EXHIBIT 10.11
RAS HOLDING CORP.
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "Agreement")
is made and entered into as of June 22, 2000, by and among RAS Holding Corp., a
Delaware corporation (the "Company"), and each of the persons and entities
identified on the signature pages hereto.
RECITALS
WHEREAS, on or about April 24, 1998, the persons and entities listed on
Schedule A hereto (collectively, the "Series B Investors") acquired (i) shares
of the Company's Series B Convertible Preferred Stock, par value $.001 per share
(the "Series B Preferred Stock"), which may be converted into shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), and (ii)
warrants to purchase shares of Series B Preferred Stock; and
WHEREAS, on April 28, 2000, the Series B Investors exercised all of their
warrants and thereby acquired additional shares of Series B Preferred Stock; and
WHEREAS, the Company is a party to the Registration Rights Agreement dated
as of April 24, 1998, as amended by Amendment No. 1 thereto dated as of May 15,
1998 and Amendment No. 2 thereto dated as of April 30, 1999 (the "Registration
Rights Agreement"), with the Series B Investors and the persons listed on
Schedule B hereto (the "Other Stockholders"); and
WHEREAS, the Company is also a party to the Stockholders Agreement dated as
of April 24, 1998, as amended by Amendment No. 1 thereto dated May 15, 1998 and
the Second Amendment thereto dated June 1, 2000 (the "1998 Stockholders
Agreement"), with the Series B Investors and the Other Stockholders; and
WHEREAS, on or about the date hereof, (i) the entities listed on Schedule C
hereto (collectively, the "Series C Investors") are acquiring (i) shares of the
Company's Series C Convertible Preferred Stock, par value $.001 per share (the
"Series C Preferred Stock"), which may be converted into shares of Common Stock,
and (ii) one of the Series C Investors is also acquiring warrants to purchase
shares of Series C Preferred Stock; and
WHEREAS, the Company and the Series C Investors are also entering into a
Series C Convertible Preferred Stockholders Agreement dated as of the date
hereof (the "2000 Stockholders Agreement"); and
WHEREAS, in connection with the purchase and sale of the Series C Preferred
Stock, the Company and the Series B Investors, the Other Stockholders and the
Series C Investors (collectively, the "Stockholders") desire to amend and
restate the Registration Rights Agreement in its entirety by entering into this
Agreement; and
WHEREAS, the Registration Rights Agreement provides that it may be amended
by a written instrument signed by the Company and the holders of at least eighty
percent (80%) of the
Registrable Securities (as defined below) and that any such amendment shall be
binding on all the Stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Stockholders
hereby agree to amend and restate the Registration Rights Agreement in its
entirety as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "Agreement" shall have the meaning set forth in the Preamble.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(d) "Common Stock" shall have the meaning set forth in the Recitals.
(e) "Company" shall have the meaning set forth in the Preamble.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(g) "Indemnified Party" shall have the meaning set forth in Section
4.3(c).
(h) "Indemnifying Party" shall have the meaning set forth in Section
4.3(c).
(i) "Initiating Other Stockholders" shall mean any Other Stockholder(s)
and/or Series C Investor(s) who in the aggregate hold not less than twenty-five
percent (25%) of the outstanding Registrable Securities held by Other
Stockholders and Series C Investors.
(j) "Initiating Series B Holders" shall mean any Series B Investor(s) who
in the aggregate hold not less than twenty-five percent (25%) of the outstanding
Registrable Securities held by Series B Investors.
(k) "Investor" shall mean any Series B Investor or Series C Investor.
(l) "1998 Stockholders Agreement" shall have the meaning set forth in the
Recitals.
(m) "Other Stockholders" shall have the meaning set forth in the Recitals.
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(n) "Person" shall mean any individual, corporation, association,
partnership, joint venture, trust, limited liability company, government or
government agency, authority or subdivision or other entity.
(o) "Qualified IPO" shall mean the closing of the sale by the Company of
Common Stock in an underwritten public offering registered under the Securities
Act (other than a registration relating solely to a transaction under Rule 145
under the Securities Act (or any successor thereto) or to an employee benefit
plan of the Company or any of its subsidiaries), or any series of such public
offerings, the aggregate gross proceeds to the Company of at least twenty
million dollars ($20,000,000).
