EXHIBIT 10.03
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SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is made as of November 5, 1999, by and among YUPI INTERNET INC., a
Florida corporation (the "COMPANY"), INTERPRISE TECHNOLOGY PARTNERS, L.P., a
Delaware limited partnership ("INTERPRISE"), SONY CORPORATION OF AMERICA
("SONY") and IFX ONLINE, INC., a Delaware corporation ("IFX"), and the
Purchasers, as defined in the purchase agreement (the "PURCHASE AGREEMENT"),
dated as of the date hereof between the Company and the Purchasers (the
"PURCHASERS", and together with Interprise, Sony and IFX, the "INVESTORS").
RECITALS:
A. The Company and certain of the Investors are parties to that certain
Amended and Restated Registration Rights Agreement dated as of October 27, 1999
(the "PRIOR REGISTRATION AGREEMENT").
B. The Investors are holders of the Company's Class A Convertible
Preferred Stock (the "CLASS A PREFERRED"), Class B Convertible Preferred Stock
(the "CLASS B PREFERRED") and/or Class C Convertible Preferred Stock (the "CLASS
C PREFERRED", together with the Class A Preferred and Class B Preferred the
"PREFERRED STOCK").
C. The parties hereto desire to amend and restate the Prior
Registration Agreement in its entirety as set forth herein to include the
Purchasers and to make certain other changes.
D. The Company is willing to enter into this Agreement as an inducement
to the Purchasers to purchase shares of Class C Preferred pursuant to the
Purchase Agreement.
E. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in SECTION 9 hereof.
AGREEMENT
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the earlier
to occur of (i) 180 days after the closing of the Initial Public Offering, and
(ii) November 5, 2001, the holders of a majority of the Registrable Securities
may request three (3) registrations under the Securities Act of all or any
portion of their Registrable Securities (but not less than twenty percent (20%)
of the Registrable Securities held by such holders requesting such registration)
on Form S-1 or any similar long-form registration ("LONG-FORM REGISTRATIONS"),
pursuant to this SECTION 1. The Company shall pay all Registration Expenses in
connection with the Long-Form Registrations. A registration shall not count as
one of the permitted Long-Form Registrations until it has become effective
(unless such Long-Form Registration has not become effective due to the fault of
the holders of Registrable Securities requesting registration) and no
registration shall count as one of the permitted Long-Form Registrations unless
the holders of Registrable Securities are able to register and sell at least
ninety percent (90%) of the Registrable Securities requested to be included in
such registration.
(b) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to SECTION L(A), the holders of twenty percent
(20%) of the Registrable Securities shall be entitled to request two (2)
registrations under the Securities Act of all or part of their Registrable
Securities, the reasonably anticipated aggregate price to the public of which
would exceed $1,000,000, on Forms S-2 or S-3 or any similar short-form
registration ("SHORT-FORM REGISTRATIONS") in which the Company shall pay all
Registration Expenses. The Company shall use its reasonable best efforts to make
Short-Form Registrations on Form S-3 available for the sale of Registrable
Securities, including, without limitation, as a "shelf registration" if so
requested by the holders of twenty percent (20%) of the Registrable Securities.
Notwithstanding the foregoing, the Company shall not be obligated to effect any
Short-Form Registrations within 90 days after the effective date of any previous
Demand Registration or a previous registration in which holders of Registrable
Securities were given piggyback rights pursuant to SECTION 2.
(c) DEMAND REGISTRATIONS. All registrations requested pursuant
to SECTIONS L(A) and (B) are referred to herein as "DEMAND REGISTRATIONS."
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten (10) days after receipt of any such request, the Company
shall give written notice of such requested registration to all other holders of
Registrable Securities and, except as provided in SECTION 1(D) below, shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within fifteen
(15) days after the receipt of the Company's notice.
