Exhibit 99.C
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated as of
February 29, 2000 by and between Data Broadcasting Corporation, a Delaware
corporation ("DETECTIVE"), and Xxxxxxx Longman, Inc., a Delaware corporation
(collectively with any of its designees, "LYNX PARENT").
R E C I T A L S
WHEREAS, Detective, Detective Merger-Sub, Inc., a Delaware
corporation ("ACQUISITION SUB"), Lynx Parent and Interactive Data Corporation, a
Delaware corporation ("LYNX"), have entered into that certain Agreement and Plan
of Merger, as amended by Amendment No.1 to the Agreement and Plan of Merger
among Lynx, Lynx Parent, Detective and Acquisition Sub, dated as of January 10,
2000 (as so amended, the "MERGER AGREEMENT"; defined terms used but not defined
herein have the meanings set forth in the Merger Agreement), which provides for,
among other things, the merger of Acquisition Sub with and into Lynx (the
"MERGER");
WHEREAS, immediately prior to the Merger, Lynx Parent owned
all of the issued and outstanding shares of Lynx common stock;
WHEREAS, in the Merger, (a) Lynx became a wholly-owned
subsidiary of Detective and (b) Lynx Parent received 56,423,949 (subject to
adjustment as set forth in the Merger Agreement) newly issued shares of
Detective Common Stock (the "DETECTIVE SHARES");
WHEREAS, as a condition to Lynx agreeing to enter into the
Merger Agreement, Detective agreed to grant Lynx Parent and its designees
certain registration rights with respect to the Detective Shares and other
securities of Detective which they may hold in the future;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Detective and Lynx Parent hereby,
intending to be legally bound by the terms hereof, agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Agreement:
(a) "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 Detective with the SEC.
(b) "HOLDER" means any person owning of record
Registrable Securities that have not been sold to the public or pursuant to Rule
144 ("RULE 144") promulgated under the Securities Act of 1933, as amended (the
"SECURITIES ACT") or any assignee of record of such Registrable Securities to
whom rights under this Agreement have been duly assigned in accordance with this
Agreement.
(c) "PROSPECTUS" shall mean the prospectus included
in any registration statement filed pursuant to the provisions hereof
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement (including, without
limitation, any prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by such 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.
(d) "REGISTRABLE SECURITIES" means: (1) all of the
Detective Shares, (2) any securities of Detective subsequently acquired by Lynx
Parent or any Affiliate of Lynx Parent, and (3) any securities of Detective
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement thereof excluding in all cases, however, (i) any Registrable
Securities sold by a person in a transaction in which rights under this Section
1 are not assigned in accordance with this Agreement, or (ii) any Registrable
Securities sold in a public offering pursuant to a registration statement filed
with the SEC or sold pursuant to Rule 144 except to the extent reacquired by
Lynx Parent or an Affiliate of Lynx Parent as provided in clause (2) above.
(e) "REGISTRABLE SECURITIES THEN OUTSTANDING" shall
mean the number of Registrable Securities that are Detective Common Stock and
are issued and outstanding at such time plus with respect to any Registrable
Securities issued and outstanding at such time that are not Detective Common
Stock, the number of shares of Detective Common Stock into which such
Registrable Securities are then or will be convertible or otherwise exchangeable
or exerciseable.
(f) "REGISTRATION" refers to a registration effected
by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement.
(g) "SEC" means the United States Securities and
Exchange Commission.
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1.2 DEMAND REGISTRATION.
(a) REQUEST BY LYNX PARENT. If Detective shall
receive at any time a written request from Lynx Parent that Detective file a
registration statement under the Securities Act, including a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision, covering the registration of Registrable Securities pursuant to this
Section 1.2, then Detective shall effect, as soon as practicable, and in any
event use its best efforts to effect within 60 days of such request, the
registration under the Securities Act of all Registrable Securities which Lynx
Parent requests to be registered and included in such registration, subject only
to the limitations of this Section 1.2.
