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REGISTRATION RIGHTS AGREEMENT
AMONG
GREENFIELD ONLINE, INC.
AND
THE SHAREHOLDERS
(AS DEFINED HEREIN)
May 17, 1999
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TABLE OF CONTENTS
Page
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Section 1. Definitions....................................................1
Section 2. Required Registration..........................................3
Section 3. Piggyback Registration.........................................5
Section 4. Registrations on Form S-3......................................5
Section 5. Holdback Agreement.............................................6
Section 6. Preparation and Filing.........................................6
Section 7. Expenses......................................................10
Section 8. Indemnification...............................................10
Section 9. Underwriting Agreement........................................12
Section 10. Information by Holder.........................................13
Section 11. Exchange Act Compliance.......................................13
Section 12. Mergers, Etc..................................................13
Section 13. New Certificates..............................................14
Section 14. No Conflict of Rights; Selection of Underwriter...............14
Section 15. Termination...................................................14
Section 16. Miscellaneous.................................................14
REGISTRATION RIGHTS AGREEMENT dated as of May 17, 1999 among
GREENFIELD ONLINE, INC., a Connecticut corporation (the
"Company"), and the Shareholders (as defined below).
The Shareholders own or have the right to purchase or otherwise
acquire Common Shares (as defined below) of the Company. The Company and the
Shareholders deem it to be in their respective best interests to enter into this
Agreement to set forth the rights of the Shareholders in connection with public
offerings and sales of Common Shares.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, the Company and the Shareholders hereby
agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms have the following
meanings:
"Board" means the Board of Directors of the Company.
"Class A Common" means the Class A Common Stock, $0.01 par value per
share, of the Company.
"Class B Common" means the Class B Common Stock, $0.01 par value per
share, of the Company.
"Commission" means the Securities and Exchange Commission or any other
governmental body or agency succeeding to the functions thereof.
"Common Shares" means the Class A Common and/or the Class B Common, as
applicable.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Holdings" means Greenfield Holdings, LLC, a Delaware limited
liability company.
"Holdings Shareholder Majority" means Holdings and those Shareholders
to whom it shall have transferred Restricted Shares who, collectively, at the
time in question own at least a majority of the Restricted Shares held by
Holdings and such Shareholders.
"Majority of Registering Shareholders" means, with respect to a
registration that includes Registrable Shares, those Shareholders who at the
time in question own at least a majority of the Restricted Shares held by
Shareholders who initiated the registration.
"Other Shares" means at any time those Common Shares that do not
constitute Primary Shares or Registrable Shares.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental entity or any department, agency or political subdivision
thereof.
"Primary Shares" means at any time the authorized but unissued Common
Shares and the Common Shares held by the Company in its treasury.
"Prospectus" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Public Offering" means the closing of a public offering of Common
Shares pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"Purchase and Redemption Agreement" means the Stock Purchase and
Redemption Agreement dated as of May 12, 1999, among the Company and the other
parties thereto, as amended, modified or supplemented from time to time.
"Registrable Shares" means Restricted Shares that constitute Common
Shares.
"Registration Date" means the date upon which a Registration Statement
pursuant to which the Company shall have initially registered Common Shares
under the Securities Act for sale in a Public Offering shall have been declared
effective by the Commission.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Registrable Shares and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Restricted Shares" means Common Shares, and includes (i) shares which
may be issued as a dividend or distribution, (ii) any other securities which by
their terms are exercisable or exchangeable for or convertible into Common
Shares, and (iii) any securities received in respect of the foregoing (including
securities described in Section 12), in each case in clauses (i) through (iii)
which at any time are held by the Shareholders. As to any particular Restricted
Shares, once issued, such Restricted Shares shall cease to be Restricted Shares
when (A) they have been registered under the Securities Act, the Registration
Statement in connection therewith has been declared effective and they have been
disposed of pursuant to and in the manner described in such effective
Registration Statement, (B) they are sold pursuant to Rule 144 or may be sold by
the holder thereof pursuant to Rule 144(k), (C) they have been otherwise
transferred and new certificates or other evidences of ownership for them not
bearing a restrictive legend and not subject to any stop transfer order or other
restriction on transfer have been delivered by the Company or the issuer of
other securities issued in exchange for the Restricted Shares, or (D) they have
ceased to be outstanding.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Shareholders" means the Persons which are shareholders of the Company
on the date hereof, and includes any successor to, or assignee or transferee of,
any such Person who or which agrees in writing to be treated as a Shareholder
hereunder and to be bound by the terms and comply with all applicable provisions
hereof.
