REGISTRATION RIGHTS AGREEMENT
by and among
eSpeed, Inc.
and
The Investors Named Herein
TABLE OF CONTENTS
ARTICLE I DEMAND REGISTRATIONS....................................................................................3
1.1 Requests for Registration...............................................................................3
1.2 Number of Demand Registrations; Expenses................................................................4
1.3 Effective Registration Statement........................................................................4
1.4 Priority on Demand Registrations........................................................................5
1.5 Selection of Underwriter................................................................................5
1.6 Limitations, Conditions and Qualifications to Obligations for a Demand Registration.....................5
ARTICLE II SHELF REGISTRATIONS....................................................................................5
2.1 Shelf Registration......................................................................................5
2.2 Expenses................................................................................................7
2.3 Effective Registration Statement........................................................................7
2.4 Limitations, Conditions and Qualifications to Obligations for a Shelf Registration......................7
ARTICLE III PIGGYBACK REGISTRATIONS...............................................................................7
3.1 Right to Piggyback......................................................................................7
3.2 Piggyback Expenses......................................................................................8
3.3 Priority on Primary Registrations.......................................................................8
3.4 Priority on Secondary Registrations.....................................................................8
ARTICLE IV HOLDBACK AGREEMENTS....................................................................................9
ARTICLE V REGISTRATION PROCEDURES.................................................................................9
ARTICLE VI REGISTRATION EXPENSES.................................................................................12
6.1 Registration Expenses..................................................................................12
6.2 Holders' Expenses......................................................................................13
ARTICLE VII UNDERWRITTEN AND OTHER OFFERINGS.....................................................................13
7.1 Underwriting Agreement.................................................................................13
7.2 Obligations of Participants............................................................................13
ARTICLE VIII INDEMNIFICATION.....................................................................................13
8.1 Company's Indemnification Obligations..................................................................13
8.2 Holder's Indemnification Obligations...................................................................14
8.3 Notices; Defense; Settlement...........................................................................15
8.4 Indemnity Provision....................................................................................16
ARTICLE IX DEFINITIONS...........................................................................................16
9.1 Terms..................................................................................................16
9.2 Defined Terms in Corresponding Sections................................................................18
ARTICLE X MISCELLANEOUS..........................................................................................19
10.1 Amendments and Waivers.................................................................................19
10.2 Notices................................................................................................19
10.3 Headings...............................................................................................20
10.4 Gender.................................................................................................20
10.5 Invalid Provisions.....................................................................................20
10.6 Governing Law; Forum; Process..........................................................................20
10.7 Counterparts...........................................................................................21
10.8 Binding Effect; Assignment; Entire Agreement...........................................................21
ARTICLE XI RULE 144 REPORTING....................................................................................21
ii
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
September 22, 2000, by and among eSpeed, Inc., a Delaware corporation (the
"Company"), and EIP Holdings, LLC, a Delaware limited liability company (the
"LLC"), those members of the LLC that may from time to time execute a
counterpart copy of this Agreement (the "EIP Members" and together with the LLC,
the "Original Investors"), and such other transferees of the Original Investors
that otherwise execute a joinder agreement and become a party hereto
(collectively with the Original Investors, the "Investors"). All capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings ascribed to such terms in Section 9 of this Agreement.
RECITALS
WHEREAS, the Company desires to grant to the Investors
registration rights with respect to the shares (the "Shares") of Class A Common
Stock underlying the warrants to purchase shares of Class A Common Stock (the
"Warrants") issuable upon conversion or redemption of the Company's Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock (the
"Preferred Stock"), on the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and
agreements and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEMAND REGISTRATIONS
1.1 Requests for Registration . Subject to Sections 1.2
and 1.3 hereof, Original Investors may request, in writing, registration under
the Securities Act of all or part of their Registrable Securities if the
Registrable Securities so requested to be registered have an aggregate market
value (based on the average closing price of the Class A Common Stock on The
Nasdaq Stock Market, or such other exchange on which the Class A Common Stock
shall then be traded, for the 10 trading days immediately preceding such
request) equal to at least either (i) $100.0 million or (ii) 15% of the Public
Float of the Class A Common Stock, but in no event less than $50.0 million (the
"Minimum Dollar Amount"). Within 15 days after receipt of any such request, the
Company will give written notice of such request to all other Investors and to
other persons holding piggyback registration rights entitling them to have
securities of the Company included within such registration ("Other Holders").
