EXHIBIT 4.2
INKTOMI CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made as of August
13, 2002, between Inktomi Corporation, a Delaware corporation ("Parent"), and
the undersigned stockholders (individually, a "Stockholder" and collectively,
the "Stockholders") of Quiver Inc., a Delaware corporation ("Company"), which
Stockholders are acquiring shares of Parent Common pursuant to and as a result
of that Amended and Restated Agreement and Plan of Reorganization, dated as of
August 9, 2002 (the "Merger Agreement"), by and among Parent, Company, and
Tigger Acquisition Corporation, a Delaware corporation and wholly owned
subsidiary of Parent.
1. Definitions. Any capitalized term not otherwise defined herein shall
have the meanings ascribed to such term in the Merger Agreement. As used in this
Agreement:
(a) "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended.
(b) "Holder" means (i) a Stockholder or (ii) a transferee to whom
registration rights granted under this Agreement are assigned pursuant to
Section 8(a) of this Agreement. A Holder does not include any holder of any
option, warrant or other right to acquire Company Capital Stock which was not
exercised on or before the Effective Time.
(c) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as defined below), and the declaration or
ordering of the effectiveness of such registration statement.
(d) "Registration Expenses" shall mean all expenses incurred in
complying with Section 2 of this Agreement, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for Parent, blue sky fees and expenses,
accounting fees of the Company and the expense of any special audits incident to
or required by any such registration; provided, however, Registration Expenses
shall not include any selling commissions, transfer taxes or fees and
disbursements of any Holder's counsel (which expenses shall be borne by the
Holder incurring such expense and not by Parent).
(e) "Registrable Securities" means, for each Holder, the number
of shares of Parent Common issued to such Holder pursuant to the Merger
Agreement; provided, however, that such shares of Parent Common shall cease to
be Registrable Securities at such time as (i) they have been registered for
resale pursuant to a prospectus included in the effective registration statement
contemplated pursuant to Section 2 hereof, which Registration Statement has been
effective for the period specified in Section 2(b), or (ii) they are otherwise
available for resale under Rule 144 of the Securities Act within a single 90 day
period.
(f) "SEC" means the United States Securities and Exchange
Commission.
(g) "Securities Act" shall mean the United States Securities Act
of 1933, as amended.
2. Holder Registration.
(a) Parent shall use commercially reasonable efforts to cause the
Registrable Securities held by the Holders to be registered under the Securities
Act so as to permit the resale thereof, and in connection therewith shall
prepare and file with the SEC within ten (10) days following the Effective Time
a registration statement on Form S-3 covering the Registrable Securities;
provided, however, if Parent shall furnish to the Holders a certificate signed
by an executive officer of Parent stating that, in the good faith judgment of
the Board of Directors of Parent, it would be detrimental to Parent or its
stockholders for such registration statement to be filed within such ten (10)
day period, then, Parent's obligation to use commercially reasonable efforts to
file a registration statement under this Section 2(a) shall be deferred for a
period not to exceed 90 days from the date of delivery of such certificate;
provided further, that the Company may only defer the filing of the registration
statement one time. The offerings made pursuant to such registration shall not
be underwritten.
(b) Parent shall (i) prepare and file with the SEC the
registration statement in accordance with Section 2 hereof with respect to the
Registrable Securities and shall use commercially reasonable efforts to cause
such registration statement to become effective as promptly as practicable after
filing and to keep such registration statement effective until the sooner to
occur of (A) the date on which all Registrable Securities included within such
registration statement have been sold or (B) the expiration of ninety (90) days
after the later of (1) the day on which such registration statement has been
declared effective and (2) the date two days after the Parent's exchange agent
first mailed certificates representing shares of Parent Common to the Holders;
(ii) prepare and file with the SEC such amendments to such registration
statement and amendments or supplements to the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities registered
by such registration statement; (iii) furnish to each Holder such number of
copies of any prospectus (including any amended or supplemented prospectus) in
conformity with the requirements of the Securities Act, and such other
documents, as each Holder may reasonably request in order to effect the offering
and sale of the Registrable Securities to be offered and sold, but only while
Parent shall be required under the provisions hereof to cause the registration
statement to remain effective; (iv) use commercially reasonable efforts to
register or qualify the Registrable Securities covered by such registration
statement under the securities or blue sky laws of such jurisdictions as each
Holder shall reasonably request (provided that Parent 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 jurisdiction where it
has not been qualified), and do any and all other acts or things which may be
necessary or advisable to enable each Holder to consummate the public sale or
other disposition of such Registrable Securities in such jurisdictions; and (v)
notify each Holder, promptly after it shall receive notice thereof, of the date
and time the registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed.
