EXHIBIT 10.12
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of September
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29, 1999 by and among (i) VIA XXX.XXXXX, INC., a Delaware corporation (the
"Company"), and (ii) certain holders of the Company's Common Stock (or rights to
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receive Common Stock) identified on the signature pages hereto (the
"Stockholders").
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The Company has issued or agreed to issue to the Stockholders, in certain
circumstances and upon exercise of certain rights, Common Stock of the Company,
as part of the inducement for the parties hereto to enter into and perform the
agreements under which such stock or rights to acquired stock has been or will
be issued, the parties hereto have agreed to enter into this Agreement in order
to provide for certain registration rights;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing, the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
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the following respective meanings:
"Affiliate" of a Person means any other Person that controls, is
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controlled by, or is under common control with, such Person.
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean, collectively, the Company's Common Stock,
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$.001 par value per share, and Nonvoting Common Stock, $.001 par value per
share.
"Employee/Management Holder" shall mean each current or former
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employee of the Company, founder of the Company or other member of the Company's
management (as determined by the Company's Board of Directors from time to time)
who holds any securities of the Company or other rights consisting of Common
Stock or convertible into exchangeable for or exercisable for Common Stock.
"Employee/Management Stock" shall mean (i) those shares of Common
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Stock owned by any Employee/Management Holder or any Permitted Transferee (other
than shares issued prior to the date hereof which such
Employee/Management Holder has not otherwise agreed are subject to this
Agreement), (ii) shares of Common Stock issued or issuable upon the conversion
or exercise of any options or other securities of the Company owned by the
Employee/Management Holders; and (iii) any shares of Common Stock issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of the shares referenced in (i) and (ii) above.
"Exchange Act" shall mean the Securities Exchange Act of 1934 (or any
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similar successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Permitted Transferee" shall mean, (i) with respect to an
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Employee/Management Holder, a member of such Employee/Management Holder's
immediate family, a trust established for the benefit of members of such
Employee/Management Holder's immediate family, or a transferee of such
Employee/Management Holder by will or the laws of intestate succession, and (ii)
with respect to a holder of Investor Stock, any Affiliate of such Stockholder or
any partner, shareholder or other equity owner of such Stockholder.
"Person" shall mean any individual, partnership, corporation, limited
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liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Preferred Stock" shall mean all stock of the Company which is
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denominated as preferred stock or which has any preference over Common Stock
with respect to dividends, rights upon liquidation or other matters (as
determined by the Board of Directors, in the case of any ambiguity).
"Registrable Securities" shall mean (i) shares of Common Stock owned
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by the Stockholders or any transferee thereof; (ii) shares of Common Stock
issued or issuable upon the conversion or exercise of any stock, warrants,
options or other securities of the Company owned by the Stockholders or any
transferee thereof; and (iii) any shares of Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in replacement of the
shares referenced in (i) and (ii) above; provided, however, that Registrable
Securities shall not include any shares of Common Stock (issued or issuable)
that (A) have previously been sold pursuant to an effective registration
statement under the Securities Act, (B) have otherwise been sold to the public
in an open-market transaction under Rule 144, (C) are eligible for immediate
sale to the public under Rule 144 without compliance with volume limitations
thereunder, or (D) are eligible for immediate sale to the public under
Regulation S.
The terms "registers," "registered" and "registration" shall refer to
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a registration effected by preparing and filing a registration statement in
compliance
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with the Securities Act and the declaration or ordering of the effectiveness of
such registration statement by the Commission.
"Registration Expenses" shall mean all expenses incurred in effecting
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any registration pursuant to this Agreement, including without limitation all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel and independent public accountants for the
Company, blue sky fees and expenses, expenses of any regular or special audits
incident to or required by any such registration, fees of the National
Association of Securities Dealers, inc., fees and expenses associated with
listing securities on an exchange or for quotation on NASDAQ, transfer taxes,
fees of transfer agents and registrars, costs of insurance and the fees and
expenses of one counsel for the selling holders of Registrable Securities, but
excluding Selling Expenses.
