Exhibit 4.2
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement")
made as of the 2nd day of December, 1999, by and among XxxxxxxXxxx.xxx, Inc., a
Delaware corporation (the "Company") and each of the persons listed as an
Investor on the signature pages hereto (the "Investors").
WHEREAS, pursuant to that certain Series C Convertible Preferred Stock
Purchase Agreement of May 17, 1999 (the "Series C Purchase Agreement"), among
the Company and certain of the Investors, such Investors purchased Series C
Convertible Preferred Stock, $0.005 par value per share, of the Company (the
"Series C Preferred Stock") in each case as listed on Schedule I thereto, all of
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which shares are convertible into shares of the Company's Common Stock, as
hereinafter defined;
WHEREAS, as a condition to the closing of the transactions contemplated by
the Series C Purchase Agreement, the Company and the purchasers of the Series C
Preferred Stock entered into that certain Registration Rights Agreement dated as
of May 17, 1999 (the "Original Registration Rights Agreement");
WHEREAS, pursuant to that certain Series D Convertible Preferred Stock
Purchase Agreement of even date herewith (the "Series D Purchase Agreement" and,
together with the Series C Purchase Agreement, the "Purchase Agreements"), among
the Company and certain of the Investors, such Investors are purchasing Series D
Convertible Preferred Stock, $0.005 par value per share, of the Company ("Series
D Preferred Stock") in each case as listed on Schedule I thereto, all of which
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shares are convertible into shares of the Company's Common Stock;
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Series D Purchase Agreement that the Company
and the investors that are parties to the Original Registration Rights Agreement
amend and restate the Original Registration Rights Agreement on the terms and
subject to the conditions set forth herein; and
WHEREAS, pursuant to Section 14 of the Original Registration Rights
Agreement, the Company and the Holders of at least two-thirds of the outstanding
Registrable Stock and the securities convertible into such stock on the date
hereof, do hereby amend and restate the Original Registration Rights Agreement
in its entirety on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
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Amended and Restated Registration Rights Agreement
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1. Definitions. The following terms shall be used in this Agreement with
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the following respective meanings:
"Affiliate" means (i) any Person directly or indirectly controlling,
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controlled by or under common control with another Person; (ii) any Person
owning or controlling ten (10%) percent or more of the outstanding voting
securities of such other Person; (iii) any officer, director or partner of such
Person; and (iv) if such Person is an officer, director or partner, any such
company for which such Person acts in such capacity.
"Commission" means the Securities and Exchange Commission, or any other
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federal agency at the time administering the Securities Act.
"Common Stock" means and includes (a) the Company's Common Stock, $0.005
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par value per share, as authorized on the date of this Agreement and (b) any
other securities into which or for which the securities described in (a) above
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
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any successor Federal statute, and the rules and regulations of the Commission
(or of any other Federal agency then administering the Exchange Act) thereunder,
all as the same shall be in effect at the time.
"Holder" means any holder of Registrable Stock or Series D Preferred Stock,
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as the case may be.
"Initial Public Offering" means the consummation of an initial public
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offering of the Company's common stock pursuant to an effective Registration
Statement under the Securities Act of 1933, as amended.
"Investors" means each of the persons who are listed on Schedule RRA-I
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attached hereto and have executed this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means any natural person, partnership, corporation or other legal
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entity.
"Preferred Stock" means and includes (a) the Company's Series C Preferred
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Stock as authorized on the date of this agreement, (b) the Company's Series D
Preferred Stock as authorized on the date of this Agreement and (c) any other
securities into which or for which the securities described above may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
"Registrable Stock" means (a) the Common Stock issued or issuable upon
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conversion of the Preferred Stock, whether or not such Common Stock is owned by
any of the Investors,
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Amended and Restated Registration Rights Agreement
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(b) all Common Stock now or hereafter owned by any Investor which is acquired
otherwise than upon conversion of the Preferred Stock, including, without
limitation, any shares of Common Stock purchased by such investor pursuant to
the warrants issued to such Investor in connection with the transactions
contemplated by the Series D Purchase Agreement, so long as it is held by any
Investor or an Affiliate of any Investor and (c) any other shares of Common
Stock issued in respect of such shares by way of a stock dividend, or stock
split or in connection with a combination of shares, recapitalization, merger or
consolidation or reorganization; provided, however, that shares of Common Stock
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shall only be treated as Registrable Stock if and so long as they are not
eligible for sale without restriction under Rule 144(k) under the Securities Act
or have not been (i) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (ii) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(l) thereof so that all transfer restrictions
and restrictive legends with respect to such Common Stock are removed upon the
consummation of such sale.
"Registration Statement" means a registration statement filed by the
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Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form X-0, Xxxx X-0, or successor
forms, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation).
