Exhibit 6
EXECUTION COPY
VSOURCE, INC.
REGISTRATION RIGHTS AGREEMENT
DATED AS OF OCTOBER 25, 2002
TABLE OF CONTENTS
PAGE
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1. REGISTRATION RIGHTS........................................................1
1.1 Definitions........................................................1
1.2 Request for Registration...........................................5
1.3 Company Registration...............................................7
1.4 Form S-3 Registration..............................................8
1.5 Obligations of the Company........................................10
1.6 Information from Holder...........................................12
1.7 Expenses of Registration..........................................12
1.8 Delay of Registration.............................................13
1.9 Indemnification...................................................13
1.10 Reports Under Securities Exchange Act of 1934.....................16
1.11 Assignment of Registration Rights.................................16
1.12 Limitations on Subsequent Registration Rights....................16
1.13 Governmental Authorities..........................................17
1.14 Termination of Registration Rights................................17
2. MISCELLANEOUS.............................................................17
2.1 Additional Investors..............................................17
2.2 Successors and Assigns............................................17
2.3 Governing Law; Venue..............................................17
2.4 Counterparts......................................................18
2.5 Titles and Subtitles..............................................19
2.6 Notices...........................................................19
2.7 Expenses..........................................................19
2.8 Amendments and Waivers............................................19
2.9 Aggregation of Stock..............................................19
2.10 Further Assurances................................................20
2.11 Severability......................................................20
2.12 Entire Agreement..................................................20
SCHEDULE
SCHEDULE A Schedule of Investors
VSOURCE, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into as
of October 25, 2002 by and among Vsource, Inc., a Delaware corporation (the
"COMPANY"), the Founder Investors listed on Schedule A (the "FOUNDER INVESTORS")
and the other Investors listed on Schedule A (together with the Founder
Investors, the "INVESTORS").
The Investors are the owners of that number of shares of Series 4-A
Convertible Preferred Stock, par value U.S.$0.01 per share (the "SERIES 4-A
PREFERRED STOCK"), as set forth in detail on Schedule A.
The obligations of the Company and certain of the Investors under
the Series 4-A Convertible Preferred Stock Purchase Agreement dated as of
October 23, 2002 (the "SERIES 4-A PURCHASE AGREEMENT") are conditioned, among
other things, upon the execution and delivery of this Agreement by the Investors
and the Company.
In consideration of the mutual premises and covenants contained in
this Agreement and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. REGISTRATION RIGHTS
1.1 DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings set forth below:
(a) "ACT" means the Securities Act of 1933, as amended.
(b) "AFFILIATE" of an entity means a person or entity that directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with, such entity.
(c) "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 that permits inclusion or incorporation of substantial information by
reference to other documents filed with the SEC.
(d) "GOVERNMENTAL AUTHORITY" is defined in Section 1.5(a).
(e) "HOLDER" means any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with Section 1.11.
(f) "INDEMNIFIED PERSON" is defined in Section 1.9(a).
(g) "INITIATING HOLDER(S)" is defined in Section 1.2(a).
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(h) "IRR" means the discount rate that would make the present value
of a stream of Payments (as defined below) and Receipts (as defined below) equal
zero where:
(i) cash payments (the "PAYMENTS") are:
(a) the purchase consideration paid by the Share
Purchasers (as defined in the definition of Qualifying
Offering below) to the Company for Series 4-A Preferred
Stock purchased on October 25, 2002;
(b) the purchase consideration paid by the Share
Purchasers to the Company, if any, for Series 4-A
Preferred Stock purchased after October 25, 2002
pursuant to the Series 4-A Purchase Agreement; and
(c) the purchase consideration paid by the Share
Purchasers to the Company, if any, for Common Stock
issued upon exercise of warrants which were issued in
connection with the Series 4-A Preferred Stock (the
"WARRANT SHARES"); and
(ii) amounts received (the "RECEIPTS") are:
(a) dividend distributions and other cash payments, if
any, received by the Share Purchasers from the Company
in respect of: (1) the Series 4-A Preferred Stock and
Warrant Shares and (2) any securities received by the
Share Purchasers in respect of the Series 4-A Preferred
Stock or Warrant Shares without additional consideration
paid by the Share Purchasers; and
(b) the value of Series 4-A Preferred Stock, Warrant
Shares and any securities received by the Share
Purchasers in respect of the Series 4-A Preferred Stock
or Warrant Shares without additional consideration paid
by the Share Purchasers held by the Share Purchasers on
the Liquidity Date (as defined below) determined as (1)
the aggregate value of the Series 4-A Preferred Stock
and Warrant Shares and such securities held by the Share
Purchasers on the Liquidity Date in the case of a
Qualifying Offering (determined as the offering price to
the public per share of Common Stock times the number of
Warrant Shares and the number of issued or issuable
Conversion Shares (as defined in the definition of
Liquidity Date below)); (2) the aggregate purchase price
of the Series 4-A Preferred Stock, Warrant Shares and/or
such securities on the Liquidity Date in the case of a
Qualifying Sale; or (3) the proceeds distributable to
the Share Purchasers on the Liquidity Date in the case
of a sale of assets; and
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(iii) the first date in the measurement of the present value
will be October 25, 2002 and the last date will be the
Liquidity Date.
(i) "LIQUIDITY DATE" means the earliest to occur of: (i) the date of
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 by the SEC (as defined
below) or, in connection with a Qualifying Offering (as defined below) on an
Authorized Exchange (as defined in the definition of Qualifying Offering below)
in a jurisdiction other than the United States, any registration, qualification
or completion of any procedure in compliance with the applicable securities laws
of such non-U.S. jurisdiction undertaken or made to permit the unrestricted,
lawful distribution or resale of securities to members of the general public
therein, of any of the Common Stock issuable upon conversion of the Series 4-A
Preferred Stock held by the Share Purchasers (as defined in the definition of
Qualifying Offering below) or their Permitted Transferees (the "CONVERSION
SHARES") following, or in conjunction with, the completion of a Qualifying
Offering (as defined below); (ii) the date on which the Share Purchasers and
their Permitted Transferees are able to publicly sell all of their issued or
issuable Conversion Shares pursuant to an effective registration statement
covering such shares or in any three month period pursuant to Rule 144, provided
that a Qualifying Offering has occurred; (iii) the date of the closing of a
Qualifying Sale (as defined below); and (iv) the date of the closing of a sale
of all or substantially all of the assets of the Company for consideration that
results in distributions per share to the Share Purchasers of proceeds from such
sale equivalent to the consideration that would be received in a Qualifying
Sale.
