EXHIBIT 4.2
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the "Agreement"),
dated as of January 26, 2000 is entered into by and among Inventa Corporation, a
California corporation (the "Company") and the holders of the Company's Series A
Preferred Stock listed on Exhibit A attached hereto (collectively, the "Series A
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Holders"), the holders of the Company's Series B Preferred Stock listed on
Exhibit B attached hereto (collectively, the "Series B Holders"), the holders of
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the Company's Series C Preferred Stock listed on Exhibit C attached hereto
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(collectively, the "Series C Holders") the holders of the Company's Series D
Preferred Stock listed on Exhibit D attached hereto (collectively, the "Series D
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Holders")and the Xtend-Tech Shareholders listed on Exhibit E attached hereto
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(collectively, the "Xtend-Tech Holders") (the Series A Holders, the Series B
Holders, the Series C Holders, the Series D Holders and the Xtend-Tech Holders
shall collectively be referred to as "Shareholders").
R E C I T A L S
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A. The Series A Holders, the Series B Holders, the Series C Holders, the
Series D Holders and the Company are parties to the Restated Registration Rights
Agreement dated January 19, 2000.
B. The Xtend-Tech Holders and the Company are parties to the Agreement
and Plan of Reorganization as of the date hereof (the "Reorganization
Agreement").
C. The execution of this Agreement is in connection with the closing of
the transactions contemplated by the Reorganization Agreement.
D. The Shareholders and the Company desire that the transactions
contemplated by the Reorganization Agreement be consummated.
E. The Series A Holders, the Series B Holders, the Series C Holders, the
Series D Holders and the Company desire that this Agreement supersede the
Restated Registration Rights Agreement dated January 19, 2000 in its entirety.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean any holder, or an assignee under Section 15
hereof, of outstanding Registrable Securities.
"Initiating Holders" shall mean any Holders who in the aggregate are
Holders of more than fifty percent (50%) of the outstanding Registrable
Securities.
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 the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities", subject to Sections 5(b) and 6(b) hereof,
shall mean shares of Common Stock (i) issued or issuable pursuant to the
conversion of the Shares, and (ii) issued in respect of securities issued
pursuant to the conversion of the Shares upon any stock split, stock dividend,
recapitalization, substitution, or similar event, and (iii) issued in respect to
securities issued to Xtend-Tech Holders pursuant to the stock exchange
transaction consummated in the Reorganization Agreement; provided, however, that
Registrable Securities shall not include any (a) shares of Common Stock which
have previously been registered, (b) shares of Common Stock which have
previously been sold to the public, or (c) securities which would otherwise be
Registrable Securities held by a Holder who is then permitted to sell all of
such securities within any three (3) month period following the Company's
initial public offering pursuant to Rule 144 if such securities then held by
such Holder constitute less than one percent of the Company's outstanding equity
securities.
"Registration Expenses" shall mean all expenses (excluding
underwriting discounts and selling commissions) incurred in connection with a
registration under Sections 5, 6 and 8 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, and the
reasonable fees and expenses of one counsel for the selling Shareholders (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company).
"Restricted Securities" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"Shares" shall mean shares of the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
shares of the Company's Common Stock held by Xtend-Tech Holders.
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2. Restrictions on Transferability. The Restricted Securities held by
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the Shareholders shall not be transferred except upon the conditions specified
in this Agreement, which conditions are intended to insure compliance with the
provisions of the Securities Act or, in the case of Section 16 hereof, to assist
in an orderly distribution. Each Shareholder will cause any proposed transferee
of Restricted Securities held by that Shareholder to agree to take and hold
those securities subject to the provisions and upon the conditions specified in
this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Shares,
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and (ii) shares of the Company's Common Stock issued upon conversion of the
Shares, and (iii) any other securities issued in respect of the Shares, or the
Common Stock issued upon conversion of the Shares, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND
ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.
COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND
RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if, with such request, the
Company shall have received either the opinion referred to in Section 4(i) or
the "no-action" letter referred to in Section 4(ii) to the effect that any
transfer by such holder of the securities evidenced by such certificate will not
violate the Securities Act and applicable state securities laws, unless any such
transfer legend may be removed pursuant to Rule 144(k), in which case no such
opinion or "no-action" letter shall be required, and provided that the Company
shall not be obligated to remove any such legends prior to the date of the
initial public offering of the Company's Common Stock under the Securities Act.
4. Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
of any Restricted Securities (other than under circumstances described in
Sections 5, 6 and 8 hereof), the holder thereof shall give written notice to the
Company of such holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144 promulgated under the Securities Act or for a transfer
to a holder's spouse, ancestors, descendants or a trust for any of their
benefit, or in
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transactions involving the distribution without consideration of Restricted
Securities by a holder that is a partnership to any of its partners or retired
partners or to the estate of any of its partners or retired partners, or by a
holder that is a trust to any successor trust or successor trustee) by either
(i) a written opinion of legal counsel to the holder who shall be reasonably
satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act or (ii) a "no-action" letter from the
Commission to the effect that the distribution of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by such holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the restrictive legend set forth in Section 3 above,
except that such certificate shall not bear such restrictive legend after the
date of the Company's initial public offering under the Securities Act if the
opinion of counsel or "no-action" letter referred to above expressly indicates
that such legend is not required in order to establish compliance with the
Securities Act or if such legend is no longer required pursuant to Rule 144(k).
5. Demand Registration.
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(a) Request for Registration. If the Company shall receive from
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Initiating Holders a written request that the Company effect any registration
with respect to the Registrable Securities, the Company will:
(i) promptly given written notice of the proposed registration
to all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect such registration after January 1, 2000 (including, without limitation,
the execution of an undertaking to file post effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act) as may be so requested 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 Holder or Holders joining in such request as are specified in
a written request delivered to the Company within fifteen (15) days after
receipt of such written notice from the Company; provided that the Company shall
not be obligated to effect, or to take any action to effect, any such
registration pursuant to this Section 5:
(A) 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;
(B) After the Company has effected two (2) such
registrations pursuant to this Section 5(a) and such registrations have been
declared or ordered effective, or withdrawn at the request of the majority of
the Initiating Holders, and the sales of such Registrable Securities have
closed; or
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(C) Within one hundred eighty (180) days of the effective
date of any other registration statement on Form S-1.
Subject to the foregoing clauses (A), (B) and (C), 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 Holders; provided, however, that if the Company shall
furnish to such Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed on or before the time filing would
be required and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
(but not more than once during any twelve month period) for a period of not more
than ninety (90) days after receipt of the request of the Initiating Holders.
The registration statement filed pursuant to the request of the
Initiating Holders, may, subject to the provisions of Section 5(b) below,
include other securities of the Company which are held by officers or directors
of the Company or which are held by persons who, by virtue of agreements with
the Company, are entitled to include their securities in any such registration,
but the Company shall have no right to include any of its securities in any such
registration except as provided in Section 5(b) below.
(b) Underwriting. If the Initiating Holders intend to distribute the
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Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 5, and the Company shall include such information in the written notice
referred to in Section 5(a)(i) above. The right of any Holder to registration
pursuant to Section 5 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority-in-interest of
the Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent provided herein. A Holder may elect to include in such
underwriting all or a part of the Registrable Securities he holds.
