Exhibit 10.25
MATRIXONE, INC.
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF FEBRUARY 1, 2000
TABLE OF CONTENTS
1. PURCHASE AND SALE OF STOCK............................. 1
1.1 SALE AND ISSUANCE OF STOCK.......................... 1
1.2 THE CLOSING......................................... 1
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......... 2
2.1 ORGANIZATION AND GOOD STANDING...................... 2
2.2 AUTHORIZATION....................................... 2
2.3 VALID ISSUANCE OF STOCK............................. 2
2.4 LITIGATION.......................................... 2
2.5 PROPERTIES.......................................... 2
2.6 COMPLIANCE WITH OTHER DOCUMENTS..................... 2
2.7 FINAL PROSPECTUS.................................... 3
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR......... 3
3.1 AUTHORIZATION....................................... 3
3.2 INVESTIGATION....................................... 3
3.3 ACCREDITED INVESTOR, ETC............................ 3
3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT................... 3
4. CONDITIONS TO THE INVESTOR'S OBLIGATION AT CLOSING..... 3
4.1 REPRESENTATIONS AND WARRANTIES...................... 3
4.2 SECURITIES LAWS..................................... 4
4.3 AUTHORIZATIONS...................................... 4
4.4 INITIAL PUBLIC OFFERING OF COMMON STOCK............. 4
5. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING..... 4
5.1 REPRESENTATIONS AND WARRANTIES...................... 4
5.2 SECURITIES LAWS..................................... 4
5.3 AUTHORIZATIONS...................................... 4
5.4 PAYMENT OF PURCHASE PRICE........................... 4
5.5 INITIAL PUBLIC OFFERING OF COMMON STOCK............. 4
6. COVENANTS OF THE COMPANY AND THE INVESTOR.............. 5
6.1 AGREEMENT NOT TO TRANSFER........................... 5
6.2 MARKET STAND-OFF.................................... 5
6.3 REGISTRATION OF STOCK............................... 5
6.4 NOTICE OF INTENTION TO TRANSFER..................... 6
6.5 PRIVATE PLACEMENT................................... 6
7. MISCELLANEOUS.......................................... 6
7.1 GOVERNING LAW....................................... 6
7.2 SURVIVAL; ADDITIONAL SECURITIES..................... 6
7.3 SUCCESSOR AND ASSIGNS............................... 6
7.4 ENTIRE AGREEMENT.................................... 6
7.5 NOTICES............................................. 6
7.6 AMENDMENTS AND WAIVERS.............................. 7
7.7 LEGAL FEES.......................................... 7
7.8 EXPENSES............................................ 7
7.9 TITLES AND SUBTITLES................................ 7
7.10 COUNTERPARTS........................................ 7
7.11 SEVERABILITY........................................ 7
7.12 CONFIDENTIALITY..................................... 8
7.13 USE OF INVESTOR'S NAME.............................. 8
(i)
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement dated as of February 1, 2000 (the
"Agreement"), by and between MatrixOne, Inc., a Delaware corporation (the
"Company") and GE Capital Equity Investments, Inc., a Delaware corporation (the
"Investor").
WHEREAS, the Investor has indicated a desire to purchase 450,000 shares of
Common Stock from the Company on the Closing (as defined below) date.
WHEREAS, the Company has indicated a desire to sell 450,000 shares of
Common Stock to the Investor on the Closing date and has agreed to register such
shares under the Securities Act of 1933, as amended (the "Securities Act") on
the terms set forth herein.
WHEREAS, the Company and General Electric Corporation are executing
concurrently with this Agreement a Master Services Agreement dated as of the
date hereof, a Master Framework License Agreement dated as of the date hereof
and a Warrant Agreement dated as of the date hereof (the "Warrant Agreement").
