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EXHIBIT 3.7
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
as of November 11, 1999, by and among WORLD COMMERCE ONLINE, INC., a Delaware
corporation (the "COMPANY"), Interprise Technology Partners, L.P., a Delaware
limited partnership (the "INVESTOR"), and each other investors listed on the
SCHEDULE OF HOLDERS attached hereto as EXHIBIT A (together with the Investor,
the "STOCKHOLDERS").
RECITALS:
A. The Company and the Stockholders are parties to a Stock
Purchase Agreement dated as of November 11, 1999 (the "PURCHASE AGREEMENT"). In
order to induce such Stockholders to enter into the Purchase Agreement, the
Company agreed to provide the registration rights set forth in this Agreement.
Any other Persons who purchase capital stock of the Company may, with the
consent of the Company's Board of Directors and the Investor, become parties to
this Agreement by executing a Joinder Agreement.
B. The Company and the Investor are parties to a Registration
Rights Agreement, dated as of March 30, 1999, entered into by the Investor and
World Commerce Online, Inc., a Nevada corporation ("WCO-NEVADA"), which was
previously merged into the Company (the "EXISTING REGISTRATION RIGHTS
AGREEMENT").
C. The Company and the Investor intend that this Agreement
replace and supersede the Existing Registration Rights Agreement, so that all
registration rights of the Company will be contained in a single agreement.
D. Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in SECTION 8 hereof.
AGREEMENT
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time beginning
after the earlier of: (i) 180 days after the closing of the Initial Public
Offering; or (ii) March 30, 2001; and ending three (3) years after the closing
of the Initial Public Offering (the "Registration Period"), the holders of a
majority of the Registrable Securities shall be entitled to request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations"),
at such time or times, and subject to the limitations, set forth in this
Agreement.
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(b) LONG-FORM REGISTRATIONS. During the Registration
Period, the holders of a majority of the Registrable Securities shall be
entitled to request three (3) Long-Form Registrations in which the Company shall
pay all Registration Expenses as set forth in SECTIONS 5(A) AND (B) hereof. A
registration shall not count as one of the Long-Form Registrations until it has
become effective and no Long-Form Registration shall count as one of the
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; PROVIDED THAT in any event the
Company shall pay all Registration Expenses in connection with any registration
initiated as a Long-Form Registration whether or not it has become effective and
whether or not such registration has counted as one of the Long-Form
Registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the
Long-Form Registrations provided pursuant to SECTION L(B), during the
Registration Period the holders of a majority of the Registrable Securities
shall be entitled to request two (2) registrations under the Securities Act of
all or part of their Registrable Securities 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 as set forth in SECTIONS 5(A) AND (B) hereof.
After the Company has become subject to the reporting requirements of the
Securities Exchange Act, the Company shall use its 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 a majority of the Registrable Securities.
(d) DEMAND REGISTRATIONS. All registrations requested
pursuant to SECTIONS L(A), (B) and (C) 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. 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(E) 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.
(e) PRIORITY ON DEMAND REGISTRATIONS. The Company
shall not include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of the holders of a
majority of the Registrable Securities included in such registration. 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; (ii) second, the Registrable
Securities other than Investor Registrable Securities, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by such holders; and (iii) third, other securities which are not
Registrable Securities requested to be included in such registration pursuant to
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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 must
pay their share of the Registration Expenses as provided in SECTION 5 hereof.
(f) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company
shall not be obligated to effect any Demand Registration: (i) within one hundred
eighty (180) days after the effective date of a previous Demand Registration or
a previous registration in which the holders of the Registrable Securities were
given piggyback rights pursuant to SECTION 2; (ii) if the Company, within ten
(10) days of the receipt of a request of a Demand Registration, gives notice of
its bona fide intention to effect the filing of a registration statement under
the Securities Act within ninety (90) days of receipt of such request (other
than with respect to a registration statement relating to a Rule 145
transaction, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (iii) during
the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), PROVIDED THAT the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or (iv) if the Company shall furnish
to the holders of the Registrable securities a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company or its
shareholders for registration statements to be filed in the near future, then
the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed one hundred eighty (180)
days from the receipt of the request to file such registration by such holders.
The Company may postpone for up to 180 days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company and the holders
of a majority of the Registrable Securities agree 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
Demand Registrations hereunder and the Company shall pay all Registration
Expenses in connection with such registration. The Company may postpone a Demand
Registration hereunder only once in any twelve (12) month period.