(p) "Registrable Securities" shall mean (i) shares of Common Stock
acquired by any Investor or Other Stockholder, whether issued directly or issued
or issuable pursuant to the conversion of the Series B Preferred Stock or Series
C Preferred Stock (whether such preferred stock is acquired directly pursuant to
the applicable Securities Purchase Agreement or upon exercise of any warrants)
or the exercise of stock options, (ii) any Common Stock issued or issuable to
any Series B Investor or Other Stockholder pursuant to the 1998 Stockholders
Agreement whether upon conversion of securities or otherwise, and (iii) any
Common Stock issued as a dividend or other distribution with respect to or in
exchange for or in replacement of the shares referenced in (i) or (ii) above;
provided, however, that Registrable Securities shall not include any shares of
Common Stock which have previously been registered and sold under the Securities
Act and any shares of Common Stock that may be sold by the holder thereof under
Rule 144 without volume limitations.
(q) The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
(r) "Registration Expenses" shall mean all expenses incurred in effecting
any registration pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
and expenses of any regular or special audits incident to or required by any
such registration, but shall not include Selling Expenses and fees and
disbursements of counsel for the Investors (and also excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
(s) "Restricted Securities" shall have the meaning ascribed thereto in
Rule 144.
(t) "Rule 144" shall mean Rule 144 as promulgated by the Commission under
the securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
(u) "Rule 145" shall mean Rule 145 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
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(v) "Securities" means any securities issued by the Company.
(w) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute and the rules and regulations thereunder,
all as the same shall be in effect from time to time.
(x) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and fees and
disbursements of counsel for any Investor (other than the fees and disbursements
of counsel for the Company included in Registration Expenses).
(y) "Series B Investor" shall have the meaning set forth in the Recitals
and any holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred by a Series B Investor in
compliance with Section 4.7 hereof.
(z) "Series B Preferred Stock" shall have the meaning set forth in the
Recitals.
(aa) "Series C Investors" shall have the meaning set forth in the Recitals
and any holder of Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred by a Series C Investor in
compliance with Section 4.7 hereof.
(bb) "Series C Preferred Stock" shall have the meaning set forth in the
Recitals.
(cc) "Stockholders" shall have the meaning set forth in the Recitals.
(dd) "2000 Stockholders Agreement" shall have the meaning set forth in the
Recitals.
ARTICLE 2
DEMAND REGISTRATION RIGHTS
2.1 REQUESTED REGISTRATION OF SERIES B INVESTORS. If the Company shall
receive from Initiating Series B Holders at any time or times not later than the
fifth anniversary of the closing of a Qualified IPO and not earlier than the
earlier of December 31, 2000 or the effective date of a Qualified IPO (subject
to Section 4.8), a written request that the Company effect any registration with
respect to all or a part of the Registrable Securities of such Series B
Investors the aggregate gross proceeds of which, plus the Securities of any
other parties which are included therewith, would exceed five million
dollars ($5,000,000), the Company will promptly give written notice of the
proposed registration to all other Investors and Other Stockholders, and as soon
as practicable, use its best efforts to effect such registration (including,
without limitation, filing post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws, and appropriate
compliance with the Securities Act) and as would permit or facilitate the sale
and distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Investor and Other Stockholder joining in such request as are
specified in a written request received by the Company within twenty (20) days
after delivery by the Company of such written notice described above.
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2.2 REQUESTED REGISTRATION OF OTHER STOCKHOLDERS. If after the earlier of
the full exercise or expiration of the rights of the Series B Investors to
request two (2) registrations under Section 2.1, the Company shall receive from
Initiating Other Stockholders at any time not later than the eighth anniversary
of the closing of a Qualified IPO and at any time or times not earlier than the
effective date of a Qualified IPO (subject to Section 4.8), a written request
that the Company effect any registration with respect to all or a part of the
Registrable Securities of such Other Stockholders the aggregate gross proceeds
of which, plus the Securities of any other parties which are included
therewith, would exceed five million dollars ($5,000,000), the Company will
promptly give written notice of the proposed registration to all Stockholders,
and as soon as practicable, use its best efforts to effect such registration
(including, without limitation, filing post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with the Securities Act) and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Stockholders joining in such request
as are specified in a written request received by the Company within twenty (20)
days after delivery by the Company of such written notice described above.