(d) PRIORITY ON DEMAND REGISTRATIONS. Unless the holders
requesting registration pursuant to a Demand Registration have been able to
include all of the Registrable Securities requested by such holders in such
Demand Registration, the Company shall not include in any Demand Registration
any securities which are not Registrable Securities. If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of Registrable
Securities making such Demand Registration, the Company shall include in such
registration: (i) first, the Investor Registrable Securities, pro rata among the
holders of such Investor Registrable Securities on the basis of the number of
shares owned by such holders; and (ii) second, other securities which are not
Registrable Securities requested to be included in such registration pursuant to
contractual registration rights ("OTHER REGISTRABLE SECURITIES"), pro rata among
the holders thereof on the basis of the number of their securities requested to
be included therein. Without the consent of the Company, any Persons, other than
holders of Registrable Securities, who participate in Demand Registrations which
are not at the Company's expense must pay their share of the Registration
Expenses as provided in SECTION 5 hereof.
(e) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall
not be obligated to effect any Long-Form Registration within 180 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to SECTION 2. The Company may postpone for up to 90 days the filing or
the effectiveness of a registration statement for a Demand Registration if the
Company believes that such Demand Registration would reasonably be expected to
have a material adverse effect on any proposal or plan by the Company or any of
its subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; PROVIDED THAT in such event, the holders
of Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as one of the permitted Long Form Registrations
hereunder and the Company shall pay all Registration Expenses in connection with
such registration. The Company may delay a Demand Registration hereunder only
once in any twelve (12) month period.
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(f) SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities included in any Long-Form Registration, which is a
Demand Registration, shall have the right to select the investment banker(s),
subject to the reasonable approval of a majority of the Board of Directors, and
manager(s) to administer the offering.
(g) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to require the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, which
rights are superior to or pari passu with the rights granted to the holders of
the Registrable Securities hereunder, without the prior written consent of the
holders of a majority of the Registrable Securities, PROVIDED, HOWEVER, that if
such grant of additional registration rights materially and adversely affect the
registration rights granted herein of a given class or series of stock in a
different manner than it does another class or series of stock, the grant of
such additional registration rights shall also require the consent of the
holders of a majority of the Registrable Securities held by the holders of the
class or series of stock so materially and adversely affected.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than the Initial
Public Offering or pursuant to a Demand Registration or a registration on Form
X-0, Xxxx X-0 or any successor form) and the registration form to be used may be
used for the registration OF Registrable Securities (a "PIGGYBACK
REGISTRATION"), the Company shall give prompt written notice (in any event
within five (5) business days after its receipt of notice of any exercise of
demand registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registration and shall
include in such registration, in accordance with the terms of this Agreement,
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within twenty (20) days after the receipt
of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell; (ii)
second, the Investor Registrable Securities, pro rata among the holders of such
Investor Registrable Securities on the basis of the number of shares owned by
such holders; and (iii) third, Other Registrable Securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of Other Registrable Securities requested to be included therein.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
Other Registrable Securities, and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the holders of a
majority of the Registrable Securities to be included in such registration, the
Company shall include in such registration (i) first, the securities requested
to be included therein by the holders of Other Registrable Securities requesting
such registration, (ii) second, the Investor Registrable Securities requested to
be included in such registration, pro rata among the holders of such Investor
Registrable Securities on the basis of the number of shares owned by such
holders; and (iii) third, any non-requesting Other Registrable Securities
requested to be included in such registration, pro rata among the holders
thereof on the basis of the number of their securities requested to be included
therein.
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3. HOLDBACK AGREEMENTS.
(a) HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities agrees, in connection with the Company's Initial Public
Offering of securities and upon request of the Company or the underwriters
managing such Initial Public Offering of the Company's securities, not to sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for up to one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act. For avoidance of doubt, the foregoing restrictions
shall only apply if the Company's initial public offering is an Initial Public
Offering. With respect to any shares of the Company offered or traded in the
public market (including pursuant to the Company's Initial Public Offering or
any market that may develop pursuant to Rule 144A promulgated under the
Securities Act), each holder of Registrable Securities shall be permitted freely
to acquire or dispose of any such shares to the fullest extent permitted by law.
Notwithstanding the amendment provisions of this Agreement, this Section 3(a)
shall not be amended with respect to any holder of Registrable Securities
without the consent of such holder.