"Series D Registrable Stock" means (a) shares of Common Stock issued or
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issuable upon conversion of the Series D Preferred Stock, whether or not such
Common Stock is owned by any of the Investors, (b) shares of Common Stock
purchased by such Investor pursuant to a warrant issued to such Investor in
connection with the transactions contemplated by the Series D Purchase Agreement
and (c) the shares of Common Stock issued or issuable upon the conversion the
Series D Preferred Stock purchased pursuant to the warrants contemplated by that
certain Warrant Purchase Agreement by and among the Company and the affiliates
of Attractor Investment Management, Inc. set forth on Schedule 1 thereto (the
"Warrant Purchase Agreement"), so long as it is held by any Investor or an
Affiliate of any Investor and (c) any other shares of Common Stock issued in
respect of such shares by way of a stock dividend, or stock split or in
connection with a combination of shares, recapitalization, merger or
consolidation or reorganization; provided, however, that shares of Common Stock
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shall only be treated as Series D Registrable Stock if and so long as they are
not eligible for sale without restriction under Rule 144(k) under the Securities
Act or have not been (i) sold to or through a broker or dealer or underwriter in
a public distribution or a public securities transaction, or (ii) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(l) thereof so that all transfer restrictions
and restrictive legends with respect to such Common Stock are removed upon the
consummation of such sale.
"Securities Act" means the Securities Act of 1933, or any successor Federal
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statute, and the rules and regulations of the Commission (or of any other
Federal agency then administering the Securities Act) thereunder, all as the
same shall be in effect at the time.
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Amended and Restated Registration Rights Agreement
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2. Restrictive Legend. Each certificate representing Preferred Stock
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shall, except as otherwise provided in this Section 2, be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
SHARES (A) HAVE BEEN REGISTERED UNDER SUCH ACT AND ALL SUCH APPLICABLE LAWS, (B)
ARE TRANSFERABLE PURSUANT TO RULE 144 PROMULGATED UNDER THE SECURITIES ACT, OR
(C) IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY ARE TRANSFERABLE
PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT."
A certificate shall not bear such legend, or such legend shall be promptly
removed, if in the opinion of counsel satisfactory to the Company the securities
represented thereby may be publicly sold without registration under the
Securities Act and any applicable state securities laws or the Holder provides
the Company with a certificate that such Holder satisfies all the requirements
of Rule 144 (k).
3. Required Registration.
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(a) At any time after the earlier of (i) 180 days after the date of
the Company's Initial Public Offering and (ii) April 22, 2002,
the Holder or Holders of at least twenty-five percent (25%) of
all Registrable Stock then outstanding (the "Initiating Holders")
may by notice in writing to the Company request the Company to
register under the Securities Act at least twenty percent (20%)
of the Registrable Stock, or any lesser percentage if the
anticipated gross receipts of the offering exceed $2,000,000, in
the manner specified in such notice.
(b) At any time after the earlier of (i) 180 days after the date of
the Company's Initial Public Offering and (ii) April 2, 2002, the
Holder of the Holders of over fifty percent (50%) of the Series D
Registrable Stock then outstanding (the "Series D Initiating
Holders") may by notice to the Company request the Company to
register under the Securities Act at least twenty percent (20%)
of the Series D Registrable Stock, or any lesser percentage if
the anticipated gross receipts of the offering exceed $2,000,000,
in the manner specified in such notice.
(c) Notwithstanding anything to the contrary contained herein, the
Company shall not be required to seek to cause a Registration
Statement to become effective pursuant to this Section 3, if: (A)
within a period of 90 days after the effective date of a
Registration Statement (180 days if the Registration
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Statement is for the Initial Public Offering) filed by the
Company (other than a Registration Statement on Forms X-0, X-0 or
any successors thereto), provided that the Company shall use its
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best efforts to cause a registration requested hereunder to be
declared effective promptly following such period if such request
is made during such period; or (B) if the Company shall furnish
to the Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of
Directors it would be materially detrimental to the Company or
its stockholders for a Registration Statement to be filed at such
time, or that it would require disclosure of material non-public
information relating to the Company which, in the reasonable
opinion of the Board of Directors, should not be disclosed, then
the Company's obligation to use all reasonable efforts to
register, qualify or comply under this Section 3 shall be
deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from such Holders; provided,
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however, that the Company may not utilize this deferral right
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more than once in any twelve-month period.
(d) Following receipt of any notice given under this Section 3(a) or
(b) by the Initiating Holders or the Series D Initiating Holders, the
Company shall immediately notify in writing (x) in the case of a notice by
a Holder pursuant to Section 3(a), all Holders, or (y) in the case of a
notice by the Series D Initiating Holders pursuant to Section 3(b), all
Holders of Series D Registrable Stock, that such registration is to be
effected and shall use its best efforts to register under the Securities
Act, for public sale in accordance with the method of disposition specified
in such notice from requesting Holders or Series D Initiating Holders, as
the case may be, the number of shares of Registrable Stock, specified in
such notice (and in all notices received by the Company pursuant hereto).