"Shareholders' Agreement" means the Shareholders' Agreement of even
date herewith, among the Company and the other parties thereto, as the same may
be amended, supplemented or modified from time to time.
"Subsidiary" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body), at the time as of which any
determination is being made, are owned by such first Person either directly or
through one or more of its Subsidiaries.
Section 2. Required Registration.
(a) Subject to Section 2(b), if the Company shall be requested by a
Holdings Shareholder Majority at any time to effect the registration under the
Securities Act of Registrable Shares, the Company shall use its best efforts to
promptly effect the registration under the Securities Act of the Registrable
Shares which the Company has been so requested to register (as well as any other
Registrable Shares requested to be registered by any other Shareholder who was
previously a member of Holdings,
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following notice of such request by a Holdings Shareholder Majority). The number
of requests permitted pursuant to this Section 2(a) shall be unlimited.
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Company shall not be obligated to effect any registration
under the Securities Act pursuant to Section 2(a) except in accordance with the
following provisions:
(i) with respect to any registration pursuant to this Section 2,
the Company may include in such registration any Primary Shares or
Other Shares; provided, however, that, if the managing underwriter
advises the Company that the inclusion of all Registrable Shares,
Primary Shares and/or Other Shares proposed to be included in such
registration would materially interfere with the successful marketing
(including pricing) of the Registrable Shares proposed to be included
in such registration, then the number of Registrable Shares, Primary
Shares and/or Other Shares proposed to be included in such
registration shall be included in the following order:
(A) first, all Registrable Shares requested to be included
in such registration by the Shareholders who requested such
registration pursuant to Section 2(a), pro rata among such
requesting Shareholders based on the number of Registrable Shares
requested by each such requesting Shareholder to be so
registered;
(B) second, all Registrable Shares requested to be included
in such registration by the other Shareholders who requested the
inclusion of their Registrable Shares in such registration
pursuant to Section 3, pro rata among all such Shareholders based
on the number of Registrable Shares requested by each such
Shareholder to be so registered;
(C) third, the Primary Shares; and
(D) fourth, the Other Shares;
(ii) at any time before the Registration Statement covering
Registrable Shares becomes effective, the Shareholder or group of
Shareholders which requested such registration pursuant to Section
2(a) may request that the Company withdraw or not file the
Registration Statement; and
(iii) the Company may, at its sole option, elect to satisfy a
request for a Registration pursuant to Section 2(a) on Form S-2 or
Form S-3 promulgated under the Securities Act (or any successor forms
thereto), if use of any such forms are then available to the Company;
provided that, if the proposed registration pursuant to Section 2(a)
involves an underwritten public offering, the Company shall include in
such registration statement such additional information as reasonably
requested by the requesting
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Shareholders and/or such underwriter (whether or not such information
is required by Form S-2 or S-3, as applicable).
Section 3. Piggyback Registration.
If the Company at any time proposes for any reason to register Common
Shares under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto or in connection with
any acquisition), it shall promptly give written notice to the Shareholders of
its intention to so register such Common Shares and, upon the written request,
delivered to the Company within 30 days after delivery of any such notice by the
Company, of any Shareholder to include in such registration Registrable Shares
(which request shall specify the number of Registrable Shares proposed to be
included in such registration), the Company shall use its best efforts to cause
all such Registrable Shares to be included in such registration on the same
terms and conditions as the Common Shares otherwise being sold in such
registration; provided, however, that, if the managing underwriter advises the
Company that the inclusion of all Registrable Shares requested to be included in
such registration would interfere with the successful marketing (including
pricing) of the Primary Shares or Other Shares proposed to be registered, then
the number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(a) in a primary registration on behalf of the Company:
(i) first, the Primary Shares proposed to be registered by the
Company;
(ii) second, the Registrable Shares requested to be included in
such registration pursuant to this Section 3, pro rata among the
holders thereof based upon the number of Registrable Shares requested
to be registered by each such holder; and
(iii) third, the Other Shares.