If officers or directors of the Company shall request inclusion of
securities of the Company other than Registrable Securities in any registration
pursuant to Section 5, or if holders of securities of the Company who are
entitled by contract with the Company to have securities included in such a
registration (such officers, directors, and other shareholders being
collectively referred to as the "Other Shareholders") request such inclusion,
the Initiating Holders shall, on behalf of all Holders, offer to include the
securities of such Other Shareholders in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this
Agreement. The Company shall (together with all Holders and Other Shareholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters (the "Underwriter") selected for such underwriting
by more than fifty percent (50%) of the Initiating Holders and reasonably
acceptable to the Company. Notwithstanding any other provision of this Section
5, if the Underwriter determines that marketing factors require a limitation on
the number of shares to be underwritten, the Underwriter may (subject to the
allocation priority set forth below) limit the number of Registrable Securities
to be included in the registration and underwriting to not less than fifty
percent (50%) of
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the securities which Holders have requested be included therein. 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 in the following priority:
first, among all Holders of Registrable Securities requesting inclusion (and pro
rata among such holders on the basis of all Registrable Securities then held by
such holders); and second, among all Other Shareholders in proportion, as nearly
as practicable, to the respective amounts of securities which they had requested
to be included in such registration at the time of filing the registration
statement. If any Holder or Other Shareholder disapproves of the terms of any
such underwriting, such holder may elect to withdraw therefrom by written notice
to the Company and the Underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
the Underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company may include its securities for its
own account in such registration if the underwriter so agrees and if the number
of Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
6. Company Registration.
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(a) If the Company shall determine to register any of its securities
either for its own account or for 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 Commission Rule 145 transaction or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(i) promptly give to each Holder written notice thereof (which,
to the extent then known, shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all of the Registrable Securities specified in a written request or
requests made by any Holder within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above, except as set
forth in Section 6(b) below. Such written request may specify all or a part of a
Holder's Registrable Securities.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event the right of any Holder to
registration pursuant to Section 6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the Other Shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the Underwriter selected for underwriting by the Company.
Notwithstanding any other provision of
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this Section 6, if the Underwriter determines that marketing factors require a
limitation on the number of shares to be underwritten, and (a) if such
registration is the first registered offering of the Company's securities to the
public, the Underwriter may (subject to the allocation priority set forth below)
exclude from such registration and underwriting some or all of the Registrable
Securities which would otherwise be underwritten pursuant hereto, and (b) if
such registration is other than the first registered offering of the sale of the
Company's securities to the public, the Underwriter may (subject to the
allocation priority set forth below) limit the number of Registrable Securities
to be included in the secondary portion of the registration and underwriting to
not less than fifty percent (50%) of the securities which Holders have requested
be included therein. 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 by persons other
than the Company shall be allocated in the following priority: first, to Holders
of Registrable Securities (and pro rata among such holders on the basis of all
Registrable Securities then held by such holders); and second, among all Other
Shareholders in proportion, as nearly as practicable, to the respective amounts
of securities which they had requested to be included in such registration at
the time of filing the registration statement. If any Holder or Other
Shareholder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the Underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
7. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company, and all Selling Expenses shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of their shares so registered; provided, however, that the Company shall
not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by Initiating Holders, the registration
statement does not become effective, unless such withdrawal is caused by a
material adverse change in the business or operations of the Company after such
request for registration, or unless the Initiating Holders agree to have such
registration considered a registration pursuant to Section 5(a)(ii)(B). If the
Company is not required to pay any Registration Expenses, then the Holders and
Other Shareholders requesting registration shall bear such Registration Expenses
pro rata on the basis of the number of their shares so included in the
registration request, and such registration shall not be considered a
registration for purposes of Section 5(a)(ii)(B).
