AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
May 15, 1997
To each of the persons and entities listed on Schedule I hereto:
Ladies and Gentlemen:
Whereas you have purchased or are purchasing or have rights under the
Warrants identified on Schedule II (the Warrants ) to purchase from Xxxxxxx
Corporation, a Delaware corporation (the Company ) shares (the Series A
Preferred Shares ) of Series A Convertible Preferred Stock, $.01 par value, of
the Company (the Series A Preferred Stock ), shares (the Series B Preferred
Shares ) of Series B Convertible Preferred Stock, $.01 par value, of the Company
(the Series B Preferred Stock ), shares (the Series C Preferred Shares ) of
Series C Convertible Preferred Stock, $.01 par value, of the Company (the Series
C Preferred Stock ) or shares (the Series D Preferred Shares ) of Series D
Convertible Preferred Stock, $.01 par value, of the Company (the Series D
Preferred Stock ) (such Series A Preferred Shares, Series B Preferred Shares,
Series C Preferred Shares and Series D Preferred Shares being hereinafter
collectively referred to as the Preferred Shares and such Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock being hereinafter collectively referred to as the Preferred Stock ) and/or
have rights to purchase shares of Common Stock (as defined below) or Preferred
Shares pursuant to the Warrants, the Company covenants and agrees with each of
you as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued or
exercisable upon conversion of the Preferred Shares or exercise of the
Warrants.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Registration Expenses" shall mean the expenses so described in
Section 8.
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"Restricted Stock" shall mean the Conversion Shares, excluding
Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and
disposed of in accordance with the registration statement covering them or
(b) publicly sold pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 8.
2. Restrictive Legend. Each certificate representing Preferred
Shares, Warrants or Conversion Shares shall, except as otherwise provided in
this Section 2 or in Section 3, be stamped or otherwise imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT AND
ALL SUCH APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP shall be satisfactory) the securities represented thereby may be publicly
sold without registration under the Securities Act and any applicable state
securities laws.
3. Notice of Proposed Transfer. Prior to any proposed transfer
of any Preferred Shares, Warrants or Conversion Shares (other than under the
circumstances described in Sections 4, 5 or 6), the holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel satisfactory to
the Company (it being agreed that Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall be
satisfactory) to the effect that the proposed transfer may be effected without
registration under the Securities Act and any applicable state securities laws,
whereupon the holder of such stock shall be entitled to transfer such stock in
accordance with the terms of its notice; provided, however, that no such opinion
of counsel shall be required for a transfer to one or more partners of the
transferor (in the case of a transferor that is a partnership) or to an
affiliated corporation (in the case of a transferor that is a corporation). Each
certificate for Preferred Shares, Warrants or Conversion Shares transferred as
above provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such
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securities in a public sale without registration under the Securities Act. The
restrictions provided for in this Section 3 shall not apply to securities which
are not required to bear the legend prescribed by Section 2 in accordance with
the provisions of that Section.
4. Required Registration. (a) At any time beginning 180 days
after the Company=s initial underwritten public offering or, if earlier, on June
30, 2000, the holders of Restricted Stock constituting at least a majority of
the total shares of Restricted Stock then outstanding may request the Company to
register under the Securities Act all or any portion of the shares of Restricted
Stock held by such requesting holder or holders for sale in the manner specified
in such notice, provided that the shares of Restricted Stock for which
registration has been requested shall constitute at least a majority of the
total shares of Restricted Stock originally issued. For purposes of this Section
4 and Sections 5, 6, 14(b) and 14(e), the term "Restricted Stock" shall be
deemed to include the number of shares of Restricted Stock which would be
issuable to a holder of Preferred Shares or Warrants upon full conversion of all
Preferred Shares and/or Warrants held by such holder at such time, provided,
however, that the only securities which the Company shall be required to
register pursuant hereto shall be shares of Common Stock, and provided, further,
however, that, in any underwritten public offering contemplated by this Section
4 or Sections 5 and 6, the holders of Preferred Shares and/or Warrants shall be
entitled to sell such Preferred Shares and/or Warrants to the underwriters for
conversion and sale of the shares of Common Stock issued upon conversion
thereof. Notwithstanding anything to the contrary contained herein, no request
may be made under this Section 4 within 120 days after the effective date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering in which the holders of Restricted Stock shall have
been entitled to join pursuant to Sections 5 or 6.
