LOOPNET, INC. INVESTORS’ RIGHTS AGREEMENT
Exhibit
B
LOOPNET,
INC.
THIS
INVESTORS’ RIGHTS AGREEMENT (this “Agreement”) is made
and entered into as of April 14, 2009, by and among LoopNet, Inc., a Delaware
corporation (the “Company”), Calera Capital Partners IV, L.P., a Delaware
limited partnership and Calera Capital Partners IV Side-By-Side, L.P., a
Delaware limited partnership (together, “Calera IV”), Trinity
Ventures IX, L.P., Trinity IX Side-By-Side Fund, L.P., Trinity IX Entrepreneurs’
Fund, L.P., each, a Delaware limited partnership (together, “Trinity”) Saints
Rustic Canyon, L.P., a Delaware limited partnership, Rustic Canyon Ventures III,
L.P., a Delaware limited partnership (together “Rustic”) and, The
Board of Trustees of the Xxxxxx Xxxxxxxx Junior University (SBST) (“Stanford” and
together with Calera IV, Trinity and Rustic, the “Investors”).
RECITALS
A. The
Investors and the Company are parties to that certain Securities Purchase
Agreement, dated as of March 29, 2009 (the “Purchase Agreement”),
relating to the issue and sale of shares of Series A Convertible Preferred
Stock, par value $0.001 per share, of the Company (the “Series A Preferred
Stock”), which shares are convertible into shares (the “Common Shares”) of
Common Stock, par value $0.001 per share, of the Company (the “Common
Stock”). The number and type of securities of the Company
purchased by each Investor is set forth on Exhibit A
hereto.
B. The
obligations of the Company and the Investors under the Purchase Agreement are
conditioned upon, among other things, the execution and delivery of this
Agreement by the Investors and the Company.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual premises
and covenants set forth herein, the parties hereto agree as
follows:
SECTION
1. Registration Rights
1.1
Definitions. For
purposes of this Section 1, the following terms shall have the following
meanings:
“Business Day” means
any day except Saturday, Sunday, any day which is a federal legal holiday in the
United States or any day on which banking institutions in the State of
California are authorized or required by law or other governmental action to
close.
“Commission” means the
United States Securities and Exchange Commission.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Form S-3” means such
form under the Securities Act as is in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
“Holder” or “Holders” means any
person or entity owning of record or having the right to acquire Registrable
Securities or any assignee of record thereof in accordance with Section 1.10
hereof or any assignee of record of such Registrable Securities to whom rights
set forth herein have been duly assigned in accordance with this Agreement;
provided, however, that
for purposes of this Agreement, a record holder of shares of Series A Preferred
Stock convertible into such Registrable Securities shall be deemed to be the
Holder of such Registrable Securities and that Holders of Registrable Securities
will not be required to convert their shares of Series A Preferred Stock into
Common Stock in order to exercise the registration rights granted hereunder
until immediately before the closing of the offering to which the registration
relates.
“Proceeding” means the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of a Registration Statement
covering any or all of the Registrable Securities or the initiation of any
action, claim, suit, investigation or proceeding.
“Prospectus” means the
prospectus included in a Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance upon Rule 430A
promulgated by the Commission pursuant to the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
“Registrable
Securities” means all of the Common Shares and any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing; provided, however, that such
securities shall only be treated as Registrable Securities until the earliest
of: (a) the date on which such security has been registered under the
Securities Act and disposed of in accordance with an effective Registration
Statement relating thereto; (b) the date on which such security has been
publicly sold pursuant to Rule 144; (c) the date on which all Registrable
Securities owned by the Holder thereof are not subject to the current public
information requirement under Rule 144 and that are eligible for resale without
volume or manner-of-sale restrictions without current public information
pursuant to Rule 144 promulgated by the Commission pursuant to a written opinion
letter to such effect, addressed, delivered and acceptable to the transfer agent
of the Company; or (d) the date on which such security is transferred in a
transaction pursuant to which the registration rights are not also assigned in
accordance with this Agreement.
“register,” “registration” and
“registered”
refer to a registration effected by preparing and filing a Registration
Statement in compliance with the Securities Act or Foreign Securities Law, and
the declaration or ordering of effectiveness of such Registration
Statement.
“Registration
Statement” means any registration statement filed pursuant to Section 1,
including (in each case) the Prospectus, amendments and supplements to any such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in any such registration
statement.
“Rule 415” means Rule
415 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“Rule 424” means Rule
424 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
purpose and effect as such Rule.
“SEC Guidance” means
(i) any publicly-available written or oral guidance, comments, requirements or
requests of the Commission staff and (ii) the Securities Act, in each case, as
reasonably interpreted in good faith upon the mutual agreement of the Company
and the Holders or their legal counsel.
“Securities Act” means
the Securities Act of 1933, as amended.
“Trading Market” means
The NASDAQ Global Select Market or any other exchange on which shares of the
Company’s Common Stock may trade from time to time.
1.2
Demand
Registration.
(a) Subject to the right of the Company
under Section 1.4(j), upon written notice (a “Demand Notice”) by
Holders owning a majority of the then outstanding Registrable Securities on or
after the date that is one hundred eighty (180) days after the date of this
Agreement, the Company shall prepare and file with the SEC a “Shelf”
Registration Statement covering the sale or distribution by the Holders, on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act,
including without limitation, by way of underwritten offering, block sale or
other distribution plan designated in the Demand Notice, of all of the
Registrable Securities requested to be registered in the Demand Notice on Form
S-3 (except if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall be on
another appropriate form and shall provide for the registration of such
Registrable Securities for resale by such Holders in accordance with any
reasonable method of distribution elected by the Holders) (the “Demand Shelf
Registration”) on or prior to the date that is sixty (60) days from the
date of the Demand Notice (such date of actual filing, the “Filing Date”), and
shall use its commercially reasonable efforts to cause such Demand Shelf
Registration to be declared effective by the Commission as promptly as possible
after the filing thereof, but in any event within ninety (90) days after the
date such Demand Shelf Registration is filed.