(b) UNDERWRITING. If Lynx Parent intends to
distribute the Registrable Securities covered by its request by means of an
underwriting, then it shall so advise Detective as a part of its request made
pursuant to this Section 1.2. Lynx Parent shall (a) select the managing
underwriter to administer such offering after consultation with Detective and
subject to the approval of Detective, which approval shall not be unreasonably
withheld, and (b) enter into an underwriting agreement in customary form with
such managing underwriter. Notwithstanding any other provision of this Section
1.2, if the underwriter(s) advise(s) Detective in writing that marketing factors
require a limitation of the number of Registrable Securities which would
otherwise be registered and underwritten pursuant hereto Detective will so
advise Lynx Parent, and the number of securities that may be included in the
underwriting shall be reduced as required by the underwriter(s) and allocated
first, to Lynx Parent, second, to Detective, third, among all other Holders, on
a pro rata basis based on the number of Registrable Securities held by each such
Holder, and fourth, among all other holders of securities of Detective.
(c) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. Detective
is obligated to effect only three (3) such registrations for Lynx Parent
pursuant to this Section 1.2. Detective shall not be deemed to have effected a
registration pursuant to this Section 1.2 unless a registration statement in
respect thereof shall have been declared effective by the SEC and remains
effective for 120 days or such earlier time until all Registrable Securities
registered under such Registration Statement have been sold (or withdrawn from
such registration at the request of Lynx Parent).
(d) DEFERRAL; JURISDICTIONAL REQUIREMENTS.
Notwithstanding the foregoing, if Detective shall furnish to Lynx Parent a
certificate signed by the President or Chief Executive Officer of Detective
stating that it would be seriously detrimental to Detective and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, then Detective shall have the
right to defer such filing for a period of not more than 120 days after receipt
of the request of Lynx Parent or such earlier time as such a certificate could
no longer be given in good faith; PROVIDED, HOWEVER, that Detective may not
utilize this right more than once in any twelve (12) month period.
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(e) WITHDRAWN REQUEST. Lynx Parent may withdraw a
request for registration under this Section 1.2 at any time prior to the
effective date of the Registration Statement related to such registration, it
being understood that such withdrawn registration statement shall not count
toward the maximum number of registrations provided for in section 1.2(c).
1.3 PIGGYBACK REGISTRATIONS.
(a) Detective shall notify all Holders of Registrable
Securities in writing at least thirty (30) days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering
of securities of Detective (including, but not limited to, registration
statements relating to secondary offerings of securities of Detective, but
excluding registration statements on Form S-8 or S-4 or relating solely to any
employee benefit plan or an acquisition of any entity or business) and will
afford Holders, subject to the terms and conditions set forth herein, an
opportunity to include in such registration statement all or any part of the
Registrable Securities then held by Holders. Holders shall, within twenty (20)
days after receipt of the above-described notice from Detective, so notify
Detective in writing, and in such notice shall inform Detective of the number of
Registrable Securities each Holder wishes to include in such registration
statement. If a Holder decides not to include all of its Registrable Securities
in any registration statement filed by Detective, the Holder shall nevertheless
continue to have the right to include any Registrable Securities not included in
such registration statement in any subsequent registration statement or
registration statements as may be filed by Detective with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(b) UNDERWRITING. If a registration statement with
respect to which Detective gives notice under this Section 1.3 pertains to an
underwritten offering, then Detective shall so advise Holders. In such event,
the right of Holders to have the Registrable Securities included in a
registration pursuant to this Section 1.3 shall be conditioned upon Holders'
participation in such underwriting and the inclusion of the Registrable
Securities in the underwriting to the extent provided herein. Each Holder
proposing to sell Registrable Securities in such offering shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of
securities to be underwritten, then the managing underwriter(s) may, after
providing a written opinion of such determination to Detective and Holders,
exclude securities (including Registrable Securities) from the registration and
the underwriting, and the number of securities that may be included in the