WHEREAS, the Company and the Investor have agreed that this Agreement shall
constitute the entire understanding and agreement between the parties with
regard to the subject matter hereof.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
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1.1 SALE AND ISSUANCE OF STOCK. Subject to the terms and conditions of this
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Agreement, the Company agrees to sell to the Investor and the Investor agrees to
purchase from the Company 450,000 shares (the "Stock") of the Company's Common
Stock, $.01 par value per share (the "Common Stock"), having the rights,
preferences, privileges and restrictions set forth in the Second Amended and
Restated Certificate of Incorporation of the Company, substantially in the form
filed as an exhibit to the Company's registration statement on Form S-1, File
No. 333-92731, as amended (such registration statement, as amended at the time
it becomes effective and including the information deemed to be a part of the
registration statement at the time of effectiveness, being hereinafter referred
to as the "Registration Statement"), to be filed with the Delaware Secretary of
State as of the Closing (as defined below) (the "Restated Certificate"). The
Investor acknowledges and agrees that during the period subsequent to the date
hereof and prior to the Closing date, the Company may effect a stock split and
that the 450,000 shares purchased by Investor on the Closing date shall be
purchased after such stock split and shall not be adjusted to reflect such stock
split.
1.2 THE CLOSING. The purchase and sale of the Stock shall be held at the
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Company's offices (or such other location that the Company determines, provided
that the Company notifies the Investor) concurrently with the closing of the
Company's initial public offering (the "Offering") or, if later, upon
satisfaction or waiver of each of the conditions set forth in Sections 4 and 5
(the "Closing"). At the Closing, the Company will deliver the Stock to the
Investor against payment of the purchase price therefor by check payable to the
order of the
Company or by wire transfer. The per share purchase price for the Stock shall be
equal to the per share price paid by the public for the Common Stock in the
Offering, less any underwriter discounts and commissions.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
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and warrants to the Investor that:
2.1 ORGANIZATION AND GOOD STANDING. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
presently conducted.
2.2 AUTHORIZATION. All corporate action on the part of the Company, its
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officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder, and the authorization, issuance and delivery of the Stock has
been taken or will be taken prior to the Closing, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and by
general principles of equity.
2.3 VALID ISSUANCE OF STOCK. The Stock, when issued, sold and delivered in
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accordance with the terms hereof for the consideration expressed, will be duly
and validly issued, fully paid and nonassessable and, based in part upon the
representations of the Investor in this Agreement, will be issued in compliance
with all applicable federal and state securities laws. The authorized capital of
the Company is as set forth in the Registration Statement.
2.4 LITIGATION. Except as set forth in the Company's registration statement
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prepared in connection with the Offering, as filed with the Securities and
Exchange Commission ("SEC") and amended from time to time (the "Registration
Statement"), there are no actions, proceedings or investigations pending or, to
the best of Company's knowledge, any basis therefor or threat thereof, against
or affecting the Company, that, either in any case or in the aggregate, would
result in any material adverse change in the business, financial condition, or
results of operations of the Company.
2.5 PROPERTIES. To the best of the Company's knowledge (but without having
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conducted any special investigation), the Company has (i) good and marketable
title to its properties and assets and has good title to all its leasehold
interests, and (ii) sufficient title, license and/or ownership of all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information,
proprietary rights and processes necessary for its business as now conducted on
the date hereof.
2.6 COMPLIANCE WITH OTHER DOCUMENTS. The execution and delivery of this
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Agreement, consummation of the transactions contemplated hereby, and compliance
with the terms and provisions hereof will not conflict with or result in a
breach of the terms and conditions of, or constitute a default under the
Restated Certificate or Restated Bylaws of the Company or of any contract or
agreement to which the Company is now a party, except where such conflict,
breach or default of any such contract or agreement, either individually or in
the aggregate, would
(2)
not have a material adverse effect on the Company's business, financial
condition or results of operations.
2.7 FINAL PROSPECTUS. The Company's Prospectus for the Offering as filed
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with the SEC pursuant to Rule 424 shall not contain 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, in light of the circumstances in which
they were made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
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represents and warrants that:
3.1 AUTHORIZATION. This Agreement constitutes the valid and legally binding
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obligation of the Investor, enforceable in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and by general principles of equity.
3.2 INVESTIGATION. The Investor acknowledges that it has carefully reviewed
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the Registration Statement and the representations concerning the Company
contained in this Agreement and has had an opportunity to discuss the business,
affairs and current prospects of the Company with the Company's officers and
members of its management.
3.3 ACCREDITED INVESTOR, ETC. The Investor is an "accredited investor" as
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such term is defined in Regulation D adopted by the SEC. The Investor is an
investor in securities of companies in the development stage, in the Company's
industry and acknowledges that it is able to fend for itself, can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Stock.
3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with the
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Investor in reliance upon the Investor's representation to the Company, which by
the Investor's execution of this Agreement the Investor hereby confirms, that
the Stock will be acquired for investment for the Investor's own account, not as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that the Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same, other than in
compliance with the federal securities laws and subject to the provisions of
this Agreement.
