EXHIBIT 10.55
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
CONSUMER FINANCIAL NETWORK, INC.,
iXL ENTERPRISES, INC.,
GENERAL ELECTRIC CAPITAL CORPORATION
and
CERTAIN OTHER INVESTORS NAMED HEREIN FROM TIME TO TIME
Dated as of June 8, 1999
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TABLE OF CONTENTS
Page
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1. Registrations Upon Request......................................................................... 1
1.1. Requests by the Majority Stockholder....................................................... 1
1.2. Request by the Outside Investors........................................................... 2
1.3. Registration Statement Form................................................................ 3
1.4. Expenses................................................................................... 3
1.5. Priority in Demand Registrations........................................................... 3
1.6. No Company Initiated Registration.......................................................... 4
2. Incidental Registrations........................................................................... 4
3. Registration Procedures............................................................................ 6
4. Underwritten Offerings............................................................................. 10
4.1. Underwriting Agreement..................................................................... 10
4.2. Selection of Underwriters.................................................................. 11
5. Holdback Agreements................................................................................ 11
6. Preparation; Reasonable Investigation.............................................................. 12
7. No Grant of Future Registration Rights............................................................. 12
8. Indemnification.................................................................................... 12
8.1. Indemnification by the Company............................................................. 12
8.2. Indemnification by the Sellers............................................................. 13
8.3. Notices of Claims, etc..................................................................... 14
8.4. Other Indemnification...................................................................... 15
8.5. Indemnification Payments................................................................... 15
8.6. Other Remedies............................................................................. 15
9. Definitions........................................................................................ 15
10. Miscellaneous..................................................................................... 17
10.1. Rule 144 etc.............................................................................. 18
10.2. Successors, Assigns and Transferees....................................................... 18
10.3. Other Stockholders........................................................................ 18
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10.4. Stock Splits, etc......................................................................... 18
10.5. Amendment and Modification................................................................ 19
10.6. Governing Law............................................................................. 19
10.7. Invalidity of Provision................................................................... 19
10.8. Notices................................................................................... 19
10.9. Headings; Execution in Counterparts....................................................... 20
10.10. Injunctive Relief........................................................................ 20
10.11. Entire Agreement......................................................................... 20
10.12. Term..................................................................................... 20
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
June 8, 1999, among Consumer Financial Network, Inc., a Delaware corporation
(the "Company"), iXL Enterprises, Inc., a Delaware corporation ("iXL"), General
Electric Capital Corporation, GE Capital Equity Investments, Inc. and General
Electric Pension Trust (together with any other non-employee Persons who become
stockholders of the Company and party to the Stockholders' Agreement, the
"Outside Investors"), and those individual employees of the Company who have
become stockholders of the Company and whose names are set forth on Exhibit A
hereto (the "Management Stockholders"). Capitalized terms used herein without
definition are defined in Section 9.
1. Registrations Upon Request.
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1.1. Requests by the Majority Stockholder. At any time, the Majority
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Stockholder shall have the right to make up to four separate requests that the
Company effect the registration under the Securities Act of all or a portion of
the Registrable Securities owned by the Majority Stockholder, each such request
to specify the intended method or methods of disposition thereof. A request
made by the Majority Stockholder shall not be counted for purposes of the
request limitations set forth above (a) if the Majority Stockholder determines
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in its good faith judgment to withdraw the proposed registration of any
Registrable Securities requested to be registered pursuant to this Section 1.1
due to marketing or regulatory reasons, (b) the registration statement relating
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to any such request is not declared effective within 90 days of the date such
registration statement is first filed with the Commission, (c) if, within 180
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days after the registration relating to any such request has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason and the Company fails to have such stop order, injunction or other
order or requirement removed, withdrawn or resolved to the Majority
Stockholder's reasonable satisfaction within 30 days, (d) if more than 10% of
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the Registrable Securities requested by the Majority Stockholder to be included
in the registration are not so included pursuant to Section 1.5, or (e) the
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conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with the registration relating to any such
request are not satisfied (other than as a result of a default or breach
thereunder by the Majority Stockholder). Upon any such request, the Company
will promptly, but in any event within 15 days, give written notice of such
request to all holders of Registrable Securities and thereupon the Company will,
subject to Section 1.5, use its best efforts to effect the prompt registration
under the Securities Act of:
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(i) the Registrable Securities which the Company has been so requested to
register by the Majority Stockholder, and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given to
the Company within 20 days after the giving of such written notice by the
Company
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of each seller of such Registrable Securities.