(b) THE COMPANY. The Company shall not effect any public sale
or distribution of any of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the period
beginning seven (7) days prior to and ending 120 days following the first
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such Demand Registration or Piggyback
Registration or pursuant to registrations on Form S-4, Form S-8 or any successor
form), unless the underwriters managing the registered public offering otherwise
agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as reasonably possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; PROVIDED THAT before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities included in
such registration statement copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment (without obligation
being imposed on the Company thereby) of such counsel;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 120 days, if applicable, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement; PROVIDED, HOWEVER, that if the Company is eligible to use Form S-3,
the holders of Registrable Securities may require the Company to keep such
registration effective as a "shelf registration" for a period of up to nine (9)
months;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
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and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction;
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule llAa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Securities and Exchange Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve (12) months
beginning with the first day of the Company's first full calendar quarter after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) permit any holder of Registrable Securities, which holder,
in the Company's sole and exclusive judgment, might be deemed to be an
underwriter or a controlling Person of the Company, to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel and counsel to the Company
should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
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(m) subject to SECTION 4(D) above, use its reasonable best
efforts to cause any Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the sellers thereof to consummate
the disposition of such Registrable Securities;
(n) obtain a cold comfort letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the holders of a
majority of the Registrable Securities being sold reasonably request; and
(o) if the offering is underwritten and at the request of any
seller of Registrable Securities, and if and to the extent requested by any
underwriter of such offering, use its best efforts to furnish on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under the
Securities Act and that (i) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (ii) the registration statement, the related prospectus and each amendment
or supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements contained therein) and (iii) to such
other matters as reasonably may be requested by counsel for the underwriters.
5. REGISTRATION EXPENSES.
(a) PAYMENT OF REGISTRATION EXPENSES. All expenses incident to
the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company (excluding expenses of counsel to
holders of Registrable Securities which are covered by SECTION 5(B)) and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "REGISTRATION EXPENSES"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed, or on the NASD automated quotation system.
(b) REIMBURSEMENT OF REGISTRATION EXPENSES. In connection with
each Demand Registration and each Piggyback Registration, the Company shall
reimburse the holders of Registrable Securities included in such registration
for the reasonable fees and disbursements of up to $100,000 of one counsel
chosen by the holders of a majority of the Registrable Securities included in
such registration.
6. RULE 144 REPORTING.
With a view to making available to the holders of Registrable
Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
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(b) File with the SEC, in a timely manner, all reports and
other documents required of the Company under the Exchange Act; and
(c) So long as a holder of Registrable Securities own any
Registrable Securities, furnish to such holder forthwith upon request: a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 of the Securities Act, and of the Exchange Act (at any time after
it has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) INDEMNIFICATION BY THE HOLDERS OF REGISTRABLE SECURITIES.
In connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such registration statement or prospectus and, to the
extent permitted by law, shall indemnify the Company, its directors and officers
and each Person who controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and expenses resulting
from any untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to
the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such holder; provided that
the obligation to indemnify shall be individual, not joint and several, for each
holder, except as a result of actual fraud of such holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) PROCEDURE FOR INDEMNIFICATION. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair any Person's
right to indemnification hereunder to the extent such failure has not prejudiced
the indemnifying party) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one (1) counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim. The indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld).
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(d) SURVIVAL. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder unless such Person:
(a) in the case of a registration which is underwritten,
agrees to sell such Person's securities on the basis provided in the applicable
underwriting arrangement; PROVIDED, HOWEVER, that no holder shall be required to
make any representations or warranties to the Company or the underwriters except
to the extent customary for similarly situated holders (other than
representations and warranties regarding such holder, such holder's ownership of
stock and such holder's intended method of distribution) and except as otherwise
provided in SECTION 7 hereof;
(b) as expeditiously as possible, notifies the Company, at any
time when a prospectus relating to such Person's Registrable Securities is
required to be delivered under the Securities Act, of the happening of any event
as a result of which such prospectus contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not misleading;
(c) complies with all reasonable requests made by the Company
or its counsel with respect to the registration of such Person's Registrable
Securities; and
(d) completes, executes and delivers all questionnaires,
powers of attorney, indemnities, underwriting agreements and other usual and
customary documents necessary or appropriate with respect to the offering of
such Person's Registrable Securities, and in the case of a registration which is
underwritten, necessary or appropriate under the terms of such underwriting
arrangements (subject to the provision in SECTION 8(A) above).