"Regulation S" shall mean Regulation S as promulgated by the
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Commission under the Securities Act, as such Regulation may be amended from time
to time, or any similar successor regulation that may be promulgated by the
Commission.
"Rule 144" shall mean Rule 144 as promulgated by the Commission under
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the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
"Securities Act" shall mean the Securities Act of 1933 (or any similar
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successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts and selling
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commissions applicable to the sale of Registrable Securities.
2. Piggyback Registrations
(a) Request for Inclusion. If the Company shall determine, at any
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time after the Company's initial public offering, to register any of its
securities for its own account or for the account of other security holders of
the Company on any registration form (other than Form S-4 or S-8) which permits
the inclusion of Registrable Securities (a "Piggyback Registration"), the
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Company will promptly give each holder of Registrable Securities written notice
thereof and, subject to Section 2(c), shall include in such registration all the
Registrable Securities requested to be included therein pursuant to the written
requests of holders of Registrable Securities received within twenty (20) days
after delivery of the Company's notice.
(b) Underwriting. If the Piggyback Registration relates to an
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underwritten public offering, the Company shall so advise the holders of
Registrable Securities as a part of the written notice given pursuant to Section
2(a). In such event, the right of any holder of Registrable Securities to
participate in
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such registration shall be conditioned upon such holder's participation in such
underwriting in accordance with the terms and conditions thereof. All holders of
Registrable Securities proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected by the Company.
(c) Priorities. If such proposed Piggyback Registration is an
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underwritten offering and the managing underwriter for such offering advises the
Company that the securities requested to be included in such registration
exceeds the largest number that can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the
shares being included in the offering , such excess securities shall be excluded
from such offering. Securities shall be included in such offering in the
following order of priority, (i) any securities to be sold by the Company in
such offering, (ii) all Common Stock to be sold in such offering which is
issuable or was issued upon conversion of Preferred Stock of the Company, (iii)
all Employee/Management Stock to be sold in such offering, (iv) all securities
issued by the Company in a financing transaction or as part of a joint venture
or strategic relationship and (v) securities that are Registrable Securities.
The Registrable Securities to be sold in such offering shall have an equal
priority to any other securities issued by the Company in acquisitions. In the
event that less than all the Registrable Securities proposed to be sold are
included in such registration as a result of the priorities set forth in this
Section 2(c), the number of shares to be included by a holder of Registrable
Securities in such registration shall be reduced pro rata on the basis of the
percentage of the outstanding Common Stock held by such Stockholder (assuming
the conversion of the Convertible Preferred and the exercise of all options,
warrants and similar rights held by such Stockholder) and all other holders
exercising similar registration rights. The Company shall not grant any
registration rights that entitle the holders of other securities to any priority
over the Registrable Securities in any Piggyback Registration without the prior
consent of the holders of a majority or more of the then-outstanding Registrable
Securities.
3. Expenses of Registration. All Registration Expenses incurred in
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connection with Piggyback Registrations shall be borne by the Company. All
Selling Expenses relating to Registrable Securities included in any Piggyback
Registration shall be borne by the holders of such securities pro rata on the
basis of the number of shares sold by them.
4. Registration Procedures. In the case of each registration effected by
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the Company pursuant to this Agreement, the Company will keep each holder of
Registrable Securities advised in writing as to the initiation of such
registration and as to the completion thereof. At its expense, the Company will
use its best efforts to:
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(a) cause such registration to be declared effective by the
Commission;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement (including post-effective amendments) as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement;
(c) obtain appropriate qualifications of the securities covered by
such registration under state securities or "blue sky" laws in such
jurisdictions as may be requested by the holders of Registrable Securities;
provided, however, that the Company shall not be required to file a general
consent to service of process in any jurisdiction in which it is not otherwise
subject to service in order to obtain any such qualification;
(d) furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a holder
of Registrable Securities from time to time may reasonably request;
(e) notify each holder of Registrable Securities covered by such
registration statement, 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, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such holder, prepare and
furnish to such 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 shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
(f) cause all Registrable Securities covered by such registration to
be listed on each securities exchange or inter-dealer quotation system on which
similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable
Securities included in such registration and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration; and
(h) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months,
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but not more than 18 months, beginning with the first month after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