1.2. Request by the Outside Investors. At any time following the
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earlier of (a) the third anniversary of the date hereof and (b) the closing of
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any registered underwritten public offering of the Company's Common Stock
(including, without limitation, a Qualified Public Offering), a majority in
interest (based on the number of shares of Series B Preferred Stock and Common
Stock into which any such shares are converted) of the purchasers under the
Stock Purchase Agreement and their transferees who become parties hereto (the
"Requesting Outside Investors") shall have the right in the aggregate to make
four requests that the Company effect the registration under the Securities Act
of any or all of the then outstanding Registrable Securities owned by the
Outside Investors, such request to specify the intended method or methods of
disposition thereof. Upon any such request, the Company will use its best
efforts to effect the prompt registration under the Securities Act of the
Registrable Securities which the Company has been so requested to register by
the Requesting Outside Investors. A request made by the Requesting Outside
Investors shall not be counted for purposes of the request limitation set forth
above (a) if the Requesting Outside Investors determine in their good faith
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judgment to withdraw the proposed registration of any Registrable Securities
requested to be registered pursuant to this Section 1.2 due to marketing or
regulatory reasons, (b) the registration statement relating to any such request
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is not declared effective within 90 days of the date such registration statement
is first filed with the Commission, (c) if, within 180 days after the
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registration relating to any such request has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason and the Company fails to have such stop order, injunction or other order
or requirement removed, withdrawn or resolved to the Requesting Outside
Investors' reasonable satisfaction within 30 days, (d) the conditions to closing
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specified in the purchase agreement or underwriting
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agreement entered into in connection with the registration relating to any such
request are not satisfied (other than as a result of a default or breach
thereunder by any Outside Investor) or (e) if more than 10% of the Registrable
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Securities requested by the Requesting Outside Investors to be included in the
registration are not so included pursuant to Section 1.5.
Upon any such request, the Company will promptly, but in any event within
15 days, give written notice of such request to all holders of Registrable
Securities and thereupon the Company will, subject to Section 1.5, use its best
efforts to effect the prompt registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to
register by the Requesting Outside Investors, and
(ii) all other Registrable Securities which the Company has been requested
to register by the holders thereof by written request given to the Company
within 20 days after the giving of such written notice by the Company,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of each seller of such Registrable Securities.
Notwithstanding the foregoing, but subject to the rights of
holders of Registrable Securities under Section 2, if the Company shall at any
time furnish to each seller of Registrable Securities a certificate signed by
the President of the Company stating that the Company has pending or in process
a material transaction (including a financing transaction), the disclosure of
which would, in the good faith judgment of the Board, materially and adversely
affect the Company, the Company may defer the filing (but not the preparation)
of a registration statement to be filed pursuant to Sections 1.1 and 1.2 for up
to 60 days (but the Company shall use its best efforts to complete the
transaction and file the registration statement as soon as possible).
1.3. Registration Statement Form. Each registration requested
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pursuant to Section 1.1 shall be effected by the filing of a registration
statement on a form agreed to by the Majority Stockholder; each registration
requested pursuant to Section 1.2 shall be effected by the filing of a
registration statement on a form agreed to by the Requesting Outside Investors.
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1.4. Expenses. The Company will pay all Registration Expenses in
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connection with any registrations requested under Section 1.1 and 1.2 provided
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that any seller thereunder shall pay all Registration Expenses to the extent
required to be paid by such seller under applicable law and provided further
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that underwriting commissions related to a registration requested under Sections
1.1 and 1.2 shall be paid pro rata by the Persons selling Registrable Securities
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in such registration, based on the number of shares of Registrable Securities
being sold.
1.5. Priority in Demand Registrations. If a registration pursuant to
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Section 1.1 or Section 1.2 involves an underwritten offering, and the managing
underwriter (or, in the case of an offering which is not underwritten, an
investment banker) shall advise the Company or the initiating stockholder in
writing (with a copy to the Company and each Person requesting registration of
Registrable Securities) that, in its opinion, the number of securities requested
and otherwise proposed to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration to the extent of the number which the Company is so advised can be
sold in such offering in the case of a registration pursuant to Section 1,
first, the Registrable Securities of the Majority Stockholder and the Outside
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Investors requested to be included in such registration, pro rata, among all
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such holders, on the basis of the number of Registrable Securities owned by such
holders, second, the Registrable Securities, if any, of the Management
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Stockholders, pro rata, among such holders, on the basis of the number of
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Registrable Securities requested to be included in such registration by such
holders and third, the securities, if any, being sold by the Company.