(b) Once
declared effective, the Company shall, subject to Section 1.4(j), use its
commercially reasonable efforts to cause the Demand Shelf Registration to be
continuously effective until the earlier of (i) such time as there are no
longer any Registrable Securities or (ii) such as all Registrable
Securities can be resold without restriction as to volume or manner-of-sale
under Rule 144 (the “Effectiveness
Period”).
(c) The
Company shall request effectiveness of the Registration Statement (and any
post-effective amendments thereto) within two (2) Business Days following the
Company’s
receipt of notice from the SEC that the Registration Statement will not be
reviewed by the SEC or that the SEC has completed its review of such
Registration Statement and has no further comments. The Company shall
request effectiveness of the Registration Statement (and any post-effective
amendments thereto) at 5:00 p.m., Eastern time, on the effective date and use
its commercially reasonable efforts to deliver the Prospectus (or any
supplements thereto), which delivery may be made electronically, on the first
Business Day after such effective date. The Company shall use
commercially reasonable efforts to file the Prospectus with the SEC on the first
Business Day after such effective date.
(d) Upon the occurrence of any
Event (as defined below), as partial relief for the damages suffered therefrom
by the Holders (which remedy shall not be exclusive of any other remedies which
are available at law or in equity; and provided further that the Holders shall
be entitled to pursue an action for specific performance of the Company’s
obligations under this Section 2), the Company shall pay to each Holder, as
liquidated damages and not as a penalty (it being agreed that it would not be
feasible to ascertain the extent of such damages with precision), such amounts
and at such times as shall be determined pursuant to this Paragraph
(2)(d). For such purposes, each of the following shall constitute an
“Event”:
(i)
the Filing Date does not occur on the date sixty (60) days after the date of the
Demand Notice (the “Filing Default
Date”), in which case the Company shall pay to each Holder an amount in
cash equal to: (A) for the first 30-day period following such Filing Default
Date or any portion thereof until the Filing Date, one and one half percent
(1.5%) of the aggregate purchase price paid by such Holder as set forth on
Schedule 1.1 of the Purchase Agreement, dated as of the date hereof, among the
parties hereto (or the Person for whom such Holder directly or indirectly
acquired the Registrable Securities pursuant to Section 1.10 of this Agreement),
on a pro-rata basis for any portion of
such 30-day period, to be paid at the end of such 30-day period; and (B) for
each successive 30-day period thereafter or any portion thereof until the Filing
Date, one and one half percent (1.5%) of such aggregate purchase price paid by
such Holder (or the Person for whom such Holder directly or indirectly acquired
the Registrable Securities), on a pro-rata basis for any portion of such 30-day
period, to be paid at the end of each 30-day period;
(ii) the
Registration Statement is not declared effective on or prior to the date that is
one hundred fifty (150) days after the date of the Demand Notice (the “Required Effectiveness
Date”), in which case the Company shall pay to each Holder an amount in
cash equal to: (A) for the first 30 days after such one hundred and fiftieth
(150th) day or
any portion thereof until the Registration Statement is deemed effective, one
and one half percent (1.5%) of the aggregate purchase price paid by such Holder
as set forth on Schedule 1.1 of the Purchase Agreement (or the Person from whom
such Holder directly or indirectly acquired the Registrable Securities pursuant
to Section 1.10 of this Agreement), on a pro-rata basis for any portion of such
30-day period, to be paid at the end of such 30-day period; and (B) for each
successive 30-day period thereafter or any portion thereof until the
Registration Statement is deemed effective, one and one half percent (1.5%) of
such aggregate purchase price paid by such Holder (or the Person from whom such
Holder directly or indirectly acquired the Registrable Securities), on a pro-rata basis for any portion of such 30-day
period, at the end of each 30-day period; and
(iii) once
declared effective, the use of the Prospectus and the Registration Statement is
suspended by order of the Commission or notice by the Company or the
Prospectus is not current, except as expressly permitted by Section 1.4(j) (the
Effectiveness Default
Date”), in which case the Company shall pay to each Holder an amount in
cash equal to: (A) for the first 30 days after such Effectiveness Default Date
or any portion thereof until withdrawal of any order suspending the
effectiveness of the Registration Statement or the Prospectus is corrected or
use of the Prospectus and the Registration Statement otherwise is again
permitted by the Company, one and one half percent (1.5%) of the aggregate
purchase price paid by such Holder as set forth on Schedule 1.1 of the Purchase
Agreement (or the Person from whom such Holder directly or indirectly acquired
the Registrable Securities pursuant to Section 1.10 of this Agreement), on a
pro-rata basis for any portion of such
30-day period, to be paid at the end of such 30-day period; and (B) for each
successive 30-day period thereafter until withdrawal of any order suspending the
effectiveness of the Registration Statement or the Prospectus is corrected or
use of the Prospectus and the Registration Statement otherwise is again
permitted by the Company, one and one half percent (1.5%) of such aggregate
purchase price paid by such Holder (or the Person from whom such Holder directly
or indirectly acquired the Registrable Securities), on a pro-rata basis for any portion of such 30-day
period, at the end of each 30-day period.
The
payment obligations of the Company under this Section 1.2(d) shall be
cumulative. Notwithstanding any other provision of this Agreement,
(1) no payment shall be required pursuant to this Section 1.2(d) with respect to
any time period during which the Company is allowed pursuant to Section 1.4(j)
to refuse to file any Registration Statement covering any Registrable
Securities, to refuse to cause the effectiveness of any such Registration
Statement or to suspend the use of any such Registration Statement or related
Prospectus, and (2) no payment shall be required to be made to any Holder
pursuant to this Section 1.2(d) with respect to any time period during which
such Holder does not intend to sell Registrable Securities or has agreed with
the Company not to do so.