Thereafter, the Company will use all reasonable best efforts to promptly effect
the registration under the Securities Act (i) on Form S-1 or any similar
long-form registration statement (a "Long-Form Registration") or (ii) on Form
S-3 or any similar short-form registration statement (a "Short-Form
Registration") if the Company qualifies to effect a Short-Form Registration, and
will include in such registration all Registrable Securities and securities of
the Company held by the Other Holders with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice, subject to the provisions of Section 1.4. All
registrations initiated by the Original Investors pursuant to this Section 1.1
are referred to herein as "Demand Registrations". The Company shall not be
required to effect any Demand Registration requested
by the Original Investors if: (a) within the 24 months preceding the receipt by
the Company of such request, the Company has filed and has had declared
effective by the Commission a Registration Statement pursuant to this Section
1.1 or has filed and has had declared effective by the Commission another
Registration Statement with respect to an underwritten offering to which the
Piggyback Registration rights set forth in Article III hereof apply and the
Original Investors had an opportunity to include all the shares requested to be
included in such Registration Statements, (b) the initiating Original Investors
may then sell the Registrable Securities requested to be included in such Demand
Registration without registration under the Securities Act, pursuant to the
exemption provided by (i) Rule 144(k) under the Securities Act, as such rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission, or (c) the Company is unable to engage a nationally
recognized firm of investment bankers that is prepared to act as lead managing
Underwriter in connection with the offering of the Registrable Securities
pursuant to such Demand Registration after using reasonable best efforts to
engage such a firm on customary terms and conditions.
1.2 Number of Demand Registrations; Expenses . Subject to
Sections 1.1 and 1.3 hereof, the Original Investors shall be entitled to three
Demand Registrations. The Company will pay all Registration Expenses in
connection with such Demand Registrations.
1.3 Effective Registration Statement . A registration
requested pursuant to Section 1.1 of this Agreement shall not be deemed to have
been effected (i) unless a Registration Statement with respect thereto has been
declared effective by the Commission, (ii) if after it has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason, and, as a result thereof, all of the Registrable Securities covered
thereby have not been sold, (iii) if the Registration Statement does not remain
effective until 45 days after the commencement of the distribution by the
holders of the Registrable Securities included in such Registration Statement,
or (iv) if the conditions to the closing specified in the underwriting agreement
entered into in connection with such registration are not satisfied by reason of
a failure by, or inability of, the Company to satisfy any of such conditions, or
the occurrence of an event outside the reasonable control of the relevant
initiating Original Investors, or (v) if a request for withdrawal made by the
initiating Original Investors pursuant to this Section 1.3 shall have been
caused by, or made in response to, the material adverse effect of any event on
the business, properties, condition (financial or otherwise), or operations of
the Company. If a registration requested pursuant to this Article I is deemed
not to have been effected as provided in this Section 1.3, then the Company
shall continue to be obligated to effect the number of Demand Registrations set
forth in Section 1.2 without giving effect to such requested registration. An
Investor, other than an Original Investor initiating the Demand Registration,
shall be permitted to withdraw all or any part of its Registrable Securities
from a Demand Registration at any time prior to the effective date of such
Demand Registration. One or more Original Investors initiating the Demand
Registration shall be permitted to withdraw all or any part of their Registrable
Securities from a Demand Registration at any time prior to the effective date of
such Demand Registration; provided that if such withdrawal results in the
Minimum Dollar Amount not being satisfied and the offering being abandoned,
concurrently with such withdrawal such withdrawing initiating Original Investor
(or Original Investors) shall pay or reimburse the Company for such Original
Investor's pro rata share (based upon the number of Registrable Securities
proposed to be included in such Demand Registration by such Original Investor,
or Original Investors, as a
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percentage of all Registrable Securities proposed to be included in such Demand
Registration) of all fees and expenses (including counsel fees and expenses)
incurred by it and the Company prior to such withdrawal.
1.4 Priority on Demand Registrations. If the Company
includes in any underwritten Demand Registration any securities which are not
Registrable Securities and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and other
shares of Common Stock proposed to be included exceeds the number of Registrable
Securities and other securities which can be sold in such offering, the Company
will include in such registration (i) first, the number of Registrable
Securities requested to be included which, in the opinion of such underwriters,
can be sold, by the Investors, (ii) second, that number of other shares of
Common Stock proposed to be included in such registration by Cantor Xxxxxxxxxx
Securities and its Affiliates, and their successors and assigns (the "Priority
Piggyback Registration Holders"), and (iii) third, that number of other shares
of Common Stock proposed to be included in such registration, pro rata among any
other holders exercising their respective piggyback registration rights thereof
based upon the total number of shares which such holders propose to include in
such registration.
1.5 Selection of Underwriter. The Company shall select
one or more nationally recognized firms of investment bankers to act as the lead
managing Underwriter or Underwriters in connection with the offering of
Registrable Securities pursuant to a Demand Registration and shall select any
additional investment bankers and managers to be used in connection with the
offering.
1.6 Limitations, Conditions and Qualifications to
Obligations for a Demand Registration. The Company shall be entitled to
postpone, for a reasonable period of time (but not exceeding 90 days during any
fiscal year of the Company), the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 1.1 if the Board of
Directors of the Company determines, in its good faith judgment, that such
registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its Affiliates and promptly gives the holders of
Registrable Securities requesting registration thereof pursuant to Section 1.1
written notice of such determination, containing an approximation of the
anticipated delay. If the Company shall so postpone the filing of a registration
statement, holders of Registrable Securities requesting the Demand Registration
pursuant to Section 1.1 shall have the right to withdraw the request for
registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests for registration to
which holders of Registrable Securities are entitled pursuant to Section 1.1
hereof.