(b) in a secondary registration on behalf of holders of Registrable
Shares (other than pursuant to Section 2(b)):
(i) first, the Registrable Shares requested to be included
in such registration pursuant to this Section 3, pro rata among
the holders thereof based upon the number of Registrable Shares
requested to be registered by each such holder; and
(ii) second, the Other Shares.
Section 4. Registrations on Form S-3.
Anything contained in Section 2 to the contrary notwithstanding, at
such time as the Company shall have qualified for the use of Form S-3
promulgated under the
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Securities Act or any successor form thereto, a Holdings Shareholder Majority
shall have the right to request in writing an unlimited number of registrations
of Registrable Shares on Form S-3 or such successor form, which request or
requests shall (i) specify the number of Registrable Shares intended to be sold
or disposed of and the holders thereof, (ii) state the intended method of
disposition of such Registrable Shares and (iii) relate to Registrable Shares
having an anticipated aggregate gross offering price (before underwriting
discounts and commissions) of at least $5,000,000, and upon receipt of any such
request, the Company shall use its best efforts promptly to effect the
registration under the Securities Act of the Registrable Shares so requested to
be registered.
Section 5. Holdback Agreement.
(a) If the Company at any time shall register Common Shares under the
Securities Act (including any registration pursuant to Sections 2, 3 or 4) for
sale to the public pursuant to an underwritten offering, the Shareholders shall
not sell publicly, make any short sale of, grant any option for the purchase of,
or otherwise dispose publicly of, any Registrable Shares (other than those
Common Shares included in such registration pursuant to Sections 2, 3 or 4)
without the prior written consent of the Company, for such period as shall be
determined by the relevant managing underwriters. The Company shall obtain the
agreement of any Person permitted to sell shares of stock in a registration and
each of its directors and executive officers to be bound by and to comply with
this Section 5 with respect to such registration as if such Person were a
Shareholder hereunder.
(b) If the Company at any time pursuant to Sections 2 or 3 of this
Agreement shall register under the Securities Act Registrable Shares held by
Shareholders for sale to the public pursuant to an underwritten offering, the
Company shall not effect any public sale or distribution of securities similar
to those being registered, or any securities convertible into or exercisable or
exchangeable for such securities, for such period as shall be determined by the
managing underwriters.
Section 6. Preparation and Filing.
(a) If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of, and keep effective a Registration Statement for, any Registrable Shares, the
Company shall, as expeditiously as practicable:
(i) use its best efforts to cause a Registration Statement that
registers such Registrable Shares to become and remain effective for a
period of 90 days (extended for such period of time as the
Shareholders are required to discontinue disposition of Registrable
Shares pursuant to Section 6(b) below) or until all of such
Registrable Shares have been disposed of (if earlier);
(ii) furnish, at least five (5) business days before filing a
Registration Statement that relates to the registration of such
Registrable
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Shares, a Prospectus relating thereto or any amendments or supplements
relating to such a Registration Statement or Prospectus, to one
counsel (the "Shareholders' Counsel") selected by a Majority of
Registering Shareholders;
(iii) notify the Shareholders whose Registrable Shares are
included therein of the effectiveness of such Registration Statement
and prepare and promptly file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to (A) keep such Registration
Statement effective for at least a period of 90 days (extended for
such period of time as Shareholders are required to discontinue
disposition of Registrable Shares pursuant to Section 6(b) below) or
until all of such Registrable Shares have been disposed of (if
earlier), (B) correct any statements or omissions if any event with
respect to the Company shall have occurred as a result of which any
such Registration Statement or Prospectus as then in effect would
include an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading,
and (C) comply with the provisions of the Securities Act with respect
to the sale or other disposition of such Registrable Shares;
(iv) notify in writing the Shareholders' Counsel, and the
Shareholders whose Registrable Shares may be included in such
Registration Statement, promptly of (A) the receipt by the Company of
any notification with respect to any comments by the Commission with
respect to such Registration Statement or Prospectus or any amendment
or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with
respect thereto, (B) the receipt by the Company of any notification or
written information with respect to the issuance or threatened
issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or Prospectus or any
amendment or supplement thereto or the initiation or threatening of
any proceeding for that purpose (and the Company shall use its best
efforts to prevent the issuance thereof or, if issued, to obtain its
withdrawal) and (C) the receipt by the Company of any notification
with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(v) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such