(e) If any Shelf Registration
ceases to be effective under the Securities Act for any reason at any time
during the Effectiveness Period, the Company shall use its reasonable best
efforts to promptly cause such Shelf Registration to again become effective
under the Securities Act (including obtaining the prompt withdrawal of any order
suspending the effectiveness of such Shelf Registration), and in any event shall
use its reasonable best efforts to, within sixty (60) days of such cessation of
effectiveness, amend such Shelf Registration in a manner reasonably expected to
obtain the withdrawal of any order suspending the effectiveness of such Shelf
Registration or (ii) at the option of the Company, file an additional
Registration Statement (a “Subsequent Shelf
Registration”) for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
time to time by Holders thereof of all securities that are Registrable
Securities as of the time of such filing. If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to
(x) cause such Subsequent Shelf Registration to become effective under the
Securities Act as promptly as is reasonably practicable after such filing, but
in no event later than the date that is ninety (90) days after such Subsequent
Shelf Registration is filed and (y) keep such Subsequent Shelf Registration
(or another Subsequent Shelf Registration) continuously effective until the end
of the Effectiveness Period. Any such Subsequent Shelf Registration
shall be a Registration Statement on Form S-3 to the extent that the Company is
eligible to use such form. Otherwise,
such
Subsequent Shelf Registration shall be on another appropriate form and shall
provide for the registration of such Registrable Securities for resale by such
Holders in accordance with any reasonable method of distribution elected by the
Holders.
(f) The Company shall supplement
and amend any Demand Shelf Registration or any Subsequent Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such registration if required by the
Securities Act or as reasonably requested by the Holders covered by such
registration.
(g) If a Demand Notice delivered
in accordance with Section 1(a) specifies that the sale of the Registrable
Securities is intended to be conducted through an underwritten offering, the
Holders of a majority of Registrable Securities included in such Demand Notice
shall have the right to select the managing underwriter or underwriters to
administer the offering; provided, however, that such managing
underwriter or underwriters shall be reasonably acceptable to the
Company. The Holders of Registrable Securities included in such
Demand Notice and the Company shall enter into an underwriting agreement in such
customary form as shall have been negotiated and agreed to by the Company with
the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this
Section 1.2, if the managing underwriter or underwriters of a proposed
underwritten offering of the Registrable Securities advise the Board that in its
or their good faith opinion the number of Registrable Securities requested to be
included in such Registration Statement and all other securities proposed to be
sold in the offering contemplated thereby exceeds the number which can be sold
in such underwritten offering in light of market conditions, the Registrable
Securities and such other securities to be included in such underwritten
Registration Statement shall be allocated, (i) first, up to the total
number of securities the Holders have requested to be included in such
Registration Statement (pro-rata based upon the
number of securities that each of them shall have requested to be included in
such offering), (ii) and only if all the securities referred to in
clause (i) have been included, the number of securities that the
Company and other holders have proposed to include in such Demand Shelf
Registration that, in the opinion of the managing underwriter or underwriters
can be sold without having such adverse effect. If any Holder disapproves of the
terms of any such underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the managing underwriter or
underwriters. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(h) The Company shall not be
required to effect a registration pursuant to this Section 1.2:
(i) if
the Company has effected a registration pursuant to this Section 1.2 within
the preceding six (6) months, and such registration has been declared or ordered
effective;
(ii) during
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of the filing of, and ending on a date one hundred
eighty (180) days following the effective date of, a Company-initiated
registration subject to Section 1.2, provided that the Company is actively
employing in good faith commercially reasonable efforts to cause such
Registration Statement to become effective (other than a
registration
relating to the issuance or sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or to an acquisition
or other transaction to which Rule 145 under the Securities Act is
applicable);
(iii) if
the Company shall furnish to Holders requesting a registration pursuant to this
Section 1.2, a certificate signed by the Company’s Chief Executive Officer or
Chairman of the Board of Directors of the Company (the “Board”) stating that
in the good faith judgment of the Board, it would be materially detrimental to
the Company and its stockholders for such registration to be effected at such
time because the sale of Registrable Securities covered by such registration or
the disclosure of information therein or in any related Prospectus or prospectus
supplement would materially interfere with a transaction or development
involving the Company for sales of Registrable Securities thereunder to then be
permitted, and setting forth in general terms the reasons for such
determination, in which event the Company shall have the right to defer such
filing for a period of not more than seventy five (75) days after receipt of the
request of the Holders, provided that such right to delay a request shall be
exercised by the Company not more than twice in any twelve (12)-month period and
provided, further, that
the Company shall not register any other capital stock during such seventy five
(75) day period (other than a registration relating to the issuance or sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or to an acquisition or other transaction to which Rule
145 under the Securities Act is applicable); 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 and except as may be
required under the Securities Act.
1.3
Piggyback
Registration.
(a) If,
at any time during the Effectiveness Period, there is not an effective
Registration Statement covering all of the Registrable Securities and the
Company shall determine to prepare and file with the Commission a Registration
Statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with the Company’s stock incentive or other employee benefit plans,
then the Company shall deliver to each Holder a written notice of such
determination and, if within fifteen (15) days after the date of the delivery of
such notice, any such Holder shall so request in writing, the Company shall use
its commercially reasonable efforts to include in such Registration Statement
all or any part of such Registrable Securities such Holder requests to be
registered; provided,
however, that the Company shall not be required to register any
Registrable Securities pursuant to this Section 1.3 that are eligible for resale
pursuant to Rule 144 promulgated by the Commission (without volume or
manner-of-sale restrictions or the requirement for the Company to be in
compliance with the current public information requirement thereunder) pursuant
to the Securities Act or that are the subject of a then effective Registration
Statement. The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 1.3 prior to the
effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration.
