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EXHIBIT 3.5
SILICON VALLEY BANK
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of May 15, 1998 by and
between Silicon Valley Bank ("Purchaser") and the Company whose name appears on
the last page of this Agreement
RECITALS
A. Concurrently with the execution of this Agreement, the Purchaser
is purchasing from the Company a Warrant to Purchase Stock (the "Warrant)
pursuant to which Purchaser has the right to acquire from the Company the Common
Stock (as defined in the Warrant) (hereinafter the "Shares").
B. By this Agreement, the Purchaser and the Company desire to set
forth the registration rights of the Shares all as provided herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and conditions hereinafter set forth, the parties hereto mutually agree as
follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section I:
(a) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the
Shares (if Common Stock) or all shares of Common Stock of the Company issuable
or issued upon conversion of the Shares and (ii) any Common Stock of the Company
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issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, any stock referred to in (i),
provided, however, that the Registrable Securities shall not include any shares
of Common Stock which have been previously registered or which have been sold to
the public pursuant to a registration statement or Rule 144, or which have been
sold in a private transaction in which the Transferor's rights under this
Agreement are not assigned.
(c) The terms "Holder" or "Holders" means the Purchaser
or qualifying transferees under subsection 1.8 hereof who hold Registrable
Securities.
(d) The term "SEC" means the Securities and Exchange
Commission,
1.2 Company Registration.
(a) Registration. If at any time until the first
anniversary of the Company's initial public offering, the Company shall
determine to register any of its securities, for its own account or the account
of any of its shareholders, other than a registration on Form S-I or S-8
relating solely to employee stock option or purchase plans, or a registration
relating to a business acquisition or corporate reorganization or on Form S-4
relating to an SEC Rule 145 transaction, or a registration on any other form
(other than Form X-0, X-0, X-0 or S-18, or their successor forms) or any
successor to such forms, which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(i) promptly give to each Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and
(ii) include in such registration (and
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made within ten (10) days
after receipt of such written notice from the Company, by any Holder or Holders,
except as set forth in subsection 12(b) below (which notice shall state the
Holder's intended method of distribution).
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(b) Underwriting. (i) If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to subsection 1.2(a)(i). In such event the right of any
Holder to registration pursuant to this subsection 1.2 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Ho1ders proposing to distribute their securities through such
underwriting shall (together with the Company and the other shareholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. The terms of this Section 1.2
notwithstanding if the representative(s) of the underwriter(s) advises the
Company that marketing factors require a limitation on the number of shares to
be underwritten, the representative may exclude all Registrable Securities from,
or limit the number of Registrable Securities to be included, in the
registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated first to the Company for securities being sold for its own account,
than to any holder of securities requesting registration that has been granted
registration rights pursuant to a certain Amended and Restated investor Rights
Agreement dated December 23, 1996, as may hereinafter be amended, then to the
Holders of the Registrable Securities, then to any other shareholder of the
Company (other than a Holder) on a pro rata basis.
1.3 Expenses of Registration. All expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 1 including without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of counsel for the
Company and expenses of any special audits incidental to or required by such
registration, shall be borne by the Company except the Company shall not be
required to pay underwriters' fees, discounts or commissions or stock transfer
taxes relating to Registrable Securities. All expenses of any registered
offering not otherwise borne by the Company shall be borne pro rate among the
Holders participating in the offering and the Company.
1.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and
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as to the completion thereof. Except as otherwise provided in subsection l.3, at
its expense the Company will use best efforts to:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the request
of the holders of a majority of the securities registered thereunder, keep such
registration statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
holders or a majority of the securities registered thereunder, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact
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required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
1.5 Indemnification.
(a) The Company will Indemnify each Holder of
Registrable Securities and each of its officers, directors and partners, and
each person controlling such Holder within the meaning of Section 15 of the
Securities Act of 1933, as amended, with respect to which such registration,
qualification or compliance has been effected pursuant to this Rights Agreement,
and each underwriter for such Holder, if any, and each person who controls
(within the meaning of Section 15 of the Securities Act of 1933, as amended) any
underwriter of the Registrable Securities held by or issuable to such Holder,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereto) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, or any violation or alleged violation by the Company of
the Securities Act, the Securities Exchange Act of 1934, as amended, ("Exchange
Act") or any state securities law applicable to the Company or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any such
state law and relating to action or inaction required of the Company in
connection with any such registration, qualification of compliance, and will
reimburse each such Holder, each of its officers, directors and patters, and
each person controlling such Holder (within the meaning of Section 15 of the
Securities Act of 1933, as amended), each such underwriter and each person who
controls any such underwriter (within the meaning of Section 15 of the
Securities Act of 1933, as amended), within a reasonable amount of time after
incurred for any reasonable legal and any other expenses incurred in connection
with investigating, defending or settling any such claim, loss, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.5(a) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld); and provided further, that the Company will not be liable in any such
case to the extent that any such claim, loss, damage or liability arises out of
or is based on any untrue statement or omission based upon written information
furnished
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to the Company by an instrument duly executed by such Holder or underwriter
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by
or issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company within the meaning of the Securities Act, and each other
such Holder, each of its officers, directors and partners and each person
controlling such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, partners, persons or underwriters for any reasonable legal or any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein; provided, however,
that the indemnity agreement contained in this subsection 1.5(b) shall not apply
to amounts paid in settlement of any such claim, loss, damage, liability or
action if such settlement is effected without the consent of the Holder, (which
consent shall not be unreasonably withheld); and provided further, that the
total amount for which any Holder shall be liable under this subsection 1.5(b)
shall not in any event exceed the aggregate proceeds received by such Holder
from the sale of Registrable Securities held by such Holder in such
registration.