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Notwithstanding the foregoing, no employee stockholder will be entitled to
participate in any such registration requested pursuant to Sections 1.1 or 1.2
if the managing underwriter (or, in the case of an offering that is not
underwritten, an investment banker) shall determine in good faith that the
participation of such employee stockholder would adversely affect the
marketability of the securities being sold in such registration.
1.6. No Company Initiated Registration. After receipt of notice of a
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requested registration pursuant to Section 1.1 or 1.2, the Company shall not
initiate, without the consent of the Majority Stockholder, in the case of a
request pursuant to Section 1.1 or the Requesting Outside Investors, in the case
of a request pursuant to Section 1.2, a registration of any of its securities
for its own account until 90 days after such registration has been effected or
such registration has been terminated.
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2. Incidental Registrations. If the Company at any time proposes to
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register any of its equity securities under the Securities Act (other than
pursuant to Section 1 hereof or a registration on Form S-4 or S-8 or any
successor form), and the registration form to be used may be used for the
registration of Registrable Securities, it will give prompt written notice to
all holders of Registrable Securities of its intention to do so. Upon the
written request of any such holder made within 30 days after the receipt of any
such notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such holder and the intended method or methods of
disposition thereof), the Company will use its best efforts to effect the
registration under the Securities Act of all such Registrable Securities in
accordance with such intended method or methods of disposition, provided that:
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(a) if such registration shall be in connection with an initial
public offering by the Company, the Company shall not include any
Registrable Securities in such proposed registration if the Board shall
have determined, after consultation with the managing underwriter for such
offering, that it is not in the best interests of the Company to include
any Registrable Securities in such registration;
(b) if, at any time after giving written notice of its intention to
register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such equity
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon,
shall not be obligated to register any Registrable Securities in connection
with such registration (but shall nevertheless pay the Registration
Expenses in connection therewith), without prejudice, however, to the
rights of the Majority Stockholder and the Requesting Outside Investors to
request that a registration be effected under Section 1.1 or 1.2,
respectively; and
(c) if a registration pursuant to this Section 2 involves an
underwritten offering, and the managing underwriter (or, in the case of an
offering that is not underwritten, an investment banker) shall advise the
Company in writing (with a copy to each holder of Registrable Securities
requesting registration thereof) that, in its opinion, the number of
securities requested and otherwise proposed to be included in such
registration exceeds the number which can be sold in such offering, the
Company will include in such registration to the extent of the num-
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ber which the Company is so advised can be sold in such offering, first,
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the securities if any, being sold by the Company, and second, the
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Registrable Securities of the Majority Stockholder requested to be included
in such registration, together with the Registrable Securities of the
Outside Investors requested to be included in such registration, pro rata,
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among all such holders, on the basis of the number of Registrable
Securities owned by such holders and third, the Registrable Securities, if
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any, of the Management Stockholders, pro rata, among such holders, on the
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basis of the number of such Registrable Securities requested to be included
in such registration by such holders. Notwithstanding the foregoing, no
employee stockholder will be entitled to participate in any such
registration if the managing underwriter (or, in the case of an offering
that is not underwritten, an investment banker) shall determine in good
faith that the participation of such employee stockholder would adversely
affect the marketability of the securities being sold by the Company in
such registration.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2,
provided that any seller thereunder shall pay all Registration Expenses to the
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extent required to be paid by such seller under applicable law and provided
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further that underwriting commissions shall be paid pro rata by the sellers in
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such registration, based on the number of shares of Registrable Securities being
sold. No registration effected under this Section 2 shall relieve the Company
from its obligation to effect registrations under Section 1.