(b) Following receipt of any notice under this Section 4, the
Company shall immediately notify all holders of Restricted Stock from whom
notice has not been received 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, the number of shares of
Restricted Stock specified in such notice (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public offering
the Company will designate the managing underwriter of such offering, which
managing underwriter shall be reasonably acceptable to a majority of the holders
selling Restricted Stock in such offering. The Company shall be obligated to
register Restricted Stock pursuant to this Section 4 on two occasions only,
provided, however, that such obligation shall be deemed satisfied only when a
registration statement covering all shares of Restricted Stock specified in
notices received as aforesaid, for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective
and, if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto, subject to any
applicable underwriters= cutbacks.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account,
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except as and to the extent that, in the opinion of the managing underwriter (if
such method of disposition shall be an underwritten public offering), such
inclusion would adversely affect the marketing of the Restricted Stock to be
sold. Except for registration statements on Form X-0, X-0 or any successor
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 requesting
holders pursuant to this Section 4 until the completion of the period of
distribution of the registration contemplated thereby; provided, however, that
if at the time any written request for registration is received by the Company
pursuant to this Section 4, the Company has determined to proceed with the
actual preparation and filing of a registration statement under the Securities
Act in connection with the proposed offer and sale for cash of any of its
securities by it or any of its security holders, such written request shall be
deemed to have been given pursuant to Section 5 or 6 hereof rather than this
Section 4, and the rights of the holders of Restricted Stock covered by such
written request shall be governed by Section 5 or 6 hereof; provided, further,
however, that if the Company does not file its registration statement within 90
days after such written request, the Company shall immediately thereafter file a
registration statement pursuant to the written request in accordance with the
provisions of this Section 4.
5. Incidental Registration. If the Company at any time (other
than pursuant to Section 4 or Section 6) proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention so to do. Upon the written request of any such holder,
received by the Company within 30 days after the giving of any such notice by
the Company, to register any of its Restricted Stock, the Company will use its
best efforts to cause the Restricted Stock as to which registration shall have
been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
Restricted Stock so registered. In the event that any registration pursuant to
this Section 5 shall be, in whole or in part, an underwritten public offering of
Common Stock, the number of shares of Restricted Stock to be included in such an
underwriting may be reduced (pro rata among the requesting holders based upon
the number of shares of Restricted Stock owned by such holders) if and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein, provided, however, that such number of shares of Restricted Stock shall
not be reduced if any shares are to be included in such underwriting for the
account of any person other than the Company or requesting holders of Restricted
Stock. Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 5 without thereby incurring
any liability to the holders of Restricted Stock.
6. Registration on Form S-3. If at any time (i) a holder or
holders of Preferred Shares, Warrants or Restricted Stock 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 Restricted Stock held by
such requesting holder or holders, the reasonably anticipated
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aggregate price to the public of which would exceed $1,000,000, and (ii) the
Company is a registrant entitled to use Form S-3 or any successor 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 Restricted Stock specified in such notice, provided,
however, that the Company shall not be required to effect a registration
pursuant to this Section 6 more than once in any 12-month period. Whenever the
Company is required by this Section 6 to use its best efforts to effect the
registration of Restricted Stock, each of the procedures and requirements of
Section 4 (including but not limited to the requirement that the Company notify
all holders of Restricted Stock from whom notice has not been received and
provide them with the opportunity to participate in the offering) shall apply to
such registration, provided, however, that there shall be no limitation on the
number of registrations on Form S-3 which may be requested and obtained under
this Section 6, and provided, further, however, that the requirements contained
in the first sentence of Section 4(a) shall not apply to any registration on
Form S-3 which may be requested and obtained under this Section 6.
7. Registration Procedures. If and whenever the Company is
required by the provisions of Sections 4, 5 or 6 to use its best efforts to
effect the registration of any shares of Restricted Stock under the Securities
Act, the Company will, as expeditiously as possible:
(a) prepare (and afford one counsel for the sellers of
Restricted Stock the opportunity to review and comment thereon) and file with
the Commission a registration statement (which, in the case of an underwritten
public offering pursuant to Section 4, shall be on Form S-1, or on Form S-3 if
the Company is eligible to so file, or on another form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford one counsel for the sellers of
Restricted Stock the opportunity to review and comment thereon) and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period specified in paragraph (a) above
and comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock covered by such registration statement in
accordance with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter
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reasonably shall request, provided, however, that the Company shall not for any
such purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock, use its best efforts to furnish on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (C) to such other
effects as reasonably may be requested by counsel for the underwriters or by
such seller or its counsel and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
and
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
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For purposes of Section 7(a) and 7(b) and of Section 4(c), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 4, 5
or 6 covering an underwritten public offering, the Company and each seller agree
to enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in complying
with Sections 4, 5 and 6, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, but excluding any
Selling Expenses, are called "Registration Expenses". All costs of insurance and
fees and disbursements of counsel for the sellers of Restricted Stock,
underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement under Sections 4, 5 or 6. All Selling Expenses
in connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution. (a) In the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Sections 4, 5 or 6, the Company will indemnify and hold harmless each seller of
such Restricted Stock thereunder, each underwriter of such Restricted Stock
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement
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thereof, 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 not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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 not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
provided, further, however, that the liability of each seller 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 seller 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 seller from the sale of Restricted Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it
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from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(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 of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 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 9 provides for indemnification in such case, or (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 is
provided under this Section 9; then, and in each such case, the Company and 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 Restricted Stock offered by the
registration statement bears to the public offering 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 such holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) 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.