ARTICLE II
SHELF REGISTRATIONS
2.1 Shelf Registration.
(a) Promptly (and in any event within two Business Days)
after each Annual Transaction Revenue Statement becomes final and until the
Perpetual Trigger Date, the
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Company shall notify the EIP Members of their right to request the Company to
file a "shelf" Registration Statement (the "Term Shelf Registration") on the
appropriate form for an offering to be made on a continuous basis pursuant to
Rule 415 (or any successor rule) under the Securities Act covering all of the
Registrable Securities the Investors are then entitled to sell. Promptly (and in
any event within 15 Business Days) after an EIP Member's request to the Company
to file a Term Shelf Registration (which request shall be received by the
Company within 10 Business Days after delivery of its notice), the Company will
file a Term Shelf Registration covering all of the Registrable Securities the
Investors are then entitled to sell (unless an Investor instructs the Company
not to so include its Registrable Securities) and other securities which the
Company has been so requested to register by Other Holders. The Company shall
keep each such Term Shelf Registration continuously effective for a period
(each, a "Term Target Effective Period") of at least 90 days following the date
on which such Shelf Registration is declared effective (or such shorter period
which shall terminate when all Registrable Securities covered by such Term Shelf
Registration have been sold or withdrawn, but not prior to the expiration of the
applicable period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable, or such longer period as provided by paragraph (i) of
Article V or as the Company may, in its sole discretion, determine (and in such
event the Company shall promptly give notice of any such extension of the Term
Target Effective Period to all Investors or Other Holders owning securities
covered by such Term Shelf Registration)).
(b) From and after the date that the LLC has distributed
to the EIP Members Preferred Stock convertible into Warrants exercisable for the
purchase in the aggregate of at least 2.5 million Shares (the "Minimum Share
Amount") (if the number of Shares is adjusted by reason of an anti-dilution
adjustment under Section 3 of the Warrants, the Minimum Share Amount shall be
proportionately adjusted) in accordance with the terms and provisions of the LLC
Agreement (and the Minimum Share Amount is then held by the EIP Members or their
permitted assigns in the aggregate, i.e., securities that have been sold or
otherwise transferred by the EIP Members shall be excluded from such
calculation) (the "Perpetual Trigger Date"), the Company will promptly file (and
in any event within 15 business days after the Perpetual Trigger Date) a "shelf"
Registration Statement (a "Perpetual Shelf Registration" and together with the
Term Shelf Registration, the "Shelf Registration") on the appropriate form for
an offering to be made on a continuous basis pursuant to Rule 415 (or any
successor rule) under the Securities Act covering all of the Registrable
Securities then eligible to be included in such Shelf Registration and other
securities which the Company has been so requested to register by Other Holders.
After the filing of the first Perpetual Shelf Registration, the Company shall
file additional Perpetual Shelf Registrations upon the request of an EIP Member
to cover Registrable Securities which were not eligible for inclusion in
previously filed Perpetual Shelf Registrations. The Company shall keep each such
Perpetual Shelf Registration continuously effective (the "Perpetual Target
Effective Period") until the earlier of (i) all Registrable Securities covered
by such Perpetual Shelf Registration have been sold or withdrawn, but not prior
to the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable, or (ii) all Registrable
Securities covered by such Shelf Registration may then be sold by the holders
without registration under the Securities Act, pursuant to the exemption
provided by (x) Rule 144(k) under the Securities Act, as such rule may be
amended from time to time, or (y) any similar rule or regulation hereafter
adopted by the Commission.
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(c) The Company shall not be required to effect any Shelf
Registration if all of the Registrable Securities eligible to be included in
such Shelf Registration may then be sold by the holders without registration
under the Securities Act, pursuant to the exemption provided by (i) Rule 144(k)
under the Securities Act, as such rule may be amended from time to time, or (ii)
any similar rule or regulation hereafter adopted by the Commission.
(d) Each stockholder whose securities are covered by any
Shelf Registration shall provide such information as the Company may reasonably
request, including information regarding the distribution of such securities,
which may include an underwritten public offering subject to the limitations on
Minimum Dollar Amount, number of Demand Registrations, and the Company's rights
under Sections 1.5 and 1.6 contained in Article I.
2.2 Expenses. The Company will pay all Registration
Expenses in connection with a Shelf Registration.
2.3 Effective Registration Statement. A registration
requested pursuant to Section 2.1 of this Agreement shall not be deemed to have
been effected (i) unless a Registration Statement with respect thereto has been
declared effective by the Commission, (ii) if after it has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or court for
any reason, and, as a result thereof, all of the Registrable Securities covered
thereby have not been sold, or (iii) if the Registration Statement does not
remain effective for the Term Target Effective Period (as the same may be
shortened in accordance with Section 2.1 above or lengthened in accordance with
Article V) or the Perpetual Target Effective Period, as applicable. An Investor,
or Investors, shall be permitted to withdraw all or any part of its Registrable
Securities from a Shelf Registration at any time prior to the effective date of
such Shelf Registration.