3. Registration Procedures. If and whenever the Company is required
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to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 1 and 2, the Company will
promptly:
(a) prepare, and within 60 days thereafter file with the Commission,
a registration statement with respect to such Registrable Securities, make
all required filings with the NASD and use best efforts to cause such
registration statement to become effective as soon as practicable;
(b) prepare and promptly file with the Commission such amendments and
post-effective 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 so long as is required to comply
with the provisions of the Securities Act and to complete the disposition
of all securities
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covered by such registration statement in accordance with the intended
method or methods of disposition thereof, but in no event for a period of
more than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with the
Commission in connection with such registration to (i) in the case of a
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registration pursuant to Section 1.1 (a "Majority Stockholder
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Registration"), counsel selected by the Majority Stockholder; (ii) in the
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case of a registration pursuant to Section 1.2 (an "Outside Investors
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Registration"), one counsel selected by the Requesting Outside Investors
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and approved by the Company (such approval not to be unreasonably withheld,
it being agreed that each of Weil, Gotshal & Xxxxxx LLP and Paul, Hastings,
Xxxxxxxx & Xxxxxx, LLP will be deemed approved by the Company) and (iii) in
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the case of a registration pursuant to Section 2, one counsel selected by
the holders of at least 51% of the Registrable Securities proposed to be
sold in connection with such registration (such holders, the "Majority
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Holders"), which documents will be subject to the review of such counsel
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and the Company shall not file any amendment and post-effective amendments
or supplement to such registration statement or the prospectus used in
connection therewith which relevant counsel and the Majority Stockholder,
in the case of a Majority Stockholder Registration, the Requesting Outside
Investors, in the case of an Outside Investors Registration or the Majority
Holders in the case of all other registrations pursuant to this Agreement,
shall have reasonably objected in writing on the grounds that such
amendment or supplement does not comply (explaining why) in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(d) furnish to each seller of Registrable Securities, without charge,
such number of conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case including all exhibits
and documents filed therewith) and such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller in accordance with the intended method or
methods of disposition thereof;
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(e) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under the securities or
blue sky laws of such jurisdictions as each seller shall reasonably
request, and do any and all other acts and things which may be necessary or
advisable to enable such seller to consummate the disposition of such
Registrable Securities in such jurisdictions in accordance with the
intended method or methods of disposition thereof, provided that the
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Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it is not
so qualified, subject itself to taxation in any jurisdiction wherein it is
not so subject, or take any action which would subject it to general
service of process in any jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(g) furnish to each seller of Registrable Securities a signed
counterpart, addressed to the sellers, of
(i) an opinion of counsel for the Company experienced in
securities law matters, dated the effective date of the registration
statement (and, if such registration includes an underwritten public
offering, the date of the closing under the underwriting agreement),
and
(ii) a "comfort" letter (unless the registration is pursuant to
Section 2 and such a letter is not otherwise being furnished to the
Company), dated the effective date of such registration statement (and
if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), signed by
the independent public accountants who have issued an audit report on
the Company's financial statements included in the registration
statement,
covering such matters as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other matters as the
Majority Stockholder, in the
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case of a Majority Stockholder Registration, the Requesting Outside
Investors, in the case of an Outside Investors Registration and the
Majority Holders, in the case of all other registrations pursuant to this
Agreement, may reasonably request;
(h) notify each seller of any Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event or existence of any fact 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 any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and, as promptly as
is practicable, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an 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 not misleading in light
of the circumstances then existing;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement of the
Company (in form complying with the provisions of Rule 158 under the
Securities Act) covering the period of at least 12 months, but not more
than 18 months, beginning with the first month after the effective date of
the registration statement;
(j) notify each seller of any Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus supplement
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or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
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supplements to such registration statement or to amend or to supplement
such prospectus or for additional information after the effectiveness of
such registration statement, (iii) of the issuance by the Commission of any
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stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose and (iv) of the
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suspension of the qualification of such securities for offering or sale in
any jurisdiction, or of the institution of any proceedings for any of such
purposes;
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(k) use every reasonable effort to obtain the lifting of any stop
order that might be issued suspending the effectiveness of such
registration statement at the earliest possible moment;
(l) use its best efforts (i) (A) to list such Registrable Securities
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on any securities exchange on which the equity securities of the Company
are then listed or, if no such equity securities are then listed, on an
exchange selected by the Company, if such listing is then permitted under
the rules of such exchange, or (B) if such listing is not practicable, to
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secure designation of such securities as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 under the Exchange Act or,
failing that, to secure NASDAQ authorization for such Registrable
Securities, and, without limiting the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD, and (ii) to provide a transfer agent and
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registrar for such Registrable Securities not later than the effective date
of such registration statement;
(m) enter into such agreements and take such other actions as the
sellers of Registrable Securities or the underwriters reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities, including, without limitation, preparing for, and participating
in, such number of "road shows" and all such other customary selling
efforts as the underwriters reasonably request in order to expedite or
facilitate such disposition; and
(n) use its reasonable best efforts to take all other steps necessary
to effect the registration of such Registrable Securities contemplated
hereby.