10. Changes in Common Stock or Preferred Stock. If, and as
often as, there is any change in the Common Stock, Warrants or Preferred Stock
by way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common
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Xxxxx, Xxxxxxxx or the Preferred Stock as so changed and shall apply to any
securities received in any such transaction, including the securities of an
issuer other than the Company that may be issued to holders of Common Stock in a
merger transaction.
11. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Stock to the public without registration,
at all times after 90 days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
12. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any order of any court or other agency of government, the
Charter or By-laws of the Company or any provision of any indenture, agreement
or other instrument to which it or any or its properties or assets is bound,
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws of general application affecting enforcement of creditors= rights
and except as to enforceability of the indemnification and contribution
provisions.
13. Termination of Prior Registration Rights Agreement. By
entering into this Amended and Restated Registration Rights Agreement, each of
the parties hereto terminate that
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certain Registration Rights Agreement dated June 18, 1996, as amended, entered
into by them and each of them releases all existing rights, or rights which may
have come into existence, of any kind thereunder.
14. Miscellaneous.
(a) This Agreement constitutes the sole and entire agreement
of the parties with respect to the subject matter hereof.
(b) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Preferred Shares, Warrants or Restricted
Stock), whether so expressed or not, provided, however, that registration rights
conferred herein on the holders of Preferred Shares, Warrants or Restricted
Stock shall only inure to the benefit of a transferee of Preferred Shares,
Warrants or Restricted Stock if (i) there is transferred to such transferee at
least 40% of the total shares of Restricted Stock originally issued pursuant to
either the Convertible Preferred Stock Purchase Agreement dated as of June 18,
1996 or the Convertible Preferred Stock Purchase Agreement dated as of the date
hereof to the direct or indirect transferor of such transferee or (ii) such
transferee is a partner, shareholder or affiliate (including without limitation
persons under common control) of a party hereto.
(c) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed as follows:
if to the Company, to the Company headquarters, currently located at
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000;
if to any holder of Preferred Shares, Restricted Stock or Warrants, to the
address of such party set forth on Schedule I hereto;
if to any subsequent holder of Preferred Shares, Restricted Stock or
Warrants, to it at such address as may have been furnished to the Company
in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Preferred Shares, Warrants
or Restricted Stock) or to the holders of Preferred Shares, Warrants or
Restricted Stock (in the case of the Company) in accordance with the provisions
of this paragraph.
(d) This Agreement shall be governed by and construed in
accordance with the laws of Massachusetts.
-12-
(e) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
the holders of at least two-thirds of the outstanding shares of Restricted
Stock.
(f) 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.
(g) The obligations of the Company to register shares of
Restricted Stock under Sections 4, 5 or 6 shall terminate on the tenth
anniversary of the date of this Agreement.
(h) If requested in writing by the underwriters for the
initial underwritten public offering of securities of the Company, each holder
of Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering), without the consent of such underwriters, for a
period of not more than 180 days following the effective date of the
registration statement relating to such offering; provided, however, that all
persons entitled to registration rights with respect to shares of Common Stock
who are not parties to this Agreement, all other persons selling shares of
Common Stock in such offering, all persons holding in excess of 5% of the
capital stock of the Company on a fully-diluted basis and all executive officers
and directors of the Company shall also have agreed not to sell publicly their
Common Stock under the circumstances and pursuant to the terms set forth in this
Section 13(g).
(i) Notwithstanding the provisions of Section 7(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed 90 days in any 12-month period if there exists at the time
material non-public information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed.
(j) The Company shall not grant to any third party any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remains in effect.