registration and the underwriting shall be allocated, first, to Detective,
second, to Lynx Parent, third between the other Holders, on a pro-rata basis
based on the number of Registrable Securities held by each such Holder and
fourth to any other holders of Detective's securities, provided that if the
registration is a registration pursuant to Section 1.2, the "cut-back"
provisions described in the last sentence of Section 1.2(b) shall apply. If a
Holder disapproves of the terms of any such underwriting, a Holder may elect to
withdraw therefrom by written notice to Detective and the
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managing underwriter(s), delivered at least ten (10) Business Days prior to the
effective date of the registration statement or if notified of the terms
thereafter, promptly after such notification. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
1.4 FORM S-3 REGISTRATION. In case Detective shall receive
from Lynx Parent a written request or requests that Detective effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by Lynx Parent or
its Affiliates, then Detective will:
(a) REGISTRATION. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of Lynx Parent's or its Affiliates' Registrable Securities as are
specified in such request, PROVIDED, HOWEVER, that Detective shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 1.4:
(1) if Form S-3 is not available for such
offering by Lynx Parent; or
(2) if Detective shall furnish to Lynx
Parent a certificate signed by the President or Chief Executive Officer of
Detective stating that it would be seriously detrimental to Detective and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event Detective shall have the right to defer the filing of the Form S-3
registration statement, no more than once during any twelve month period, for a
period of not more than one hundred twenty (120) days after receipt of the
request of Lynx Parent under this Section 1.4 or such earlier time as such a
certificate could no longer be given in good faith.
(b) NOT DEMAND REGISTRATION. Form S-3 registrations
shall not be deemed to be demand registrations as described in Section 1.2
above.
(c) WITHDRAWN REQUEST. Lynx Parent may withdraw a
request for registration under this Section 1.4 at any time prior to the
effective date of the Registration Statement related to such registration.
1.5 OBLIGATIONS OF DETECTIVE. Whenever required to effect the
registration of any Registrable Securities under this Agreement, Detective
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities, use its best efforts to
cause such registration statement to become effective as soon as practicable and
with respect to registrations effected pursuant to Sections 1.2, 1.3 and 1.4
keep such registrations effective for up to one hundred twenty (120) days (other
than in the case of a "shelf" registration under Rule 415 under the Securities
Act in which case
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Detective shall keep such "shelf" registration current at all times), excluding
any lock-up period, or such shorter period of time as is agreed to in writing by
Detective and each applicable Holder.
(b) For such period of time as shall be required in
connection with the transactions contemplated thereby and permitted by
applicable rules, regulations and administrative practice of the SEC (but not
for more than 120 days from the effective date thereof), file such
post-effective amendments and supplements to such registration statement as
shall be necessary so that neither such registration statement nor any related
Prospectus shall contain any material misstatement or omission relative to
Detective or any of its assets or liabilities or its businesses or affairs and
will otherwise comply with all applicable federal, state and foreign securities
laws.
(c) Furnish to the Holder such number of copies of a
Prospectus, including a preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it that are included in such registration.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that Detective 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 unless already subject
thereto.
(e) If requested by the underwriters for any
underwritten offering by a Holder pursuant to any registration requested under
Section 1.2 or 1.4, Detective shall enter into an underwriting agreement with
such underwriters for such offering, such agreement to be satisfactory in form
and substance to such Holder and to contain such representations and warranties
by Detective and such other terms and provisions (including, without limitation,
provisions for indemnification of such underwriters by Detective) as are
customarily contained in such underwriting agreements. The Holder shall be a
party to such underwriting agreement and may, at its option, require that any or
all of the representations and warranties by, and the agreements on the part of,
Detective to and for the benefit of such underwriters be made to and for the
benefit of such Holder and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holder.