8. Registration on Form S-3. The Company shall use its best efforts to
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qualify for registration on Form S-3, and to that end, the Company shall comply
with the reporting requirements of the Exchange Act following the effective date
of the first registration of any securities of the Company for a registered
public offering. After the Company has qualified for the use of Form S-3,
Initiating Holders shall have the right to request four (4) registrations on
Form S-3 (such requests shall be in writing and shall state the number of shares
of Registrable Securities to be disposed of and the intended method of
disposition of such shares by each such holder), subject only to the following
limitations:
(a) The Company shall not be obligated to cause a registration on
Form S-3 to become effective prior to one hundred eighty (180) days following
the effective date of a Company-
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initiated registration (other than a registration effected solely to qualify an
employee benefit plan or to effect a business combination pursuant to Rule 145),
provided that notice of such Company-initiated registration is given to Holders
prior to receipt of a request from a holder of Registrable Securities for
registration on Form S-3, and provided that the Company shall use its best
efforts to achieve such effectiveness promptly following such one hundred eighty
(180) day period;
(b) The Company shall not be obligated to cause a registration on
Form S-3 to become effective prior to expiration of one hundred eighty (180)
days following the effective date of the most recent registration pursuant to a
request by a holder of Registrable Securities under this Agreement or pursuant
to a request by a holder of registration rights under any other agreement of the
Company granting Form S-3 demand registration rights; provided, however, that
the Company shall use its best efforts to achieve such effectiveness promptly
following such one hundred eighty (180) day period;
(c) The Company shall not be required to effect a registration
pursuant to this Section 8 more than once in any twelve (12) month period;
(d) The Company shall not be required to maintain and keep any such
registration on Form S-3 effective for a period exceeding one hundred eighty
(180) days from the effective date thereof. The Company shall give notice to all
Holders and all holders of registration rights under any other agreement of the
Company granting Form S-3 or similar demand registration rights of the receipt
of a request for registration pursuant to this Section 8 and shall provide a
reasonable opportunity for all such other holders to participate in the
registration. Subject to the foregoing, the Company will use its best efforts to
effect promptly the registration of all shares of Registrable Securities on Form
S-3 to the extent requested by the Holder or Holders thereof for purposes of
disposition. In the event the Underwriter, in the case of an underwritten
offering, determines that market factors require a limitation on the number of
shares to be underwritten, then shares shall be excluded from such registration
and underwriting pursuant to the method described in Section 6(b); and
(e) The value of the aggregate shares of Registrable Securities to be
registered on Form S-3 for each such right of registration shall be at least
$500,000.
9. Registration Procedures. In the case of each registration effected by
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the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of such registration and as to the
completion thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of ninety (90) days
(except as set forth in Section 8(d)) or until the Holder or Holders have
completed the distribution described in the registration statement relating
thereto, whichever first occurs; and
(b) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request; and
(c) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 5 or 8 hereof, the Company will
enter into any underwriting
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agreement reasonably necessary to effect the offer and sale of Common Stock,
provided such underwriting agreement contains customary underwriting provisions,
and provided further that if the underwriter so requests the underwriting
agreement will contain customary indemnification and contribution provisions,
and provided further that the Underwriter is reasonably acceptable to the
Company.
10. Indemnification.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, if Registrable
Securities held by such Holder are included in the securities 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 any
underwriter, 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 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, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act including any rule or
regulation thereunder applicable to the Company relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, 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 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 alleged untrue statement) or omission (or alleged omission) based
upon written information furnished to the Company by such Holder or underwriter
and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities or other securities
held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers and agents and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other such Holder
and each of their officers, directors and partners, and each person controlling
such Holder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, and will reimburse the Company and such
Holders, directors, officers, agents, partners, persons, underwriters or control
persons for any legal or 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 the extent, that such
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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 Holder and stated to be specifically for use therein;
provided, however, that the obligations of such Holders hereunder shall be
limited to an amount equal to the net proceeds to each such Holder of securities
sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 10 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or 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 such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement. An indemnified party
shall have the right to retain its own counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. No Indemnifying
Party in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. 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 10 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability 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 any untrue or alleged untrue statement of a material fact or
the omission to state a material fact that resulted in such loss, claim, damage
or liability, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by a court of law 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;
provided, that in no event shall any contribution by a Holder thereunder exceed
the proceeds from the offering received by such Holder.
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(e) The obligations of the Company and Holders under this Section 10
shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement.
11. Information by Holder. Each Holder holding securities included in any
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registration shall furnish to the Company such information regarding such Holder
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.