Holders, other than the Initiating Holders, shall notify the Company of
their desire to participate in the Registration within twenty (20) days of
the Company's notice to them. The Company shall designate the managing
underwriter of such offering, subject to the approval of the Holders of a
majority of the shares of Registrable Stock and Series D Registrable Stock
to be sold in such offering, which approval shall not be unreasonably
withheld or delayed. The Company is obligated to effect only two
registrations pursuant to Section 3(a) herein and one registration pursuant
to Section 3(b) herein; provided, however, that such obligation shall be
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deemed satisfied only when a Registration Statement covering all shares of
Registrable Stock, specified in notices received as aforesaid and which
have not been withdrawn by the Holder thereof, for sale in accordance with
the method of disposition specified by the Initiating Holders, shall have
become effective. A registration which does not become effective after the
Company has filed a Registration Statement with respect thereto solely by
reason of the refusal of the Initiating Holders or Series D Initiating
Holders, as the case may be, to proceed shall be deemed to have been
effected by the Company at the request of such Initiating Holders or Series
D Initiating Holders, as the case may be, unless the registration was
withdrawn at the request of the Holders or Series D Initiating Holders, as
the case may be, of a majority of the Registrable Stock
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Amended and Restated Registration Rights Agreement
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or Series D Registrable Stock to be sold in such offering upon learning of
a material adverse change in the condition, business or prospects of the
Company (other than a change in market demand for its securities or in the
market price thereof) from that known to such Holders (and any knowledge of
any Director appointed by such Holder shall be deemed knowledge of such
Holder for purposes of this provision) at the time of their request (or of
which the Company advised them in writing within 20 days thereafter) that
makes the proposed offering unreasonable in the good faith judgment of a
majority in interest of such Holders.
(e) If the Registration Statement is to cover an underwritten
distribution and, in the good faith judgment of the managing underwriter of
such public offering, the inclusion of all of the Registrable Stock
requested for inclusion pursuant to this Section 3 would interfere with the
successful marketing of a smaller number of shares to be offered, then the
number of shares of Registrable Stock to be included in the Offering shall
be reduced to the required level with the participation in such Offering to
be reduced pro rata among the Holders requesting such registration, based
upon the number of shares of Registrable Stock or Series D Registrable
Stock requested to be registered by such Holders. The Company shall be
entitled to include in any Registration Statement referred to in this
Section 3, for sale in accordance with the method of disposition specified
by the Initiating Holders, shares of Common Stock for the Company's own
account, except as and to the extent that, in the opinion of the managing
underwriter, if any, such inclusion would adversely affect the marketing of
the Registrable Stock or Series D Registrable Stock to be sold. Except for
registration statements on Form X-0, X-0 or any successor forms thereto,
the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or
that of other stockholders, from the date of receipt of a notice from the
Initiating Holders or Series D Initiating Holders, as the case may be,
pursuant to this Section 3 until the completion of the period of
distribution of the registration contemplated thereby.
4. Incidental Registration. Each time the Company shall determine to
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file a Registration Statement in connection with the proposed offer and sale for
money of any of its securities by it or any of its security holders, the Company
will give written notice thereof to all Holders. Upon the written request of one
or more Holder(s) given within twenty (20) days after the giving of any such
notice by the Company, the Company will use its best efforts to cause all such
shares of Registrable Stock, the Holders of which have so requested registration
thereof, to be included in such Registration Statement, all to the extent
requisite to permit the sale or other disposition by the prospective seller or
sellers of the Registrable Stock to be so registered. If the Registration
Statement is to cover an underwritten distribution, the Company shall use its
best efforts to cause the Registrable Stock requested for inclusion pursuant to
this Section 4 to be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters. If,
in the good faith judgment of the managing underwriter of such public offering,
the inclusion of all of the Registrable Stock requested for inclusion pursuant
to this Section 4 would interfere with the successful marketing of a smaller
number of
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Amended and Restated Registration Rights Agreement
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shares to be offered, then the number of shares of Registrable Stock and other
securities to be included in the offering (except for shares to be issued (i) by
the Company in an offering initiated by the Company or (ii) by any other party
in an offering initiated by such party pursuant to registration rights granted
to such party) shall be reduced to the required level by reducing (down to zero
in the Company's Initial Public Offering, or to not less than thirty (30%)
percent thereafter, if so required) the participation of the Holders of
Registrable Stock in such offering (such reduction to be made to the amounts of
shares requested for inclusion in such offering by such Holders on a pro rata
basis among the Holders of Registrable Stock requesting such registration, based
upon the number of shares of Registrable Stock owned by such Holders).
5. Registration on Form S-3.
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(a) If at any time after the date hereof, (i) a Holder or Holders
request that the Company file a registration statement on Form S-3 or any
successor thereto for a public offering of all or any portion of the shares
of Registrable Stock held by such requesting Holder or Holders, the
reasonably anticipated aggregate price to the public of such shares would
exceed $500,000 and (ii) the Company is a registrant entitled to use Form
S-3 or any successor form thereto to register such shares, then the Company
shall use its best efforts to register under the Securities Act on Form S-3
or any successor thereto, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registrable
Stock specified in such notice. Whenever the Company is required by this
Section 5 to use its best efforts to effect the registration of Registrable
Stock, each of the procedures, requirements and limitations of Section 3
(including but not limited to the requirement that the Company notify all
Holders from whom notice has not been received and provide them with the
opportunity to participate in the offering and the requirements of
subparagraph (b)) shall apply to such registration; provided, however, that
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there shall be no limitation on the number of registrations on Form S-3
which may be requested and obtained under this Section 5, except that the
Company shall not be obligated to effect more than two registrations under
this Section 5 in any twelve (12) month period; and provided, further, that
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the $2,000,000 minimum dollar amount set forth in the first sentence of
Section 3(a) shall not apply to any registration on Form S-3 which may be
requested and obtained under this Section 5.
