securities during a
three-month period without registration and without other restrictions other
than as set forth in paragraphs (f) and (g) of Rule 144.
ARTICLE III
Miscellaneous
-------------
Section 3.01. Notices. All notices, requests, demands and other
communications to any party or given under this Agreement will be in writing and
delivered personally, by overnight delivery or courier, by registered mail or by
telecopier (with confirmation received) to the parties at the address or
telecopy number specified for such parties on the signature pages hereto (or at
such other address or telecopy number as may be specified by a party in writing
given at least five business days prior thereto). All notices, requests, demands
and other communications will be deemed delivered when actually received.
Section 3.02. Counterparts . This Agreement may be executed simultaneously
in one or more counterparts, and by different parties hereto in separate
counterparts, each of which when executed will be deemed an original, but all of
which taken together will constitute one and the same instrument.
Section 3.03. Modification or Amendment of Agreement . This Agreement may
not be modified or amended except by an instrument in writing signed by (a) the
Company, and (b) Holders holding at least a majority of the Registrable
Securities; provided, however, that any modification or amendment of this
Agreement which materially and adversely affects an Investor in a manner which
is materially worse than the affect on any other Investor shall not be effective
without the consent of such Investor and; provided, further, however, that a
Holder may waive any or all of such Holder's rights hereunder without obtaining
the consent of the Company or any other Holder.
Section 3.04. Successors and Assigns . This Agreement will be binding upon
and inures to the benefit of and is enforceable by the respective successors and
permitted assigns of the parties hereto.
Section 3.05. Governing Law . This Agreement will be governed by, and
construed in accordance with, the laws of the state of Delaware applicable to
contracts executed in and to be performed entirely within that state, without
reference to conflicts of laws provisions.
Section 3.06. Integration . This Agreement contains and constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all prior negotiations, agreements and understandings, whether
written or oral, of the parties hereto.
Section 3.07. Severability . If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto will negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
Section 3.08. Interpretation . As used in this Agreement, references to the
singular will include the plural and vice versa and references to the masculine
gender will include the feminine and neuter genders and vice versa, as
appropriate. Unless otherwise expressly provided in this Agreement (a) the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement will refer to this Agreement as a whole and not to any particular
provision of this Agreement and (b) article, section, subsection, schedule and
exhibit references are references with respect to this Agreement unless
otherwise specified. Unless the context otherwise requires, the term "including"
will mean "including, without limitation." The headings in this Agreement are
included for convenience of reference only and will not affect in any way the
meaning or interpretation of this Agreement.
Section 3.09. Ambiguities . This Agreement was negotiated between legal
counsel for the parties and any ambiguity in this Agreement shall not be
construed against the party who drafted this Agreement.
Section 3.10. Further Assurances . In order to (a) carry out more
effectively the purposes of this Agreement, (b) enable the parties to exercise
and enforce their rights and remedies hereunder, promptly upon the reasonable
request by any party hereto, the Company and the Holders (with the expenses paid
by the party responsible as provided in this Agreement) shall (i) correct any
defect or error that may be discovered in this Agreement or in the execution,
delivery, acknowledgment or recordation of this Agreement and (ii) execute,
acknowledge, deliver, record, file and register, any and all such further acts,
conveyances, assignments, notices of assignment, transfers, certificates,
assurances and other instruments, in each case, as such requesting party may
require from time to time.
Section 3.11. No Third-Party Rights . This Agreement is not intended, and
will not be construed, to create any rights in any parties other than the
Company and the Holders, and no Person may assert any rights as third-party
beneficiary hereunder, except as provided in Section 2.07.
Section 3.12. No Waiver; Remedies . No failure or delay by any party in
exercising any right, power or privilege under this Agreement will operate as a
waiver of the right, power or privilege. A single or partial exercise of any
right, power or privilege will not preclude any other or further exercise of the
right, power or privilege or the exercise of any other right, power or
privilege.
Section 3.13. Submission to Jurisdiction . Each of the Company and the
Holders hereby (a) agrees that any action, lawsuit or proceeding with respect to
this Agreement may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, (b) accepts for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of such courts, (c) irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any action, lawsuit or proceeding in those jurisdictions, and (d)
irrevocably consents to the service of process of any of the courts referred to
above in any action, lawsuit or proceeding by the mailing of copies of the
process to the parties hereto as provided in Section 3.01. Service effected as
provided in this manner will become effective ten calendar days after the
mailing of the process.
Section 3.14. Waiver of Jury Trial . Each of the Company and the Holders
hereby waives any right to a trial by jury in any action, lawsuit or proceeding
to enforce or defend any right under this Agreement or any amendment,
instrument, document or agreement delivered or to be delivered in connection
with this Agreement and agrees that any action, lawsuit or proceeding will be
tried before a court and not before a jury.
In witness whereof, the parties have executed and delivered this Agreement
as of the date first written above.
COMPANY:
-------
PROGRESSIVE SOFTWARE HOLDING, INC.
Address for Notices:
-------------------
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX
Att: Chief Executive Officer By:/s/ Xxxxxxx X. Xxxxx
Facsimile No. 000-000-0000 ---------------------------------
Name:Xxxxxxx X. Xxxxx
Title:Treasurer
HOLDERS:
-------
ARK CLO 2000-1 LIMITED
Address for Notices:
-------------------
c/o Patriarch Partners, LLC
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 By:/s/ Xxxx Xxxxxx
Att: Ms. Xxxx Xxxxxx ----------------------------------
Phone: 000-000-0000 Name: Xxxx Xxxxxx
Facsimile No.:212-825- Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
By: Xxxxx X. Xxxxxx & Company Inc.
as Investment Adviser
Address for Notices:
c/o Xxxxx X. Xxxxxx & Company
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000 By:/s/ Xxxxxxx X. Xxxxxxxx
Facsimile No.:_______________ ---------------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Managing Director
MassMutual Corporate Investors
Address for Notices:
c/o Xxxxx X. Xxxxxx & Company
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000 By:/s/ Xxxxxxx X. Xxxxxxxx
Facsimile No.:_______________ ---------------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Vice President
The foregoing is executed on behalf of
MassMutual Corporate Investors,
organized under a Declaration of Trust,
dated September 13, 1985, as amended
from time to time. The obligations of
such Trust are Not personally binding
upon, nor shall resort be had To the
property of, any of the Trustees,
shareholders, officers, employees or
agents of such Trust, but the Trust's
property only shall be bound.
Mass Mutual Participation Investors
Address for Notices:
c/o Xxxxx X. Xxxxxx & Company
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000 By:/s/ Xxxxxxx X. Xxxxxxxx
Facsimile No.:_______________ ---------------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Vice President
The foregoing is executed on behalf
of MassMutual Participation Investors,
organized under a Declaration of Trust,
dated April 7, 1988, as amended from
time to time. The obligations of such
Trust are not binding upon, nor shall
resort be had to the property of, any of
the Trustees, shareholders, officers,
employees or agents of such Trust
individually, but the Trust's assets and
property only shall be bound.
MassMutual Corporate Value Partners
Limited
By: Xxxxx X. Xxxxxx & Company Inc.
under Delegated authority from
Massachusetts Mutual Life
Insurance Company as Investment
Manager,
Address for Notices:
c/o Xxxxx X. Xxxxxx & Company
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000 By:/s/ Xxxxxxx X. Xxxxxxxx
Facsimile No.:_______________ ---------------------------------
Name:Xxxxxxx X. Xxxxxxxx
Title:Managing Director
SCHEDULE A
to
REGISTRATION RIGHTS AGREEMENT
Holders
-------