(j) "LOSSES" is defined in Section 1.9(a).
(k) "NEW INVESTORS" is defined in Section 2.1.
(l) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(m) "OFFERING DOCUMENTS" means any application, offering memoranda,
prospectuses, registration statements or other documents necessary or
appropriate in order to effect any offer or sale of Registrable Securities in
the manner set forth herein.
(n) "PERMITTED TRANSFEREE" means any Affiliate of a Holder, any
spouse or lineal ancestor or descendant of a Holder, or any trust or other
entity created and existing solely for the benefit, directly or indirectly, of a
Holder or any such person or persons.
(o) "PARTICIPATING HOLDER" is defined in Section 1.2(a).
(p) "QUALIFYING OFFERING" means a firm commitment public offering,
underwritten by an internationally reputable investment bank selected by the
Company's Board of Directors, of the Company's Common Stock on an
internationally recognized exchange or quotation system, which exchange or
quotation system shall have a minimum market capitalization, based on the market
value of all of the listed securities thereon, of US$50,000,000,000, as quoted
and reported within the EMTK Function of Bloomberg Financial
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Markets or if not so quoted, based upon statistics made publicly available on
such exchange, or if such statistics are not available, based upon the
reasonable discretion of the Company's Board of Directors (an "AUTHORIZED
EXCHANGE") pursuant to an effective registration statement under the Act (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to its stock option, stock purchase or similar
plan or a transaction pursuant to Rule 145 under the Act) or, in connection with
a Qualifying Offering on an Authorized Exchange in a jurisdiction other than the
United States, pursuant to any registration, qualification or completion of any
procedure in compliance with the applicable securities laws and exchange rules
of such non-U.S. jurisdiction undertaken or made to permit the unrestricted,
lawful distribution or resale of securities to members of the general public
therein, the public offering price per share (the "OFFERING PRICE") of which is
not less than the price that would yield an IRR of thirty percent (30%) to the
Investors who on October 25, 2002 purchased shares of Series 4-A Preferred Stock
for cash consideration (such Investors being referred to herein as the "SHARE
PURCHASERS" and such price being referred to herein as the "30% IRR PRICE") and
in which the aggregate net proceeds (after deductions of underwriters'
commissions and offering expenses) to the Company exceed US$20,000,000 (or the
equivalent in the applicable currency).
(q) "QUALIFYING SALE" means a sale of more than fifty percent (50%)
of the Company's Common Stock on a fully diluted basis (assuming full conversion
and exercise of all outstanding convertible, exchangeable and exercisable
securities, including, without limitation, securities granted under any employee
share option plan which have vested) for a purchase price per share at least
equal to the 30% IRR Price, provided however, that in the event the purchase
price for such securities is payable in marketable securities, such marketable
securities shall be valued at the average of the daily closing prices of such
marketable securities over the 180 consecutive trading days immediately
preceding (and not including) the date such marketable securities are received,
and provided further, that such purchase price is payable in full at the closing
in cash or marketable securities.
(r) "REGISTER," "REGISTERED", and "REGISTRATION" refer to: (i) 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 or (ii) in the case of
an offer and sale outside of the United States, the preparation and filing of
the relevant Offering Documents with any applicable Governmental Authority and
the declaration or ordering of effectiveness of such Offering Documents.
(s) "RECAPITALIZATIONS" means stock splits, subdivisions, stock
dividends, combinations, recapitalizations and the like.
(t) "REGISTRABLE SECURITIES" means (i) the shares of Common Stock
issuable or issued upon conversion of the Company's Series 4-A Preferred Stock,
(ii) shares of Common Stock issued or issuable upon exercise of the warrants
issued to the Investors pursuant to the Series 4-A Purchase Agreement and (iii)
any shares of Common Stock of the Company issued as (or issuable upon
conversions, exchanges or exercises of such shares or of warrants, rights or
other securities issued as) a dividend or other distribution with respect to, or
in exchange for, or in replacement of, such shares referenced in (i) above.
Notwithstanding the foregoing, shares of Common Stock otherwise designated
Registrable Securities shall cease to be Registrable
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Securities when (1) such shares are sold by a person in a transaction in which
his, her or its rights under this Section 1 have not been assigned, (2) pursuant
to a registration statement under the Act that has been declared effective or
other effective Offering Document and such Registrable Securities have been
disposed of pursuant to such effective registration statement or other Offering
Document or (3) the entire amount of the Registrable Securities of a Holder may
be sold in any ninety (90) day period without registration in compliance with
Rule 144 (or any similar provision then in effect) under the Act.
(u) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" will be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable, exchangeable or convertible securities that are,
Registrable Securities.
(v) "S-3 PARTICIPATING HOLDERS" is defined in Section 1.4(a).
(w) "SEC" means the U.S. Securities and Exchange Commission.
(x) "STOP ORDER" is defined in Section 1.5(f).
(y) "VIOLATION" is defined in Section 1.9(a).