(f) Notify the Holders promptly, (i) of the time such
registration statement becomes effective or when any amendment or supplement or
prospectus forming a part of such registration statement has been filed or
becomes effective, (ii) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of a registration
statement for amendments or supplements to such registration statement or
related Prospectus or for additional information, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a registration
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statement or the initiation or threatening of any proceedings for that purpose
(and Detective will use its best efforts to prevent the issuance of any such
stop order or to obtain its withdrawal promptly if such stop order should be
issued), (iv) of the receipt by Detective 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, (v) of the happening of any
event which makes any statement made in a registration statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in the registration statement or Prospectus so that, in the case of a
registration statement, it will not contain any untrue statement of a material
fact required to be stated therein or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and that in the case of the Prospectus, 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 the light of the
circumstances under which they were made, not misleading and, at the reasonable
request of a Holder, Detective shall also promptly prepare and file with the SEC
and make available to such Holder any supplement or amendment reasonably
necessary so that neither such registration statement nor any related Prospectus
shall contain any material misstatement or omission as a result of such event
(provided that the 120 day period referred to in Section 1.2, 1.3 or 1.4 shall
be extended by the period from which Detective gives the notice specified in
this clause until such supplement or amendment is made available to such
Holder), and (vi) of Detective's reasonable determination that a post-effective
amendment to a registration statement would be appropriate; except that notice
of an event or determination referred to in (v) or (vi) above need be made only
if a registration statement relating to Registrable Securities is then in
effect.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the effective date of the
Registration Statement, (i) an opinion, dated as of such date, of the counsel
representing Detective for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to the Holder requesting registration, and
(ii) a "comfort" letter dated as of such date, from the independent certified
public accountants of Detective, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to the Holder requesting
registration.
(h) Provide for the listing of the Registrable
Securities on the stock exchange or authorization for trading on automated
quotation system on which the Registrable Securities' class of securities are
then listed or quoted; PROVIDED, HOWEVER, nothing contained herein shall
obligate Detective to have listed any Registrable Securities which are of a
class of securities of Detective not then listed on a stock exchange or
authorized for trading on an automated quotation system.
(i) Make available for inspection by the Holder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney,
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accountant or other professional retained by the Holder or such underwriter
(collectively, the "INSPECTORS"), all financial and other records, pertinent
corporate documents and properties of Detective (collectively, the "RECORDS") as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause Detective's officers, directors and employees to
supply all information reasonably requested by any such Inspector in connection
with such registration statement.
1.6 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of Detective to take any action pursuant to Sections 1.2, 1.3 or
1.4 with respect to any particular Holder that such Holder shall furnish to
Detective such information regarding such Holder, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
be required to timely effect the registration of its Registrable Securities.
1.7 EXPENSES. All expenses incurred in connection with a
registration pursuant to Sections 1.2, 1.3 and 1.4, including without limitation
all registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for Detective, and the reasonable fees and
disbursements of one counsel for the selling Holders to be selected by Lynx
Parent (but excluding underwriters' discounts and commissions), shall be borne
by Detective. Each Holder participating in a registration pursuant to Section 1
shall bear such Holder's proportionate share (based on the total number of
shares sold in such registration other than for the account of Detective) of all
discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering.
1.8 INDEMNIFICATION. In the event any registration statement
is filed by Detective:
(a) BY DETECTIVE. To the extent permitted by law,
Detective will indemnify and hold harmless each Holder, each officer and
director of a Holder, any agent or underwriter (as defined in the Securities
Act) for the Holder and each person (as defined in Section 2(2) of the
Securities Act), if any, who controls such Holder or such underwriter within the
meaning of Section 15 of the Securities Act or the Section 20 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") or any similar federal
statute then in effect, against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or in any amendments or supplements thereto;
(ii) the omission or alleged omission to state in
such registration statement, including any preliminary
prospectus or final prospectus contained
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therein or in any amendments or supplements thereto, a
material fact required to be stated therein, or necessary to
make the statements therein not misleading (in the case of any
preliminary prospectus or final prospectus, in the light of
the circumstances under which they are made); or
(iii) any violation or alleged violation by Detective
of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such
registration statement;
and Detective will reimburse each Holder, each officer or director of a Holder,
and each such agent, underwriter or controlling person for any legal or other
expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this subsection
1.8(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of Detective (which consent shall not be unreasonably withheld), nor shall
Detective be liable in any such case for any such loss, claim, damage or
liability to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder, or by
such officer, director, agent, underwriter or controlling person of such Holder;
PROVIDED, FURTHER, however, the indemnification rights provided for in this
Section 1.8(a) with respect to a registration statement shall not apply to any
Holder other than Lynx Parent or its designees, unless such Holder has included
any of its Registrable Securities in such registration statement.