2.4 Limitations, Conditions and Qualifications to
Obligations for a Shelf Registration. The Company shall be entitled to
postpone, for a reasonable period of time (but not exceeding 90 days during any
fiscal year of the Company), the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 2.1 if the Board of
Directors of the Company determines, in its good faith judgment, that such
registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its Affiliates and promptly gives the Investors written
notice of such determination, containing an approximation of the anticipated
delay.
ARTICLE III
PIGGYBACK REGISTRATIONS
3.1 Right to Piggyback. From and after the date which is
12 months from the date of this Agreement, whenever the Company proposes to
register any of its equity securities under the Securities Act (other than a
registration effected in connection with a Company stock option or other
employee benefit plan (such as a Registration Statement on Form S-8), a
registration effected in connection with the conversion of debt securities, or a
registration effected solely in connection with an acquisition (such as a
Registration Statement on Form S-4))
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(a "Piggyback Registration"), the Company will give notice (the "Notice") to all
Investors of its intention to effect such a registration and will include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein, subject to the provisions
of Section 3.3 and 3.4 hereof. Such requests for inclusion shall be in writing
and delivered to the Company within 20 days after the Investor's receipt of the
Notice and shall specify the number of Registrable Securities intended to be
disposed of and the intended method of distribution thereof. The Company shall
use its reasonable commercial efforts to cause the managing underwriter or
underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggyback Registration to be included
on the same terms and conditions as any similar securities of the Company or any
other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof; provided, however that such efforts shall not
require causing the underwriters to include Registrable Securities to the extent
that such inclusion is expected to adversely affect the market for, or the
ability of the Company or such other initiating security holder to sell, the
securities proposed to be included by them. Any holder shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to this Section 3.1 by giving written notice to
the Company of its request to withdraw. The Company may withdraw a Piggyback
Registration at any time prior to the time it becomes effective. The Company is
not required to include in a registration any Registrable Securities which the
holder is not then entitled to offer to sell thereunder whether by contractual
restriction or by law.
3.2 Piggyback Expenses. The Registration Expenses of the
Investors will be paid by the Company in all Piggyback Registrations
3.3 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 that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, that number of other shares of Common Stock proposed to be included in
such registration by the Priority Piggyback Registration Holders and (iii)
third, that number of other shares of Common Stock proposed to be included in
such registration, pro rata among any other holders (including the Investors)
exercising their respective piggyback registration rights thereof based upon the
total number of shares which such holders (including the Investors) propose to
include in such registration.
3.4 Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders
(other than the Investors) of the Company's equity securities, and the managing
underwriters advise the Company that in their opinion the number of equity
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the number of shares of Common Stock requested to be
included by the holders exercising their demand registration rights, and (ii)
second, that number of other shares of Common Stock proposed to be included in
such registration, pro rata among any other holders (including the Investors)
exercising their respective piggyback registration rights thereof based upon the
total
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number of shares which such holders (including the Investors) propose to
include in such registration.
ARTICLE IV
HOLDBACK AGREEMENTS
In the event the Company or another holder of the Company's
stock proposes to enter into an underwritten public offering, each holder of
Registrable Securities agrees to enter into a customary agreement with the
managing underwriters not to effect any sale or distribution of equity
securities of the Company, or any securities convertible, exchangeable or
exercisable for or into such securities, during the period beginning on the date
of such offering and extending for up to 90 days if so requested by the Company
and the Underwriters; provided that such holders shall not be so obligated
unless the Company and each of its Affiliates and each other selling stockholder
participating in such offering enter into the same or comparable lock-up
agreement for the same period and further shall not be so obligated if such
holder then owns less than 5% of the outstanding Class A Common Stock.
ARTICLE V
REGISTRATION PROCEDURES
Whenever holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement or when the
Company is obligated to file a Shelf Registration in accordance with Article II,
the Company will use reasonable 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 will:
(a) use reasonable best efforts to prepare and file with
the Commission a Registration Statement with respect to such Registrable
Securities as soon as practicably thereafter and, in the case of a Demand
Registration within 60 days (subject to a postponement pursuant to Section 1.6)
of the request for a Demand Registration, or in the case of a Shelf
Registration, within the period specified in Article II, and use all reasonable
efforts to cause such Registration Statement to become and remain effective for
the periods specified in Article I and II, respectively; provided, that as
promptly as practicable before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, the Company will (i) furnish to the
Selling Holders copies of all such documents proposed to be filed and (ii)
notify each Selling Holder of Registrable Securities covered by such
Registration Statement of (x) any request by the Commission to amend such
Registration Statement or amend or supplement any Prospectus, or (y) any stop
order issued or threatened by the Commission, and take all reasonable actions
required to prevent the entry of such stop order or to promptly remove it if
entered; and provided further that the Company shall not be required to keep
such Registration Statement effective for more than (i) 45 days in the case of a
Piggyback Registration or a Demand Registration (or such shorter period which
will terminate when all Registrable Securities covered by such Registration
Statement have been sold, but not prior to the expiration of the applicable
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable) or (ii) the Term Target Effective Period or the
Perpetual Target Effective Period, in the case of a Shelf Registration (as
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the same may be shortened in accordance with Section 2.1 above or lengthened in
accordance with paragraph (i) below of this Article V).