12. Limitations on Registration of Issues of Securities. From and
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after the date of this Agreement, the Company shall not enter into any agreement
with any holder or prospective holder of any securities of the Company giving
such holder or prospective holder the right to require the Company to initiate
any registration of any securities of the Company, provided that this Section 12
shall not limit the right of the Company to enter any agreements with any holder
or prospective holder of any securities of the Company giving such holder or
prospective holder the right to require the Company, upon any registration of
any of its securities, to include, among the securities which the Company is
then registering, securities owned by such holder. Any right given by the
Company to any holder or prospective holder of the Company's securities in
connection with the registration of securities shall be conditioned such that it
shall be consistent with the provisions of this Agreement and with the rights of
the Holders provided in this Agreement.
13. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may permit the sale of the
Restricted Securities to the public without registration, the Company agrees to:
(a) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, 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
its securities to the general public;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements;
(c) So long as a Shareholder owns any Restricted Securities, furnish
to the Shareholder forthwith upon 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 Shareholder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Shareholder to sell any such
securities without registration.
14. No-Action Letter or Opinion of Counsel in Lieu of Registration.
--------------------------------------------------------------
Notwithstanding anything in this Agreement to the contrary, if at any time after
the date of the Company's initial
11
public offering of its securities under the Securities Act the Company shall
have obtained from the Commission a "no-action" letter in which the Commission
has indicated that it will take no action if, without registration under the
Securities Act, any Holder disposes of Registrable Securities covered by any
request for registration made under this Agreement in the manner in which such
Holder proposes to dispose of the Registrable Securities included in such
request, or if in the opinion of counsel for the Company concurred in by counsel
for such Holder no registration under the Securities Act is required in
connection with such disposition, the Registrable Securities included in such
request shall not be eligible for registration under this Agreement; provided,
however, with respect to any Holder who may deemed to be an "affiliate," as that
term is defined under Rule 144, if, notwithstanding the opinion of such counsel,
the Holder is unable to dispose of all of the Registrable Securities included in
his request in the manner in which such Holder so proposes without registration,
the Registrable Securities included in such request shall be eligible for
registration under this Agreement.
15. Transfer or Assignment of Registration Rights. The rights to cause
---------------------------------------------
the Company to register a Shareholder's securities granted to such Shareholder
by the Company under Sections 5, 6 and 8 hereof may be transferred or assigned
by the Shareholder to a transferee or assignee of at least 100,000 shares of the
Restricted Securities; provided, however, that a Shareholder may transfer or
assign such rights to a partner or shareholder of Shareholder or to a successor
trust or successor trustee without restriction as to minimum shareholding. The
Company shall be given written notice by Shareholder at the time of said
transfer or assignment, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and provided further that the
transferee or assignee of such rights is not deemed by the Board of Directors of
the Company, in its reasonable judgment, to be a competitor of the Company; and
provided further that the transferee or assignee of such rights assumes the
obligations of a Shareholder under this Agreement.
16. "Market Stand-off" Agreement. Each Shareholder agrees, if requested
----------------------------
by the Company and an underwriter of Common Stock (or other securities) of the
Company, not to sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by Shareholder during a period of time
determined by the Company and its underwriters (not to exceed 180 days)
following the effective date of the Company's initial public offering of its
capital stock, provided that all officers, directors and employees of the
Company holding stock or stock options of at least one (1%) percent of the
Company's outstanding stock prior to the initial public offering of the Company
enter into similar agreements; provided, further, that with respect to the
Series C Holders and Series D Holders, the prohibition against the sale,
transfer or other dispostions of any Common Stock (or other securities) of the
Company held by them pursuant to this Section 16 shall not prohibit (i) the sale
of any shares of Common Stock purchased by such Series C Holder or Series D
Holder pursuant to a directed share program or otherwise in the Company's
initial public offering, or (ii) the sale, in the open market, of any shares of
Common Stock by such Series C Holder or Series D Holder provided that such
shares are purchased in the open market after the completion of the Company's
initial public offering.
12
Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop-transfer instructions
with respect to the Shares (or securities) subject to the foregoing restriction
until the end of said period.