(b) If the Company is a registrant entitled to use Form S-3 or any
successor form thereto to register shares of Registrable Stock, then the
Company shall use its best efforts to register under the Securities Act on
Form S-3 or any successor thereto, for public sale in accordance with any
method of disposition specified by any Holder or Holders, all of the shares
of Registrable Stock. The Company agrees to maintain the registration
effective as a shelf-registration for a period of twelve (12) months,
except: (i) within 90 days after the effective date of a Registration
Statement filed by the Company (except for Registration Statements on Form
X-0, X-0 or any successors thereto) or (ii) if the Company shall furnish to
the Holders a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of
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Amended and Restated Registration Rights Agreement
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Directors it would be seriously detrimental to the Company stockholders for
a Form S-3 Registration Statement to be effective due to pending Company
events, or that keeping such Statement effective at such time would require
disclosure of material non-public information relating to the Company
which, in the reasonable opinion of the Board of Directors, should not be
disclosed, or if the Company intends to file a Registration Statement
within sixty (60) days and agrees to register shares of the Holders'
Registrable Stock therein, provided, however, that the Company shall not
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utilize these rights more than once in any 12-month period, nor for a
period of more than sixty (60) days, and further provided that the shelf
registration shall be kept effective for an additional period equal to the
period of time during which the shelf registration was not kept effective
pursuant hereto.
6. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 3, 4 or 5 hereof to effect the registration of shares
of Registrable Stock under the Securities Act, the Company will, at its expense,
as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
Registration Statement with respect to the Registrable Stock and use its
best efforts to cause such Registration Statement to become and remain
effective until the Registrable Stock covered by such Registration
Statement has been sold, but for no longer than twelve (12) months
subsequent to the effective date of such registration, and prepare and file
with the Commission such amendments to such Registration Statement and
supplements to the prospectus contained therein as may be necessary to keep
such Registration Statement effective and such Registration Statement and
prospectus accurate and complete until the Registrable Stock covered by
such Registration Statement has been sold, but for no longer than twelve
(12) months subsequent to the effective date of such registration;
(b) If the offering is to be underwritten in whole or in part, enter
into a written underwriting agreement, in usual and customary form, with
the managing underwriter, if any, of the public offering and each Holder
participating in such offering shall also enter into and perform its
obligations under such an agreement;
(c) Furnish to the participating Holders and to the underwriters such
reasonable number of copies of the Registration Statement, preliminary
prospectus, final prospectus and such other documents as such underwriters
and participating Holders may reasonably request in order to facilitate the
public offering of such securities;
(d) Use its best efforts to register or qualify the Registrable Stock
covered by such Registration Statement under such state securities or blue
sky laws of such jurisdictions (i) as shall be reasonably appropriate for
the distribution of the Registrable Stock covered by such Registration
Statement or (ii) as such participating Holders and underwriters may
reasonably request within ten (10) days following the original filing of
such Registration Statement, except that the Company shall not for any
purpose be
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Amended and Restated Registration Rights Agreement
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required to execute a general consent to service of process, to subject
itself to taxation, or to qualify to do business as a foreign corporation
in any jurisdiction where it is not so qualified;
(e) Notify the Holders participating in such registration, promptly
after it shall receive notice thereof, of the date and time when such
Registration Statement and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such
Registration Statement has been filed;
(f) Notify the Holders participating in such registration promptly of
any request by the Commission or any state securities commission or agency
for the amending or supplementing of such Registration Statement or
prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the request
of any such participating Holders, any amendments or supplements to such
Registration Statement or prospectus which, in the opinion of counsel
representing the Company in such Registration (and which counsel is
reasonably acceptable to such participating Holders), is required under the
Securities Act or the rules and regulations thereunder in connection with
the distribution of the Registrable Stock by such participating Holders,
but for no longer than twelve (12) months subsequent to the effective date
of such registration;
(h) Prepare and promptly file with the Commission, and promptly
notify such participating Holders of the filing of, such amendments or
supplements to such Registration Statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such Registrable Stock is required to be delivered
under the Securities Act, any event has occurred as the result of which any
such prospectus or any other prospectus as then in effect would include an
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
not misleading;
(i) In case any of such participating Holders or any underwriter for
any such Holders is required to deliver a prospectus at a time when the
prospectus then in circulation is not in compliance with the Securities Act
or the rules and regulations of the Commission, prepare promptly upon
request such amendments or supplements to such Registration Statement and
such prospectus as may be necessary in order for such prospectus to comply
with the requirements of the Securities Act and such rules and regulations;
(j) Advise such participating Holders, promptly after it shall
receive notice or obtain knowledge of the issuance of any stop order by the
Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and
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Amended and Restated Registration Rights Agreement
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promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued;
(k) At the request of any such participating Holder (i) furnish to
such Holder, if such registration includes an underwritten public offering,
at the closing provided for in the underwriting agreement, copies of any
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any,
covering such matters with respect to the registration statement, the
prospectus and each amendment or supplement thereto, proceedings under
state and Federal securities laws, other matters relating to the Company,
the securities being registered and the offer and sale of such securities
as are customarily the subject of opinions of issuer's counsel provided to
underwriters in underwritten public offerings and (ii) use its best efforts
to furnish to such Holder letters dated each such effective date and such
closing date, from the independent certified public accountants of the
Company, addressed to the underwriters, if any, and to the Holder or
Holders making such request, stating that they are independent certified
public accountants within the meaning of the Securities Act and dealing
with such matters as are customarily subject of letters of issuer's
independent certified public accountants to underwriters in underwritten
public offerings, or, if the offering is not underwritten, that in the
opinion of such accountants the financial statements and other financial
data of the Company included in the Registration Statement or the
prospectus or any amendment or supplement thereto comply in all material
respects with the applicable accounting requirements of the Securities Act,
and additionally covering such other financial matters, including
information as to the period ending not more than five (5) business days
prior to the date of such letter with respect to the Registration Statement
and prospectus, as such requesting Holder or Holders may reasonably
request;
(l) Apply for listing and use its best efforts to list the
Registrable Stock being registered on any national securities exchange on
which a class of the Company's equity securities is listed or, if the
Company does not have a class of equity securities listed on a national
securities exchange, apply for qualification and use its best efforts to
qualify the Registrable Stock being registered for inclusion on the
automated quotation system of the NASD.