(b) (i) prepare and file with the 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 as long as such registration is required to remain
effective pursuant to the terms hereof and (ii) 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;
(c) promptly furnish to each Selling Holder, without
charge, such number of conformed 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 Selling Holder;
(d) use all reasonable efforts to register or qualify
such Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions in the United States in which a registration or qualification
is required as any Selling Holder thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such Registration
Statement remains in effect and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Selling Holder to consummate
the disposition in such jurisdictions of the Registrable Securities owned by
such Selling Holder; provided, however, that the Company will 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 clause (d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) promptly notify each Selling Holder, at a time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event known to the Company as a result of which the
Prospectus included in such Registration Statement, as then in effect, contains
an untrue statement of a material fact or omits to state any fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and, at the request of
any such Selling Holder, the Company will prepare and furnish such Selling
Holder a reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(f) make available for inspection by any Selling Holder,
any underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by any such
Selling Holder or underwriter, all applicable, non-confidential due diligence
documents of the Company which are requested, 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
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with such Registration Statement to enable them to conduct a reasonable
investigation within the meaning of the Securities Act, including a customary
accountant's "comfort" letter and opinion of counsel to the Company;
(g) subject to other provisions hereof, use all
reasonable best efforts to cause such Registrable Securities covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities or self-regulatory organizations as may be
necessary to enable the Selling Holders thereof to consummate the disposition of
such Registrable Securities;
(h) promptly notify the Selling Holders of the issuance
of any stop order by the Commission or the issuance by any state securities
commission or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Securities under state securities or "blue sky" laws, and use every reasonable
effort to obtain the lifting at the earliest possible time of any stop order
suspending the effectiveness of any Registration Statement or of any order
preventing or suspending the use of any preliminary Prospectus; and
(i) promptly notify the Selling Holders of the occurrence
of any pending material merger, acquisition, corporate reorganization or other
material transaction involving the Company or any of its Affiliates which makes
it imprudent for the Company to be in registration, as determined in the good
faith judgment of the Company (a "Black-Out Period"). The Black-Out Period
together with periods during which a Selling Holder cannot sell its Registrable
Securities as a result of paragraph (e) above of this Article V shall not exceed
90 days during any fiscal year of the Company. If the Company imposes Black-Out
Periods that, either individually or in the aggregate together with (A) any
other periods during which a Selling Holder could not sell its Registrable
Securities as a result of paragraph (e) above of this Article V and (B) any
postponements of the filing of a Registration Statement pursuant to Section 1.6
or 2.4 (as the case may be), exceeds 90 days during any fiscal year of the
Company (the number of days by which such period exceeds 90 days is referred to
as the "Excess Delay Period"), then (x) the Term Target Effective Period shall
be extended by the length of any Black-Out Period affecting such Term Shelf
Registration, as well as any other periods during the Term Target Effective
Period which a Selling Holder could not sell its Registrable Securities under
such Term Shelf Registration as a result of paragraph (e) above of this Article
V and (y) in addition, the Term Target Effective Period shall be extended by a
period equal to the Excess Delay Period.
(j) make generally available an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
90 days after the end of the 12-month period beginning with the first day of the
Company's first fiscal quarter commencing after the effective date of a
Registration Statement, which earnings statement shall cover said 12- month
period, and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(k) in connection with an underwritten offering,
participate, to the extent reasonably requested by the managing underwriter or
underwriters for the offering or the Selling
11
Holders, in customary efforts to sell the securities under the offering,
including, without limitation, participating in "road shows";
(l) during the period when the prospectus is required to
be delivered under the Securities Act, promptly file all documents required to
be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act;
(m) use reasonable best efforts to cause all such
Registrable Securities registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued by the Company are then
listed; and
(n) otherwise comply with all applicable rules and regulations
of the Commission.
The Company may require each Selling Holder to promptly
furnish in writing to the Company such information regarding the distribution of
the Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection with
such registration including, without limitation, all such information as may be
requested by the Commission or any regulatory authority. The Company may exclude
from such Registration Statement any holder who fails to provide such
information.
Each Selling Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
paragraph (a), (e), (h) or (i) above of this Article V, such Selling Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Selling
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (a) or (e) above of this Article V, or in the case of
a Black-Out Period until the Company notifies the Selling Holders that the
period has ended, and, if so directed by the Company, such Selling Holder will
deliver to the Company all copies, other than permanent file copies then in such
Selling Holder's possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice.