17. Governing Law. This Agreement and the legal relations between the
-------------
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
18. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties regarding rights to
registration. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
19. Notices, Etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or otherwise delivered by hand or by messenger, addressed (a)
if to a Shareholder, at the address or addresses set forth on Exhibit A, Exhibit
--------- -------
B, Exhibit C, Exhibit D or Exhibit E attached hereto, or at such other address
- --------- --------- ---------
or addresses as the Shareholder shall have furnished to the other parties hereto
in writing, or (b) if to any other holder of any securities, at such address as
such holder shall have furnished the other parties hereto in writing, or, until
any such holder so furnishes an address to the Company, then to and at the
address of the last holder of such Shares who has so furnished an address to the
Company, or (c) if to the Company, at the address of its principal offices set
forth on the signature page of this Agreement, or at such other address as the
Company shall have furnished to the other parties hereto in writing.
20. Other Registration Rights. This Agreement supersedes any previous
-------------------------
agreement between the Company and any party with respect to the grant by the
Company of registration rights, including but not limited to Registration Rights
Agreement dated February 14, 1997.
21. 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.
22. Amendments. Any provision of this Agreement may be amended, waived or
----------
modified upon the written consent of the Company, and the Shareholders (or their
assignees to whom Shareholders have expressly assigned their rights in
compliance with Section 15 hereof) who then hold more than fifty percent (50%)
of the Registrable Securities then held by persons entitled to registration
rights hereunder, provided further, any such amendment, waiver or modification
applies by its terms to each applicable Shareholder and each such assignee and,
provided further, that a Shareholder or such assignee hereunder may waive any of
such Holder's rights or the Company's obligations hereunder without obtaining
the consent of any other Shareholder or assignee.
(Remainder of this page left intentionally blank)
13
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first above written.
"INVENTA CORPORATION"
By:_____________________________________
Xxxxx X. Xxxxxxx, President
[Signature Page to Amended and Restated Registration Rights Agreement]
"SHAREHOLDERS"
________________________________________
Xxxxxxx X. Xxxxx
BANCBOSTON VENTURES INC.
By:_____________________________________
Name: Xxxx X. Xxxxxxx
Title: Director
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By:_____________________________________
Name:
Title:
BOSTON MILLENNIA PARTNERS
LIMITED PARTNERSHIP
By: Xxxx Partners Limited Partnership,
its General Partner
By:_____________________________________
General Partner
________________________________________
Xxxx Xxxxxx, Xx.
________________________________________
Xxxxx X. Xxxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
THE CHASE MANHATTAN BANK AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST
By:_____________________________________
Title:__________________________________
________________________________________
Electra X. XxXxxxxxx
________________________________________
Xxxxxx Xxxxxxxx
Xxxxxx G. and Xxxxxxx X. Xxxxxxxx
Charitable Annuity Trust, u/d/t
________________________________________
Xxxxxx Xxxxxxxx, Trustee
________________________________________
Xxxxxxxxx Xxxxxx
ESSEX PRIVATE PLACEMENT FUND II, LIMITED PARTNERSHIP
By: Essex Investment Mgt. Company LLC
Its General Partner
By:_____________________________________
Its:____________________________________
________________________________________
Xxxx X. Xxxxxxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
2
________________________________________
Xxxxxx X. Xxxxxx
________________________________________
Xxxxxx X. Xxxxx
________________________________________
Xxxxx X. Xxxxx
________________________________________
Xxxxxx Xxxxxx
PRIVATE EQUITY PORTFOLIO II, LLC
By:_____________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
________________________________________
Xxxxxx Xxxxxxxxxx
________________________________________
Xxxxxxxxx X. Xxxxxx
________________________________________
Xxxxx X. Xxxxxxxxx
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
[Signature Page to Amended and Restated Registration Rights Agreement]
3
TCV II STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: Investment General Partner
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TECHNOLOGY CROSSOVER VENTURES II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.