1.2 REQUEST FOR REGISTRATION
(a) If, at any time after the date that is ninety (90) days after
the date of this Agreement, the Company receives a written request from the
Holders (other than Founding Investors) of fifteen percent (15%) or more of the
Registrable Securities then outstanding (the "INITIATING HOLDER(S)") that the
Company file a registration statement under the Act or other Offering Document
covering the registration of at least five percent (5%) of the Company's total
outstanding share capital on a fully diluted basis at such time, then the
Company will promptly, and in no event later than fifteen (15) days of the
receipt thereof, give written notice of such request to all Holders. Such
Holders have the right by giving written notice to the Company within thirty
(30) days after the Company has given its notice, to include such of their
Registrable Securities as they elect in such notice to the Company (any such
Holders being referred to herein as "PARTICIPATING HOLDERS") . Subject to the
limitations of Section 1.2(b) and (c), the Company will use its best efforts to,
as expeditiously as possible, take such actions to register with, or otherwise
seek such approvals of, the SEC or any Governmental Authority as are necessary
or appropriate in order to permit the public offer and sale of the Registrable
Securities which the Initiating Holder or Holders and Participating Holders had
requested to be included in such registration.
(b) If the Initiating Holder or Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they will so advise the Company as a part of their request made pursuant to this
Section 1.2 and the Company will include such information in the written notice
referred to in this Section 1.2. In such event, the right of any Holder to
include its Registrable Securities in such registration will be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable
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Securities in the underwriting (unless otherwise mutually agreed by a majority
in interest of the Initiating Holder or Holders and the Participating Holders)
to the extent provided herein. All Holders proposing to distribute their
securities through such underwriting will enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company's Board of Directors and the Initiating Holders
holding a majority of the Registrable Securities requested by such Initiating
Holders to be included in the registration. Notwithstanding any other provision
of this Section 1.2, if the managing underwriter advises the Company that
marketing factors require a limitation of the number of securities underwritten
(including Registrable Securities), then the Company will so advise all Holders
of Registrable Securities that would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting will be
allocated to the Holders of such Registrable Securities on a pro rata basis (as
nearly as practicable) based on the number of Registrable Securities held by all
such Holders (including the Initiating Holder or Holders), provided, that no
Registrable Securities will be excluded unless and until all other securities of
the Company and other stockholders not holding Registrable Securities hereunder
who were to participate in the underwriting have been excluded. Any Registrable
Securities excluded or withdrawn from such underwriting will be withdrawn from
the registration.
(c) In addition, the Company will not be required to effect a
registration pursuant to this Section 1.2:
(i) after the Company has effected three (3) registrations
pursuant to this Section 1.2, and such registrations have been declared or
ordered effective;
(ii) if the Company has filed a registration pursuant to
Section 1.2, 1.3 or 1.4 within the preceding six (6) months and such
registration statement or other Offering Document has been declared or ordered
effective;
(iii) during the period starting with the date sixty (60) days
prior to, and ending on the date one hundred eighty (180) days following, the
Company's good faith estimate of the effective date of a Company-initiated
registration subject to Section 1.3, provided that the Company is actively
employing in good faith its best efforts to cause such registration to become
effective; provided, further that the Company will not be entitled to rely on
this clause (iii) as to any proposed Company-initiated registration if such
registration is not effected by the end of ninety (90) days following the
commencement of such period;
(iv) if the Initiating Holder or Holders propose to dispose of
Registrable Securities that may be registered within ten (10) days of such
Initiating Holder's or Holders' request on Form S-3 pursuant to a request made
pursuant to Section 1.4;
(v) if the Company furnishes to Holders requesting a
registration pursuant to this Section 1.2, a certificate signed by the Company's
Chief Executive Officer and Chairman of the Board stating that the Board of
Directors of the Company has determined that it would be seriously detrimental
to the Company and its stockholders for such registration to be effected at such
time, in which event the Company will have the right to defer such filing for a
period of not more than ninety (90) days after receipt of the request of the
Initiating Holder or
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Holders; provided, that such right to delay a request pursuant to this Section
1.2(c)(v) or Section 1.4(b)(iii) will be exercised by the Company not more than
once in any twelve (12)-month period; or
(vi) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required under the Act.
(d) No registration initiated by the request of Holders hereunder
will count as a registration under Section 1.2 (i) if the effect of any cut-back
pursuant to Section 1.2(b) is to reduce the number of shares requested by the
Holders to be included in the registration below eighty percent (80%) or (ii) if
the related registration statement or other Offering Document filed with the SEC
or Governmental Authority is not declared effective (either pursuant to Section
1.2(e) or otherwise) or is declared effective but is subject to a Stop Order or
is withdrawn by the Company before at least eighty percent (80%) of the Holders'
securities so registered are sold.
(e) A majority in interest of the Initiating Holder or Holders and
the Participating Holders shall have the right at any time to demand the
withdrawal of any registration statement or other Offering Document filed
pursuant to this section (and the Company shall so withdraw such registration
statement or other Offering Document) prior to the time that such registration
has become effective or is otherwise finalized and approved, provided that no
registration statement or other Offering Document shall be withdrawn pursuant to
this section if one or more Initiating Holders meets the minimum requirements
for registration set forth in Section 1.2(a) above and wishes to continue with
the registration, it being understood that in such event any other Initiating or
Participating Holders that wish may withdraw their shares from such registration
on an individual basis.
1.3 COMPANY REGISTRATION
(a) If (but without any obligation to do so) the Company proposes to
register (including for this purpose a registration effected by the Company for
stockholders other than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities (other than a
registration relating solely to the sale of securities to participants in a
Company stock option plan, stock issuance plan or employee stock purchase plan,
a registration relating to a corporate reorganization or other transaction under
Rule 145 of the Act, a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities, or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities that are also being registered), the
Company will, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company, the Company will, subject to
the provisions of Section 1.3(c), use its best efforts to cause to be registered
under the Act all of the Registrable Securities that each such Holder has
requested to be registered.
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(b) The Company will have the right to terminate or withdraw any
registration initiated by it under this Section 1.3 prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration. The expenses of such withdrawn registration shall be borne
by the Company in accordance with Section 1.7 hereof.