2.3 LIMITATIONS AND PROCEDURES.
(a) The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to Section 2.1 or 2.2:
(1) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act;
(2) As to registrations permitted under Section 2.1, after the
Company has initiated two (2) such registrations thereunder and, as to
registrations under Section 2.2, after the Company has initiated two (2) such
registrations thereunder (counting for these purposes only (i) registrations
requested under Section 2.1 which have been declared or ordered effective and
pursuant to which Securities have been sold and in which all Series B Investors
participating in such registration include all of the Registrable Securities
such Investors requested to include in such registration, (ii) registrations
requested under Section 2.2 which have been declared or ordered effective and
pursuant to which Securities have been sold and in which all Other Stockholders
and Series C Investors participating in such registration include all of the
Registrable Securities such Other Stockholders and Series C Investors requested
to include in such registration and (iii) registrations which have been
withdrawn by the requesting parties as to which such parties have elected not to
bear the Registration Expenses pursuant to Section 4.1 hereof and would, absent
such election, have been required to bear such expenses); or
(3) During the period starting with the date thirty (30) days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date one hundred twenty (120) days after the effective date of, a Company
initiated registration; provided that the
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Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective.
(b) Subject to the foregoing clauses (1) through (3), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Initiating Series B Holders or the Initiating Other Stockholders, as the
case may be; provided, however, that if (i) in the good faith judgment of the
Board, such registration and offering could materially interfere with or
adversely affect bona fide financing, acquisition or other material business
plans of the Company at such time or would require disclosure of non-public
information, the premature disclosure of which could materially adversely affect
the business, properties, operations of financial results of the Company and its
subsidiaries, taken as a whole, then the Company shall have the right to defer
the filing (but not the preparation) of such registration statement for the
period during which such disclosure would have the effects described above,
provided that (except as provided in clause (3) above) the Company may not defer
the filing for a period of more than ninety (90) days after receipt of such
request, and, provided further, that the Company shall not defer its obligation
in this manner more than once in any twelve (12) month period.
(c) Any registration statement filed pursuant to request under Section 2.1
or 2.2 may, subject to the provisions of Section 2.3(b) and Section 4.9 hereof,
include other securities of the Company, with respect to which registration
rights have been granted hereunder, and may include securities of the Company
being sold for the account of the Company.
(d) The right of any participant to registration pursuant to Section 2.1
or 2.2 shall be conditioned upon such participant's participation in such
underwriting and the inclusion of such participant's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the other participants therein and such participant with respect to such
participation and inclusion) to the extent provided herein. An Investor or Other
Stockholder, as the case may be, may elect to include in such underwriting all
or a part of the Registrable Securities such Investor or Other Stockholder
holds.
(e) If the Company shall request inclusion in any registration pursuant to
this Section 2.3 of Securities being sold for its own account, or if other
Persons shall request inclusion in any registration pursuant to this Article 2,
the Initiating Series B Holders in respect of registrations under Section 2.1
shall, on behalf of all Series B Investors, and the Initiating Other
Stockholders in respect of registrations under Section 2.2 shall, on behalf of
all Other Stockholders and Series C Investors, offer to include such securities
in the underwriting and may condition such offer on their acceptance of the
further applicable provisions of this Agreement (including Section 4.8). The
Company shall (together with all Persons proposing to distribute their
Securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Company which is reasonably acceptable to
a majority in interest of the Initiating Series B Holders or the Initiating
Other Stockholders, as the case may be. Notwithstanding any other provision of
this Article 2, if the representative of the underwriters advises the Initiating
Series B Holders or the Initiating Other Stockholders, as the case may be, in
writing that for any reason a limitation on the number of shares to be
underwritten is required, the number of shares to be included in the
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underwriting or registration shall be allocated as set forth in Section 4.9
hereof. If a Person who has requested inclusion in such registration as provided
above does not agree to the terms of any such underwriting, such Person shall be
excluded therefrom by written notice from the Company, the underwriter or the
Initiating Series B Holders or the Initiating Other Stockholders. The Securities
so excluded shall also be withdrawn from registration. If shares are so
withdrawn from the registration and if the number of shares to be included in
such registration was previously reduced pursuant to this Section 2.3(e), then
the Company shall offer to all holders who have retained rights to include
Securities in the registration the right to include additional Securities in the
registration in an aggregate amount equal to the number of shares so withdrawn,
with such shares to be allocated among such Persons requesting additional
inclusion in accordance with Section 4.9.