(b) The right of any Holder to
registration pursuant to this Section 1.3 shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. Each
Holder proposing to distribute its securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into and perform such Holder’s obligations
under an underwriting agreement with the managing underwriter selected for such
underwriting by the Company (such underwriting agreement to be in the form
negotiated by the Company). Notwithstanding any other provision of
this Section 1.3, if the managing underwriter or underwriters of a proposed
underwritten offering with respect to which Holders of Registrable Securities
have exercised their piggyback registration rights advise the Board that in its
or their good faith opinion the number of Registrable Securities requested to be
included in the offering thereby and all other securities proposed to be sold in
the offering exceeds the number which can be sold in such underwritten offering
in light of market conditions, the Registrable Securities and such other
securities to be included in such underwritten offering shall be allocated,
(i) first, up to the total number of securities that the Company has
requested to be included in such registration and (ii) second, and only if
all the securities referred to in clause (i) have been included, up to the
total number of securities that the Holders that have requested to be included
in such offering (pro-rata based upon
the number of securities that each of them shall have requested to be included
in such offering) and (iii) third, and only if all the securities referred to in
clause (ii) have been included, all other securities proposed to be
included in such offering that, in the opinion of the managing underwriter or
underwriters can be sold without having such adverse effect. If any
Holder disapproves of the terms of any such underwriting, such Holder may elect
to withdraw therefrom by written notice to the Company and the managing
underwriter, delivered at least twenty (20) days prior to the effective date of
the Registration Statement. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration.
1.4
Registration
Procedures.
In
connection with the Company’s registration obligations under Section 1.2 and
1.3, the Company will keep each Holder participating in such registration
reasonably informed as to the status thereof and the Company will:
(a) prepare
and file with the Commission a Registration Statement with respect to such
securities in accordance with the applicable provisions of this Agreement and
use reasonable efforts to cause such Registration Statement to become effective,
and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such Registration Statement effective until the
Registrable Securities registered thereunder have been sold;
(b) prepare
and file with the Commission such amendments, including post-effective
amendments, and supplements to such Registration Statement and the Prospectus
used in connection with such Registration Statements 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 and as may be necessary to keep the Registration Statement
continuously effective for the period set forth in this
Agreement;
(c) furnish
to the Holders participating in such registration and to their legal counsel
copies of the Registration Statement proposed to be filed, and provide such
Holders and their legal counsel the reasonable opportunity to review and comment
on such Registration Statement;
(d) furnish
to the Holders participating in such registration and to the underwriters of the
securities being registered such reasonable number of copies of the Registration
Statement, preliminary prospectus, final Prospectus in conformity with the
requirements of the Securities Act, and such other documents as such
underwriters or Holders may reasonably request in order to facilitate the public
offering of such securities and the disposition of the Registrable Securities
owned by them that are included in such registration;
(e) use
commercially reasonable efforts to 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 of the Company’s
knowledge of 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 required to be
stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing, and, subject to
Section 1.4(j), at the request of any such Holder, prepare promptly and
furnish to such Holder 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 purchaser of such shares, 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 or
incomplete in the light of the circumstances then existing;
(f) use
commercially reasonable 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, provided, however, 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;
(g) make
available for inspection by any Holder participating in such registration, any
underwriter participating in any disposition pursuant to such registration, and
any attorney or accountant retained by any such Holder or underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company’s officers and directors to
supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement; provided, however, that such
Holder or underwriter shall agree to hold in confidence and trust all
information so provided pursuant to a confidentiality agreement in form and
substance customary under the circumstances (such confidentiality agreement to
include a provision that such Holder or underwriter, as the case may be, shall
be responsible for any unauthorized disclosure by the attorneys or accountants
of such Holder or underwriter unless such Holder did
not
use commercially reasonable efforts to cause such underwriter to execute such a
confidentiality agreement);
(h)
in the event that the Registrable Securities are being offered in an
underwritten public offering, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, in accordance with the
applicable provisions of this Agreement and participate and cooperate with the
underwriters in connection with any road show or marketing activities customary
for an underwritten public offering;
(i) use
commercially reasonable efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, (i) an opinion, dated as of such date, of
the legal counsel representing the Company (which may be in-house counsel, if
acceptable to the managing underwriters selected for such underwritten offering)
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters;
(j) notwithstanding
any other provision of this Agreement, if the Board has determined in good faith
that the disclosure necessary for continued use of the Prospectus and
Registration Statement by the Holders could be materially detrimental to the
Company, the Company shall have the right not to file or not to cause the
effectiveness of any registration covering any Registrable Securities and to
suspend the use of the Prospectus and the Registration Statement covering any
Registrable Security for such period of time as its use would be materially
detrimental to the Company by delivering written notice of such suspension to
all Holders listed on the Company’s records; provided, however, that in
any twelve (12)-month period the Company may exercise the right to such
suspension not more than twice and for not more than seventy-five (75) days per
period. From and after the date of a notice of suspension under this
Section 1.4(j), each Holder agrees not to use the Prospectus or
Registration Statement until the earlier of (1) notice from the Company
that such suspension has been lifted or (2) the day following the aggregate
seventy fifth (75th) day of suspension within any twelve (12)-month period;
and
(k) use
commercially reasonable efforts to cause all shares of Registrable Securities
covered by such Registration Statement to be authorized to be listed and
authorized for quotation or trading on each securities exchange or automated
quotations system, if any, on which the same class of securities issued by the
Company is then listed, quoted or traded.
1.5
Registration
Expenses.
All
expenses (other than underwriting discounts and commissions incurred in
connection with registrations, which shall be borne by the Holders of the
securities so registered pro-rata on the
basis of the number of shares so registered), filings or qualifications pursuant
to this Section 1, including, without limitation, all registration and filing
fees, reasonable fees and disbursements of a single special counsel for the
selling Holders hereunder (such fees and
disbursements
not to exceed $35,000), which special counsel shall be selected by Holders
owning at least a majority of the Registrable Securities then being registered,
and any other reasonable expenses incurred by the Company or any Holder pursuant
to any provision of this Agreement, shall be borne by the Company.