As a condition to its registration of Registrable Securities of any
prospective seller, the Company may require each seller of any Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such seller, its ownership of Registrable
Securities and the disposition of such Registrable Securities as the Company may
from time to time reasonably request in writing and as shall be required by law
in connection therewith. Each such holder agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
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The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any Registrable Securities covered thereby by name, or
otherwise identifies such seller as the holder of any Registrable Securities,
without the consent of such seller, such consent not to be unreasonably
withheld, unless such disclosure is required by law.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(h), such holder will promptly discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(h). If so directed
by the Company, each holder of Registrable Securities will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3(b) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 3(h).
4. Underwritten Offerings.
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4.1. Underwriting Agreement. If requested by the underwriters for
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any underwritten offering by holders of Registrable Securities pursuant to (i) a
Majority Stockholder Registration, (ii) an Outside Investors Registration or
(iii) any other registration pursuant to Section 2, the Company shall enter into
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an underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to, in the case of
a Majority Stockholder Registration, the Majority Stockholder, in the case of an
Outside Investors Registration, the Requesting Outside Investors, and in the
case of all other registrations, the Majority Holders, and also in each such
case satisfactory to the underwriters, containing such representations and
warranties by the Company and such other terms and provisions as are customarily
contained in agreements of this type, including, without limitation, indemnities
to the effect and to the extent provided in Section 8. The holders of
Registrable Securities to be dis-
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tributed by such underwriters shall be parties to such underwriting agreement
and may, at their option, require that any or all of the representations and
warranties by, and the agreements on the part of, the Company to and for the
benefit of such underwriters be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such holders of Registrable
Securities. No underwriting agreement (or other agreement in connection with
such offering) shall require any holder of Registrable Securities to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, the ownership of such holder's Registrable Securities and such holder's
intended method or methods of disposition and any other representation required
by law or to furnish any indemnity to any Person which is broader than the
indemnity furnished by such holder in Section 8.2.
4.2. Selection of Underwriters. If the Company at any time proposes
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to register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering, the Company will have the right to
select the managing underwriter (which shall be of nationally recognized
standing) to administer the offering, but only with the approval of the Majority
Stockholder, such approval not to be unreasonably withheld, provided that
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whenever a registration requested pursuant to Section 1.1 or 1.2 is for an
underwritten offering, the Majority Stockholder, or the Requesting Outside
Investors, as the case may be, will have the right to select the managing
underwriter (which shall be of nationally recognized standing) to administer the
offering, but only with the approval of the Company, such approval not to be
unreasonably withheld.
5. Holdback Agreements. (a) If and whenever the Company proposes to
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register any of its equity securities under the Securities Act for its own
account (other than on Form S-4 or S-8 or any successor form) or is required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to Section 1 or 2, each holder of Registrable
Securities agrees by acquisition of such Registrable Securities not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities within seven days prior to and
90 days (unless advised in writing by the managing underwriter that a longer
period, not to exceed 180 days, is required) after the effective date of the
registration statement relating to such registration, except as part of such
registration.
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(b) The Company agrees not to effect any public sale or distribution
of its equity securities or securities convertible into or exchangeable or
exercisable for any of such securities within seven days prior to and 90 days
(unless advised in writing by the managing underwriter that a longer period, not
to exceed 180 days, is required) after the effective date of such registration
statement (except as part of such registration or pursuant to a registration on
Form S-4 or S-8 or any successor form). In addition, if requested by the
managing underwriter, the Company shall use its commercially reasonable best
efforts to cause each holder of its equity securities or any securities
convertible into or exchangeable or exercisable for any of such securities,
whether outstanding on the date of this Agreement or issued at any time after
the date of this Agreement (other than any such securities acquired in a public
offering), to agree not to effect any such public sale or distribution of such
securities during such period, except as part of any such registration if
permitted, and to cause each such holder to enter into a similar agreement to
such effect with the Company.
6. Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of such
Registrable Securities so to be registered and their underwriters, if any, and
their respective counsel and accountants the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such access to the financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have issued audit reports on its financial
statements as shall be reasonably requested by such holders in connection with
such registration statement.
7. No Grant of Future Registration Rights. The Company shall not
--------------------------------------
grant any other demand or incidental registration rights to any other Person
without the prior written consent of the Majority Stockholder; provided, that
--------
the Company shall not grant demand or incidental registration rights which are
inconsistent with the rights granted under this Agreement (it being understood
that the neither the granting of demand registration rights (with respect to
which the holders of Registrable Securities may participate pro rata under the
second paragraph of Section 1.2 hereof) nor pro rata incidental registration
rights, each on terms comparable to the terms hereof is considered inconsistent
with the terms hereof).