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3. Sales Under Prospectus.
(a) Suspension of Prospectus. Under any registration statement
filed pursuant to Section 2 hereof, Parent may restrict the disposition of the
Registrable Securities, and the Holders will not be able to dispose of such
Registrable Securities, if Parent shall have delivered a notice in writing to
the Holders stating that a delay in the disposition of such Registrable
Securities is necessary because Parent, in its reasonable judgment and upon the
advice of counsel, has determined that such sales would require public
disclosure by Parent of material nonpublic information that is not included in
such registration statement. In the event of the delivery of the notice
described above by Parent, Parent shall use commercially reasonable efforts to
amend such registration statement and/or amend or supplement the related
prospectus if necessary and to take all other actions necessary to allow the
proposed sale to take place as promptly as possible, subject, however, to the
right of Parent to delay further sales of Registrable Securities until the
conditions or circumstances referred to in the notice have ceased to exist or
have been disclosed. Such right to defer sales of Registrable Securities shall
not exceed 90 days less the number of days, if any, the Company delayed the
filing of the registration statement pursuant to Section 2(a). Any such delay
shall result in a corresponding extension of the period of time that Parent is
required to maintain the effectiveness of the registration statement under
Section 2.
(b) Intentionally Omitted.
4. Indemnification.
(a) Parent will indemnify and hold harmless each Holder, each of
its officers and directors and partners and members and stockholders, and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by Parent of the
Securities Act or the Exchange Act or any rule or regulation promulgated
thereunder applicable to Parent or any state securities law applicable to Parent
in connection with any such registration, qualification or compliance, and
Parent will reimburse (on an as incurred basis), each Holder, each of its
officers and directors and partners and members, and each person controlling
such Holder, for any reasonable legal and other expenses incurred in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action; provided, however, that Parent will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to Parent by a Holder; and provided, further, that Parent
will not be liable to any such person or entity with respect to any such untrue
statement or omission or alleged untrue statement or
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omission made in any preliminary prospectus that is corrected in the final
prospectus filed with the SEC pursuant to Rule 424(b) promulgated under the
Securities Act (or any amendment or supplement to such prospectus) if the person
asserting any such loss, claim, damage or liability purchased securities but was
not sent or given a copy of the prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such securities to such person
in any case where such delivery of the prospectus (as amended or supplemented)
is required by the Securities Act, unless such failure to deliver the prospectus
(as amended or supplemented) was a result of Parent's failure to provide such
prospectus (as amended or supplemented).
(b) Each Holder participating in the registration described in
Section 2 shall indemnify Parent, each of its directors and officers and each
person who controls Parent within the meaning of Section 15 of the Securities
Act against all claims, losses, damages, and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, and will reimburse Parent and such directors,
officers and partners and members, persons, or control persons of Parent for any
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to Parent by such Holder. The
liability of Holder under this Section 4(b) shall not exceed the proceeds from
the offering received by such Holder, prior to deduction of any commissions,
transfer taxes or other selling expenses incurred with respect to such sale.
(c) Each party entitled to indemnification under this Section 4
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 4 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. Any
Indemnified Party shall reasonably cooperate with the Indemnifying Party in the
defense of any claim or litigation brought against such Indemnified Party.