4. CONDITIONS TO THE INVESTOR'S OBLIGATION AT CLOSING. The obligation of the
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Investor to purchase the Stock at the Closing is subject to the fulfillment to
the Investor's satisfaction on or prior to the Closing of the following
conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
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by the Company in Section 2 hereof shall be true and correct when made, and
shall be true and correct as of the Closing with the same force and effect as if
they had been made on and as of such date, subject to changes contemplated by
this Agreement.
(3)
4.2 SECURITIES LAWS. The offer and sale of the Stock to the Investor
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pursuant to this Agreement shall be exempt from the registration requirements of
the Securities Act and qualification requirements of all applicable state
securities laws.
4.3 AUTHORIZATIONS. All authorizations, approvals or permits, if any, of
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any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing.
4.4 INITIAL PUBLIC OFFERING OF COMMON STOCK. The initial public offering of
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the Common Stock shall have occurred.
5. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligation of the
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Company to sell the Stock at the Closing is subject to the fulfillment to the
Company's satisfaction on or prior to the Closing of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
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the Investor contained in Section 3 hereof shall be true as of the Closing with
the same force and effect as if they had been made on and as of such date,
subject to changes contemplated by this Agreement.
5.2 SECURITIES LAWS. The offer and sale of the Stock to the Investor
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pursuant to this Agreement shall be exempt from the registration requirements of
the Securities Act qualification requirements of all applicable state securities
laws.
5.3 AUTHORIZATIONS. All authorizations, approvals or permits, if any, of
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any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing.
5.4 PAYMENT OF PURCHASE PRICE. The Investor shall have delivered to the
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Company the purchase price for the Stock as set forth in Section 1.2 hereof.
5.5 INITIAL PUBLIC OFFERING OF COMMON STOCK. The initial public offering of
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the Common Stock shall have occurred.
(4)
6. COVENANTS OF THE COMPANY AND THE INVESTOR.
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6.1 AGREEMENT NOT TO TRANSFER.
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(a) Prior to the date 180 days after the date of the final prospectus
relating to the Offering, the Investor shall not, and shall not permit any other
person, to the extent allowable by law, who holds of record any of the
undersigned's shares of the Stock, directly or indirectly, Transfer or offer to
Transfer any shares of the Stock (the "Transfer Restrictions") other than to
affiliates who agree to be bound by the terms of this Agreement, unless the
Company consents to such Transfer and the transferee agrees to be bound by this
Agreement.
(b) In order to enforce the Transfer Restrictions, the Company may
impose stop-transfer instructions with respect to the Stock until the end of the
restricted period.
(c) As used in this Agreement, the term "Transfer" shall mean any
sale, offer to sell, contract to sell, transfer, assignment, hypothecation,
encumbrance, grant any option or warrant for the sale or purchase of or other
disposition, whether voluntary or involuntary, of shares of the Stock, or
securities of the Company substantially similar to the Stock, or any security
convertible or exchangeable into or exercisable for Common Stock. In the case
of hypothecation, the Transfer shall be deemed to occur both at the time of the
initial pledge and at any pledgee's sale or a sale by any secured creditor or a
retention by the secured creditor of the pledged shares of the Stock in complete
or partial satisfaction of the indebtedness for which the shares of the Stock
are security.
6.2 MARKET STAND-OFF. In addition to the Transfer Restrictions (which shall
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in no way be limited by the following), in connection with the first
underwritten public offering by the Company of its equity securities pursuant to
an effective registration statement filed under the Securities Act following the
Offering, the Investor shall not Transfer or offer to Transfer any shares of the
Stock without the prior written consent of the Company and its underwriters.
Such restriction (the "Market Stand-Off") shall be in effect for such period of
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time from and after the effective date of the final prospectus for the offering
as may be requested by the Company or such underwriters; provided, however, that
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(i) such Market Stand-Off shall not exceed ninety (90) days, (ii) the Investor
shall be subject to the Market Stand-Off only if the officers, directors and
other stockholders of the Company are also subject to similar restrictions and
(iii) the Investor shall only be subject to the Market-Stand Off if the Company
registers at least fifty percent (50%) of the Registrable Securities (as
hereinafter defined) in the offering. In order to enforce the Market Stand-Off,
the Company may impose stop-transfer instructions with respect to the Stock
until the end of the applicable stand-off period.