(c) In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company will not be required under
this Section 1.3 to include any of the Holders' securities in such underwriting
unless they accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by the Company and enter into an
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company's Board of Directors. If the total amount of securities,
including Registrable Securities, requested by stockholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company will be required to include in the
offering only that number of such securities, including Registrable Securities,
that the underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro rata
among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as mutually agreed to by such selling stockholders; provided,
that there shall be no reduction in the number of securities requested to be
included in such offering by QCC Communications Corporation or its successors or
assigns ("QCC") pursuant to the Domain Name Transfer Agreement dated August 10,
2001 by and between QCC and the Company, unless QCC consents to a reduction;
provided, further in no event will the amount of securities of the selling
stockholders included in the offering be reduced below twenty-five percent (25%)
of the total amount of securities included in such offering). For purposes of
the preceding parenthetical concerning apportionment, for any selling
stockholder that is a Holder of Registrable Securities and that is a partnership
or corporation, the partners, retired partners and stockholders of such Holder,
or the estates and family members of any such partners and retired partners and
any trusts for the benefit of any of the foregoing persons may be deemed to be a
single "selling stockholder", and any pro rata reduction with respect to such
"selling stockholder" will be based upon the aggregate amount of Registrable
Securities owned by all entities and individuals included in such "selling
stockholder", as defined in this sentence.
1.4 FORM S-3 REGISTRATION
In case, at any time after the date which is ninety (90) days after
the date of this Agreement, the Company receives from an Initiating Holder or
Holders a written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Initiating Holder or Holders,
the Company will:
(a) promptly, and, in no event later than fifteen (15) days after
the Company's receipt of the Initiating Holder's or Holders' request, give
written notice of the proposed registration, and any related qualification or
compliance, to all other Holders and such Holders shall have the right by giving
written notice to the Company within fifteen (15) days after the Company has
given its notice, to include such of their Registrable Securities as they elect
in such
8
notice to the Company (any such Holders being referred to herein as "S-3
PARTICIPATING HOLDERS"); and
(b) use its best efforts to, as expeditiously as possible, take such
actions to register with the SEC as are necessary or appropriate to permit the
public offer and sale of the Registrable Securities which the Initiating Holder
or Holders and S-3 Participating Holders had requested to be included in such
registration. However, the Company will not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4 under
the following circumstances:
(i) if Form S-3 is not available for such offering by the
Initiating Holder or Holders, but only for so long as Form S-3 is not available;
(ii) if the Initiating Holder or Holders and the S-3
Participating Holders, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
U.S.$5,000,000;
(iii) if the Company furnishes to the Initiating Holder or
Holders and the S-3 Participating Holders a certificate signed by the Company's
Chief Executive Officer and Chairman of the Board stating that the Board of
Directors of the Company has determined that it would be seriously detrimental
to the Company and its stockholders for such Form S-3 registration to be
effected at such time, in which event the Company will have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the
request of the Initiating Holder or Holders under this Section 1.4; provided,
that such right to delay a request pursuant to this Section 1.4(b)(iii) or
Section 1.2(c)(v) will be exercised by the Company not more than once in any
twelve (12)-month period;
(iv) if the Company has, within the six (6) month period
preceding the date of such request, already filed one registration on Form S-3
for the Holders pursuant to this Section 1.4; or
(v) in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required under the Act.
(c) Registrations effected pursuant to this Section 1.4 will not be
counted as requests for registration effected pursuant to Section 1.2.
(d) A majority in interest of the Initiating Holder or Holders and
the Participating Holders shall have the right at any time to demand the
withdrawal of any registration statement filed pursuant to this section (and the
Company shall so withdraw such registration statement) prior to the time that
such registration has become effective, provided that no registration statement
shall be withdrawn pursuant to this section if one or more Initiating
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Holders meets the minimum requirements for registration set forth in this
Section 1.4 above and wishes to continue with the registration, it being
understood that in such event any other Initiating or Participating Holders that
wish may withdraw their shares from such registration on an individual basis.
1.5 OBLIGATIONS OF THE COMPANY
Whenever required under this Section 1 to effect the registration of
any Registrable Securities, the Company will, as expeditiously as possible:
(a) prepare and file with the SEC (or any other equivalent
governmental authority in a jurisdiction outside of the United States
responsible for the regulation and oversight of such jurisdiction's securities
laws with respect to a registration on an Authorized Exchange outside of the
United States (a "GOVERNMENTAL AUTHORITY")) Offering Documents with respect to
such Registrable Securities and use its best efforts to cause such Offering
Documents to become effective as expeditiously as possible, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such Offering Documents effective for a period of: (1) up to
one hundred twenty (120) days in the case of registration under Sections 1.2 or
1.3 or, if earlier, until the distribution contemplated in the Offering Document
has been completed or (2) up to three hundred sixty-five (365) days in the case
of registration under Section 1.4 or, if earlier, until the distribution
contemplated in the Offering Document has been completed or until all
Registrable Securities covered by such Offering Document can be sold in any
ninety (90) day period without registration in compliance with Rule 144 of the
Act; provided, however, that such one hundred twenty (120) day and three hundred
sixty-five (365) day periods, as the case may be, will be extended for a period
of time equal to the period any Holder refrains from selling any securities
included in such registration at the request of an underwriter of the Common
Stock (or other securities) of the Company;
(b) notify each Holder whose securities are to be registered of the
effectiveness of the Offering Documents and the effectiveness or final approval
of any post-effective amendment to any Offering Document; and prepare and file
with the SEC or a Governmental Authority such amendments and supplements to such
Offering Documents as may be necessary to comply with the provisions of the Act
and any other applicable laws with respect to the disposition of all Registrable
Securities covered by such Offering Documents;
(c) furnish to each Holder (i) a draft copy of the Offering
Documents, and (ii) such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Act and other
applicable law, and such other documents as it may reasonably request in order
to facilitate the disposition of Registrable Securities owned by it;
(d) use its best efforts to (i) register and qualify the securities
covered by such Offering Documents under such other securities or "blue sky"
laws of such states or jurisdictions as may be reasonably requested by the
Holders, but in any event in no more than five (5) states and jurisdictions, and
do all other acts and things that may be necessary or desirable to enable the
Holders to consummate their public sale or other disposition of the Registrable
Securities in such states or jurisdictions; provided, that the Company will not
be required in connection therewith
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or as a condition thereto to qualify to do business, where not otherwise
required, or to file a general consent to service of process in any such states
or jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the disposition of such
Registrable Securities;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering;
(f) notify each Holder of Registrable Securities covered by such
Offering Document, at any time when a prospectus relating thereto is required to
be delivered, of (i) the issuance of any stop order or equivalent order by the
SEC or any Governmental Authority suspending the effectiveness of such Offering
Document or the initiation of any proceedings by any person to such effect (a
"STOP ORDER"), and use commercially reasonable efforts to obtain the release of
such suspension as soon as reasonably practicable, (ii) any communication from
the SEC or any Governmental Authority threatening the issuance of a Stop Order
and (iii) the happening of any event as a result of which the Offering
Documents, as then in effect, include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly furnish to the Holders copies
of a supplement or amendment of such Offering Documents as may be necessary to
correct such misstatement or omission;
(g) 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;
(h) provide a transfer agent and registrar for all 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 and use its best efforts to cause the transfer agent to remove
restrictive legends on the securities covered by such registration; and
(i) use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Section 1, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the Offering Document with
respect to such securities becomes effective, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters
and to the Holders requesting registration of Registrable Securities, and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting
11
registration, addressed to the underwriters and to the Holders requesting
registration of Registrable Securities.