ARTICLE 3
REGISTRATION BY COMPANY
3.1 COMPANY REGISTRATION. If at any time before the eighth anniversary of
the closing of a Qualified IPO the Company shall determine to register any of
its Securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any registration
form under the Securities Act that does not permit secondary sales, the Company
will:
(a) promptly give to each Stockholder written notice thereof; and
(b) use its best efforts to include in such registration (and any related
qualification under blue sky laws or other compliance), except as set forth in
Section 3.2 below, and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made by any Stockholder
and received by the Company within twenty (20) days after the written notice
from the Company described in clause (i) above is delivered by the Company. Such
written request may specify all or a part of a Stockholder's Registrable
Securities.
3.2 UNDERWRITING. (a) If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Stockholders as a part of the written notice given
pursuant to Section 3.1(a). In such event, the right of any Stockholder to
registration pursuant to this Article 3 shall be conditioned upon such
Stockholder's participation in such underwriting and the inclusion of such
Stockholder's Registrable Securities in the underwriting to the extent provided
herein and in Section 4.9. All Stockholders proposing to distribute their
securities through such underwriting shall (together with the Company enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
(b) Notwithstanding any other provision of this Section 3.2, the Company
may limit, to the extent so advised by the underwriters, the amount of
securities to be included in the registration by the Stockholders. The Company
shall so advise all holders of Securities requesting registration, and the
number of shares of Securities that are entitled to be included in the
registration and underwriting shall be allocated as set forth in Section 4.9.
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(c) If any Person does not agree to the terms of any such underwriting,
such Person shall be excluded therefrom by written notice from the Company or
the representative of the underwriter. Any Registrable Securities or other
Securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration. If shares are so withdrawn from the registration or if the
number of shares of Registrable Securities to be included in such registration
was previously reduced pursuant to this Section 3.2, the Company shall then
offer to all persons who have retained the right to include securities in the
registration the right to include additional securities in the registration in
an aggregate amount equal to the number of shares so withdrawn, with such shares
to be allocated among the Persons requesting additional inclusion in accordance
with Section 4.9 hereof.
ARTICLE 4
EXPENSES, INDEMNIFICATION AND CERTAIN MECHANICS
4.1 EXPENSES OF REGISTRATION. All (a) Registration Expenses incurred in
connection with (i) any registration, qualification or compliance pursuant to
Section 3.1 hereof, (ii) the first two (2) registrations pursuant to each of
Sections 2.1 or 2.2 hereof, and (iii) any registration initiated pursuant to the
terms of Section 2.1 or 2.2 in which the Stockholders are permitted, pursuant to
the terms of Section 4.9, to register less than the number of shares such
Stockholders request to include and such Stockholders continue to participate in
the registered offering, and (b) reasonable fees of one counsel for the Series B
Investors or Other Initiating Stockholders for any registration effected
pursuant to Section 2.1 or 2.2, respectively, shall be borne by the Company
subject to the provisions contained in the next sentence. If the Series B
Investors, or Other Stockholders and Series C Investors, bear the Registration
Expenses for any registration proceeding begun pursuant to Section 2.1 and 2.2,
respectively, and subsequently withdrawn by the Initiating Series B Holders or
the Initiating Other Stockholders registering shares therein, such registration
proceeding shall not be counted as a requested registration pursuant to Section
2.1 or 2.2, as applicable. If the Series B Investors, or Other Stockholders and
Series C Investors, do not bear the Registration Expenses for any registration
proceeding begun pursuant to Section 2.1 or 2.2, respectively, and subsequently
withdrawn by such Initiating Series B Holders or Initiating Other Stockholders
registering shares therein, such registration proceeding shall be counted as a
requested registration pursuant to Section 2.1 or 2.2, as applicable, unless
such withdrawal is based upon material adverse information relating to the
Company which differs from information publicly available at the time of such
request or information which is provided by the Company within five (5) days of
such request that is different from the information known to the Series B
Investors, or Other Stockholders and Series C Investors, requesting registration
at the time of their request for registration under Section 2.1 or 2.2,
respectively. All Selling Expenses relating to Securities so registered shall be
borne by the holders of such Securities pro rata on the basis of the number of
shares of Securities so registered on their behalf.