7. Expenses.
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(a) With respect to each registration effected pursuant to Section 3,
4 or 5 hereof, all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith shall be borne
by the Company; provided, however, (i) that Holders and other holders of
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the Company's stock participating in any such registration shall bear their
pro rata share of the underwriting discounts, selling commissions and fees
and disbursements of special counsel, (ii) any such fee, cost or expense
which does not constitute a fee, cost or expense customary in such a
registration and which is attributable solely to one (1) Holder or other
holder of the Company's stock participating
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Amended and Restated Registration Rights Agreement
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in any such registration shall be borne by that Holder or holder and (iii)
in the event of any special audit required in connection with a
registration pursuant to Section 3, the Company shall not be responsible
for expenses exceeding $15,000 and the Holders and other holders of the
Company's stock participating in any such registration shall bear their pro
rata share of any such expenses exceeding $15,000.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and
disbursements of counsel for the underwriter or underwriters of such
securities (if the Company and/or selling security holders are otherwise
required to bear such fees and disbursements), fees and disbursements of
one counsel for the selling security holders collectively, all legal fees
and disbursements and other expenses of complying with state securities or
blue sky laws of any jurisdictions in which the securities to be offered
are to be registered or qualified and the premiums and other costs of
policies of insurance insuring the Company against liability arising out of
such public offering.
8. Indemnification and Contribution
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(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Holder whose shares of Registrable Stock
are included in a Registration Statement pursuant to the provisions of this
Agreement, and, in the Company's Initial Public Offering, each Holder
whether or not such Holder's shares of Registrable Stock are included in
any such Registration Statement, and any underwriter (as defined in the
Securities Act) for such Holder, and any Person who controls such Holder or
such underwriter within the meaning of the Securities Act, and each of
their successors, from and against, and will reimburse such Holder and each
such underwriter and controlling Person with respect to, any and all
claims, actions, demands, losses, damages, liabilities, costs and expenses
to which such Holder or any such underwriter or controlling Person may
become subject under the Securities Act or otherwise, insofar as such
claims, actions, demands, losses, damages, liabilities, costs or expenses
arise out of or are based upon any untrue statement or allegedly untrue
statement of any material fact contained in such Registration Statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the 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 arise out of any violation by the Company of any
rule or regulation under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with
such registration; provided, however, that the Company will not be liable
-------- -------
in any such case to the extent that any such claim, action, demand, loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so
made in reliance upon and in conformity with information furnished by or on
behalf of any such
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 11 of 18
Holder, such underwriter or controlling Person in writing specifically for
use in the preparation thereof; and provided, further, that this indemnity
-------- -------
shall not be deemed to relieve any underwriter of any of its due diligence
obligations; and provided, further, that if any claim, action, demand,
-------- -------
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission contained in any preliminary prospectus which did not appear in
the final prospectus and if the Holder delivered a copy of the preliminary
prospectus to the person alleging damage and failed to deliver a copy of
the final prospectus to such persons, the Company shall not be liable with
respect to the claims of such person.
(b) Each Holder of shares of Registrable Stock which are included in
a Registration Statement pursuant to the provisions of this Agreement will,
severally and not jointly, indemnify and hold harmless the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such registration, each person who controls the
Company or such underwriter within the meaning of the Securities Act, and
each other Holder of shares of Registrable Stock which are included in the
registration, each of the officers, directors and partners of each such
other Holder and each person controlling such other Holder, from and
against, and will reimburse such parties with respect to, any and all
losses, damages, liabilities, costs or expenses to which such parties may
become subject under the Securities Act or otherwise, to the extent that
any such loss, damage, liability, cost or expense arises out of or is based
upon any untrue of any material fact contained therein or any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was so made in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder for use in the preparation thereof, provided that the
--------
liability of each Holder hereunder shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the public offering price of the shares sold by such Holder
under such Registration Statement bears to the total public offering price
of all securities sold thereunder, but not in any event to exceed the net
proceeds received by such Holder from the sale of shares of Registrable
Stock covered by a Registration Statement; and provided, further that this
-------- -------
indemnity shall not be deemed to relieve any underwriter of any of its due
diligence obligations.