14
8. Indemnification.
---------------
8.1. Indemnification by the Company. In the event of any
------------------------------
registration of any Registrable Securities pursuant to this Agreement, the
Company will indemnify and hold harmless (a) the seller of such Registrable
-
Securities, (b) the directors, officers, partners, employees, agents and
-
Affiliates of such seller, (c) each Person who participates as an underwriter in
-
the offering or sale of such securities and (d) each person, if any, who
-
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any such seller, partner or underwriter against any and all
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), joint or several, directly or indirectly based upon or arising out of
(i) any untrue statement or alleged untrue statement of a fact contained in any
-
registration statement under which such Registrable Securities were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein or used in connection with the offering of
securities covered thereby, or any amendment or supplement thereto, or (ii) any
--
omission or alleged omission to state a fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
reimburse each such indemnified party for any legal or any other expenses
reasonably incurred by them in connection with investigating, preparing,
pursuing or defending any such loss, claim, damage, liability, action or
proceeding, except insofar as any such loss, claim, damage, liability, action,
proceeding or expense arises out of or is based upon an untrue statement or
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
seller expressly for use in the preparation thereof. Such indemnity shall
remain in full force and effect, regardless of any investigation made by such
indemnified party and shall survive the transfer of such Registrable Securities
by such seller. The indemnity agreement contained in this Section 8.1 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
action or proceeding if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).
8.2. Indemnification by the Sellers. The Company may require, as a
------------------------------
condition to including any Registrable Securities of a prospective seller in any
registration statement filed pursuant to Section 1 or 2 that the Company shall
have received an undertaking satisfactory to it from each such prospective
sellers of such Registrable Securities to indemnify and hold harmless,
severally, not jointly, in the same manner and to the same extent as set forth
in Section 8.1, the Company, its directors and
15
officers and each person, if any, who controls (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) the Company with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such seller expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
Registrable Securities by such seller. The indemnity agreement contained in this
Section 8.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, action or proceeding if such settlement is effected
without the consent of such seller (which consent shall not be unreasonably
withheld). The Company and the holders of Registrable Securities hereby
acknowledge and agree that for all purposes of this Agreement the only
information furnished or to be furnished to the Company for use in any such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement are statements specifically relating to (a)
-
transactions between such holder and its Affiliates, on the one hand, and the
Company, on the other hand, (b) the beneficial ownership of shares of Common
-
Stock by such holder and its Affiliates and (c) the name and address of such
-
holder. The indemnity provided by each seller of Registrable Securities under
this Section 8.2 shall be limited in amount to the net amount of proceeds
actually received by such seller from the sale of Registrable Securities
pursuant to such registration statement.
8.3. Notices of Claims, etc. Promptly after receipt by an
----------------------
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 8,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action or proceeding, provided that the failure of any indemnified party to
--------
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 8, except to the
extent that the indemnifying party is materially prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate therein and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel
16
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof except for the reasonable fees and expenses
of any counsel retained by such indemnified party to monitor such action or
proceeding. Notwithstanding the foregoing, if such indemnified party and the
indemnifying party reasonably determine, based upon advice of their respective
independent counsel, that a conflict of interest may exist between the
indemnified party and the indemnifying party with respect to such action and
that it is advisable for such indemnified party to be represented by separate
counsel, such indemnified party may retain other counsel, reasonably
satisfactory to the indemnifying party, to represent such indemnified party, and
the indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment 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 of such claim or litigation.
8.4. Other Indemnification. Indemnification similar to that
---------------------
specified in the preceding paragraphs of this Section 8 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration (other than under the
Securities Act) or other qualification of such Registrable Securities under any
federal or state law or regulation of any governmental authority.
8.5. Indemnification Payments. Any indemnification required to be
------------------------
made by an indemnifying party pursuant to this Section 8 shall be made by
periodic payments to the indemnified party during the course of the action or
proceeding, as and when bills are received by such indemnifying party with
respect to an indemnifiable loss, claim, damage, liability or expense incurred
by such indemnified party.
8.6. Other Remedies. If for any reason the foregoing indemnity is
--------------
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities, actions, proceedings or
expenses in such proportion as is appropriate to reflect the relative benefits
to and faults of the indemnifying party on the one hand and
17
the indemnified party on the other in connection with the offering of
Registrable Securities (taking into account the portion of the proceeds of the
offering realized by each such party) and the statements or omissions or alleged
statements or omissions which resulted in such loss, claim, damage, liability,
action, proceeding 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 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 statements or omissions.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. No party shall be
liable for contribution under this Section 8.6 except to the extent and under
such circumstances as such party would have been liable to indemnify under this
Section 8 if such indemnification were enforceable under applicable law.