jurisdictions as the Shareholders reasonably request and do any and
all other acts and things which may be reasonably necessary or
advisable to enable the Shareholders to consummate the disposition in
such jurisdictions of the Registrable Shares owned by the
Shareholders; provided, however, that the Company will not be required
to qualify generally to do business,
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subject itself to general taxation or consent to general service of
process in any jurisdiction where it would not otherwise be required
to do so but for this clause (v);
(vi) furnish to the Shareholders holding such Registrable Shares
such number of copies of a summary Prospectus, if any, or other
Prospectus, including a preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such
Shareholders may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Shares;
(vii) use its best efforts to cause such Registrable Shares 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 Shareholders holding such
Registrable Shares to consummate the disposition of such Registrable
Shares;
(viii) notify the Shareholders holding such Registrable Shares on
a timely basis at any time when a Prospectus relating to such
Registrable Shares is required to be delivered under the Securities
Act within the appropriate period mentioned in clause (i) of this
Section 6(a), of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and prepare and furnish to such
Shareholders a reasonable number of copies of, and file with the
Commission, a supplement to or an amendment of such Prospectus as may
be necessary so that, as thereafter delivered to the offerees of such
Registrable Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(ix) subject to the execution of confidentiality agreements in
form and substance reasonably satisfactory to the Company, make
available upon reasonable notice and during normal business hours, for
inspection by the Shareholders holding Registrable Shares requested to
be included in such registration, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney,
accountant or other agent retained by the Shareholders or underwriter
(collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), and cause the Company's officers,
directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such
Inspector, in each case as shall be reasonably necessary to enable
them to exercise their due diligence responsibility in
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connection with such Registration Statement; provided, however, that
any of the Information that the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (A) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the Registration Statement or Prospectus,
(B) the release of such Information is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction or, upon the
written advice of counsel, is otherwise required by law, or (C) such
Information has been made generally available to the public, and the
Shareholders agree that they will, upon learning that disclosure of
such Information is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's expense,
to undertake appropriate action to prevent disclosure of the
Information deemed confidential;
(x) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered
by cold comfort letters;
(xi) use its best efforts to obtain from its counsel an opinion
or opinions in customary form naming the Shareholders as additional
addressees or parties who may rely thereon;
(xii) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable Shares;
(xiii) issue to any underwriter to which the Shareholders holding
such Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(xiv) list such Registrable Shares on any national securities
exchange on which any Common Shares are listed or, if the Common
Shares are not listed on a national securities exchange, use its best
efforts to qualify such Registrable Shares for inclusion on the NASDAQ
Stock Market;
(xv) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
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(xvi) use its best efforts to take all other steps necessary to
effect the registration of, and maintain an effective Registration
Statement with respect to, such Registrable Shares contemplated
hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice
from the Company of any event of the kind described in Section 6(a)(viii)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the Registration Statement covering such Registrable Shares
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(a)(viii) hereof, and, if so directed
by the Company, such holder shall deliver to the Company all copies, other
than permanent file copies then in such holder's possession, of the most
recent Prospectus covering such Registrable Shares at the time of receipt
of such notice.
Section 7. Expenses.
All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares) incurred by the Company and the Shareholders
in complying with this Agreement, including, without limitation, all
registration and filing fees (including all expenses incident to filings with
the National Association of Securities Dealers, Inc.), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Company's counsel and accountants and fees and expenses of the
Shareholders' Counsel, shall be paid by the Company in connection with
registrations requested under Sections 2, 3 or 4; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares and Other Shares shall be borne by the holders selling such Registrable
Shares and Other Shares, in proportion to the number of Registrable Shares and
Other Shares sold by each such holder.