(c) Promptly after receipt by a party to be indemnified pursuant to
the provisions of paragraph (a) or (b) of this Section 8 (an "indemnified
party") of actual knowledge or notice of the commencement of any action
involving the subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of paragraph (a) or (b),
notify the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party
from any liability which it may have to an indemnified party otherwise than
under this Section 8 and shall not
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 12 of 18
relieve the indemnifying party from liability under this Section 8 unless
such indemnifying party is prejudiced by such omission. In case such action
is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party shall have the
right to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel 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 pursuant to the provisions of such
paragraph (a) and (b) for any legal or other expense subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding the foregoing, an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests, as
reasonably determined by either party, between such indemnified party and
any other party represented by such counsel in such proceeding. No
indemnifying party shall be liable to an indemnified party for any
settlement of any action or claim made without the consent of the
indemnifying party; no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will consent to entry
of any judgment or enter into any settlement that 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.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
Holder exercising rights under this Agreement, or any controlling Person of
any such Holder, makes a claim for indemnification pursuant to this Section
8 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that this Section
8 provides for the indemnification in such case, (ii) contribution under
the Securities Act may be required on the part of any such selling Holder
or any such controlling Person in circumstances for which indemnification
was provided under this Section 8; then, and in each case, the Company and
each such Holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution from
others) in such proportion so that such Holder is responsible for the
portion represented by the percentage that the public offering price of its
Registrable Stock offered by the Registration Statement bears to the public
price of all securities offered by such Registration Statement, and the
Company is responsible for the remaining portion; provided, however, that,
-------- -------
in any such case, (A) no Person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 12(f) of the Securities
Act) will be entitled to contribution from any Person or entity that was
not guilty of such fraudulent misrepresentation and (B) no Holder will be
required to contribute any amount in excess
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 13 of 18
of the net proceeds of such Holder of such Registrable Stock offered by it
pursuant to such Registration Statement.
9. Reporting Requirements Under Securities Exchange Act of 1934. When it
------------------------------------------------------------
becomes first legally required to do so, the Company shall register its Common
Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall use its best efforts to (whether or not it shall
then be required to do so) timely file such information, documents and reports
as the Commission may require or prescribe under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act. Immediately upon becoming subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company shall forthwith upon request furnish any Holder (a) a written statement
by the Company that it has complied with such reporting requirements, (b) a copy
of the most recent annual or quarterly report of the Company and (c) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 9 are (i) to enable any such Holder to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision)
and (ii) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its best efforts to
facilitate and expedite transfers of Registrable Stock pursuant to Rule 144
under the Securities Act (or any similar or successor exemptive provision
hereafter in effect), which efforts shall include timely notice to its transfer
agent to expedite such transfers of Registrable Stock.
10. Stockholder Information. The Company may require each Holder of
-----------------------
Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
11. Lock-Up Agreements.
------------------
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 14 of 18
(a) Restrictions on Public Sale by the Company. The Company agrees not
------------------------------------------
to effect any public sale or other distribution of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
equity securities, during the period, not to exceed one hundred eighty
(180) days (as requested by the managing underwriter), following the
effective date of the Initial Public Offering, or ninety (90) days
following the effective date of any other underwritten public offering of
securities of the Company, except in connection with any such underwritten
offering and except for equity securities issued pursuant to employee stock
option or employee stock purchase plans or in conjunction with any merger
or consolidation with, or acquisition of the stock or assets of, any other
entity.
(b) Restrictions on Public Sale by the Holders. Each Holder agrees
------------------------------------------
that it will not, to the extent requested by the managing underwriter of
such offering, sell or otherwise dispose of any equity securities of the
Company, including any sale pursuant to Rule 144, during a period specified
by the Company and such underwriter (not to exceed one hundred eighty (180)
days after the effective date of the Initial Public Offering or ninety (90)
days after any other underwritten offering), except in conjunction with
such underwritten offering; provided that each officer, director and holder
--------
of at least one percent of the Company's outstanding Common Stock shall
enter into similar each lock-up agreements; provided, further, that the
-------- -------
provisions of this Section 11(b) shall not apply to shares of Company's
Common Stock purchased or acquired by such Investor in the Initial Public
Offering, pursuant to the warrants issued to such Investor in connection
with the transactions contemplated by the Series D Purchase Agreement, or
on the open market after the date of the Initial Public Offering.
(c) Restrictions on Public Sale by Subsequent Holders. Except in a
-------------------------------------------------
public offering registered under the Securities Act, the Company shall not
issue or sell any equity security unless each recipient thereof agrees in
writing with the Company (i) not to offer to sell or sell such equity
security during a period specified by the Company and the underwriter
thereof (not to exceed one hundred eighty (180) days after the effective
date of the Initial Public Offering or ninety (90) days after any other
underwritten public offering of securities of the Company registered under
the Securities Act), except in conjunction with such underwritten offering
and (ii) to execute and deliver the underwriting agreement in connection
with any such underwritten offering.
12. Notices. Any notice required or permitted to be given hereunder
-------
shall be in writing and shall be deemed to be properly given when sent by
registered or certified mail, return receipt requested, by Federal Express, DHL
or other guaranteed overnight delivery service or by facsimile transmission,
addressed as follows:
If to the Company: Xxx Xxxxxxx
XxxxxxxXxxx.xxx, Inc.
000 Xxxx Xxxxxx
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 15 of 18
Suite 1950
Xxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
With copies to: Xxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopier: (000) 000-0000
If to any Investor: To the address of such Investor set forth on
the signature pages hereto.