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(g) SELECTION OF UNDERWRITERS. The holders of a
majority of the Registrable Securities included in any Demand Registration shall
have the right to select the investment banker(s) and manager(s) to administer
the offering.
(h) OTHER REGISTRATION RIGHTS. On or prior to the
date of this Agreement, the Company has not granted any registration rights to
any party, except for those expressly granted pursuant to this Agreement or the
Existing Registration Rights Agreement. Except as provided in this Agreement,
the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the Investor (so long as the Investor holds Registrable Securities)
or the holders of a majority of the Registrable Securities (in the event the
Investor no longer holds Registrable Securities), unless such new registration
rights, including standoff obligations, are subordinate to the registration
rights granted to the Investor.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes
to register any of its securities under the Securities Act (other than 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
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within twenty-five (25) 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 as set forth in SECTIONS 5(A) AND (B) hereof.
(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; (iii) third, the Registrable Securities other than Investor
Registrable Securities, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by such holders; and (iv)
fourth, 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.
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(d) PRIORITY ON SECONDARY REGISTRATIONS. If a
Piggyback Registration is an underwritten secondary registration on behalf of
stockholders other than holders of Investor 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
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; (iii) third, the Registrable Securities other than Investor
Registrable Securities, pro rata among the holders of such Registrable
Securities on the basis of the number of shares owned by such holders; and (iv)
fourth, 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.
3. HOLDBACK AGREEMENTS.
(a) HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to and the 180-day period beginning
on the effective date of any underwritten registration whether or not
Registrable Securities are included (except as part of such underwritten
registration), provided that senior management and all directors of the Company
agree to a similar lock-up, and unless the underwriters managing the
registration otherwise agree.
(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
seven (7) days prior to and during the 180-day period beginning on the 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 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 of such counsel;
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(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 one year;
(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
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 and, without limiting the generality of the foregoing, to
arrange for at least two (2) market makers to register as such with respect to
such Registrable Securities with the NASD;
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(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 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, its counsel and the Company's counsel,
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;
(m) subject to SECTION 4(D) above, use its 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;
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(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, 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 or by such seller or its counsel.
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 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 one counsel chosen by
the holders of a majority of the Registrable Securities included in such
registration and for the reasonable fees and disbursements of each additional
counsel retained by any holder of Registrable Securities for the purpose of
rendering a legal opinion on behalf of such holder in connection with any
underwritten Demand Registration or Piggyback Registration.
(c) PAYMENT OF REGISTRATION EXPENSES BY HOLDERS OF
OTHER REGISTRABLE SECURITIES. To the extent Registration Expenses are not
required to be paid by the Company, each holder of Other Registrable Securities
included in any registration hereunder shall pay its proportionate share of all
Registration Expenses based upon the ratio of the aggregate selling price of
each holder's securities included therein to the aggregate selling price of all
securities to be so registered.
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6. INDEMNIFICATION AND CONTRIBUTION.
(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 (i) 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, prospectus or preliminary prospectus or any
amendments or supplements thereto after the Company has furnished such holder
with a sufficient number of copies of the same, or (ii) any other violation or
alleged violation by the Company of any applicable securities laws or other
laws. 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, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto and, to
the extent permitted by law, shall indemnify the Company, its directors and
officers, each Person who controls the Company (within the meaning of the
Securities Act), and the other holders of Registrable Securities that register
Registrable Securities pursuant to such registration statement against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the 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, 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 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,
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permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
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). 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.
(d) CONTRIBUTION. Subject to applicable law, if the
indemnification provided for in this Section 6 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
losses, claims, damages or liabilities referred to herein for reasons of public
policy, the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other, in connection with the matters that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and the indemnified
party shall be determined by a court of law by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission 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.
(e) SURVIVAL. The indemnification and contribution
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 and the termination of this Agreement.
7. 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 of
less than ten percent (10%) of all Registrable Securities included in any
underwritten registration (other than an executive officer or director of the
Company) shall be required to make any representations or warranties to the
Company or the underwriters (other than representations and warranties regarding
such holder, such holder's ownership of stock and such holder's intended method
of distribution) or to undertake any indemnification obligations to the Company
or the underwriters with respect thereto, except as otherwise provided in
SECTION 6 hereof;
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(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, including, without limitation, providing access to all
relevant books and records; 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 7(A) above).
8. DEFINITIONS.
(a) The term "INITIAL PUBLIC OFFERING" means the
first registered public offering of the Company's Common Stock by the Company
under the Securities Act with net proceeds to the Company and/or the
Stockholders of not less than $15 million.