5. Indemnification.
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(a) The Company will indemnify each seller of Registrable Securities,
each of such seller's officers, directors, partners, agents, employees and
representatives, and each person controlling such seller within the meaning of
Section 15 of the Securities Act, with respect to each registration,
qualification or compliance effected pursuant to this Agreement, against all
expenses, claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
indemnified person for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such expense, claim,
loss, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by such seller
of Registrable Securities and stated to be specifically for use therein. It is
agreed that the indemnity agreement contained in this Section 2.5(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Company
(which consent has not been unreasonably withheld).
(b) Each seller of Registrable Securities included in any
registration effected pursuant to this Agreement shall indemnify the Company,
each of its directors, officers, agents, employees and representatives, and each
person who controls the Company within the meaning of Section 15 of the
Securities Act, each other participating holder of Registrable Securities and
each of their officers, directors and partners, and each person controlling such
holders, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
such indemnified persons for any legal or any other expenses reasonably
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incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in strict conformity with written
information furnished to the Company by such seller of Registrable Securities;
provided, however, that (x) no seller of Registrable Securities shall be liable
hereunder for any amounts in excess of the net proceeds received by such seller
pursuant to such registration, and (y) the obligations of such seller of
Registrable Securities hereunder shall not apply to amounts paid in settlement
of any such claims, losses, damages or liabilities (or actions in respect
thereof) if such settlement is effected without the consent of such holder
(which consent has not been unreasonably withheld).
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
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indemnification (the "Indemnifying Party") promptly after such Indemnified Party
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has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom through counsel approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense; provided, however, that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 5 to the
extent such failure is not prejudicial. No Indemnifying Party in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include an unconditional release of such Indemnified Party from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or
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the 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. Notwithstanding the foregoing, no holder of Registrable
Securities shall be required to contribute amounts in excess of the amounts that
such holder would have been required to pay pursuant to the indemnification
provisions of this Section 5 (assuming such provisions were enforceable).
6. Other Obligations. With a view to making available the benefits of
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certain rules and regulations of the Commission that may effectuate the
registration of Registrable Securities or permit the sale of Registrable
Securities to the public without registration, the Company agrees to:
(a) at such time as any Registrable Securities are eligible for
transfer under Rule 144 or Regulation S, upon the request of the holder of such
Registrable Securities, remove any restrictive legend from the certificates
evidencing such securities at no cost to such holder;
(b) make and keep available public information as defined in Rule 144
under the Securities Act at all times from and after ninety (90) days following
its initial registration under the Securities Act;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements;
(d) furnish any holder of Registrable Securities upon request a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time from and after ninety (90) days following
the effective date of the first registration statement filed by the Company for
an offering of its securities to the general public), and of the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents as a holder of Registrable
Securities may reasonably request in availing itself of any rule or regulation
of the Commission (including Rule 144A) allowing a holder of Registrable
Securities to sell any such securities without registration.
7. Hold-Back Agreements. If requested by the Company or any underwriter
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of Common Stock of the Company, a holder of Registrable Securities shall not
sell or otherwise transfer or dispose of any Common Stock (other than pursuant
to such registration) during (a) in the case of the Company's initial public
offering of Common Stock for its own account, the one hundred eighty (180) day
period following the effective date of such registration statement, and (b) in
the case of all subsequent registrations of the Company's Common Stock, the
ninety (90) day
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period following the effective date of such registration statement. The
obligations described in this Section 7 shall not apply to a registration on
Form S-4 or Form S-8 or similar forms which may be promulgated in the future
and, except in the case of the Company's initial public offering, shall not
apply to a holder of Registrable Securities representing less than one percent
(1%) of the then-outstanding Common Stock.