Its: General Partner
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
[Signature Page to Amended and Restated Registration Rights Agreement]
4
________________________________________
Xxxxxx Xxxxxxxxx
________________________________________
Xxxxxx Xxxxxxxxxxxxx
________________________________________
Xxxx Xxxxxxxxxxx
[Signature Page to Amended and Restated Registration Rights Agreement]
5
IN WITNESS WHEREOF, the Parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the date first above written.
INVENTA: SHAREHOLDERS:
INVENTA CORPORATION
____________________________
Xxxxxxx X. Xxxxxxxx
By:______________________________
Title:___________________________ ____________________________
Xxxx Xxxxxxx
____________________________
Xxxx Xxxx
____________________________
Xxxxx Xxxx
____________________________
Xxxx XxXxxxxx
____________________________
Xxxxxxx Xxxxxxxx
____________________________
Xxxxx Xxxx
(Shareholder Signatures Continued
Next Page)
[Signature Page to Amended and Restated Registration Rights Agreement]
___________________________________
Xxxxx X. Xxxxxx
___________________________________
Xxxxx Xxxxxx
___________________________________
Xxxxxx X.DeCapuq
___________________________________
Xxxxxx Xxxx
International Database Communication
Systems, Inc./IDCS
By:________________________________
Xxxxx X. Xxxxxx
Chairman/CEO
[Signature Page to Amended and Restated Registration Rights Agreement]
INVENTA CORPORATION
______________________________
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
______________________________
January 26, 2000
EXHIBIT A
---------
SCHEDULE OF HOLDERS
OF SERIES A PREFERRED STOCK
Name and Address
--------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx Xxxxxx Xxxxxxxxx
000 Xxxxx Xxxxx 0000 Xxxxxxx Xxxxx
Suites 225 & 000 Xxxx Xxxxxxxxx, XX, X0X0X0
Xxxxxxxx, XX 00000 Xxxxxx
Electra X. Xx Xxxxxxx Xxxxxx Xxxxxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxxx 00 Xxxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000 A2 Anand Xxxxxx