Notwithstanding the foregoing, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 1.2 and
1.3 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which
case all participating Holders shall reimburse the Company any expenses incurred
therewith and bear such expenses pro-rata based upon the number of Registrable
Securities that were to be registered in the withdrawn registration) unless (a)
the withdrawal is based on upon material adverse information concerning the
Company of which the Holders initiating the request were not aware at the time
of such request or (b) the Holders of a majority of Registrable Securities
initiating the request agree to forfeit their right to one requested
registration pursuant to Section 1.2, in which event such right shall be
forfeited by all Holders. Except as provided above, all other
expenses incurred by any Holder in connection with a registration requested
pursuant to Sections 1.2 and 1.3, including fees and disbursements of counsel
for the selling Holder or Holders, shall be borne by such Holder or Holders
incurring such expenses.
1.6
Prospectus
Delivery Requirements; Discontinued Disposition.
(a) Each
Holder covenants and agrees that it will comply with the Prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to a Registration Statement.
(b) By
its acquisition of Registrable Securities, each Holder agrees that, upon receipt
of a notice from the Company of the occurrence of (i) a Proceeding, (ii) the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose, (iii) any event or passage of time that makes the
financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in a Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any revisions to a
Registration Statement, Prospectus or other documents so that, in the case of a
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading or (iv)
any pending corporate development with respect to the Company that the Company
believes may be material and that, in the determination of the Company, makes it
not in the best interest of the Company to allow continued availability of a
Registration Statement or Prospectus, such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until
it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its
commercially reasonable efforts to ensure that the use of the Prospectus may be
resumed as promptly as is practicable.
1.7
Indemnification.
(a) To
the extent permitted by law, the Company will, with respect to any Registrable
Securities which are included in a Registration Statement pursuant to Section
1.2 or 1.3, indemnify each Holder, each Holder’s current and former officers,
directors, partners and members, and each person controlling such Holder within
the meaning of Section 15 of the Securities Act, and each underwriter
thereof, if any, and each person who controls any such underwriter within the
meaning of Section 15 of the Securities Act (collectively, the “Company Indemnified
Parties”), against all expenses, claims, losses, damages and liabilities,
joint or several, (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 Registration Statement, Prospectus, preliminary prospectus, offering
circular or other document, or any amendment or supplement thereto 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 statements therein, in light of the circumstances in
which they were made, not misleading, or any violation (or alleged violation) by
the Company of any rule or regulation promulgated under the Securities Act,
Exchange Act or state or federal securities laws applicable to the Company in
connection with any such registration, and the Company will reimburse each of
the Company Indemnified Parties for any reasonable legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, as such expenses are incurred and
within thirty (30) days after a request for reimbursement has been received by
the Company. The indemnity agreement contained in this section shall
not apply to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld or delayed), nor shall the Company be
liable to a Holder in any such case for any such loss, claim, damage, liability
or action (i) to the extent that it arises out of or is based upon a
violation or alleged violation of any state or federal law (including any claim
arising out of or based on any untrue statement or alleged untrue statement or
omission or alleged omission in the Registration Statement or Prospectus) which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by or on behalf of such
Holder or (ii) in the case of a sale directly by a Holder of Registrable
Securities (including a sale of such Registrable Securities through any
underwriter retained by such Holder engaging in a distribution solely on behalf
of such Holder), such untrue statement or alleged untrue statement or omission
or alleged omission was corrected in a final or amended Prospectus, and such
Holder failed to deliver a copy of the final or amended Prospectus at or prior
to the confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability in any case in which such
delivery is required by the Securities Act.
(b) To
the extent permitted by law, each Holder will, with respect to any Registrable
Securities which are included in a Registration Statement pursuant to Section
1.2 or 1.3, indemnify, severally and not jointly, the Company, each of its
directors, officers, partners and members, each underwriter, if any, of the
Company’s securities covered by such a registration, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other Holder and each of such Holder’s officers,
directors, partners and members who have signed the Registration Statement and
each person controlling such Holder within the meaning of Section 15 of the
Securities Act (collectively, the “Holder Indemnified
Parties”), against all expenses, claims, losses, 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 Registration Statement, Prospectus,
preliminary prospectus, offering circular or other document, or any amendment or
supplement thereto 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 statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by such Holder of any rule or regulation promulgated under the
Securities Act, Exchange Act or state securities law applicable to such Holder
and will reimburse each of the Holder Indemnified Parties for any reasonable
legal or any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, as such expenses are incurred, 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 such Holder and stated to be
specifically for use therein, provided, however, that in no event
shall any indemnity under this Section 1.7(b) payable by a Holder exceed the
amount by which the net proceeds actually received by such Holder from the sale
of Registrable Securities included in such registration exceeds the amount of
any other losses, expenses, settlements, damages, claims and liabilities that
such Holder has been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The indemnity agreement
contained in this section shall not apply to amounts paid in settlement of any
loss, claim, damage, liability or action if such settlement is effected without
the consent of the applicable Holder (which consent shall not be unreasonably
withheld or delayed), nor shall the Holder be liable for any such loss, claim,
damage, liability or action where such untrue statement or alleged untrue
statement or omission or alleged omission was corrected in a final or amended
Prospectus, and the Company or the underwriters failed to deliver a copy of the
final or amended Prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the person asserting any such loss, claim, damage or
liability in any case in which such delivery is required by the Securities
Act
(c) Each
party entitled to indemnification under this Section 1.7 (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 (including any governmental action), and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld or delayed), and the Indemnified Party may participate
in such defense at such party’s expense; provided, further, however, that an Indemnified
Party (together with all other Indemnified Parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the reasonable 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 conflicting interests
between such Indemnified Party and any other party represented by such counsel
in such proceeding. The failure of any Indemnified Party to give
notice as provided herein shall relieve the Indemnifying Party of its
obligations under this Section 1.7 if, but only to the extent that, the failure
to give such notice is materially prejudicial or harmful to an Indemnifying
Party’s ability to defend such action. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party (which consent shall not be unreasonably withheld or
delayed),
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 to such
claim or litigation. The indemnity agreements contained in this
Section 1.7 shall not apply to amounts paid in settlement of any loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Indemnifying Party, which consent shall not be unreasonably withheld or
delayed.