8. Termination of Registration Rights. The right of any holder of
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Registrable Securities to request inclusion of Registrable Securities in any
registration pursuant to this Agreement shall terminate on the date on which
there remain no Registrable Securities outstanding.
9. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of Delaware as such laws are applied to agreements
between Delaware residents entered into and performed entirely in Delaware.
Without limiting the foregoing, the General Corporation Law of the State of
Delaware shall govern as to matters of corporate law.
(b) Successors and Assigns. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
(c) No Inconsistent Agreement. The Company shall not grant to any
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third party in an acquisition transaction any registration rights inconsistent
with any of those contained herein, so long as any of the registration rights
under this Agreement remains in effect. This Agreement is consistent with each
other existing agreement of the Company providing for registration rights.
(d) Entire Agreement: Amendment and Waiver. This Agreement
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constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof. Except as provided in Section 9(j), neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a written instrument signed by the Company and the holders
of a majority of the outstanding Registrable Securities, and any such amendment,
waiver, discharge or termination shall be binding on all the Stockholders;
provided, however, that any such amendment, modification, or waiver that would
materially and adversely affect the rights hereunder of any Stockholder, in its
capacity as a Stockholder, shall not be effective as to such Stockholder without
its prior written consent.
(e) Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, or delivered personally addressed by hand or
special courier (a) if to a Stockholder, to the address reflected in the
Company's stock
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ledger, or at such other address as such Stockholder shall have furnished to the
Company in writing, or (b) if to the Company, at 00000 Xxxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, ATTN: General Counsel or at such other address as
the Company shall have furnished to each Stockholder in writing. All such
notices and other written communications shall be effective (i) if mailed, five
(5) days after mailing and (ii) if delivered, upon delivery.
(f) Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any Stockholder under this Agreement shall impair
any such right, power or remedy of such Stockholder nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Stockholder of any breach or default
under this Agreement or any waiver on the part of any Stockholder of any
provisions or conditions of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
Stockholder, shall be cumulative and not alternative.
(g) Severability. Unless otherwise expressly provided herein, a
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Stockholder's rights hereunder are several rights, not rights jointly held with
any of the other Stockholders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(h) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(i) Specific Enforcement. Any holder of Registrable Securities shall
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be entitled to specific enforcement of its rights under this Agreement. The
parties acknowledge that money damages would be an inadequate remedy for a
breach of this Agreement and consent to an action for specific performance or
other injunctive relief in the event of any such breach.
(j) Additional Stockholder Parties. Additional holders of the
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Company's Common Stock (or rights to receive Common Stock) may be added as
parties to this Agreement from time to time with approval of the Company (but
without approval of any other party hereto) by such holder(s) executing and
delivering a counterpart to this Agreement countersigned by the Company. Upon
such execution and delivery, such holder(s) shall be deemed parties to this
Agreement and Stockholders for purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
VIA XXX.XXXXX, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: V.P. & General Counsel
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[SIGNATURE PAGE CONTINUES ON NEXT PAGE]
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STOCKHOLDERS:
/s/ Xxxx Xxxxxxx Xxxxx
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By: West Richer S.A.
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Name: Xxxx Xxxxxxx Xxxxx
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Title: Attorney
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/s/ Xxxxxx Xxxxx
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By: Xxxxxx X. Xxxxx
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Name:
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Title:
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/s/ Xxxxxxx Xxxxxxxx
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By: Xxxxxxx Xxxxxxxx
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Name:
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Title:
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/s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
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Name:
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Title:
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/s/ Xxxxxx Xxxxxx
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By: Xxxxxx Xxxxxx
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Name:
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Title:
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/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx
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Name:
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Title:
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/s/ Xxxxxxx Loughton
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By: Xxxxxxx X. Loughton
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Name:
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Title:
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/s/ Xxxxx Xxxxxxxx
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By: Xxxxx Xxxxxxxx
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Name:
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Title: Managing Director
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