Xxxxxx, 000000
XXXXX
Xxxxxx Xxxxxxxx Xxxx Xxxxxxxxxxx
0000 Xxxx Xxx. 2/7 12th Cross
Apt. 0 XX Xxxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, 000000
XXXXX
Xxxx X. Xxxxxxxxxx
000 X. Xxxxxxx Xxx
Xxxxxx, XX 00000
Xxxxxx G. and Xxxxxxx X. Xxxxxxxx
Charitable Annuity Trust, u/d/t
Xxxxxx Xxxxxxxx, trustee
0000 Xxxx Xxx.
Xxx. 0 XX
Xxx Xxxx, X.X. 00000
Xxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxxxx X. Xxxxxx
000 X Xxxxxx
Xxx Xxxxxx, XX 00000
EXHIBIT B
---------
SCHEDULE OF HOLDERS
OF SERIES B PREFERRED STOCK
Name and Address
--------------------------------------------------------------------------------
Battery Ventures L.P.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx
000 Xxxxx Xxxxx
Xxxxxx 000 & 000
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx
0000 Xxxx Xxx.
Xxx. 0 XX
Xxx Xxxx, X.X. 00000
Xxxxxx G. and Xxxxxxx X. Xxxxxxxx
Charitable Annuity Trust, u/d/t
Xxxxxx Xxxxxxxx, trustee
0000 Xxxx Xxx.
Xxx. 0 XX
Xxx Xxxx, X.X. 00000
Xxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Xxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX, X0X0X0
Xxxxxx
EXHIBIT C
---------
SCHEDULE OF HOLDERS
OF SERIES C PREFERRED STOCK
Name and Address
--------------------------------------------------------------------------------
Battery Ventures III, L.P. Xxxxxx Xxxxxxxxxx
00 Xxxxxxx Xxxxxx x/x Xxxxxx Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 0000000 Xxxx Xxxxx, Xxx. 000
Xxxxxx, XX 00000
Boston Millennia Partners Xxxxx X. Xxxxxxxxx
30 Xxxx Wharf, Ste. 330 c/o Boston Millennia Partners
Xxxxxx, XX 00000 00 Xxxx Xxxxx, Xxx. 000
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
c/o Boston Millennia Partners 000 Xxxxx Xxxxx
00 Xxxx Xxxxx, Xxx. 000 Suites 225 & 230
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
A. Xxxx Xxxxxx, Xx. Xxxx X. Xxxxxxxxxx
c/o Boston Millennia Partners 000 X. Xxxxxxx Xxx
00 Xxxx Xxxxx, Xxx. 000 Xxxxxx, XX 00000
Xxxxxx, XX 00000
Xxxxxxxxx Xxxxxx Xxxxxxxxx X. Xxxxxx
c/o Boston Millennia Partners 000 X Xxxxxx
00 Xxxx Xxxxx, Xxx. 000 Xxx Xxxxxx, XX 00000
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx TCV II (Q), L.P.
c/o Boston Millennia Partners c/o Technology Crossover Ventures
00 Xxxx Xxxxx, Xxx. 000 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
c/o Boston Millennia Partners with a copy to:
00 Xxxx Xxxxx, Xxx. 000 c/o Technology Crossover Ventures
Xxxxxx, XX 00000 000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx
Xxxxx X. Xxxxx
c/o Boston Millennia Partners
00 Xxxx Xxxxx, Xxx. 000
Xxxxxx, XX 00000
TCV II Strategic Partners, L.P. TCV II, V.O.F.
c/o Technology Crossover Ventures c/o Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxx X. Xxxxxx
with a copy to: with a copy to:
c/o Technology Crossover Ventures c/o Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000 000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx Attention: Xxx X. Xxxx.
Technology Crossover Ventures II, C.V. Technology Crossover Ventures II, C.V.
c/o Technology Crossover Ventures c/o Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx Attention: Xxxxxx X. Xxxxxx
with a copy to: with a copy to:
c/o Technology Crossover Ventures c/o Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000 000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx Attention: Xxx X. Xxxx.
EXHIBIT D
---------
SCHEDULE OF HOLDERS
OF SERIES D PREFERRED STOCK
Name and Address
-----------------------------------------------------------------------------------------
BancBoston Ventures Inc. The Chase Manhattan Bank,
000 Xxxxx Xxxxxx, Xxxxx 000 As Trustee for First Plaza Group Trust
Xxxx Xxxx, XX 00000 Global Investor Services
Attn: Xxxx Xxxxxxx 4 Chase Metro Tech Center, 00/xx/ Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Private Equity Portfolio II, LLC Technology Crossover Ventures II, L.P.
000 Xxxxxxx Xxxxxx, 10/th/ Floor 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Attn: Xxxxxx X. Xxxxxx
Battery Ventures III, L.P. TCV II (Q), L.P.
00 Xxxxxxx Xxxxxx 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Attn: Xxxxxx X. Xxxxxx
Boston Millennia Partners Limited Partnership Technology Crossover Ventures II, C.V.
00 Xxxxx Xxxxx 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx TCV II Strategic Partners L.P.
0000 Xxxx Xxxxxx, Xxx. 0 XX 00 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Xxxxxx G. & Xxxxxxx X. Xxxxxxxx TCV II, V.O.F.
Charitable Annuity Trust 00 Xxxx Xxxxxx, Xxxxx 000
0000 Xxxx Xxxxxx, Xxx. 0 XX Xxxxxxxx, XX 00000
Xxx Xxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx
Essex Private Placement Fund II,
Limited Partnership Boston Millennia Associates I, Limited
c/o Essex Investment Mgt. Company Partnership
000 Xxxx Xxxxxx 00 Xxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxxx X. Xxxxxx
EXHIBIT E
SCHEDULE OF XTEND-TECH HOLDERS