1.6 INFORMATION FROM HOLDER
(a) It is a condition precedent to the obligations of the Company to
take any action pursuant to this Section 1 with respect to the Registrable
Securities of any selling Holder that such Holder furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as is reasonably requested by
the Company or the managing underwriter in order to satisfy the requirements
applicable to such registration of such Holder's Registrable Securities.
(b) The Company has no obligation with respect to any registration
requested pursuant to Section 1.2 if, due to the operation of Section 1.6(a),
the number of shares or the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does not equal or
exceed the number of shares or the anticipated aggregate offering price required
to originally trigger the Company's obligation to initiate such registration as
specified in Section 1.2(a).
1.7 EXPENSES OF REGISTRATION
(a) All expenses (other than underwriting discounts and commissions
relating to Registrable Securities of a Holder) incurred in connection with
registrations, filings or qualifications pursuant to Sections 1.2 and 1.3,
including, without limitation, all registration, filing and qualification fees
(including "blue sky" fees), printers' and accounting fees, fees and
disbursements of counsel for the Company (including fees and disbursements of
one counsel for the selling Holders selected by the selling Holders holding a
majority of the Registrable Securities to be registered) will be borne by the
Company. Notwithstanding the foregoing, the Company will not be required to pay
for any expenses of any registration pursuant to Section 1.2 if the registration
request is subsequently withdrawn in accordance with Section 1.2(e) (in which
case all Initiating Holder or Holders and Participating Holders will bear such
expenses pro rata based upon the number of Registrable Securities that were to
be registered in the withdrawn registration), unless all Holders agree to
forfeit their right to one (1) demand registration pursuant to Section 1.2, and
provided, further, that if such withdrawal is made pursuant to Section 1.2(d),
then the Holders will not be required to pay any such expenses and will retain
their rights pursuant to Section 1.2.
(b) All expenses (other than underwriting discounts and commissions
relating to Registrable Securities of a Holder) incurred in connection with the
first two (2) registrations, filings or qualifications pursuant to Section 1.4,
including, without limitation, all registration, filing and qualification fees
(including "blue sky" fees), printers' and accounting fees, fees and
disbursements of counsel for the Company (including fees and disbursements of
one counsel for the selling Holders selected by the selling Holders holding a
majority of the Registrable Securities to be registered, provided, however, such
fees and disbursements shall not exceed US$25,000) will be borne by the Company.
Notwithstanding the foregoing, the Company will not be required to pay for any
expenses of any registration proceeding begun pursuant to Section
12
1.4 if the registration request is subsequently withdrawn in accordance with
Section 1.4(d) (in which case all Initiating Holder or Holders and Participating
Holders will bear such expenses pro rata based upon the number of Registrable
Securities that were to be registered in the withdrawn registration), unless all
Holders agree to forfeit their right to have the Company bear the expenses of
one (1) registration pursuant to Section 1.4. Except as provided in this Section
1.7(b), all expenses incurred in connection with a registration requested
pursuant to Section 1.4, including, without limitation, all registration, filing
and qualification fees (including "blue sky" fees), printers' and accounting
fees, fees and disbursements of counsel for the selling Holder or Holders (but
not fees and disbursements of counsel for the Company), will be borne pro rata
by the Holder or Holders participating in the registration.