4.2 REGISTRATION PROCEDURES. In the case of each registration effected by
the Company pursuant to this Agreement, the Company will keep each Stockholder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use its best efforts to:
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(a) Keep such registration effective for a period of ninety (90) days or
until the Stockholders have completed the distribution described in the
registration statement relating thereto, whichever first occurs; provided,
however, that such ninety (90) day period shall be extended for a period of time
equal to the period the Stockholders refrains from selling any Securities
included in such registration at the request of the Company or an underwriter of
Common Stock (or other Securities) of the Company;
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all Securities covered by such
registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a
Stockholder from time to time may reasonably request;
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
(e) If the Common Stock is then listed on a national securities exchange
or quoted on a Nasdaq market, then cause all such Registrable Securities
registered pursuant hereunder to be listed on each such national securities
exchange or quoted on such Nasdaq market and if the Common Stock is not then
listed on a national securities exchange or quoted on a Nasdaq market, then
cause the Common Stock to be listed on a national securities exchange or quoted
on a Nasdaq market if a national securities exchange or a Nasdaq market is
reasonably likely to permit the listing or quoting of the Common Stock;
(f) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant to such registration statement and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration; and
(g) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2.1 or 2.2, the Company will
enter into an underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions.
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4.3 INDEMNIFICATION.
(a) The Company will indemnify each Stockholder, each of its employees,
officers, directors and partners, legal counsel, and accountants and each person
controlling such Stockholder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, with respect to which registration,
qualification, or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act any
underwriter, against all expenses, claims, losses, damages, and liabilities (or
actions, proceedings, or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) 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 not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Stockholder each of its employees, officers, directors,
partners, legal counsel, and accountants and each person controlling such
Stockholder, each such underwriter, and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such claim, loss,
damage, liability, or action; provided that the Company 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 based upon
written information furnished to the Company by such Stockholder in its capacity
as a Stockholder, and not in their capacity as a director, officer or employee
of the Company, if applicable, or underwriter and stated to be specifically for
use therein. It is agreed that the indemnity agreement contained in this Section
4.3(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 the Company (which consent shall not been unreasonably withheld).
(b) Each Stockholder will, if Securities held by such Stockholder are
included in the Securities as to which such registration, qualification, or
compliance is being effected, severally and not jointly, indemnify the Company,
each of its directors, officers, employees, partners, legal counsel, and
accountants and each underwriter, if any, of the Securities covered by such a
registration statement, each person who controls the Company or such underwriter
within the meaning of Section 15 of the Securities Act, each other Stockholder,
and each of their officers, directors, and partners, and each person controlling
such other Stockholder, 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 not misleading, and will reimburse
the Company and such other Stockholders, directors, officers, partners, legal
counsel, and accountants, persons, underwriters, or control persons for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability, or action,
in each case to the extent, but only to
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the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular, or other document in reliance upon and in conformity with
written information furnished to the Company by such Stockholder in their
capacity as a Stockholder, and not in its capacity as a director, officer or
employee of the Company, if applicable, and stated to be specifically for use
therein provided, however, that the obligations of such Stockholder hereunder
shall not exceed the amount of the proceeds received by such Stockholder as a
result of such registration, qualification or compliance and shall not apply to
amounts paid in settlement of any such claims, losses, damages, or liabilities
(or actions in respect thereof) if such settlement is effected without the
consent of such Stockholder (which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 4.3 (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 such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at the Indemnified 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 Agreement, to the
extent such failure is not prejudicial. 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 that does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 4.3 is held by a
court of competent jurisdiction to be unavailable to any Indemnified Party with
respect to any loss, liability, claim, damage, or expense 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 hand, in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact 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.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in
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connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
4.4 INFORMATION BY INVESTORS. Each Stockholder shall furnish to the
Company such information regarding such Stockholder and the distribution
proposed by such Stockholder as the Company may reasonably request in writing
and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Agreement.