(k) 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[Signature Page to Amended and Restated Registration Rights Agreement]
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Amended and Restated
Registration Rights Agreement shall be a binding agreement between the Company
and you.
Very truly yours,
XXXXXXX CORPORATION
/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
President
[Signature Page to Amended and Restated Registration Rights Agreement]
AGREED TO AND ACCEPTED as of the date
first above written.
BancBoston Ventures Inc.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------
Title: V.P
-----------------------------
Polaris Venture Partners, L.P.
By: Polaris Venture Management Co., L.L.C.
Its General Partner
By:
-------------------------------------
Member
Polaris Venture Partners Founders= Fund, L.P.
By: Polaris Venture Management Co., L.L.C.
Its General Partner
By:
------------------------------------
Member
[Signature Page to Amended and Restated Registration Rights Agreement]
AGREED TO AND ACCEPTED as of the date
first above written.
BancBoston Ventures Inc.
By:
----------------------------------
Name:
-----------------------------
Title:
-----------------------------
Polaris Venture Partners, L.P.
By: Polaris Venture Management Co., L.L.C.
Its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Member
Polaris Venture Partners Founders= Fund, L.P.
By: Polaris Venture Management Co., L.L.C.
Its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Member
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By: /s/ Xxx Xxxxxxx
----------------------------------
Its: CEO/Managing Director
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Its: VP Finance
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
WA&H Investment, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
Its Managing Member
By:
-----------------------------------
Its:
Rosewood Stone Group, Inc.
By:
------------------------------------
Its:
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Pension Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
Boston Safe Deposit and Trust Company as
Trustee of the U S WEST Benefit Assurance Trust
By:
------------------------------------
Xxxxxxx X. Xxxx
Vice President
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx Xxxxx
---------------------------------------
Xxxxxxxx Xxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
Comdisco, Inc.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
Xxxxxx/Xxxxxx Associates, Inc.
By:
------------------------------------
Name:
Title:
[Signature Page to Amended and Restated Registration Rights Agreement]
Comdisco, Inc.
By:
------------------------------------
Name:
Title:
Xxxxxx/Xxxxxx Associates, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
[Signature Page to Amended and Restated Registration Rights Agreement]
Dated: June 13, 1997 BENEFIT CAPITAL MANAGEMENT
CORPORATION AS INVESTMENT
MANAGER FOR THE PRUDENTIAL
INSURANCE COMPANY OF
AMERICA, SEPARATE ACCOUNT
NUMBER VCA-GA-5298
By: /s/ Xxx XxXxxxx
----------------------------------
Xxx XxXxxxx
Xx. Vice President,
Chief Financial Officer of
Benefit Capital Management Corporation
SCHEDULE 1
----------
BancBoston Ventures Inc.
Mezzanine & Equity Financing
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Polaris Venture Partners, L.P.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Polaris Venture Partners Founders= Fund, L.P.
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
WA&H Investment, L.L.C.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
U S WEST Pension Trust
c/o Boston Safe Deposit and
Trust as Trustee
Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
U S WEST Benefit Assurance Trust
c/o Boston Safe Deposit and Trust
as Trustee
Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
Rosewood Stone Group, Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
00000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxx
00000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxx
Xxxxx Enterprises, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Comdisco, Inc.
Xxx Xxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Xxxxxx Xxxxxx Associates, Inc.
000 Xxxxxxxxx Xxxx., Xxx. 000
Xxxxxxxx, Xxx Xxxx 00000
Benefit Capital Management
Corporation as Investment
Manager for the Prudential
Insurance Company of
America, Separate Account
Number VCA-GA-5298
00 Xxx Xxxxxxxxx Xxxx
Section E-2
Xxxxxxx, XX 00000
Schedule II
1. Warrant Agreement To Purchase Shares of Series A Convertible Preferred Stock
of Xxxxxxx Corp., dated as of December 30, 1996, granted to Comdisco, Inc.
2. Warrant to Subscribe for and Purchase Common Stock of Xxxxxxx Corp., dated
March 7, 1997, granted to Polaris Venture Partners, L.P.
3. Warrant to Subscribe for and Purchase Common Stock of Xxxxxxx Corp., dated
March 7, 1997, granted to Polaris Venture Partners Founders Fund, L.P.
4. Common Stock Purchase Warrant dated May 14, 1996, issued by Xxxxxxx Corp. to
Xxxxxx X. Xxxxxx.
5. Common Stock Purchase Warrant dated May 30, 1996, issued by Xxxxxxx Corp. to
Xxxxxxx X. Xxxxxxxx.