9. DEFINITIONS.
(a) The term "INITIAL PUBLIC OFFERING" means an initial
registered public offering of the Company's Common Stock by the Company under
the Securities Act in which (i) the aggregate offering price for such shares is
at least $22.5 million and (ii) the price paid by the public for such shares is
at least $5.75 per share (appropriately adjusted to reflect the occurrence of
any event described in Section 5.1D of the Company's Articles of Incorporation).
(b) The term "INVESTOR REGISTRABLE SECURITIES" means all
Registrable Securities (i) acquired by the Investors under the purchase
agreement dated April 23, 1999 (the "CLASS A REGISTRABLE SECURITIES"), under the
purchase agreement dated August 3, 1999, as amended (the "CLASS B REGISTRABLE
SECURITIES") and under the Purchase Agreement (the "CLASS C REGISTRABLE
SECURITIES"); and (ii) all other Registrable Securities subsequently acquired by
holders of Investor Registrable Securities (including Xxxxxx Technology
Management, L.P., its affiliates and partners pursuant to any liquidation of
Interprise). Investor Registrable Securities will continue to be Investor
Registrable Securities if held or acquired by any holder of Registrable
Securities.
(c) The term "PERMITTED TRANSFEREE" shall mean a Person to
whom a Permitted Transfer is made. The term "Permitted Transfer" is defined as a
permissible transfer pursuant to the Amended and Restated Shareholders Agreement
of even date herewith among certain of the Company's stockholders and the
Company as it may be amended from time to time.
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(d) The term "PERSON" means any individual, corporation,
partnership, joint venture, association, joint-stock company, limited liability
company, trust or unincorporated organization.
(e) The term "REGISTRATION EXPENSES" has the meaning set forth
in SECTION 5 above.
(f) The term "REGISTRABLE SECURITIES" means (i) any Common
Stock issued pursuant to or upon conversion or recapitalizaton of any securities
issued pursuant to the purchase agreement dated April 23, 1999, the purchase
agreement dated August 3, 1999 and the Purchase Agreement, (ii) any other Common
Stock issued or issuable with respect to the securities referred to in clause
(i) by way of a stock dividend or stock split or in connection with an exchange
or combination of shares, recapitalization, merger, consolidation or other
reorganization, and (iii) any other shares of Common Stock held by Persons
holding securities described in clauses (i) and (ii), inclusive above,
including, without limitation, any shares of Common Stock issued upon conversion
of the Company's preferred stock. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the Securities
Act or sold to the public through a broker, dealer or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in force). For
purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion of any capital stock or upon exercise of
any options or warrants or in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
(g) The term "SECURITIES ACT" means the Securities Act of
1933, as amended, or any similar federal law then in force.
(h) The term "SECURITIES EXCHANGE ACT" means the Securities
Exchange Act of 1934, as amended, or any similar federal law then in force.
(i) The term "LETTER AGREEMENT" means a certain agreement
dated October 27, 1999 between Sony and the Company, which provides for the
performance by Sony of certain services to the Company, as such may be amended
from time to time.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and the holders of a majority of all
Registrable Securities; PROVIDED, HOWEVER, that (i) no amendment or waiver which
materially and adversely affects the rights of the holders of the Class A
Registrable Securities, Class B Registrable Securities or Class C Registrable
Securities, respectively, hereunder may be made without the consent of a
majority of the Class A Registrable Securities, Class B Registrable Securities
or Class C Registrable Securities, as applicable and (ii) no amendment or waiver
of the definition of Initial Public Offering which would result in the
-9-
reduction of the price paid by the public for such shares to below $5.75 per
share without the consent of the holders of sixty-six and two-thirds percent (66
2/3%) of the shares of Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities, including
without limitation any Permitted Transferee. Notwithstanding the foregoing, Sony
may assign this Agreement but only if immediately thereafter (i) Sony will have
all of the same obligations and liabilities under this Agreement to the same
extent as if such assignment shall not have occurred, (ii) Sony will have full
control and will perform directly under the Letter Agreement to the same extent
as if the assignment shall not have occurred, and (iii) the nature and character
of the Sony or other branding of products and services contemplated under the
Letter Agreement will remain substantially the same and continue to be
associated with the Company to the same extent as if the assignment shall not
have occurred.