(d) If
the indemnification provided for in this Section 1.7 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party, other than
pursuant to its terms, with respect to any claim, loss, damage, liability or
action referred to therein, then, subject to the limitations contained in
Section 1.7(e), the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such claim, loss, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other in
connection with the actions that resulted in such claims, loss, damage,
liability or action, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact related to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 1.7(d)
were based solely upon the number of entities from whom contribution was
requested or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section
1.7(d). In no event shall any Holder’s contribution obligation under
this Section 1.7(d) exceed the amount of the net proceeds actually received by
such Holder from the sale of Registrable Securities included in such
registration.
(e) No
person guilty of fraudulent misrepresentation (within the meaning of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) Conflict with Underwriting
Agreement. Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions of Section 1.7, the provisions in the
underwriting agreement will control; provided, however, that to
the extent such underwriting agreement does not address a matter addressed by
this Agreement, that failure to address such matter shall not be deemed a
conflict between the provisions of this Agreement and the underwriting
agreement.
(g) Survival. The
obligations of the Company and Holders under this Section 1.7(g) shall
survive the completion of any offering of Registrable Securities in a
Registration Statement, and otherwise.
1.8
Information by Holders,
Etc. The Holder or Holders of Registrable Securities included
in any registration shall furnish to the Company such information regarding such
Holder or Holders and their affiliates, the Registrable Securities held by them
and the
distribution
proposed by such Holder or Holders and their affiliates as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this
Agreement. It is understood and agreed that the obligations of the
Company under Section 1.2 and Section 1.3 are conditioned on the timely
provisions of the foregoing information by such Holder or Holders and, without
limitation of the foregoing, will be conditioned on compliance by such Holder or
Holders with the following:
(a) such
Holder or Holders will, and will cause their respective affiliates to, cooperate
with the Company in connection with the preparation of the applicable
Registration Statement, and for so long as the Company is obligated to keep such
Registration Statement effective, such Holder or Holders will and will cause
their respective affiliates to, provide to the Company, in writing and in a
timely manner, for use in such Registration Statement (and expressly identified
in writing as such), all information regarding themselves and their respective
affiliates and such other information as may be required by applicable law to
enable the Company to prepare such Registration Statement and the related
Prospectus covering the applicable Registrable Securities owned by such Holder
or Holders and to maintain the currency and effectiveness thereof;
(b) during
such time as such Holder or Holders and their respective affiliates may be
engaged in a distribution of the Registrable Securities, such Holder or Holders
will, and they will cause their respective affiliates to, comply with all laws
applicable to such distribution, including Regulation M promulgated under the
Exchange Act, and, to the extent required by such laws, will, and will cause
their respective affiliates to, among other things: (i) not
engage in any stabilization activity in connection with the securities of the
Company in contravention of such laws; (ii) distribute the Registrable
Securities acquired by it solely in the manner described in the applicable
Registration Statement; and (iii) if required by applicable law, cause to
be furnished to each agent or broker-dealer to or through whom such Registrable
Securities may be offered, or to the offeree if an offer is made directly by
such Holder or Holders or their respective affiliates, such copies of the
applicable Prospectus (as amended and supplemented to such date) and documents
incorporated by reference therein as may be required by such agent,
broker-dealer or offeree, provided, however, that the Company
shall have provided such Holder or Holders with an adequate number of copies
thereof;
(c) such
Holder or Holders shall, and they shall cause their respective affiliates to,
permit the Company and its representatives and agents to examine such documents
and records and will supply in a timely manner any information as they may be
reasonably request to provide in connection with the offering or other
distribution of Registrable Securities by such Holder or Holders;
and
(d) on
receipt of written notice from the Company of the happening of any of the events
specified in Section 1.4(j), or that requires the suspension by such Holder
or Holders and their respective affiliates of the distribution of any of the
Registrable Securities owned by such Holder or Holders, then such Holders shall,
and they shall cause their respective affiliates to, cease offering or
distributing the Registrable Securities owned by such Holder or Holders until
the offering and distribution of the Registrable Securities owned by such Holder
or Holders may recommence in accordance with the terms hereof and applicable
law.
1.9
Limitations on Subsequent
Registration Rights.
From and after the date of this Agreement until all Registrable Securities have
been sold under a Registration Statement or all Registrable Securities may be
sold without volume or manner-of-sale restrictions pursuant to Rule 144 (without
the requirement for the Company to be in compliance with the current public
information requirement under Rule 144), the Company shall not, without the
prior written consent of the Holders of at least a majority of the Registrable
Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder to include any securities of the Company in any
Registration Statement filed by the Company pursuant to Section
1.2.
1.10
Assignability;
Transfer Restrictions.
(a) The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned (but
only with all related obligations) by a Holder to a transferee, or assignee of
such Registrable Securities that is a direct or indirect wholly-owned subsidiary
of a Holder, provided: (i) the Company is, promptly after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and (ii) such transferee or assignee agrees in writing a copy of
which writing is provided to the Company at the time of transfer to be bound by
and subject to the terms and conditions of this Agreement.
(b) If any of the Registrable
Securities are transferred or assigned by a Holder in accordance with the terms
of the Purchase Agreement and this Agreement, then, upon request by the
transferring Holder, the Company shall use its commercially reasonable efforts
(at the earliest opportunity practicable) to enable such transferee or assignee
to resale such transferred or assigned Registrable Securities using the
Registration Statement filed and made effective pursuant to this Agreement and
the related Prospectus by filing a post-effective amendment or Prospectus
supplement, naming such transferee or assignee as a selling under such
Registration Statement and Prospectus.
1.11
Reporting Status
and Public Information.
During
the Registration Period, the Company agrees to use commercially reasonable
efforts to (a) timely file all documents with the Commission, (b) make and keep
public information available, as those terms are understood and defined in Rule
144 under the Securities Act, at all times, (c) file with the Commission in a
timely manner all reports and other documents required of the Company under the
Exchange Act and (d) so long as a Holder owns any Registrable Securities,
furnish to such Holder, upon any reasonable request, a written statement by the
Company as to its compliance with Rule 144 under the Securities Act, and of the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without
registration.