9. Definitions. For purposes of this Agreement, the following terms
-----------
shall have the following respective meanings:
"Affiliate": A Person that directly, or indirectly through one or
---------
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
"Board": The Board of Directors of the Company.
-----
"Commission": The Securities and Exchange Commission.
----------
"Common Stock": The Common Stock of the Company, par value $.01 per
------------
share.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
------------
any successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time.
"Majority Stockholder": iXL, regardless of the number or percentage of
--------------------
Registrable Securities held by iXL.
18
"Management Stockholders": Those individual employees of the Company
-----------------------
who become parties to this Agreement pursuant to Section 10.3.
"NASD": National Association of Securities Dealers, Inc.
----
"NASDAQ": The Nasdaq National Market.
------
"Outside Investors": As defined in the Stockholders' Agreement.
-----------------
"Person": An individual, corporation, partnership, joint venture,
------
association, limited liability company, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock": The Company's Series A Convertible Preferred
---------------
Stock, par value $.01 per share, and the Company's Series B Convertible
Preferred Stock, par value $.01 per share.
"Qualified Public Offering": As defined in the Stockholders'
-------------------------
Agreement.
"Registrable Securities": The shares of Common Stock (or any
----------------------
successor class of common stock) beneficially owned (within the meaning of
Section 13d-3 of the Exchange Act) by the Majority Stockholder, the Outside
Investors and the Management Stockholders or any other Person made a party
hereto pursuant to Section 10.2 or 10.3 (it being agreed that, with respect to
the Outside Investors, the Preferred Stock convertible into Common Stock will be
deemed Registrable Securities for purposes of exercising rights hereunder,
provided that Section 1 hereof shall not require the registration of the offer
or sale of any such Preferred Stock, as distinguished from the Common Stock into
which the Preferred Stock is convertible. With respect to the Management
Stockholders, "Registrable Securities" shall include only those shares of Common
Stock actually held by such Management Stockholders, and shall not include
unexercised options). As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a registration
-
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) they shall have been
--
sold to the public pursuant to Rule 144 under the Securities Act, (iii) they
---
shall have been otherwise transferred and subsequent disposition of them shall
not require registration or qualification of them under the Securities Act of or
any similar state law then in force or (iv) they shall have ceased to be
--
outstanding.
19
"Registration Expenses": All expenses incident to the Company's
---------------------
performance of or compliance with Section 1 and Section 2, including, without
limitation, (i) registration, filing and NASD fees, (ii) fees and expenses of
- --
complying with securities or blue sky laws, (iii) fees and expenses associated
---
with listing securities on an exchange or NASDAQ, (iv) word processing,
--
duplicating and printing expenses, (v) messenger and delivery expenses, (vi)
- --
fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters, (vii) reasonable fees and disbursements of any one counsel retained by
---
the sellers of Registrable Securities, which counsel shall be selected pursuant
to Section 3(c), and (viii) any fees and disbursements of underwriters
----
customarily paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any.
"Securities Act": The Securities Act of 1933, as amended, or any
--------------
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
"Stock Purchase Agreement" means the Stock Purchase Agreement, dated
------------------------
as of April 7, 1999, between the Company and GE Capital Equity Investments, Inc.
"Stockholders' Agreement": The Amended and Restated Stockholders'
-----------------------
Agreement, dated as of the date hereof, as the same shall be amended from time
to time, among the Company, iXL, GECC and the other Persons named therein.
10. Miscellaneous.
-------------
10.1. Rule 144 etc. If the Company shall have filed a registration
------------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act
relating to any class of equity securities, the Company will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
-
as such rule may be amended from time to time, or (b) any successor rule or
-
regulation adopted
20
hereafter by the commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
10.2. Successors, Assigns and Transferees. This Agreement shall be
-----------------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns, subject to the transfer
restrictions set forth in the Stockholders' Agreement. In addition, and
provided that an express assignment shall have been made, and a copy of which
shall have been delivered to the Company, the provisions of this Agreement which
are for the benefit of a holder of Registrable Securities shall be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities (which subsequent holder shall be deemed to be an Outside Investor
hereunder), provided that each such subsequent holder became a holder of
--------
Registrable Securities in accordance with the Stockholders' Agreement.