1.8 DELAY OF REGISTRATION
No Holder will have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.9 INDEMNIFICATION
In the event any Registrable Securities are included in an Offering
Document under this Section 1:
(a) To the fullest extent permitted by law, the Company covenants
and agrees to indemnify and hold harmless each Holder (other than the Founder
Investors), and any underwriter (as defined in the Act) together with their
officers, directors, partners, stockholders, trustees, affiliates (within the
meaning of Rule 405 under the Act), beneficial owners, attorneys, accountants
and representatives and each person, if any, who controls such Holder or
underwriter, within the meaning of the Act or the 1934 Act (the "INDEMNIFIED
PERSONS"), from and against any and all losses, claims, actions, damages,
liabilities and expenses (joint or several) (including, without limitation,
attorneys' fees and disbursements and all other expenses incurred in
investigating, preparing, compromising or defending against any such litigation,
commenced or threatened, or any claim whatsoever and all amounts paid in
settlement of any such claim or litigation) to which any of such Indemnified
Persons may become subject under the Act, the 1934 Act or other federal or state
statutory law or regulation, or at common law or otherwise (collectively
"LOSSES") as incurred, insofar as such Losses arise out of or are based upon any
of the following (collectively a "VIOLATION"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such Offering
Documents, 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 laws or any rule or regulation promulgated under the Act, the 1934
Act or any state securities laws; provided, however, that the indemnity
agreement contained in this Section 1.9(a) will not apply to amounts paid in
settlement of any such Loss if such settlement is effected without the consent
of the Company (such consent not to be unreasonably withheld), nor will the
Company be liable in any such case for any such Loss to the extent that it
arises out of or is based upon a Violation that solely occurs in reliance
13
upon and in conformity with written information provided by and relating to an
Indemnified Person, that is furnished expressly for use in connection with such
registration by such Indemnified Person; provided further, that the foregoing
indemnity agreement with respect to any preliminary prospectus will not inure to
the benefit of any Indemnified Person from whom the person asserting any such
losses, claims, damages or liabilities purchased shares in the offering, if a
copy of the prospectus (as then amended or supplemented if the Company will have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Indemnified Person to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
shares to such person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) To the extent permitted by law, each selling Holder, on a
several and not joint basis, will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the Offering Document,
each person, if any, who controls the Company within the meaning of the Act,
legal counsel and accountants for the Company, any underwriter, any other
stockholder selling securities in such Offering Document and any controlling
person of any such underwriter or other stockholder, against any Losses to which
any of the foregoing persons may become subject, under the Act, the 1934 Act or
any other federal or state statutory law or regulation or at common law or
otherwise, insofar as such Losses arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation solely
occurs in reliance upon and in conformity with written information provided by
and relating to such Holder that is furnished by such Holder expressly for use
in connection with such Offering Document; provided that in no event will any
indemnity under this Section 1.9(b) exceed the net proceeds from the sale of
Registrable Securities received by such Holder; and provided, further, that the
indemnity agreement contained in this Section 1.9(b) will not apply to amounts
paid in settlement of any such Loss if such settlement is effected without the
consent of such Holder (such consent not to be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of actual knowledge of any claim or the commencement of any action
(including any governmental action), as to which indemnity may be sought, such
indemnified party will deliver to the indemnifying party a written notice of the
commencement thereof (but the failure to so notify an indemnifying party will
not relieve it from any liability or obligation which it may have under this
Section 1.9 or otherwise unless the failure to notify results in the forfeiture
by the indemnifying party of substantial rights and defenses and will not in any
event relieve the indemnifying party from any obligations other than the
indemnification provided for herein). The indemnifying party will have the right
to participate in, and, to the extent the indemnifying party so desires, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. However, the indemnified party will have the right to retain
separate counsel and to participate in the defense thereof, with the fees and
expenses of such counsel to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be, in the indemnified party's view, inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. In no event will the
indemnifying party be required to pay the expenses of more than one counsel per
jurisdiction as counsel for the indemnified party. The
14
indemnifying party will be responsible for the expenses of such defense even if
the indemnifying party does not elect to assume such defense. No indemnifying
party may, except with the consent of the indemnified party, consent to the
entry of any judgment or enter into any settlement which does not include as a
term thereof the unconditional release of the indemnified party of all liability
in respect of such claim or litigation.
(d) If the indemnification provided for in this Section 1.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any Loss referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, will contribute to the
amount paid or payable by such indemnified party as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of and the
relative benefits received by the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violations that resulted
in such Loss as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party will be
determined by reference to, among other things, whether the Violation 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 Violation. The relative benefits received by the
indemnifying party and the indemnified party will be determined by reference to
the net proceeds and underwriting discounts and commissions from the offering
received by each such party. In no event will any contribution by a Holder under
this Section 1.9 exceed the net proceeds from the sale of Registrable Securities
received by such Holder.
(e) Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to indemnification or contribution from any person not so guilty.
(f) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement will
control.
(g) The obligations of the Company and Holders under this Section
1.9 will survive the completion of any offering of Registrable Securities in an
Offering Document under this Section 1 and otherwise.
(h) The foregoing indemnification provisions are in addition to, and
not in derogation of, any statutory, equitable or common-law remedy any party
may otherwise have.
15
1.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
With a view to making available to the Holders the benefits of Rule
144 promulgated under the Act and any other rule or regulation of the SEC that
may at any time permit a Holder to sell securities of the Company to the public
without registration, the Company agrees to use its best efforts:
(a) to make and keep current public information about the Company
available (as those terms are understood and defined in Rule 144 under the Act),
at all times the Company is subject to the reporting requirements of the 1934
Act;
(b) to file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) to furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon written request (i) a written statement
by the Company as to its compliance with the reporting requirements of the 1934
Act, (ii) a copy of the most recent annual or quarterly report of the Company
filed by the Company under the 1934 Act and (iii) such other information as such
Holder may reasonably request in order to avail itself of any similar rule or
regulation of the SEC that permits the selling of any such securities without
registration or pursuant to such form.
1.11 ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
pursuant to this Section 1 may be assigned (but only with all related
obligations) by a Holder to a Permitted Transferee in connection with a
concurrent transfer to the Permitted Transferee of the Holder's Registrable
Securities, provided, however, that (a) the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such Permitted Transferee and the securities with respect to which such
registration rights are being assigned, and (b) such Permitted Transferee agrees
in writing to be bound by and subject to all the terms and conditions of this
Agreement.
1.12 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company will not,
without the prior written consent of the Holders of two-thirds of the
outstanding Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company that would (i) grant such
holder registration rights senior to those granted to the Holders hereunder or
(ii) grant any "piggyback" registration rights with respect to underwritten
registrations conducted pursuant to Sections 1.2 and 1.3 hereof to any holder or
prospective holder of securities that would, if exercised, result in, or
increase the level of, any cut-back (as referred to in Sections 1.2(b) or 1.3(c)
hereof) in the amount of Registrable Securities any Holder seeks to register.
The Company will not, from and after the date hereof, grant any registration
rights which otherwise conflict with or impair the registration rights granted
hereunder.