(b) BY SELLING HOLDERS. To the extent permitted by
law, each selling Holder, if any, will severally and not jointly indemnify and
hold harmless Detective, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who controls Detective
within the meaning of the Securities Act or the Exchange Act, as applicable, and
any agent or underwriter, against any losses, claims, damages or liabilities
(joint or several) to which Detective or any such director, officer, controlling
person, agent or underwriter may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information concerning such Holder furnished by such Holder expressly for use in
connection with such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by Detective or any such director,
officer, controlling person, underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action to the extent that
(and only to the extent that) such Violation occurs in reliance upon and in
conformity with written information concerning such Holder furnished by such
Holder for use in connection therewith; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 1.8(b) shall not apply to amounts paid in
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settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of Lynx Parent, which consent shall
not be unreasonably withheld; and PROVIDED FURTHER, that the total amounts
payable in indemnity by a Holder under this Section 1.8(b) in respect of any
Violation shall not exceed the net proceeds received by such Holder in the
registered offering out of which such Violation arises.
(c) NOTICE. Promptly after receipt by an indemnified
party under this Section 1.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.8, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; PROVIDED,
HOWEVER, that 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 conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.8 except to the extent that the
indemnifying party is actually prejudiced by the failure to give such notice. In
addition, the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.8. The indemnification provided in this
Section 1.8 shall remain in full force and effect, regardless of any
investigation made by or on behalf of any indemnified party, and shall survive
the transfer of any Registrable Securities being registered pursuant to Section
1.2, 1.3 or 1.4.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The
foregoing indemnity agreements of Detective and Holders are subject to the
limitation that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or in
the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"FINAL PROSPECTUS"), such indemnity agreements shall not inure to the benefit of
a selling Holder (or any officer or director of a selling Holder or any such
agent, underwriter or controlling Person of a Holder) if a copy of the Final
Prospectus was timely furnished to the indemnified party, and was not furnished
to the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act; PROVIDED, HOWEVER, that this
subparagraph (d) shall not apply with respect to any underwritten offering.
(e) CONTRIBUTION. 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 (and/or
any officer, director, agent, underwriter or
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controlling person who may be indemnified under Section 1.8(a)) makes a claim
for indemnification pursuant to this Section 1.8 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 1.8 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling Holder (and/or any officer, director, underwriter or controlling person
who may be indemnified under Section 1.8(b)) in circumstances for which
indemnification is provided under this Section 1.8; then, and in each such case,
Detective and such Holder (and/or such other person) will contribute to the
aggregate losses, claims, damages and expenses or liabilities to which they may
be subject (after contribution from others) in proportion to their relative
fault. The relative fault of Detective and a Holder shall be determined by
reference to, among other things, whether the untrue or alleged omission of a
material fact relates to information supplied by Detective or by such Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Detective and the Holder agree
that it would not be just and equitable if contribution pursuant to this Section
1.8(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the two immediately preceding sentences; PROVIDED, HOWEVER, that in no
event, except in instances of fraud by a Holder in which there is no limitation,
(i) shall such Holder be responsible for more than the portion represented by
the percentage that the public offering price of the Registrable Securities of
such Holder offered by and sold under the registration statement bears to the
public offering price of all securities offered by and sold under such
registration statement and (ii) shall such Holder be required to contribute any
amount in excess of the public offering price of all such securities offered and
sold by such Holder pursuant to such registration statement; and in any event,
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) SURVIVAL. The obligations of Detective and
Holders under this Section 1.8 shall survive the completion of any offering of
Registrable Securities in a registration statement or otherwise.