1.12
Termination of
Rights. The rights of any particular Holder to cause the
Company
to
register securities under this Section 1 shall terminate with respect to such
Holder upon the date upon which all of such Holder’s shares are no longer
Registrable Securities.
SECTION
2. Election of Board of Directors
2.1
Board
Size. The number of directors constituting the Board, as fixed
from time to time by the Board in accordance with the bylaws of the Company (the
“Bylaws”),
shall be seven (7). Notwithstanding any provision in the Bylaws, the
number of directors constituting the Board shall not be increased to greater
than seven (7) without the prior written consent of Calera IV or its direct and
indirect wholly-owned subsidiaries (“Calera”), for so long
as the holders of Series A Preferred Stock are entitled to designate a director
pursuant to the terms of the Certificate of Designations of Series A Convertible
Preferred Stock (the “Certificate of
Designations”); provided, however, that the
number of directors constituting the Board may be increased to eight (8) for the
purpose of adding an additional non-employee director to the Board, if such
director has been mutually agreed upon by the Company and Calera.
2.2
Preferred Director
Information. Calera agrees to use reasonable efforts to cause
the individual serving as the Preferred Director (as defined in the Certificate
of Designations) to provide the Company, on a timely basis, with any information
relating to such individual that the Company may be required to disclose
pursuant to applicable law, rules and regulations.
2.3
Board
Matters. So long as the holders of Series A Preferred Stock
(or Common Stock issued upon conversion thereof) are entitled to designate a
director pursuant to the Certificate of Designations, (i) such Preferred
Director shall receive the benefit of the same indemnification and other
protective agreements (and any related advancement of expenses), indemnification
provisions provided in the Company’s certificate of incorporation, compensation
(whether in the form of cash, equity award or otherwise), expense reimbursement,
perquisites and insurance coverage as the other non-employee directors of the
Company, and (ii) the Company shall not, without the consent of the holders of a
majority of the shares of Series A Preferred Stock (or Common Stock issued upon
conversion thereof) then outstanding, given in writing or by vote at a meeting
of the holders of Series A Preferred Stock called for such purpose, directly or
indirectly, amend, alter or repeal any of the provisions of the Certificate of
Designations so as to adversely change any of the rights, preferences or
privileges of the Series A Preferred Stock or Section 9 of the Certificate of
Designations relating to the Preferred Director.
2.4
VCOC
Status. The rights of Calera IV enumerated herein and in
the Certificate of Designations are intended to satisfy the requirement of
management rights for purposes of qualifying its investment in the Company as a
“venture capital investment” for purposes of satisfying the “venture capital
operating company” exception under the Department of Labor “plan assets”
regulation, 29 C.F.R. §2510.3-101. In the event the aforementioned
rights are not satisfactory for the above described purpose, Calera IV and
the Company shall reasonably cooperate in good faith to agree upon mutually
satisfactory management rights that satisfy such regulations.
SECTION
3. Miscellaneous
3.1
Extraordinary
Dividends and Acquisitions of Common Stock. So long as any
shares of Series A Preferred Stock are outstanding, the Company shall not
declare an extraordinary dividend or distribution on any class or series of
capital stock without the approval of the holders of a majority of the then
outstanding shares of Series A Preferred Stock. A dividend shall be
deemed “extraordinary” if paid in consideration other than cash or if paid in
amount or frequency exceeding the Company’s history of paying dividends before
the date of this Agreement.
3.2
Amendments and
Waivers.
This
Agreement may not be modified or amended except by an instrument or instruments
in writing signed by each party hereto, provided, that, any amendment
or waiver affecting the right of Calera to designate a Preferred Director shall
require the separate written consent of Calera. Any party hereto may,
only by an instrument in writing, waive compliance by any other party or parties
hereto with any term or provision hereof on the part of such other party or
parties hereto to be performed or complied with. No failure or delay
of any party in exercising any right or remedy hereunder shall operate as a
waiver thereof, nor will any single or partial exercise of any right or power,
or any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The waiver by any party hereto of a breach of any
term or provision hereof shall not be construed as a waiver of any subsequent
breach. The rights and remedies of the parties hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have hereunder.
3.3
Notices.
Except
as may be otherwise provided herein, all notices and other communications
hereunder will be in writing and given by certified or registered mail, return
receipt requested, nationally recognized overnight delivery service, such as
Federal Express, or facsimile (or like transmission) with confirmation of
transmission by the transmitting equipment or personal delivery against receipt
to the party to whom it is given, in each case, at such party’s address or
facsimile number set forth below or such other address or facsimile number as
such party may hereafter specify by notice to the other parties hereto given in
accordance herewith. Any such notice or other communication shall be
deemed to have been given as of the date so personally delivered or transmitted
by facsimile or like transmission, on the next Business Day when sent by
overnight delivery services or five (5) days after the date so mailed if by
certified or registered mail.
If
to the Company, to:
LoopNet,
Inc.
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Fax
No.: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxx, Xx.
with
a copy to:
Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax
No.: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxx
Xxxxxxx X. Xxxxx
If
to a Holder, to:
c/o
Calera Capital Partners IV, L.P.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Fax
No.: (000)
000-0000
Attention: Xxxxx
X. Xxxxx
with
a copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxx, XX 00000
Fax
No.: (000)
000-0000
Attention: Xxxx
X. Xxxx
3.4
Successors and
Assigns.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any Shares). Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.5
Execution and
Counterparts.
This
Agreement may be executed in multiple counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
3.6
Governing
Law.
This
Agreement is to be construed in accordance with and governed by the internal
laws of the State of Delaware without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the parties.
All disputes and controversies arising out of or in connection with this
Agreement shall be resolved exclusively by the state and federal courts located
in the City of San Francisco, in the State of California, and each party hereto
agrees to submit to the jurisdiction of said courts and agrees that venue shall
lie exclusively with such courts.