6.3 REGISTRATION OF STOCK. The Company agrees that, upon request by the
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Investor, it will effect registration of the Stock in accordance with the
provisions contained in Exhibit A attached hereto. The Investor understands and
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agrees that (i) the Stock will be characterized as "restricted securities" under
the federal securities laws inasmuch as it is being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances, and (ii) each
certificate representing the
(5)
Stock and any other securities issued in respect of the Stock upon any stock
split, stock dividend, recapitalization, merger or similar event (unless no
longer required in the opinion of counsel for the Company) shall be stamped or
otherwise imprinted with appropriate legends mandated by federal and state
securities laws.
6.4 NOTICE OF INTENTION TO TRANSFER. In the event the Investor plans to
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Transfer shares of the Stock in one or more transactions, the Investor shall
inform the Company of such intention to Transfer such shares fifteen (15) days
prior to such Transfer. Investor shall agree that any transfer, sale or other
disposition of Stock shall be through an orderly disposition.
6.5 PRIVATE PLACEMENT. If the initial public offering of the Common Stock
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of the Company does not occur within ninety (90) days from the date hereof, the
Company and Investor hereby agree to negotiate in good faith a private placement
of Common Stock of the Company.
7. MISCELLANEOUS.
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7.1 GOVERNING LAW. This Agreement shall be governed in all respects by the
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laws of the State of Delaware, without regard to the conflict of law provisions
thereof.
7.2 SURVIVAL; ADDITIONAL SECURITIES. The representations and warranties set
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forth in Sections 2 and 3 shall survive the Closing for a period of eighteen
(18) months and shall remain in full force and effect during such period
regardless of any investigation made by the Investor, and the covenants and
agreements set forth in Section 6 shall survive in accordance with their terms.
Any new, substituted or additional securities which are by reason of any stock
split, stock dividend, recapitalization or reorganization distributed with
respect to the Stock ("Stock Distributions") shall be immediately subject to (i)
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the representations and warranties set forth in Sections 2 and 3 and (ii) the
covenants and agreements set forth in Section 6, both to the same extent the
Stock is at such time covered by such provisions.
7.3 SUCCESSOR AND ASSIGNS. Except as otherwise expressly provided herein,
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the provisions hereof shall inure to the benefit of, and be binding upon, the
respective successors and assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Notwithstanding anything to the
contrary contained herein, the covenants set forth in Section 6 shall not be
binding upon any entity (other than an affiliate of the Investor) which acquires
any shares of the Stock or a Stock Distribution in a transaction permitted
hereunder.
7.4 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
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and agreement between the parties with regard to the subject matter hereof.
7.5 NOTICES. Except as otherwise provided, all notices and other
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communications required or permitted hereunder shall be in writing, shall be
effective when given, and shall in any event be deemed to be given upon receipt
or, if earlier, (i) five (5) days after deposit with the U.s. postal service or
other applicable postal service, if delivered by first class
(6)
mail, postage prepaid, (ii) upon delivery, if delivered by hand, (iii) one (1)
business day after the day of deposit with Federal Express or similar overnight
courier, freight prepaid, if delivered by overnight courier or (iv) one (1)
business day after the day of facsimile transmission, if delivered by facsimile
transmission with copy by first class mail, postage prepaid, and shall be
addressed, (a) if to the Investor, at the Investor's address set forth below its
signature, or at such other address as the Investor shall have furnished to the
Company in writing, or (b) if to the Company, at its address as set forth below
its signature, or at such other address as the Company shall have furnished to
the Investor in writing.
7.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
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the observance of any term of the Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the Investor.
7.7 LEGAL FEES. In the event of any action at law, suit in equity or
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arbitration proceeding in relation to this Agreement or the Stock or any Stock
Distribution, the prevailing party shall be paid by the other party a reasonable
sum for the attorneys' fees and expenses incurred by such prevailing party.
7.8 EXPENSES. Irrespective of whether the Closing is effected, the Company
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and the Investor shall each pay their own costs and expenses incurred with
respect to the negotiation, execution, delivery and performance of this
Agreement.
7.9 TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs of
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this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10 COUNTERPARTS. This Agreement may be executed in counterparts, each of
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which shall be an original, but all of which together shall constitute one
instrument.