With copies to: Xxxx Xxxxx, Esq.
Buchalter, Nemer, Fields & Younger
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxx, Xxxxxxxxxx 00000
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the others notice of pursuant to this
Section, provided that a change of address shall only be effective upon receipt.
--------
All notices, requests, consents and other communications hereunder shall be
deemed to have been received (i) if by hand, at the time of delivery thereof to
the receiving party at the address of such party set forth above or as so
designated, (ii) if made by telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the third business day following the day such mailing is
made.
13. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Delaware (without regard to conflict
of laws provisions).
14. Waivers; Amendments. No waiver of any right hereunder by any party
-------------------
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and the Holders of at least two-thirds of the then outstanding
Registrable Stock and
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 16 of 18
the securities convertible into, exchangeable for or exercisable for Registrable
Stock (calculated on an as converted, exchanged or exercised basis).
Additionally, this Agreement may not be amended in a manner that detrimentally
or adversely affects the rights of the Holders of Series D Registrable Stock
except by a writing executed by the Company and the Holders of at least two-
thirds of the then outstanding Series D Registrable Stock and the securities
convertible into, exchangeable for or exercisable for Series D Registrable Stock
(calculated on an as converted, exchanged or exercised basis); provided,
--------
however, that any amendment or waiver that is detrimental to a holder of Series
-------
D Preferred in a manner different than any other holder of the Company's
preferred stock shall require the written consent of such holder.
15. Other Registration Rights. The Company shall not grant to any third
-------------------------
party any registration rights more favorable than any of those contained herein,
or which would interfere with or delay the exercise by the Holders of their
registrations rights hereunder, so long as any of the registration rights under
this Agreement remains in effect, unless approved by each of (a) Holders of
Series C Preferred Stock holding at least two-thirds of the then outstanding
shares Series C Preferred Stock, and (b) the Holders of Series D Preferred Stock
holding at least two-thirds of the then outstanding shares of Series D Preferred
Stock, which approval may require that such rights be granted only pursuant to
an amendment or restatement of this Agreement.
16. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties; provided, however, that no expansion of the
-------- -------
definition of Holders set forth above shall be effected by this Section 16.
17. Transfer of Rights. All of the rights of an Investor in this Agreement
------------------
may only be transferred by the Investor to the following: (i) if the Investor is
a partnership, any partner or retired partner of such Purchaser, (ii) if the
Investor is an individual, any family member of or trust for the benefit of such
Investor, (iii) if the Investor is a corporation, any shareholder of such
Investor, (iv) if the Investor is a limited liability company, to members of
such Investor, or (v) any transferee who acquires at least $500,000 of Series D
Preferred; provided, that, such transfer otherwise complies with all applicable
state and federal securities laws.
18. Aggregation. For purposes of determining the availability of any
-----------
rights under this Agreement, all shares of Series D Preferred held or acquired
by affiliated persons or persons under common management shall be aggregated
together and treated as one such holder.
19. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Prior Understanding and Agreements. This Agreement constitutes the
----------------------------------
sole and entire agreement of the parties with respect to the subject matter
hereof.
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 17 of 18
21. Headings. Headings in this Agreement are included for reference only
--------
and shall have no effect upon the construction or interpretation of any part of
this Agreement.
22. Severability. If any provision of this Agreement shall be held to be
------------
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[Signatures on Following Pages]
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page 18 of 18
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
a duly authorized officer, and each Investor has duly executed this Agreement
(or has caused it to be executed by a duly authorized officer, partner, trustee
or agent, as the case may be), as of the date first above recited.
XXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
[Additional Signatures on Following Pages]
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-1
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
INVESTORS:
---------
Xxxxxx Xxxxxx Jurvetson Fund V, LP,
a ____________ Limited Partnership
By: /S/ Xxxxxx Xxxxxxx
________________________________
Xxxxxx Xxxxxxx
Its: Director
________________________________
Address: 000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx Jurvetson Partners V, LLC,
a _____________ Limited Partnership
By: /S/ Xxxxxx Xxxxxxx
________________________________
Xxxxxx Xxxxxxx
Its: Director
________________________________
Address: 000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
* * *
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-2
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
INVESTORS:
---------
TL VENTURES IV L.P.
By: TL Ventures IV Management L.P.,
its general partner
By: TL Ventures IV LLC,
its general partner
By: /S/ Xxxxxx X. Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Address: c/o TL Ventures LLC
The 700 Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000
Attn: Chief Financial Officer
TL VENTURES IV Interfund L.P.
By: TL Ventures IV LLC,
its general partner
By: /S/ Xxxxxx X. Xxxxx
_________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Address: c/o TL Ventures LLC
The 700 Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000
Attn: Chief Financial Officer
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-3
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
INVESTOR:
--------
ATTRACTOR INSTITUTIONAL LP
By: /S/ Xxxxxx Xxxxxxx
______________________
Xxxxxx Xxxxxxx
Managing Member of Attractor Ventures LLC,
its General Partner
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
ATTRACTOR VENTURES LLC
By: /S/ Xxxxxx Xxxxxxx
_______________________________
Xxxxxx Xxxxxxx, Managing Member
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
ATTRACTOR LP
By: /S/ Xxxxxx Xxxxxxx
______________________
Xxxxxx Xxxxxxx
Managing Member of Attractor Ventures LLC,
its General Partner
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-4
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
ATTRACTOR QP LP
By: /s/ Xxxxxx Xxxxxxx
_________________________
Xxxxxx Xxxxxxx
Managing Member of Attractor Ventures LLC,
its General Partner
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attractor Offshore Ltd.