Section 8. Indemnification.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless, to the fullest extent permitted by law, each holder of
Registrable Shares, each underwriter, broker or any other Person acting on
behalf of the holders of Registrable Shares and each other Person, if any, who
controls any of the foregoing Persons within the meaning of the Securities Act
(each such indemnified Person being referred to herein as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several
(or actions in respect thereof), to which any of the foregoing Persons may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or allegedly untrue statement of a material
fact contained in or incorporated by reference in the Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary Prospectus or final Prospectus contained therein or otherwise
filed with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon 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
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or, with respect to any Prospectus, necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or any
violation by the Company of the Securities Act or state securities or blue sky
laws applicable to the Company and relating to action or inaction required of
the Company in connection with such registration or qualification under such
state securities or blue sky laws; and shall promptly reimburse the Indemnified
Persons for any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to any such Indemnified Person to the extent that any such loss,
claim, damage, liability or action (including any legal or other expenses
incurred) arises out of or is based upon an untrue statement or allegedly untrue
statement or omission or alleged omission made in said Registration Statement,
preliminary Prospectus, final Prospectus, amendment, supplement or document
incident to registration or qualification of any Registrable Shares in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by such Indemnified Person specifically for use in
the preparation thereof.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each holder of Registrable Shares
being registered shall, severally and not jointly, to the fullest extent
permitted by law, indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 8(a) above) the Company, each director of
the Company, each officer of the Company who shall have signed such Registration
Statement, each other holder of Registrable Shares or Other Shares, each agent,
underwriter, broker or other Person acting on behalf of the Company, each other
holder of Registrable Shares or Other Shares and each Person who controls any of
the foregoing Persons within the meaning of the Securities Act with respect to
any statement or omission from such Registration Statement, any preliminary
Prospectus or final Prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus, amendment,
supplement or document; provided, however, that the maximum amount of liability
in respect of such indemnification shall be limited, in the case of each seller
of Registrable Shares, to an amount equal to the net proceeds actually received
by such seller from the sale of Registrable Shares effected pursuant to such
registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in Section 8(a) or (b),
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the indemnified party's failure to give
such notice shall not release, relieve or in any way affect the indemnifying
party's obligation hereunder to indemnify the indemnified party, unless and to
the extent that the rights of the indemnifying party are prejudiced thereby. In
case any such action is brought against an indemnified party, the
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indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that he, she, or it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of his, her or its election so to assume the defense thereof,
the indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that, if any indemnified party shall have reasonably
concluded (based on the written advice of counsel) that there may be one or more
legal or equitable defenses available to such indemnified party which are
additional to or conflict with those available to the indemnifying party, or
that such claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 8, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party and such indemnifying party shall reimburse
such indemnified party and any Person controlling such indemnified party for
that portion of the fees and expenses of one counsel retained by the indemnified
party which is reasonably related to the matters covered by the indemnity
agreement provided in this Section 8.
(d) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein
(other than as a result of the applicability of the proviso in Section 8(a)),
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged 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.
Section 9. Underwriting Agreement.
(a) If any registration pursuant to Sections 2, 3 or 4 is or is
requested to be an underwritten offering, the Company shall negotiate in good
faith to enter into a reasonable and customary underwriting agreement with the
underwriters thereof. The Company shall be entitled to receive indemnities from
lead institutions, underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons specifically for inclusion in any Prospectus or Registration
Statement and to the extent customary given their role in such distribution.
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(b) No Shareholder may participate in any registration hereunder that
is underwritten unless such Shareholder agrees to (i) sell such Shareholder's
Registrable Shares proposed to be included therein on the basis provided in any
underwriting arrangements approved by the Company and the Majority of
Registering Shareholders and (ii) as expeditiously as possible, notify the
Company of the occurrence of any event concerning such Shareholder as a result
of which the Prospectus relating to such registration contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 10. Information by Holder.
The Shareholders shall furnish to the Company such written information
regarding the Shareholders and the distribution proposed by the Shareholders 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.
Section 11. Exchange Act Compliance.
From the Registration Date or such earlier date as a Registration
Statement filed by the Company pursuant to the Exchange Act relating to any
class of the Company's securities shall have become effective, the Company shall
comply with all of the reporting requirements of the Exchange Act applicable to
it (whether or not it shall be required to do so) and shall comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Shares.
The Company shall cooperate with the Shareholders in supplying such information
as may be necessary for the Shareholders to complete and file any information
reporting forms presently or hereafter required by the Commission as a condition
to the availability of Rule 144.