7.11 SEVERABILITY. If one or more provisions of this Agreement are held to
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be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.12 CONFIDENTIALITY. The parties hereto agree that, except with the prior
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written permission of the other party, it shall at all times keep confidential
and not divulge, furnish, or make accessible to anyone any confidential
information, knowledge, or data concerning or relating to the business or
financial affairs of such other party to which said party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement, or the performance of its obligations hereunder, except as
otherwise required by law or the rules of any securities exchange or other
regulatory authority.
7.13 USE OF INVESTOR'S NAME. The Company shall not, unless prior written
----------------------
consent is given by the Investor, create or disseminate any publicity using
either the Investor's name or any trade name or xxxx thereof, except as, and
only to the extent, required by law or
(7)
legal process, including, without limitation, federal and state securities laws
and filings with the SEC. Notwithstanding the foregoing, the Company shall be
allowed to use the Investor's name without Investor's consent for the following
purposes: (a) its standard customer lists, including customer lists on its web
site and in a filing with the SEC, (b) sales presentations and sales materials,
including on a roadshow for a public offering, and (c) investor relations
materials such as analyst presentations.
[Signature Page to Follow]
(8)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year hereinabove first written.
MATRIXONE, INC.
/s/ Xxxxxxx X. Xxxxxxxxxx
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By: Xxxxxxx X. Xxxxxxxxxx
Title: CFO
GE CAPITAL EQUITY INVESTMENTS, INC:
/s/ Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx
Title: Division Operations Manager
(9)
EXHIBIT A
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1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
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1.1 DEFINITIONS. For purposes of this Exhibit A, capitalized terms used
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herein and not otherwise defined shall have the meanings ascribed to them in the
Common Stock Purchase Agreement between the Company and the Investor to which
this Exhibit A is attached. In addition, the following terms used herein shall
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have, the following meanings;
(a) The term "Form S-3" means such form under the Act as in effect on
the date hereof or any registration form under the Act subsequently adopted by
the SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
(b) The term "1934 Act" means the Securities Exchange Act of
1934, as amended.
(c) The term "register", "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(d) The term "Registrable Securities" means the Stock and any shares
of Common Stock issuable upon exercise of the warrants issued pursuant to the
Warrant Agreement.
1.2 INCIDENTAL REGISTRATION.
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(a) If the Company proposes at any time to register any of its
securities under the Securities Act (except registrations solely for
registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger, reorganization, or consolidation or any
other registration which does not permit secondary sales), whether or not for
sale for its own account, it will each such time give prompt written notice to
all registered holders of Registrable Securities of its intention to do so and
of such holders' rights under this Section 1.2. Upon the written request of any
such holder (a "Requesting Holder") made as promptly as practicable and in any
event within 15 days after the receipt of any such notice (10 days if the
Company states in such written notice or gives telephonic notice to all
registered holders of Registrable Securities, with written confirmation to
follow promptly thereafter, that (i) such registration will be on Form S-3 and
(ii) such shorter period of time is required because of a planned filing date)
(which request shall specify the Registrable Securities intended to be disposed
of by such Requesting Holder), the Company will use commercially reasonable
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Requesting
Holders thereof; provided, however, that if, at any time after giving written
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notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Requesting Holder of Registrable Securities and (i) in the
case of a determination not to register any securities, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the Registration
Expenses in connection therewith) and (ii) in the case of a determination to
delay registering any securities, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities.
(b) If the managing underwriter of any underwritten offering shall
inform the Company (or, in the case of a secondary offering, the selling
stockholders initiating such offering) of its belief that the number or type of
Registrable Securities requested to be included in such registration would
adversely affect such offering, then the Company will include in such
registration, to the extent of the number and type which the Company is (or the
selling stockholders initiating such offering are) so advised can be sold in (or
during the time of) such offering, first, all securities proposed by the Company
(or, in the case of a secondary offering, the selling stockholders initiating
such offering) to be sold for its (or their) own account, and second, such
Registrable Securities and any other securities of the Company requested to be
included in such registration, pro rata among all such holders on the basis of
the respective amounts of Registrable Securities and other securities which they
held at the time the Company gives notice of the registration.