(d) If the indemnification provided for in this Section 4 is for
any reason not available to an Indemnified Party with respect to any loss,
liability, claim, damage, or expense
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referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as will as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or the alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The liability of Holder under this Section 4(d) shall not
exceed the proceeds from the offering received by such Holder, prior to
deduction of any commissions, transfer taxes or other selling expenses incurred
with respect to such sale.
5. Expenses. All Registration Expenses incurred in connection with any
registration pursuant to Section 2 shall be borne by Parent.
6. Information by Holder. Each Holder shall furnish to Parent such
information regarding such Holder, the Registrable Securities held by it, the
manner in which such Holder holds any securities of Parent and the distribution
proposed by such Holder as Parent may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
7. Reports Under the 1934 Act. With a view to making available to the
Holders the benefits of Rule 144 and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration, the Company agrees to use commercially reasonable
efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after the Effective Time;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested to avail any Holder
of any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
8. Miscellaneous.
(a) Limitation on Assignment of Registration Rights. The rights
to cause Parent to register Registrable Securities pursuant to this Agreement
may not be assigned by a Holder unless
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such a transfer is to stockholders, partners (including limited partners) or
retired partners, or members or retired members of a Holder (including spouses
and ancestors, lineal descendants, and siblings of such stockholders, partners,
members or spouses who acquire Registrable Securities by right, will or
intestate succession). Prior to a permitted transfer of registration rights
under this Agreement, Holder must furnish Parent with written notice of the name
and address of such transferee and the Registrable Securities with respect to
which such registration rights are being assigned. No transfer of registration
rights under this Agreement shall be permitted if immediately following such
transfer the disposition of such Registrable Securities by the transferee is not
restricted under the Securities Act.
(b) Third Parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party, other than the parties to this Agreement,
and their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
(c) Governing Law. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
(d) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(e) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, portions of such provisions, or
such provisions in their entirety, to the extent necessary, shall be severed
from this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
(f) Amendment and Waiver. Holders of a majority of the
Registrable Securities from time to time outstanding may, with the consent of
Parent, amend the registration rights granted hereunder.
*****
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IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
"PARENT" INKTOMI CORPORATION
/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx
Senior Vice President, Chief Financial
Officer and Secretary
"STOCKHOLDERS" PARTECH U.S. PARTNERS IV LLC
By: /s/ Xxxxxxx Worms
-----------------------------------
Xxxxxxx Worms
Managing Member
DOUBLE BLACK DIAMOND II LLC
By: /s/ Xxxxxxx Worms
-----------------------------------
Xxxxxxx Worms
Managing Member
45TH PARALLEL LLC
By: /s/ Xxxxxxx Worms
-----------------------------------
Xxxxxxx Worms
Managing Member
BARON PRIVATE EQUITY, L.P.
By: Baron Capital Management Inc. as
Investment Advisor
/s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title: Treasurer & CFO
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EL DORADO VENTURES V, L.P.
By: El Dorado Venture Partners V, LLC
Its: General Partner
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Managing Member
EL DORADO TECHNOLOGY '99, L.P.
By: El Dorado Venture Partners V, LLC
Its: General Partner
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Managing Member
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
HUMMER WINBLAD VENTURE PARTNERS IV, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
HUMMER WINBLAD TECHNOLOGY FUND IV, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
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HUMMER WINBLAD TECHNOLOGY FUND III, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
HUMMER WINBLAD VENTURE PARTNERS V, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: General Partner
LION INVESTMENTS LIMITED
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Director
LMS CAPITAL (BERMUDA) LIMITED
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
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STAENBERG VENTURE PARTNERS II, L.P.
/s/ Xxx X. Xxxxxxxxx
-----------------------------------
Xxx X. Xxxxxxxxx
XXXXX CAPITAL PARTNERS, L.P.
By: Xxxxx Capital Management, LLC
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
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