(e) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may
be executed simultaneously in two or more counterparts, any one of which need
not contain the signatures of more than one party, but all such counterparts
taken together shall constitute one and the same Agreement. Each party to this
Agreement agrees that it will be bound by its own telecopied signature and that
it accepts the telecopied signature of each other party to this Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Florida, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Florida.
(i) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or forty-eight (48) hours after deposited in
the United States mail, certified or registered to the recipient by postage
prepaid or by facsimile. Such notices, demands and other communications shall be
sent to each Investor at the addresses indicated on the Schedule of Holders
attached hereto and to the Company at the address of its corporate headquarters
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
(j) NEW PARTIES. During the term of this Agreement, the
Company may, with the consent of the Company's Board of Directors and the
holders of a majority of the Investor Registrable Securities, allow other
Persons to become parties to this Agreement by executing a Joinder Agreement,
and the SCHEDULE OF HOLDERS attached hereto as EXHIBIT A shall be revised and
updated accordingly. Any person who may, after the date hereof, purchase shares
of Class C Preferred pursuant to the Purchase Agreement shall become a
"Purchaser" for all purposes hereunder, all upon execution of a counterpart to
this Agreement signed by such person and the Company.
-10-
(k) TERMINATION OF AGREEMENT. All registration rights granted
hereunder will expire and this Agreement will be terminated at the earlier of:
(a) such time as eighty-five percent (85%) of the Registrable Securities have
been sold to the public (either in an offering registered under the Securities
Act or pursuant to Rule 144 promulgated under the Securities Act); (b) such time
as the Investors, their Permitted Transferees and affiliates cease to hold,
collectively, twenty percent (20%) of the Registrable Securities; or (c) seven
(7) years from the date hereof.
(l) AMENDMENT OF PRIOR AGREEMENT. By their execution of this
Agreement, the Company and the Investors who were parties to the Prior
Registration Agreement agree that the Prior Registration Agreement is hereby
amended and restated in its entirety as set forth herein, and that this
Agreement supersedes the Prior Registration Agreement in its entirety. The
amendment and restatement of the Prior Registration Agreement effected hereby
shall be binding upon all persons and entities included as Investors in the
Prior Registration Agreement, despite the fact that one or more such persons
does not execute this Agreement, and any such non-executing person or entity
shall be deemed a party hereto and shall be deemed an Investor hereunder as if
such persons or entity had executed this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Registration Rights Agreement as of the date first written above.
YUPI INTERNET INC.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
-------------------------------------------
Title: Chief Executive Officer
------------------------------------------
INTERPRISE TECHNOLOGY PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------
Title: Managing Principal
-------------------------------------------
IFX ONLINE, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------------------------
Title: President
------------------------------------------
SONY CORPORATION OF AMERICA
By: /s/
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
-12-
PURCHASERS:
XXXXXXXX COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated
Its Investment Advisor
By: /s/ Storm Boswick
---------------------------------------------
Name: Storm Boswick
-------------------------------------------
Title: Managing Director
------------------------------------------
XXXXXXXX INVESTMENT OPPORTUNITIES
(MASTER) FUND-NTV PORTFOLIO
By: J. & X. Xxxxxxxx & Co. Incorporated
Its Investment Advisor
By: /s/ Storm Boswick
---------------------------------------------
Name: Storm Boswick
-------------------------------------------
Title: Managing Director
------------------------------------------
XXXXXXXX NEW TECHNOLOGIES FUND, INC.