Notwithstanding anything herein to the contrary, the assignors of Registrable
Securities shall continue to exercise all rights hereunder on behalf of any such
transferees or assignees and the Company shall be entitled to deal exclusively
with such assignors and rely on the consent, waiver or any other action by the
assignors as the consent, waiver or other action, as the case may be, of any
such transferees or assignees.
10.3. Other Stockholders. In the event that any Person shall become
------------------
a party to the Stockholders' Agreement after the date hereof pursuant to
Sections 13.3 and 13.4 thereof or with respect to any transferee of an Outside
Investor, then the Company (a) shall unilaterally amend this Agreement to
-
include such Person as a party hereto, as an Outside Investor or Management
Stockholder hereunder, as appropriate and (b) in the event such Person is an
-
Outside Investor, the Company may unilaterally amend this Agreement to provide
such Person with additional demand rights under Section 1.2.
10.4. Stock Splits, etc. Each holder of Registrable Securities
-----------------
agrees that it will vote to effect a stock split or combination with respect to
any Registrable Securities in connection with any registration of such
Registrable Securities hereunder, or otherwise, if the managing underwriter
shall advise the Company in writing (or, in connection with an offering that is
not underwritten, if an investment banker shall advise the Company in writing)
that in its opinion such a stock split or combination would facilitate or
increase the likelihood of success of the offering.
21
10.5. Amendment and Modification. This Agreement may be amended,
--------------------------
modified or supplemented by the Company with the written consent of the Majority
Stockholder and a majority (by number of shares) of any other holder of
Registrable Securities (assuming conversion of Preferred Stock into Registrable
Securities) whose interests would be adversely affected by such amendment.
Notwithstanding the foregoing, this Agreement may be amended unilaterally by the
Company as provided in Section 10.3.
10.6. Governing Law. This Agreement and the rights and obligations
-------------
of the parties hereunder and the Persons subject hereto shall be governed by,
and construed and interpreted in accordance with, the law of the State of
Delaware, without giving effect to the choice of law principles thereof.
10.7. Invalidity of Provision. The invalidity or unenforceability of
-----------------------
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
10.8. Notices. All notices, requests, demands, letters, waivers and
-------
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
-
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
- -
sent by next-day or overnight mail or delivery or (d) sent by fax as follows:
-
(i) If to the Company, to it at:
Consumer Financial Network, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
(ii) If to any other holder of Registrable Securities, to the address of
such holder as set forth in the books and records of the Company or to such
other person or address as any party shall specify by notice in writing to the
Company. All such notices, requests, demands, letters, waivers and other
communications shall be deemed to have been received (w) if by personal delivery
-
on the day after such delivery, (x) if by certified or registered mail, on the
-
fifth business day after the mailing thereof, (y) if by next-day or
-
22
overnight mail or delivery, on the day delivered or (z) if by fax, on the next
-
day following the day on which such fax was sent, provided that a copy is also
sent by certified or registered mail.
10.9. Headings; Execution in Counterparts. The headings and captions
-----------------------------------
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
10.10. Injunctive Relief. Each of the parties recognizes and agrees
-----------------
that money damages may be insufficient and, therefore, in the event of a breach
of any provision of this Agreement the aggrieved party may elect to institute
and prosecute proceedings in any court of competent jurisdiction to enforce
specific performance or to enjoin the continuing breach of this Agreement. Such
remedies shall, however, be cumulative and not exclusive, and shall be in
addition to any other remedy which such party may have.
10.11. Entire Agreement. This Agreement, together with the
----------------
Stockholders Agreement, is intended by the parties hereto as a final expression
of their agreement and intended to be a complete and exclusive statement of
their agreement and understanding in respect of the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
10.12. Term. This Agreement shall be effective as of the date hereof
----
and shall continue in effect thereafter until the earlier of (a) its termination
-
by the consent of the parties hereto or their respective successors in interest
and (b) the date on which no Registrable Securities (and no securities
-
convertible into or exchangeable for Registrable Securities) remain outstanding.
[The remainder of this page left intentionally blank]
IN WITNESS WHEREOF, this Registration Rights Agreement has been signed
by each of the parties hereto, effective as of the date first written above.
CONSUMER FINANCIAL NETWORK, INC.
By: /s/ M. Xxxxx Xxxxxxxx
--------------------------------
Name: M. Xxxxx Xxxxxxxx
Title: Executive Vice President
iXL ENTERPRISES, INC.
By: /s/ M. Xxxxx Xxxxxxxx
--------------------------------
Name: M. Xxxxx Xxxxxxxx
Title: Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
EXHIBIT A
Management Stockholders
-----------------------