(b) The term "INVESTOR REGISTRABLE SECURITIES" means
all Registrable Securities (i) acquired by the Investor under the Purchase
Agreement or under the Stock Purchase Agreement between WCO-Nevada and the
Investor, dated as of March 30, 1999 (the "MARCH 30 SPA") and held by the
Investor at the time of exercise of the relevant right under this Agreement;
(ii) all Registrable Securities acquired by the Purchasers (as defined in the
Purchase Agreement) under the Purchase Agreement and held by the Purchasers at
the time of exercise of the relevant right under this Agreement; and (iii) 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 or dissolution of the
Investor). Investor Registrable Securities will continue to be Investor
Registrable Securities if held or acquired by any holder of Investor Registrable
Securities.
(c) The term "PERMITTED TRANSFEREE" means:
(i) a company in which the transferor(s)
own(s) directly or indirectly more than
50% of the equity and voting capital or
has the right and power to direct the
policy and management of such company;
(ii) a company that owns directly or indirectly
more than 50% of the equity and voting
capital or has the right and power to
determine the policy and management of the
transferor(s);
(iii) in the case of a transfer by a partnership
(including a limited partnership), to any
partners, or any partnership (including a
limited partnership) managed by the same
management company or to the partners
thereof, or to any partners of such;
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(iv) in the case of a body corporate, to its
stockholders in the same proportion as
their ownership interest in the body
corporate; and
(v) in the case of a stockholder who is an
individual to his or her spouse, children,
or grandchildren, other than to minors and
persons incapacitated as a matter of law,
or to trusts and living trusts on behalf
of any of the foregoing; provided that in
all cases, such Permitted Transferee has
agreed in writing to assume the
obligations of the transferor under all
agreements involving the Company and
provided that the transfer does not
violate the federal securities laws (the
opinion of counsel for the transferor that
a transfer does not violate the federal
securities laws will suffice to satisfy
this requirement).
(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 or issuable pursuant to or upon conversion or
recapitalization of any Series A Preferred Stock or Series B Preferred Stock,
(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.
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(h) The term "SECURITIES EXCHANGE ACT" means the
Securities Exchange Act of 1934, as amended, or any similar federal law then in
force.
9. 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) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company shall not take any action, or permit any change to occur, with respect
to its securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration.
(c) 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.
(d) 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 no amendment or waiver which
materially and adversely effects the rights of the holders of the Investor
Registrable Securities hereunder may be made without the consent of a majority
of the holders of the Investor Registrable Securities.
(e) 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.
(f) 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.
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(g) As of the Closing as defined in the Purchase
Agreement, the Existing Registration Rights Agreement shall terminate and be of
no further force and effect.
(h) 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.
(i) DESCRIPTIVE HEADINGS. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(j) GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the domestic laws of the State of Delaware,
without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(k) 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 the Investor and to each Shareholder 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.
(l) NEW PARTIES. During the term of this Agreement,
the Company may, with the consent of the Company's Board of Directors and the
Investor, 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. Notwithstanding the above, upon
execution of a Joinder Agreement, all Purchasers under the Purchase Agreement
automatically shall become parties to this Agreement and be added to the
SCHEDULE OF HOLDERS attached hereto as EXHIBIT A.
(m) TERMINATION OF AGREEMENT. All registration rights
granted hereunder will expire and this Agreement will be terminated at such time
as (i) ninety percent (90%) of the total number of Registrable Securities issued
by the Company pursuant to the March 30 SPA and the Purchase Agreement (as
adjusted for stock splits, consolidations, recapitalization, or the issuance of
stock dividends) 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), and (ii) the average daily trading volume of the Common Stock
over the six (6) month period immediately preceding the termination is at least
one-quarter of one percent (1/4%) of the Company's outstanding Common Stock.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WORLD COMMERCE ONLINE, INC.
By: /s/ XXXXXX XXXX
-------------------------------------------
Xxxxxx Xxxx, Chief Executive
Officer and President
INTERPRISE TECHNOLOGY PARTNERS, L.P.
By:/s/ XXXXX X. XXXXXX
-------------------------------------------
Xxxxx X. Xxxxxx
Managing Principal
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EXHIBIT A TO
REGISTRATION AGREEMENT
SCHEDULE OF HOLDERS
INVESTORS:
Interprise Technology Partners, L.P.
c/x Xxxxxx Capital Management, Inc.
30th Floor
0000 Xxxxxxxx Xxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
[Insert the names of Purchasers under November 1999 SPA]
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