ARTICLE VI
REGISTRATION EXPENSES
6.1 Registration Expenses. All registration and filing
fees, fees and expenses of compliance with securities or "blue sky" laws,
printing expenses, listing fees for securities to be registered on a national
securities exchange or The Nasdaq Stock Market and all independent certified
public accountants, underwriters (excluding discounts and commissions), fees and
expenses of counsel to the Company and other Persons retained by the Company,
and up to $20,000 for legal fees and related expenses incurred on behalf of the
Selling Holders for their retention of a single law firm in connection with the
sale, or potential sale, of Registrable Securities in each Demand Registration,
Shelf Registration and Piggyback Registration (all such expenses being herein
called "Registration Expenses") will be borne by the Company as provided in
Sections 1.2, 2.2 and 3.2 of this Agreement, but subject to the provisions of
Section 1.3 and 2.3 of this Agreement.
12
6.2 Holders' Expenses. The Company shall have no
obligation to pay (i) any underwriting discounts or commissions attributable to
the sale, or potential sale, of Registrable Securities, which expenses will be
borne pro rata by all Selling Holders of Registrable Securities included in such
registration; and (ii) any fees or expenses of counsel or others retained by the
Selling Holders in connection with the sale, or potential sale, of Registrable
Securities, except as provided in Section 6.1.
ARTICLE VII
UNDERWRITTEN AND OTHER OFFERINGS
7.1 Underwriting Agreement. If requested by the
underwriters for any underwritten offering involving the Registrable Securities,
the Company will enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory to the Company and
to contain such representations and warranties by the Company and such other
terms as are generally included in agreements of this type, including, without
limitation, indemnities customarily included in such agreements. The holders of
the Registrable Securities will cooperate in good faith with the Company in the
negotiation of the underwriting agreement.
7.2 Obligations of Participants. No Person may
participate in any underwritten registration hereunder unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, escrow agreements and
other documents required under the terms of such underwriting arrangements and
consistent with the provisions of this Agreement. In addition, the Company may
require each Selling Holder to promptly furnish in writing to the Company such
information regarding the distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other information as
may be legally required in connection with such registration including, without
limitation, all such information as may be requested by the Commission or the
NASD. The Company may exclude from such Registration Statement any Holder who
fails to provide such information.
ARTICLE VIII
INDEMNIFICATION
8.1 Company's Indemnification Obligations. The Company
agrees to indemnify and hold harmless each of the holders of any Registrable
Securities covered by any Registration Statement referred to herein, its
partners, officers, directors, employees and agents and each other Person, if
any, who controls such holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act together with the partners, officers,
directors, employees and agents of each controlling Person (collectively, the
"Holder Indemnitees"), as follows:
13
(i) against any and all loss, liability, claim, damage or
reasonable expense arising out of or based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement (or
any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary Prospectus or Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage
and reasonable expense to the extent of the aggregate amount paid in settlement
of any litigation, investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim based upon any such untrue
statement or omission or any such alleged untrue statement or omission, if such
settlement is effected with the prior written consent of the Company; and
(iii) against any and all reasonable expense incurred by
them in connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim based upon any such untrue statement or
omission or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with information furnished to the Company in writing by or on behalf
of such holder expressly for use in the preparation of any Registration
Statement (or any amendment or supplement thereto), including all documents
incorporated therein by reference, or in any preliminary Prospectus or
Prospectus (or any amendment or supplement thereto); provided further, that
(other than in connection with an underwritten offering) the Company will not be
liable to any holder or any other Holder Indemnitee under the indemnity
agreement in this Section 8.1 with respect to any preliminary Prospectus or the
final Prospectus or the final Prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, liability, claim, damage or expense of
such Holder Indemnitee results from the fact that such holder sold Registrable
Securities to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final Prospectus or of the
final Prospectus as then amended or supplemented, whichever is most recent, if
the Company has previously and timely furnished copies thereof to such holder;
and provided further, that the Company will not be liable to any holder or any
other Holder Indemnitee under the indemnity agreement in this Section 8.1 to the
extent that any such loss, liability, claim or expense arises out of or is based
upon an untrue statement or omission in any Prospectus, even if an amended and
corrected Prospectus is not furnished to such holder, but only to the extent
that the holder, after being notified in writing by the Company pursuant to
paragraph (e) of Article V hereof, continues to use such Prospectus and in such
case and to the extent of, and with respect to, damages which arise after the
holder receives such notice.
8.2 Holder's Indemnification Obligations. In connection
with any Registration Statement in which a holder of Registrable Securities is
participating, each such holder agrees to indemnify and hold harmless (in the
same manner and to the same extent as set
14
forth in Section 8.1 of this Agreement) the Company and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act with respect to any statement or alleged
statement in or omission or alleged omission from such Registration Statement,
any preliminary, final or summary Prospectus contained therein, or any amendment
or supplement thereto, if such statement or alleged statement or omission or
alleged omission was made about such holder in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of such
holder expressly for inclusion in such Registration Statement. The obligations
of each holder pursuant to this Section 8.2 are to be several and not joint;
provided that, with respect to each claim pursuant to this Section 8.2, each
such holder's maximum liability under this Section 8.2 shall be limited to an
amount equal to the net proceeds received by such holder (after deducting any
underwriting discount) from the sale of Registrable Securities being sold
pursuant to such Registration Statement or Prospectus by such holder.