16
1.13 GOVERNMENTAL AUTHORITIES.
For the avoidance of doubt, an Initiating Holder or Holders shall
have the right to demand a registration in accordance with the terms and
conditions of Section 1.2 in the United States or in any other jurisdiction
where the Company's Common Stock is already publicly traded and listed on a
stock exchange or automated quotation system. In no event shall the Company be
required under this Agreement to make any filing with, seek any approval of or
otherwise take any action with respect to any Governmental Authority in any
jurisdiction where the Company's Common Stock is not already publicly traded and
listed on a stock exchange or automated quotation system.
1.14 TERMINATION OF REGISTRATION RIGHTS
No Holder will be entitled to exercise any right provided for in
this Section 1 after (i) two (2) years following the expiration of any lock-up,
market stand-off or other period (such period not to exceed one hundred eighty
(180) days) requested by the Company and the managing underwriter of its
Qualifying Offering which restricts the ability of the Holders to transfer their
Registrable Securities immediately following such Qualifying Offering or (ii) as
to any Holder, such earlier time at which all Registrable Securities held by
such Holder (and any affiliate of the Holder with whom such Holder must
aggregate its sales under Rule 144) can be sold in any ninety (90) day period
without registration in compliance with Rule 144 of the Act.
2. MISCELLANEOUS
2.1 ADDITIONAL INVESTORS
Upon the sale of, or issuance in connection with an exchange of
securities for, shares of Series 4-A Preferred Stock to additional stockholders
(the "NEW INVESTORS"), the Company, without prior action on the part of any
existing Investor, may have each such New Investor execute and deliver this
Agreement. Each such New Investor, upon execution and delivery of this Agreement
by the Company and such New Investor, will be deemed an Investor hereunder.
2.2 SUCCESSORS AND ASSIGNS
Except as otherwise provided herein, the terms and conditions of
this Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any Registrable
Securities). The Company may not assign its rights or obligations under this
Agreement. 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.
2.3 GOVERNING LAW; VENUE
This Agreement is to be construed in accordance with and governed by the
internal laws of the State of New York without giving effect to any choice of
law rule that would cause the
17
application of the laws of any jurisdiction other than the internal laws of the
State of New York to the rights and duties of the parties. Any controversy or
claim arising out of or relating to this Agreement (including, without
limitation, the interpretation, performance, breach or termination thereof) will
be settled by arbitration in San Francisco, California, administered by the
American Arbitration Association ("AAA") in accordance with its then-current
Commercial Arbitration Rules except insofar as such rules conflict with this
Section, and judgment on the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. The arbitration will be conducted by
three arbitrators, one appointed by the party or parties commencing the
proceeding, one appointed by the party or parties in opposition, and the third
by the two arbitrators so appointed, provided that if such two arbitrators
cannot agree on a chairman, he shall be appointed by the AAA, and provided,
further, that if the dispute is such that one or more of the parties to the
dispute believes that the dispute is such that the disputing parties cannot
fairly be divided into two groups as above contemplated, such party may make
application to the AAA and if the AAA concurs in such conclusion, the AAA shall
appoint the chairman of the panel and the chairman shall appoint the other two
members of the panel after consultation with all of the parties to the dispute.
All papers, documents, evidence (whether written or oral) and other information
and materials filed with or presented to the arbitrators will be in the English
language and will constitute confidential information, and neither the parties
nor the arbitrators will disclose any such information or materials except as
necessary in connection with the arbitration or as required by applicable law.
Any demand for arbitration, requests for discovery and other notices in
connection with the arbitration may be served in the English language in
accordance with the notice provisions of this Agreement, and each party waives
any right to any other form of notice, other means of delivery or translation
into any other language. The parties will be entitled to discover all
information and materials reasonably necessary for a full understanding of any
issues reasonably raised in the arbitration. They may use all methods of
discovery permitted under the U.S. federal rules as applied in the Northern
District of California, including, without limitation, depositions, requests for
admissions, interrogatories and requests for production of documents. The time
period for compliance will be set by the arbitrators. The arbitrators will have
the authority to award any remedy or relief that a U.S. federal court could
order or grant, including, without limitation, monetary damages, injunctive or
other equitable relief, and sanctions for abuse or frustration of the
arbitration process, provided that the arbitrators shall not have the authority
to award punitive damages. The arbitrators will issue a written explanation of
the reasons for the award, and a full statement of the facts found and rules of
law applied in reaching their decision. Notwithstanding the foregoing, each
party will have the right to a preliminary injunction or other interim relief,
pending a final award by the arbitrators, in any court of competent jurisdiction
in connection with any arbitrable claim or controversy, but only to the extent
that such interim relief is intended to preserve the adequacy or sufficiency of
any final award granted by the arbitrators.
2.4 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Any signature page to this Agreement or any
amendment thereto delivered by fax machine or telecopy machine shall be binding
to the same extent as an original signature page. Any party
18
who delivers such a signature page agrees to later deliver an original
counterpart to any party requesting it.
2.5 TITLES AND SUBTITLES
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
2.6 NOTICES
Any notice or other communication required or permitted to be
delivered under this Agreement shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified; (ii)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day; (iii) seven (7) days
after having been sent by registered or certified air mail, return receipt
requested, postage prepaid; or (iv) three (3) days after deposit with an
internationally recognized express courier, specifying highest priority
delivery, with written verification of receipt, to the address or facsimile
number set forth beneath the name of each party below (or to such other address
or facsimile number as such party may designate by ten (10) days advance written
notice to the other party hereto). Each person making a communication hereunder
by facsimile shall promptly confirm by telephone to the person to whom such
communication was addressed each communication made by it by facsimile pursuant
hereto but the absence of such confirmation shall not affect the validity of any
such communication.
2.7 EXPENSES
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
2.8 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any
term of this 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 Holders of two-thirds of the Registrable
Securities then outstanding. Any amendment or waiver so effected will be binding
upon the Company, the Holders, each Permitted Transferee and all of their
respective successors and assigns whether or not such party, successor or
assignee entered into or approved such amendment or waiver.