By: /s/ Xxxxxx Xxxxxxx
_________________________
Xxxxxx Xxxxxxx
President, Attractor Investment
Management, Inc., Investment Manager of
Attractor Offshore Ltd.
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-5
INVESTOR:
--------
INFORMATION TECHNOLOGY VENTURES II, L.P.,
a California limited partnership
By: ITV MANAGEMENT II, LLC
a California limited liability company
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
___________________________________
Xxxxxxxx X. Xxxxxxx
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0
Xxxxx Xxxx, Xxxxxxxxxx 00000
ITV AFFILIATES FUND II, L.P.,
a California limited partnership
By: ITV MANAGEMENT II, LLC
a California limited liability company
Title: General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
_____________________________________
Xxxxxxxx X. Xxxxxxx
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0
Xxxxx Xxxx, Xxxxxxxxxx 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-6
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Office Depot, Inc.,
a Delaware corporation
By:/s/ Xxxxx X. Xxxxxxxxx
___________________________________________
Name: Xxxxx X. Xxxxxxxxx,
Title: Executive Vice President & CFO
Address: 0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Mail Boxes Etc.,
a California corporation
By:/s/ Xxxxxx X. Xxxxxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Ex P
Address: 0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
XxxxxxxxXxx.xxx, Inc.,
a Nevada corporation
By:/s/ Xxxxxxxxxxx X. Carton
________________________________________
Name: Xxxxxxxxxxx X. Carton
Title: President/COO
Address: 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxx 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-7
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Reckson Service Industries, Inc.
By:/s/ Xxxxxxx X. Xxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
xxxxxxxxxxx.xxx LLC
By:/s/ Xxxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: CEO
Winstar Interactive Ventures I Inc.
By:/s/ Xxxxxx X. Reheint
_______________________________________
Name: Xxxxxx X. Reheint
Title: President
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-8
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors
By: /s/ Marc Benoiff
-----------------------------------
Marc Benoiff
00 Xxxxxxxxx Xxxx Xxxx.
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxx and Xxxxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx, Xxxxx X
Xxx Xxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx XXX
0000 00/xx/ Xxxxxx
Xxxx Xxx Xxxxxx , XX 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-9
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
0000 00/xx/ Xxxxxx
Xxxx Xxx Xxxxxx , XX 00000
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Xxxxxxxx Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
0000 XxXxxxxx Xxx., Xxx. 0000
Xxxxxx, XX 00000
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
Strawinskylaan 2631
X.X. Xxx 000
0000 XX Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxxxx
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-10
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ Xxxxxxx Xxxxxxx, Xx.
----------------------------------
Xxxxxxx Xxxxxxx, Xx. Trust
0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
000 Xxxx Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
By: /s/ H. Xxxxxxx Xxxxxxxxx
----------------------------------
H. Xxxxxxx Xxxxxxxxx
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-11
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/ Xxxx X. Van den Xxxxxxx
--------------------------------------
Xxxx X. Van den Xxxxxxx
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/ X. Xxxx Xxxx
--------------------------------------
X. Xxxx Xxxx
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
000 X. Xxxxxx, #000
Xxxxxxx, XX 00000
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------------
Xxx X. Xxxxxxxxx
3 World Financial Center
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-12
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
X.X. Xxxxxxx Famila Ltd. Partnership, L.C.
By ECC Ventures, L.C., its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx
36 Keofferam
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, XX 00000
By: /s/ Donough X. XxXxxxxxx
--------------------------------------
Donough X. XxXxxxxxx
3 World Financial Center
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-13
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ M. Xxxxxxx Xxxxx
--------------------------------------
M. Xxxxxxx Xxxxx
3 World Financial Center
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
3 World Financial Center
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx
000 Xxxxxx Xxx.
Xxxx Xxxxx, XX 00000-0000
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
3 World Financial Center
000 Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxx X. Xxxxx, M.D.
--------------------------------------
Xxxx X. Xxxxx, M.D.
0 Xxxxx Xxxxx XX
Xxxxxxxx Tower 0000
Xx. Xxxxxxxxxx, XX 00000-0000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-14
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ illegible
--------------------------------------
JPSJC Partnership
Trust Account - lolta
0000 Xxx Xxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
By: /s/ Xxx Unis
--------------------------------------
Xxx Unis
Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Cyprus Partners, LLC
By: /s/ Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: President
------------------------------------
Address: c/o Xxx Xxxxxx
The 700 Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000-0000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Pages S-15
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
By: /s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-16
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
Xxxxx/Xxxxxxxxx Fund I
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Manager
------------------------------------
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-17
XXXXXXXXXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
*COUNTERPART SIGNATURE PAGE*
--------------------------
Individual Investors (Continued)
Dell USA L.P1
By: Dell Gen. P. Corp.
Its General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
XxxxxxxXxxx.xxx, Inc.
Amended and Restated Registration Rights Agreement
Page S-18