1.9 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the SEC which may at any time
permit the sale of the Registrable Securities to the public without
registration, for so long as Holders own any Registrable Securities, Detective
agrees to:
(a) Make and keep adequate, current public
information available, as required by and defined in Rule 144, at all times;
(b) Use its best efforts to file with the SEC in a
timely manner all reports and other documents required of Detective under the
Exchange Act;
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(c) So long as a Holder owns any Registrable
Security, furnish to the Holder forthwith upon request a written statement by
Detective as to its compliance with the reporting requirements of said Rule 144,
a copy of the most recent annual or quarterly report of Detective, and such
other reports and documents of Detective as a Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing a stockholder of
Detective to sell any such securities without registration; and
(d) Take such further action as a Holder may
reasonably request.
1.10 TERMINATION OF DETECTIVE'S OBLIGATIONS. Detective shall
have no obligations to register Registrable Securities (i) if all Registrable
Securities have been registered and sold pursuant to registrations effected
pursuant to this Agreement, or (ii) at such time as all outstanding Registrable
Securities may be sold within a three-month period under Rule 144, as it may be
amended from time to time, including but not limited to amendments that reduce
that period of time that securities must be held before such securities may be
sold pursuant to such rule.
1.11 REVIEW. Lynx Parent shall have the right to require the
insertion in any registration statement filed by Detective of language, in form
and substance satisfactory to Lynx Parent, to the effect that the holding by
Lynx Parent of any Registrable Securities is not to be construed as a
recommendation by Lynx Parent of the investment quality of the securities of
Detective and that such holding does not imply that Lynx Parent will assist in
meeting any future financial requirements of Detective. Detective covenants that
it will not file any registration statement under the Securities Act unless it
shall first have given notice thereof to Lynx Parent. Detective further
covenants that Lynx Parent shall have the right prior to filing with the SEC, to
receive copies of such registration statement and any amendment thereof or
supplement thereto and any prospectus forming a part thereof in a timely fashion
to enable them to participate in the preparation of such registration statement,
amendment, supplement or prospectus and to request the insertion therein of
material furnished in timely fashion (not to exceed ten Business Days from the
date of receipt of such material) in writing to Detective, which in Lynx
Parent's judgment should be included therein.
2. ASSIGNMENT.
2.1 ASSIGNMENT. Notwithstanding anything herein to the
contrary, the registration rights of a Holder under Section 1 hereof shall be
freely assignable to any person (an "ASSIGNEE"); PROVIDED, HOWEVER, that (a) no
party may be assigned any of the foregoing rights until Detective is given
written notice by the assigning party stating the name and address of the
Assignee and identifying the securities of Detective as to which the rights in
question are being assigned and (b) any such Assignee shall receive such
assigned rights subject to all the terms and conditions of this Agreement,
including without limitation the provisions of this Section 2.
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3. GENERAL PROVISIONS.
3.1 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by overnight courier service, by cable, by facsimile, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 3.1):
(a) if to Detective:
Data Broadcasting Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to:
Camhy Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Annex, Esq.
Telecopier: (000) 000-0000
(b) if to Lynx Parent:
c/o Pearson Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Gold, Esq.
Telecopier: (000) 000-0000
(c) If to any other Holder, at such Holder's
respective address as set forth in Detective's share register.
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3.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, with
respect to the subject matter hereof and thereof and except as otherwise
expressly provided herein.
3.3 AMENDMENT OF RIGHTS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of Detective and Lynx Parent (and /or any of their permitted
successors or assigns pursuant to Section 2.1).
3.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of Delaware. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in a Delaware state or federal court sitting in the State of
Delaware, and the parties hereto hereby irrevocable submit to the exclusive
jurisdiction of such courts in any such action or proceeding and irrevocably
waive the defense of an inconvenient forum to the maintenance of any such action
or proceeding.
3.5 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
3.6 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the
sole benefit of the parties hereto and their permitted assigns and nothing
herein (other than as set forth in Section 1.8), express or implied, is intended
to or shall confer upon any other Person or entity any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
3.7 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Section 2.1, the provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
3.8 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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3.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this Agreement.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
XXXXXXX LONGMAN, INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Person
DATA BROADCASTING CORPORATION
By: /s/ XXXX X. XXXXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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