2.9 AGGREGATION OF STOCK
All Registrable Securities held or acquired by entities advised by
the same investment adviser and affiliated entities or persons will be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
19
2.10 FURTHER ASSURANCES
Each Investor and the Company will from time to time and at all
times hereafter make, do, execute, or cause or procure to be made, done and
executed such further acts, deeds, conveyances, consents and assurances without
further consideration, which may reasonably be required to effect the
transactions contemplated by this Agreement.
2.11 SEVERABILITY
If one or more provisions of this Agreement are held to 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.
2.12 ENTIRE AGREEMENT
This Agreement and the documents referred to herein constitute the
entire agreement among the parties with respect to the subject matter hereof and
no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth herein
or therein.
* * *
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
VSOURCE, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
Address: Vsource, Inc.
00000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
XXX
Attn: Chief Financial Officer
Facsimile: 0 (000) 000-0000
with a copy to:
Address: Vsource (Asia) Ltd
Xxxx 000, XXX Xxxxxx
000 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Attn: General Counsel
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
/s/ Xxxxxxx Xxxxx
---------------------------------------
Xxxxxxx Xxxxx
Address: Xxxxxxx Xxxxx
Vsource, Inc.
00000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
XXX
Facsimile: 0 (000) 000-0000
with a copy to:
Address: Vsource (Asia) Ltd
Xxxx 000, XXX Xxxxxx
000 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Attn: General Counsel
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
/s/ Xxxx Xxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxx
Address: Xxxx Xxxxxxxxx
Level 12, Menara HLA
Xx. 0, Xxxxx Xxx Xxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx
Facsimile: (00) 0 0000-0000
with a copy to:
Address: Vsource (Asia) Ltd
Xxxx 000, XXX Xxxxxx
000 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Attn: General Counsel
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
Address: Xxxxxx Xxxxx
Vsource (Asia) Ltd
Xxxx 000, XXX Xxxxxx
000 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Facsimile: (000) 0000-0000
with a copy to General Counsel of Vsource at the same address
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
MERCANTILE CAPITAL PARTNERS I, L.P.
By: Mercantile Capital Group, LLC, its general partner
By: Mercantile Capital Management Corp., its manager
By: /s/ I. Xxxxxx Xxxxxxx
------------------------------
Name: I. Xxxxxx Xxxxxxx
Title: Managing Director
ASIA INTERNET INVESTMENT GROUP I, LLC
By: Asia Investing Group, L.P., its managing member
By: Asia Investors Group, LLC, its general partner
By: Mercantile Asia Investors, L.P., its managing member
By: Mercantile Asia, LLC, its general partner
By: /s/ I. Xxxxxx Xxxxxxx
--------------------------
Name: I. Xxxxxx Xxxxxxx
Title: Managing Member
Address for the foregoing Investors: with a copy to:
0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxx, Esq.
Xxxxxxxxxx, XX 00000 XXX Altheimer & Xxxx
Attn: I. Xxxxxx Xxxxxxx 00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 0 (000) 000-0000
Facsimile: 0 (000) 000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
BAPEF INVESTMENTS XII LTD.
By: /s/ Xx. Xxxxx X. Xxxxxxx
----------------------------------
Name: Xx. Xxxxx X. Xxxxxxx
Title: Alternate Director for Xx. Xxxxxx Xxxxxx
Address: BAPEF Investments XII Ltd.
XX Xxx 000
13-15 Victoria Road
Xx. Xxxxx'x Xxxx
Xxxxxxxx XX0 0XX
Facsimile: (00) 0000 000 000
For the attention of : Xxxxxx Xxxxxx
with a copy to: Baring Private Equity Partners (Hong Kong) Ltd.
39th Floor
One International Finance Centre
0 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
Facsimile: (000) 0000 0000
For the attention of: Xxxx Xxxxxx/Xxxxxx Xxxx/Xxxxxx Xxxx
with a copy to:
Address: Xxxxx Xxxxxx
Xxxxxx Xxxxxx White & XxXxxxxxx, LLP
Room 6308-6309, 00xx Xxxxx, Xxx Xxxxxx
00 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
CAPITAL INTERNATIONAL ASIA CDPQ INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxxxxxxxx Xxxxxx
------------------------------- ---------------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxxxxxxxx Xxxxxx
Title: Authorized Signatory Title: Authorized Signatory
Address: Capital International Asia CDPQ Inc.
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Facsimile: c/o CDP Asia Investments, Inc
(000) 0000-0000
with a copy to:
Address: Xxxxxxx X. Xxxx
Debevoise & Xxxxxxxx
00/X Xxxxxxxxxxxxx Xxxxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
INVESTOR:
QUILVEST ASIAN EQUITY LTD.
By: /s/ Xxxxx Xxxx Xxxx Xxxxxxxx Seghin
-----------------------------------
Name: Xxxxx Xxxx Xxxx Xxxxxxxx Seghin
Title: Director
Address: Quilvest Asian Equity Ltd.
Xxxxx 0000
Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
with a copy to:
Address: Xxxxxxx X. Xxxx
Debevoise & Xxxxxxxx
00/X Xxxxxxxxxxxxx Xxxxxxxx
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile: (000) 0000-0000
SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT
SCHEDULE A
SCHEDULE OF INVESTORS
Number of Shares of Series 4-A
Investor Name Preferred Stock Owned
------------- ---------------------
FOUNDER INVESTORS:
1. Xxxxxxx Xxxxx 1,905
2. Xxxx Xxxxxxxxx 2,053
3. Xxxxxx Xxxxx 383
OTHER INVESTORS:
4. Mercantile Capital Partners I, L.P. 3,387
5. Asia Internet Investment Group I, LLC 401
6. BAPEF Investments XII Ltd. 5,094
7. Capital International Asia CDPQ Inc. 3,000
8. Quilvest Asian Equity Ltd. 750