Section 12. Mergers, Etc.
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation unless the surviving corporation shall, prior to such merger,
consolidation or reorganization, agree in writing to assume the obligations of
the Company under this Agreement, and for that purpose references hereunder to
"Registrable Shares" shall be deemed to include the shares of common stock, if
any, or other securities that the Shareholders would be entitled to receive in
exchange for Common Shares under any such merger, consolidation or
reorganization; provided, however, that, to the extent the Shareholders receive
securities that are by their terms convertible into shares of common stock of
the issuer thereof, then any such shares of common stock as are issued or
issuable upon conversion of said convertible securities shall be included within
the definition of "Registrable Shares".
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Section 13. New Certificates.
As expeditiously as possible after the effectiveness of any
Registration Statement filed pursuant to this Agreement, the Company will
deliver in exchange for any legended certificate evidencing Restricted Shares so
registered, new stock certificates not bearing any restrictive legends.
Section 14. No Conflict of Rights; Selection of Underwriter.
The Company shall not, at any time after the date hereof, grant any
registration rights that conflict with or impair, or have any priority over, the
registration rights granted hereby. In any Public Offering, the managing
underwriter shall be a nationally recognized investment banking firm chosen by
the Board.
Section 15. Termination.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Restricted Shares outstanding.
Section 16. Miscellaneous.
(a) Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Company and the Shareholders and, subject to Section 16(b), the
respective successors and assigns of the Company and the Shareholders. This
Agreement is not intended to create any third party beneficiaries.
(b) Assignment. Each Shareholder may assign its rights hereunder to
any purchaser or transferee of Registrable Shares; provided, however, that such
purchaser or transferee shall, as a condition to the effectiveness of such
assignment, unless already a party to this Agreement, be required to execute a
counterpart to this Agreement agreeing to be treated as Shareholder hereunder,
whereupon such purchaser or transferee shall have the benefits of and shall be
subject to the restrictions contained in this Agreement as if such purchaser or
transferee was originally included in the definition of a Shareholder and had
originally been a party hereto.
(c) Severability. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
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(d) Entire Agreement. This Agreement and the other writings referred
to herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous arrangements or understandings with respect hereto and
thereto.
(e) Notices. All communications hereunder to any party shall be deemed
to be sufficient if contained in a written instrument delivered in person or
sent by telecopy, nationally-recognized overnight courier guaranteeing next day
delivery or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at its address below or such other
address as such party may hereafter designate in writing:
(i) if to the Company to:
Greenfield Online, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000;
with a copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
(ii) if to Holdings to:
Greenfield Holdings, LLC
c/o InSight Capital Partners III, L.P.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Nissan, Esq.
Telecopier: (000) 000-0000.
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All such notices, requests, consents and other communications shall be
deemed to have been given and received (A) in the case of personal delivery or
delivery by telecopy (if confirmed), on the date of such delivery, (B) in the
case of dispatch by nationally-recognized overnight courier, on the next
business day following such dispatch and (C) in the case of mailing, on the
third business day after the posting thereof.
(f) Modifications; Amendments; Waivers. The terms and provisions of
this Agreement may not be modified or amended, nor may any provision be waived,
except pursuant to a writing signed by the Company and the Holdings Shareholder
Majority provided, however, that no such modification, amendment or waiver shall
adversely affect the rights of any party hereto without such party's consent.
The failure of any party to enforce any of the provisions of this Agreement
shall in no way be construed as a waiver of such provisions and shall not affect
the right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(h) Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING,
THE INTERNAL LAWS OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW
OR CONFLICTS OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY.
(j) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
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(l) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(m) Effectiveness. This Agreement shall not be deemed effective until
the Closing (as defined in the Purchase and Redemption Agreement) under the
Purchase and Redemption Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement on the day and year first above written.
GREENFIELD ONLINE, INC.
By: /s/
-----------------------
Name: Xxxx Xxxxxx
Title: President
GREENFIELD HOLDINGS, LLC
By: /s/
-----------------------
Name: Xxxxxxx Xxxxxx
Title: President
/s/
---------------------
Xxxxxx Xxxxxxxxxx