(c) Each party entitled to indemnification under this
subsection 1.5 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the
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Indemnified Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party's expense; and
provided further, that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
hereunder, unless such failure resulted in prejudice to the Indemnifying Party;
and provided further, that an Indemnified Party (together with the other
Indemnified Parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the fees and expenses
to be paid by the Indemnifying Party, if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between such Indemnified Party
and any other party represented by such counsel in such proceeding. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgement or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.6 Information by Holder. Any Holder or Holders of Registrable
Securities included in any registration shall, as a condition precedent to such
inclusion, promptly furnish to the Company such information regarding such
Holder or Holders and the distribution proposed by such Holder or Holders as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to herein.
1.7 Rule 144 Reporting. With a view to making available to
Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees at all times to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, after 90 days after the
effective date of the first registration filed by the Company for an offering of
its securities to the general public;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
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(c) so long as a Holder owns any Registrable Securities,
to furnish to such Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after 90 days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as the Holder may reasonably request in complying with
any rule or regulation of the SEC allowing the Holder to sell any such
securities without registration.
1.8 Transfer of Registration Rights. Holders' rights to cause
the Company to register their securities and keep information available, granted
to them by the Company under subsections 1.2 and 1.7 may be assigned to a
permitted transferee or assignee of all of Holder's Registrable Securities not
sold to the public, provided, that the Company is given written notice by such
Holder at the time of or within a reasonable time after said transfer, stating
the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being assigned.
The Company may prohibit the transfer of any Holders' rights under this
subsection 1.8 to any proposed transferee or assignee who the Company reasonably
believes is a competitor of the Company.
1.9 Delay of Registration. No Holders shall have any right to
obtain or seek an injunction restraining or otherwise delaying any registration
as a result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement. Nothing herein, however,
shall otherwise limit or restrict in any way the rights or remedies of Holders.
1.10 "Market Stand-off" Agreement. If requested by the Company
or a representative of the underwriters of Common Stock (or other Securities) of
the Company, each Holder shall not sell or otherwise transfer or dispose of any
Shares (or other securities) of the Company held by such Holder (other than
those included in the registration) for a period not to exceed one hundred
eighty (180) days following the effective date of a registration statement of
the Company filed under the Securities Act, and in no event for a period in
excess of that applicable to other shareholders of the Company.
2. General.
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2.1 Waivers and Amendments. With the written consent of the
record or beneficial holders of at least a majority of the Registrable
Securities, the obligations of the Company and the rights of the Holders of the
Registrable Securities under this agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively, and either for
a specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities without the consent of all of
the Holders of the Registrable Securities. Upon the effectuation of each such
waiver, consent, agreement of amendment or modification, the Company shall
promptly give written notice thereof to the record holders of the Registrable
Securities who have not previously consented thereto in writing. This Agreement
or any provision hereof may be changed, waived, discharged or terminated only by
a statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, except to the extent
provided in this subsection 2.1.
2.2 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware as such laws are applied to
agreements between Delaware residents entered into and to be performed entirely
within Delaware.
2.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
2.4 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
2.5 Notices, etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by first class
mail, postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address as set forth below, or at
such other address as such Holder shall have furnished to the Company in
writing, or (b) if to the Com-
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pany, at the Company's address set forth below, or at such other address as the
Company shall have furnished to the Holder in writing.
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2.6 Severability. In case any provision of this Agreement shall
be invalid, illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement or any provision of the other
Agreements shall not in any way be affected or impaired thereby.
2.7 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
2.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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PURCHASER AMERIGROUP CORPORATION
SILICON VALLEY BANK
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By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
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Title: SVP Title: Secretary
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Address:10872 MacArthur Blvd. Address: 0000 Xxxxxxxxxxx Xxxx
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Xxxxx 000 Xxxxx 000
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Xxxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
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PURCHASER AMERIGROUP CORPORATION
SILICON VALLEY BANK /s/ Xxxxxxx X. Xxxxxxx
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By: /s/ Xxxxxx X. Xxxxx By:
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Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
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Title: SVP Title: Secretary
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Address:10872 MacArthur Blvd. Address: 0000 Xxxxxxxxxxx Xxxx
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Xxxxx 000 Xxxxx 000
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Xxxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
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