3.7
Severability.
Any
provision hereof that is held to be invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, shall be ineffective only to the
extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof, provided, however, that the
parties will attempt in good faith to reform this Agreement in a manner
consistent with the intent of any such ineffective provision for the purpose of
carrying out such intent. Notwithstanding the forgoing, if the value
of this Agreement based upon the substantial benefit of the bargain for any
party is materially impaired, which determination as made by the presiding court
or arbitrator of competent jurisdiction shall be binding, then both parties
agree to substitute such provision(s) through good faith
negotiations.
3.8
Titles and
Headings.
The
titles, captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references
herein to “sections” and “exhibits” will mean “sections” and “exhibits” to this
Agreement.
3.9
Entire
Agreement.
This
Agreement and the documents referred to herein constitute the entire agreement
among the parties with respect to the subject matter hereof and no party shall
be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or
therein.
3.10
Interpretation;
Absence of Presumption.
(a) For the purposes
hereof: (i) words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other gender
as the context requires; (ii) the terms “hereof,” “herein,” and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole (including all of the Schedules and Exhibits) and not
to any particular provision of this Agreement, and Article, Section, paragraph,
Exhibit and Schedule references are to the Articles, Sections, paragraphs,
Exhibits, and Schedules to this Agreement unless otherwise specified; (iii) the
word “including” and words of similar import when used in this Agreement shall
mean “including, without limitation,” unless the context otherwise requires or
unless otherwise specified; and (iv) the word “or” shall not be
exclusive.
(b) With regard to each and every term
and condition of this Agreement and any and all agreements and instruments
subject to the terms hereof, the parties hereto understand and agree that the
same have or has been mutually negotiated, prepared and drafted, and if at any
time the parties hereto desire or are required to interpret or construe any such
term or condition or any agreement or instrument subject hereto, no
consideration will be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
agreement or instrument subject hereto.
3.11
Independent Nature of
Holders’ Obligations and Rights.
The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other
agreement or document delivered at any closing, and no action taken by any
Investor pursuant hereto or thereto, shall be deemed to constitute the Investors
as a partnership, an association, a joint venture or any other kind of entity,
or create a presumption that the Investors are in any way acting in concert with
respect to such obligations or the transactions contemplated by this
Agreement. Each Investor shall be entitled to protect and enforce its
rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose.
3.12
Aggregation of
Stock.
All
shares of Registrable Securities held or acquired by affiliated entities
(including affiliated venture capital funds) or persons shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
3.13
Further
Assurances.
The
parties agree to execute such further documents and instruments and to take such
further actions as may be reasonably necessary to carry out the purposes and
intent of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
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COMPANY:
|
||
|
LOOPNET,
INC.
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxx, Xx.
|
|
|
Name:
|
Xxxxxxx
X. Xxxxx, Xx.
|
|
|
Title:
|
Chief
Executive Officer and Chairman of the Board of
Directors
|
|
|
Address:
|
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
|
|
|
Facsimile:
|
(000)
000-0000
|
|
[Signature
Page to Investors’ Rights Agreement]
|
INVESTOR:
|
||
|
CALERA
CAPITAL PARTNERS IV, L.P.
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Title:
|
Managing
Director and General Counsel
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
|
|
|
Facsimile:
|
(000)
000-0000
|
|
|
INVESTOR:
|
||
|
CALERA
CAPITAL PARTNERS IV SIDE-BY-SIDE, L.P.
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name
|
Xxxxx
Xxxxx
|
|
|
Title:
|
Managing
Director and General Counsel
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
|
||
|
Facsimile:
|
(000)
000-0000
|
||
[Signature
Page to Investors’ Rights Agreement]
|
INVESTOR
|
|||
|
TRINITY
VENTURES IX, L.P.
|
|||
|
TRINITY
IX SIDE-BY-SIDE FUND, L.P.
|
|||
|
TRINITY
IX ENTREPRENEURS’ FUND, L.P.
|
|||
|
By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxxxx
X. Xxxxxx
|
||
|
Title:
|
Member,
Trinity TVL IX, LLC
Their
General Partner
|
||
|
Address:
|
0000
Xxxx Xxxx Xxxx
|
|
|
Xxxxxxxx
0-000
|
||
|
Xxxxx
Xxxx, XX 00000
|
||
|
Facsimile:
|
000-000-0000
|
[Signature
Page to Investors’ Rights Agreement]
|
INVESTOR:
|
||
|
SAINTS
RUSTIC CANYON, L.P.
By: SAINTS
RUSTIC CANYON, LLC
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
|
Title:
|
Member
|
|
|
Address:
|
0000
Xxxxxxx Xxxx.
|
|
|
Xxxxx
0000
|
||
|
Xxxxx
Xxxxxx, XX 00000
|
||
|
Facsimile:
|
000-000-0000
|
|
INVESTOR:
|
||
|
RUSTIC
CANYON VENTURES III, L.P.
|
||
|
By: RUSTIC
CANYON GP III LLL, general partner
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
|
Title:
|
Managing
Member
|
|
|
Address:
|
0000
Xxxxxxx Xxxx.
|
|
|
Xxxxx
0000
|
||
|
Xxxxx
Xxxxxx, XX 00000
|
||
|
Facsimile:
|
000-000-0000
|
[Signature
Page to Investors’ Rights Agreement]
|
INVESTOR:
|
||
|
THE
BOARD OF TRUSTEES OF THE XXXXXX XXXXXXXX JUNIOR UNIVERSITY
(SBST)
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
Title:
|
Managing
Director - Separate Investment
|
|
|
Address:
|
Direct
Investments
Stanford
Management Company
0000
Xxxx Xxxx Xxxx
Xxxxx
Xxxx, XX 00000
|
|
|
Facsimile:
|
000-000-0000
|
[Signature
Page to Investors’ Rights Agreement]