By: J. & X. Xxxxxxxx & Co. Incorporated
Its Investment Advisor
By: /s/ Storm Boswick
---------------------------------------------
Name: Storm Boswick
-------------------------------------------
Title: Managing Director
------------------------------------------
-13-
ARCHERY VENTURE PARTNERS, LP
By: ARCHERY CAPITAL, LTD.,
Its General Partner
By: /s/ Erinch X. Xxxxx
---------------------------------------------
Name: Erinch X. Xxxxx
-------------------------------------------
Title: Chief Executive Officer
------------------------------------------
PORCELAIN PARTNERS, LP
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx, General Partner
NEXUS CAPITAL PARTNERS II, LP
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx, General Partner
COMCAST INTERACTIVE INVESTMENTS, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------------
Title: Vice President
------------------------------------------
AMAN VENTURES L.L.C.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Xxxxxxx X. Xxxx
General Partner
-14-
LARCHWOOD HOLDINGS LTD.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
-------------------------------------------
Title: Attorney-in-fact
------------------------------------------
CREDIT SUISSE FIRST BOSTON VENTURE FUND I, L.P.
By: QBB Management I, LLC
Its General Partner
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxxx
-------------------------------------------
Title:
------------------------------------------
/S/ Xxxxxx X. XxXxxxxx
------------------------------------------------
Xxxxxx X. XxXxxxxx
WALLSTAR S.A.
By: /s/ Xxxxx Xxxxx xx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxx xx Xxxxxxx
Power of Attorney
XXXXXX STREET PARTNERS, LLC
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: XXXXXX XXXX
-------------------------------------------
Title: MANAGING PARTNER
------------------------------------------
-15-
MATRIX TECHNOLOGY FUND, LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------
Title:
------------------------------------------
GREY VENTURES INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------------
Title: Executive Vice President
------------------------------------------
GRANITE PRIVATE EQUITY II, LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------------------
Title: Vice President
------------------------------------------
NEWS AMERICA INCORPORATED
By: /s/ Xxxxx Nova
---------------------------------------------
Name: Xxxxx Nova
-------------------------------------------
Title: Vice President
------------------------------------------
XXXXXXX ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------------------
Title: Managing Partner
------------------------------------------
-16-
BANKAMERICA INVESTMENT CORPORATION
By: /S/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-------------------------------------------
Title: Managing Director
------------------------------------------
-17-
EXHIBIT A TO
AMENDED AND RESTATED REGISTRATION AGREEMENT
SCHEDULE OF HOLDERS
Aman Ventures
00000 Xxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Xxxxxx X. XxXxxxxx
c/o Argent Asset Management
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Archery Venture Partners, LP
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
BankAmerica Investment Corporation
000 X. XxXxxxx - 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Xxxxxx Street Partners, LLC
x/x Xxxxxx Xxxxxxx Xxxx Xxxxxx & Xx.
0000 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (800) 419-2861 ext. 26115
A-1
Comcast Interactive Investments, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
Telephone: (000) 000-0000
Credit Suisse First Boston
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxx
Telephone: (000) 000-0000
Granite Private Equity II, LLC
c/o Granite Associates
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Grey Ventures Inc.
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
IFX Online, Inc.
00000 Xxxxxxxx Xxxx. 0xx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Interprise Technology Partners, L.P.
c/x Xxxxxx Capital Management, Inc.
0000 Xxxxxxxx Xxx Xxxxx
00xx Xxxxx
Xxxxx, XX 00000
Attention: X.X. Xxxxxxxxx
Telephone: (000) 000-0000
Xxxxxxx Associates
c/o Bessemer Trust Company
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
A-2
Larchwood Holdings, Ltd.
x/x Xxxxxxxx Xxxxxxx/Xxxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxx
Xxxxx 0000
0000 Xxxxx Xxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
News America Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
With a copy to:
News America Digital Media, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Nexus Capital Partners II, LP
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Porcelain Partners, LP
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Xxxxxxxx Communications and
Information Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
A-3
Xxxxxxxx Investment Opportunities
(Master) Fund-NTV
Portfolio
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Xxxxxxxx New Technologies Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Sony Corporation of America
c/o Sony Music Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Wallstar S.A.
x/x Xxxx Xxxxxx xx Xxxxxxxxxx
Xxxx 0 Xx 17.500
Xxxxxxxx 0, Xxxxxxx 000
Xxxxxxxxxx, 00000 Xxxxxxx
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: 5411-4347-0440
A-4