8.3 Notices; Defense; Settlement. Promptly after receipt
by an indemnified party hereunder of written notice of the commencement of any
action or proceeding involving a claim referred to in Section 8.1 or Section 8.2
of this Agreement, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter of
the commencement of such action; provided, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under Section 8.1 or Section 8.2 of this Agreement except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in the reasonable opinion of counsel to such indemnified
party a conflict of interest between such indemnified and indemnifying parties
may exist in respect of such claim, in which case the indemnifying party shall
not be liable for the fees and expenses of (i) more than one counsel for all the
Selling Holders, selected by a majority of the Selling Holders or (ii) more than
one counsel for the Company in connection with any one action or separate but
similar or related actions, as applicable. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable opinion of counsel to 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, in which event the indemnifying party shall
be obligated to pay the fees and expenses of such additional counsel or
counsels. The indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any Person who controls such indemnified party is a party
to such claim, action, suit or proceeding), if such settlement, compromise or
consent (i) does not include an unconditional release of such indemnified party
from all liability arising out of such claim, action, suit or proceeding or (ii)
requires anything from the indemnified party other than the payment of money
damages which
15
the indemnifying party has agreed to pay in full. Notwithstanding anything to
the contrary set forth herein, and without limiting any of the rights set forth
above, in any event any party will have the right to retain, at its own expense,
counsel with respect to the defense of a claim.
8.4 Indemnity Provision. The Company and each holder of
Registrable Securities requesting registration shall provide for the foregoing
indemnity (with only such modifications as do not adversely affect the Holder
Indemnities) in any underwriting agreement with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority.
ARTICLE IX
DEFINITIONS
9.1 Terms. As used in this Agreement, the following
defined terms shall have the meanings set forth below:
"Affiliate" means, with respect to any specified party, any other
individual, partnership, corporation or other organization, whether incorporated
or unincorporated, who, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified party. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a party, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative of the foregoing.
"Annual Transaction Revenue Statement" shall have the meaning
attributed to it in the LLC Agreement.
"Business Day" means a day other than Saturday, Sunday or any day on
which banks located in the State of New York are authorized or obligated to
close.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company and any securities into which the Class A Common Stock
shall have been changed or any securities resulting from any reclassification or
recapitalization of the Class A Common Stock.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" means the shares of Common Stock, regardless of
designation, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar or successor Federal statute then in effect, and any reference to
a particular section thereof shall include a reference to the equivalent
section, if any, of any such similar Federal statute, and the rules and
regulations thereunder.
"LLC Agreement" shall mean the Limited Liability Company Agreement of
the LLC.
16
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Prospectus" means the Prospectus included in any Registration
Statement (including without limitation, a Prospectus that disclosed information
previously omitted from a Prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any Prospectus supplement, with respect to the terms
of the offering of any portion of the securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"Public Float" means the aggregate market value of the Class A Common
Stock held by non-Affiliates of the Company based on the average closing price
of the Class A Common Stock on The Nasdaq Stock Market, or such other exchange
on which the Class A Common Stock shall then be traded, for the 10 trading days
immediately preceding a request for a Demand Registration.
"Registrable Securities" means (i) the Shares, and (ii) any securities
issued or received in respect of, or in exchange or in substitution for any of
the foregoing, including, but not limited to, those arising from a stock
dividend, stock split, reclassification, recapitalization, reorganization,
merger, consolidation/sale of assets or other exchange of securities. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they (w) have been effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
(x) may be sold pursuant to Rule 144 under the Securities Act without volume or
manner of sale limitation (or any similar provisions then in force), (y) have
been otherwise transferred and the Company has delivered a new certificate or
other evidence of ownership for such securities not bearing a restrictive legend
and not subject to any stop order and such securities may be publicly resold by
the Person receiving such certificate without complying with the registration
requirements of the Securities Act, or (z) have ceased to be outstanding.
"Registration Statement" means any Registration Statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute then in effect, and any reference to a particular
section thereof shall include a reference to a comparable section, if any, of
any such similar Federal statute, and the rules and regulations thereunder.
17
"Selling Holder" means each holder of Registrable Securities whose
securities are covered by a Demand Registration, Shelf Registration or Piggyback
Registration.