4.5 LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of eighty percent (80%) of the Registrable Securities issued or issuable
to the Investors, enter into any agreement with any holder or prospective holder
of any Securities of the Company giving such holder or prospective holder any
registration rights except for rights similar to those granted to the
Stockholders under Article 3 hereof granted to any Person hereafter; provided
that no such rights shall take any priority to the rights of Series B Investors
under this Agreement and shall be allocated to any registration only after all
Registrable Securities of Series B Investors are allocated thereto.
4.6 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to
use its best efforts to:
(a) Make and keep public information regarding the Company available as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after ninety (90) days following the effective date of the
first registration under the Securities Act filed by the Company for an offering
of Securities to the general public;
(b) 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
at any time after it has become subject to such reporting requirements; and
(c) So long as a Stockholder owns any Restricted Securities, furnish to
the Stockholder forthwith upon written request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its Securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a Stockholder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Stockholder to sell any such
Restricted Securities without registration.
4.7 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register securities granted to a Stockholder by the Company under
this Agreement may be transferred or assigned by a Stockholder in connection
with any transfer of the Registrable Securities or Securities which may be
exercised for or converted into Registrable Securities provided that (a) the
Company is given written notice at least ten (10) days before the time of such
transfer or assignment, stating the name and address of the transferee or
assignee and
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identifying the Registrable Securities or Securities which may be exercised for
or converted into Registrable Securities with respect to which such registration
rights are being transferred or assigned, (b) the transferee or assignee of such
rights assumes the obligations of such Stockholder under this Agreement and (c)
such Stockholder complies with any other applicable restrictions on transfers
under the 1998 Stockholders Agreement or the 2000 Stockholders Agreement, as the
case may be.
4.8 "MARKET STAND-OFF" AGREEMENT. If requested by the Company and an
underwriter of Common Stock (or other Securities) of the Company, a Stockholder
shall not sell or otherwise transfer or dispose of any Common Stock (or other
Securities) of the Company held by such Stockholder (other than those included
in the registration) during the period requested by the representative of the
underwriters, which shall not exceed a one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that all other Stockholders and all officers
and directors of the Company enter into similar agreements. The obligations
described in this Section 4.8 shall not apply to a registration relating solely
to employee benefit plans on Form S-8 or similar forms that may be promulgated
in the future, or a registration relating solely to a Rule 145 transaction on
Form S-4 or similar forms that may be promulgated in the future. The Company may
impose stop-transfer instructions with respect to the shares (or Securities)
subject to the foregoing restriction until the end of such one hundred eight
(180) day period.
4.9 ALLOCATION OF REGISTRATION OPPORTUNITIES. In any registration which is
to be an underwritten offering in which all of the shares of Common Stock to be
registered for the account of the Company and all of the Registrable Securities
and other shares of Common Stock (including shares of Common Stock issued or
issuable upon conversion of shares of any currently unissued Series B Preferred
Stock or Series C Preferred Stock) with registration rights hereunder requested
to be included in a registration on behalf of the Stockholders cannot be so
included as a result of limitations as determined by the representative of the
underwriters, the number of shares of Common Stock to be registered for the
account of the Company, and Registrable Securities that may be so included shall
be allocated among the Company and Stockholders requesting inclusion of shares
as follows:
(a) In any registration pursuant to Section 2.1, (i) first, to the
Series B Investors participating in such registration pro rata on the basis of
the number of shares of Registrable Securities held by such Series B Investors
until such Series B Investors have included all of the Registrable Securities
that such Series B Investors requested to include in such registration, (ii)
second, to Series C Investors participating in such registration pro rata on the
basis of the number of Registrable Securities that such Series C Investors
requested to include in such registration, (iii) third, to Other Stockholders
participating in such registration pro rata on the basis of the number of
Registrable Securities that such Other Stockholders requested to include in such
registration and (iv) fourth, any excess to the Company until the Company has
included all of the shares of Common Stock that the Company desires to include
in such registration.
(b) In any registration pursuant to Section 2.2, (i) first, to the Other
Stockholders and Series C Investors participating in such registration pro rata
on the basis of the number of shares of Registrable Securities held by such
Other Stockholders and Series C Investors until such Other
13
Stockholders and Series C Investors have included all of the Registrable
Securities that such Other Stockholders and Series C Investors requested to
include in such registration, (ii) second, to Series B Investors participating
in such registration pro rata on the basis of the number of Registrable
Securities that such Series B Investors requested to include in such
registration, and (iii) third, any excess to the Company until the Company has
included all the shares of Common Stock that the Company desires to include in
such registration.