(c) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the right of any
Requesting Holder to registration pursuant to this Section 1.2 shall be
conditioned upon such Requesting Holder participating in such underwriting, the
prompt provision of such information as the Company may reasonably request at
any time to enable the Company to comply with any applicable laws or regulations
or to facilitate the preparation of the registration statement, the entering
into an underwriting agreement in customary form with the underwriter(s)
selected for such underwriting by the Company (together with the Company and the
other selling stockholders, if any, distributing their securities through such
underwriting), and the inclusion of such Requesting Holder's Registrable
Securities in the underwriting to the extent provided herein.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under Section 1.2 to
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effect the registration of Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective as soon as reasonably practicable
after the mailing of the request for such registration but in no event later
than ninety (90) days after such mailing, subject to the other provisions of
this Exhibit A. The Company shall prepare and file with the SEC such amendments
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and supplements as may be necessary to keep such registration statement
effective for a period of 90 days or until the Requesting Holders have completed
the distribution described in the registration statement relating thereto,
whichever occurs first.
(2)
(b) Prepare and file with the SEC 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
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Investor such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as the Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities.
(d) Use its best efforts to register and quality the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Investor;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Notify the Investor covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the
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 in the light
of the circumstances then existing.
(f) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(g) Provide a transfer agent and registrar for all of the Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.4 INVESTOR OBLIGATION TO FURNISH INFORMATION. It shall be a condition
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precedent to the obligations of the Company to take any action pursuant hereto
with respect to the Registrable Securities that the Investor shall furnish to
the Company such information regarding itself, the Registrable Securities, and
the intended method of disposition of such securities as shall be required to
effect the registration of such Registrable Securities.
1.5 EXPENSES OF REGISTRATION. All expenses incurred in connection with
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registrations, filings or qualifications pursuant hereto, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company (including
fees and disbursements of counsel for the Company in its capacity as counsel to
the Investor hereunder but excluding the fees and disbursements of any other
counsel for the Investor and excluding any underwriting discounts and selling
commissions applicable to the sale of the Registrable Securities) (the
"Registration Expenses") shall be borne by the Company.
(3)
1.6 INDEMNIFICATION. In the event any Registrable Securities are included
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in a registration statement under Section 1.2:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Investor, any underwriter (as defined in the Act) for the
Investor and each person, if any, who controls the investor or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
---------
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) 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, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to the Investor, or such underwriter or
controlling person, as incurred, 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 indemnity agreement
contained in this subsection (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 be
unreasonably withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability, or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Investor, underwriter or controlling person.
(b) To the extent permitted by law, the Investor will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the Act, any underwriter, and any controlling person of
any such underwriter, against any losses, claims, damages, or liabilities (joint
or several) to which any of the foregoing persons may become subject, under the
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Investor expressly for use in connection with such
registration, and each such Investor will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection (b), in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection (b) 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 Investor, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection (b) exceed the gross proceeds from the offering received
by the Investor.
(4)
(c) Promptly after receipt by an indemnified party under this Section
1.6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.6.
(d) If the indemnification provided for in this Section 1.6 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnification 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 statement 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 emission 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 an underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and the Investor under this Section
1.6 shall survive the completion of any offering of the Registrable Securities
in a registration statement pursuant hereto, and otherwise.
1.7 TERMINATION. The Company's obligation to register the Registrable
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Securities pursuant to this agreement shall terminate on the earlier of (i) the
second anniversary of the Closing and (ii) the date on which all shares of the
Registrable Securities held by the Investor may immediately be sold under Rule
144 during any 90-day period.
(5)
1.8 TEMPORARY CESSATION OF OFFERS AND SALES BY INVESTOR. The Investor
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acknowledges that there may occasionally be times when the Company may be
required to suspend the use of the prospectus forming part of the Registration
Statement until such time as an amendment to the Registration Statement has been
filed by the Company and declared effective by the SEC, until the prospectus is
supplemented or amended to comply with the Securities Act, or until such time as
the Company has filed an appropriate report with the SEC pursuant to the
Exchange Act. The Company agrees to file any necessary amendments, supplements
and reports as soon as practicable under the circumstances. The Investor hereby
covenants that it will not sell any securities pursuant to said prospectus
during a period of not more than 60 days commencing at the time at which the
Company gives the Investor notice of the suspension of the use of said
prospectus and ending at the time the Company gives the Investor notice that the
Investor may thereafter effect sales pursuant to said prospectus, as the same
may have been supplemented or amended provided the Company may not suspend the
use of such prospectus until at least 90 days had elapsed since the previous
suspension.
(6)