9.2 Defined Terms in Corresponding Sections . The
following defined terms, when used in this Agreement, shall have the meaning
ascribed to them in the corresponding Sections of this Agreement listed below:
"Agreement" -- Preamble
"Company" -- Preamble
"Demand Registration" -- Section 1.1
"EIP Members" - Preamble
"Excess Delay Period" - Article V
"Holder Indemnitees" - Section 8.1
"Investors" -- Preamble
"Investors" -- Preamble
"LLC Agreement" - Section 2.1
"Long-Form Registration" -- Section 1.1
"Minimum Dollar Amount" - Section 1.1
"Minimum Share Amount" - Section 2.1
"Notice" -- Section 3.1
"Original Investors" -- Preamble
"Other Holders" -- Section 1.1
"Piggyback Registration" -- Section 3.1
"Perpetual Target Effective Period" - Section 2.1
"Perpetual Trigger Date" - Section 2.1
"Perpetual Shelf Registration" - Section 2.1
"Preferred Stock" - Recitals
"Priority Piggyback Registration Holders" -- Section 1.4
"Registration Expenses" -- Section 6.1
"Term Target Effective Period" - Section 2.1
"Term Trigger Date" - Section 2.1
"Term Shelf Registration" - Section 2.1
"Shares" -- Recitals
"Shelf Registration" - Section 2.1
18
"Short-Form Registration" -- Section 1.1
"Warrants" -- Recitals
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
will be effective against the Company or any holder of Registrable Securities,
unless such modification, amendment or waiver is approved in writing by the
Company and the Investors representing a majority of the Registrable Securities
then outstanding; provided, however, that written consent of all Investors shall
be required with respect to any changes that would be detrimental to the rights
of an Investor disproportionately to such rights of the other Investors. The
failure of any party to enforce any of the provisions of this Agreement will in
no way be construed as a waiver of such provisions and will not affect the right
of such party thereafter to enforce each and every provision of this Agreement
in accordance with its terms.
10.2 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission or
mailed by pre-paid registered or certified mail, return receipt requested or
mailed by overnight courier prepaid to the parties at the following addresses or
facsimile numbers:
If to the Company, to:
eSpeed, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn.: General Counsel
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxxxx, Esq.
If to any Investor, to the address set forth on the signature
page hereto.
19
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 10.3, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 10.3, be deemed given upon receipt of confirmation if
given during normal business hours and otherwise one business day after receipt
of confirmation, (iii) if delivered by mail in the manner described above to the
address as provided in this Section 10.3, be deemed given on the earlier of the
third full Business Day following the day of mailing or upon receipt, and (iv)
if delivered by overnight courier to the address provided in this Section 10.3,
be deemed given on the earlier of the first Business Day following the date sent
by such overnight courier or upon receipt. Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other
parties hereto.
10.3 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
10.4 Gender . Whenever the pronouns "he" or "his" are used
herein they shall also be deemed to mean "she" or "hers" or "it" or "its"
whenever applicable. Words in the singular shall be read and construed as though
in the plural and words in the plural shall be construed as though in the
singular in all cases where they would so apply.
10.5 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
10.6 Governing Law; Forum; Process. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflicts of law. Each of the
parties hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of any court of the State of Delaware or any federal court sitting
in the State of Delaware for purposes of any suit, action or other proceeding
arising out of this Agreement (and agrees not to commence any action, suit or
proceedings relating hereto except in such courts). Each of the parties hereto
agrees that service of any process, summons, notice or document by U.S.
registered mail at its address set forth herein shall be effective service of
process for any action, suit or proceeding brought against it in any such court.
Each of the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement, which is brought by or against it, in the courts of the State
of Delaware or any federal court sitting in the State of Delaware and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
20
10.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. Delivery of a
facsimile version of one or more signatures to this Agreement shall be deemed
adequate delivery for purposes of this Agreement.
10.8 Binding Effect; Assignment; Entire Agreement. This
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Investors shall have the right to assign their rights hereunder in connection
with any transfer of beneficial ownership of the Preferred Stock, Warrants or
Shares, so long as the assignee executes a joinder agreement and becomes a party
hereto. This Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
10.9 Further Assurances. The parties shall, at their own cost
and expense, execute and deliver such further documents and instruments and
shall take such other actions as may be reasonably required or appropriate to
carry out the intended purposes of this Agreement.
ARTICLE XI
RULE 144 REPORTING
The Company hereby agrees as follows:
(a) The Company shall use its reasonable best efforts to make
and keep public information available, as those terms are understood and defined
in Rule 144 under the Securities Act.
(b) The Company shall use its reasonable best efforts to file
with the Commission in a timely manner all reports and other documents as the
Commission may prescribe under Section 13(a) or 15(d) of the Exchange Act at any
time while the Company is subject to such reporting requirements of the Exchange
Act.
(c) The Company shall furnish to each holder of Registrable
Securities forthwith upon a reasonable request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act.
21
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
eSPEED, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: President
EIP HOLDINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXXXX ENERGY MARKETING &
TRADING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
CORAL ENERGY HOLDING, LP
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXX ENERGY TRADING, INC.
By: /s/ Xxxxxx X. Xxxxx Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxx Xx.
Title: Managing Director
TXU ENERGY TRADING COMPANY
By: /s/ X. X. Xxxxxx
----------------------------------------
Name: X. X. Xxxxxx
Title: President
DOMINION ENERGY EXCHANGE, INC.
By: /s/ Xxxxx X. X'Xxxxxx
-------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: President, Chief Operating
Officer