(c) In any registration other than pursuant to Section 2.1 or 2.2, (i)
first, to the Company until the Company has included all of the Securities that
the Company desires to include in such registration, and (ii) second, any excess
to the Stockholders desiring to sell Registrable Securities in such registration
pro rata on the basis of the Registrable Securities requested to be included in
such registration by such Stockholders participating in such registration;
provided that the pro rata allocation to Xxxxxx X. Xxxxxxxx and his Affiliates
shall not exceed two (2) shares to every one (1) share allocated to all other
Stockholders participating in the registration; provided, further, that the
Series B Investors shall receive priority rights such that the value of the
Registrable Securities they are permitted to include in such registration shall
equal ten percent (10%) of the value of the Securities included by the Company
in such offering prior to the pro rata allocation set forth in clause (d)(ii)
above.
(d) If any Stockholder does not request inclusion of the maximum number of
shares of Registrable Securities allocated to such Stockholder pursuant to the
above described procedure, such allocation shall not operate to reduce the
aggregate number of Registrable Securities to be included in such registration
and the remaining portion of such Stockholder's allocation shall be reallocated
among those requesting Stockholders whose allocations did not satisfy their
requests in accordance with the priorities set forth in Section 4.9(a), (b), (c)
and (d) pro rata on the basis of the number of shares of Registrable Securities
which would be held by such Stockholders, and this procedure shall be repeated
until all of the shares of Registrable Securities which may be included in the
registration on behalf of the Stockholders have been so allocated.
(e) The Company shall not limit the number of Registrable Securities to be
included in a registration pursuant to this Agreement in order to include shares
held by stockholders of the Company with no registration rights.
(f) Each of the provisions of this Section 4.9 that refers to Registrable
Securities assumes full conversion of Series B Preferred Stock, Series C
Preferred Stock, warrants to purchase Series C Preferred Stock and all other
convertible securities.
4.10 DELAY OF REGISTRATION. No Stockholder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
14
ARTICLE 5
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the State of Texas, as if entered into by and between Texas residents
exclusively for performance entirely within Texas.
5.2 SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto; provided, however, that the Stockholders
may assign their rights hereunder in accordance with Section 4.7.
5.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by the Company and the holders of at least eighty percent (80%) of the
Registrable Securities and any such amendment, waiver, discharge or termination
shall be binding on all the Stockholders, but in no event shall the obligations
of any Stockholder hereunder be materially increased, except upon the written
consent of such Stockholder.
5.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, or delivered personally by hand or nationally
recognized courier addressed (a) if to a Stockholder, as indicated on the
signature pages hereof, or at such other address as such holder or permitted
assignee shall have furnished to the Company in writing, or (b) if to the
Company, at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or
at such other address as the Company shall have furnished to each Stockholder in
writing. All such notices and other written communications shall be effective
(i) if mailed, three (3) days after mailing and (ii) if delivered by hand or
courier, upon delivery.
5.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right, power
or remedy accruing to any party hereto, upon any breach or default of any other
party hereto shall impair any such right, power or remedy of such non-breaching
or defaulting party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default therefore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under this
Agreement or any waiver on the part of any party hereto of any provisions or
conditions of this Agreement must be made in writing executed by such party and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement or by law or otherwise afforded to any
party hereto, shall be cumulative and not alternative.
5.6 RIGHTS; SEPARABILITY. Unless otherwise expressly provided herein, a
party's rights hereunder are several rights, not rights jointly held with any of
the other parties. In case any
15
provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
5.7 TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
5.9 EXECUTION. Upon the execution of this Agreement by the holders of at
least eighty percent (80%) of the Registrable Securities, this Agreement shall
amend, supersede and replace the Registration Rights Agreement in all respects
and shall be binding on all Stockholders.
[The remainder of this page is intentionally left blank.]
16
Amended and Restated Registration Rights Agreement
Dated as of June 22, 2000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
THE COMPANY:
RAS HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx, M.D.
President and Chief Executive
Officer
SERIES B INVESTORS:
REMAINDER OF SIGNATURES
INTENTIONALLY OMITTED.
EXHIBITS AND SCHEDULES
INTENTIONALLY OMITTED.
