EXHIBIT 4.2
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
TANNING TECHNOLOGY CORPORATION
and
the parties listed as signatories hereto
Dated as of July 20, 1999
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................. 2
Section 1.1. Definitions............................................ 2
ARTICLE II REPRESENTATIONS AND WARRANTIES............................. 4
Section 2.1. Representations and Warranties......................... 4
ARTICLE III REGISTRATION RIGHTS........................................ 4
Section 3.1. Demand Registrations................................... 4
Section 3.2. Piggyback Registration................................. 5
Section 3.3. Holdback Agreements.................................... 7
Section 3.4. Registration Procedures................................ 8
Section 3.5. Registration Expenses..................................10
Section 3.6. Indemnification........................................11
Section 3.7. Participation in Underwritten Registrations............13
Section 3.8. Current Public Information.............................14
Section 3.9. Cooperation............................................14
ARTICLE IV TERMINATION.................................................14
ARTICLE V GENERAL PROVISIONS...........................................15
Section 5.1. Effective Date.........................................15
Section 5.2. Exclusive Agreement; No Third-Party Beneficiaries......15
Section 5.3. Governing Law, Etc.....................................15
Section 5.4. Successors and Assigns.................................16
Section 5.5. Severability...........................................16
Section 5.6. Notices................................................16
Section 5.7. Counterparts; Facsimile Signatures.....................17
Section 5.8. Interpretation.........................................17
Section 5.9. Amendment..............................................17
Section 5.10. Extension; Waiver.....................................18
Section 5.11. Enforcement of Agreement..............................18
Section 5.12. Further Assurances....................................18
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, is made as of
July __, 1999 (this "Agreement"), by and among Tanning Technology Corporation, a
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Delaware corporation (the "Company"), Xxxxxxxx Xxxx Corporation, a Colorado
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corporation ("Xxxxxxxx"), WinSoft Corporation, a Colorado corporation
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("WinSoft"), Xxxxxxx Enterprises, Inc., a Colorado corporation ("Xxxxxxx"),
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Xxxxxxx Xxxxxx, (Xxxxxxxx, WinSoft, Xxxxxxx and Xxxxxxx Xxxxxx are collectively
referred to herein as the "Original Members"), Tanning Family Partnership,
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L.L.L.P. ("TFP"), Xxxxx X. Tanning, Xxxxxxxxx X. Tanning, Xxxxx X. Tanning
Irrevocable Trust for the Benefit of His Lineal Descendants ("LGT Trust"),
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Xxxxxxxxx X. Tanning Irrevocable Trust for the Benefit of Her Lineal Descendants
("CAT Trust"), Xxxxx Xxxxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxxxx (the Original
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Members and TFP, Xxxxx X. Tanning, Xxxxxxxxx X. Tanning, LGT Trust, CAT Trust,
Xxxxx Xxxxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxxxx are referred to herein as the
"Tanning Parties"), AEA Tanning Investors Inc., a Delaware corporation ("AEA"),
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TTC Investors I LLC, a Delaware limited liability company ("TTC I"), TTC
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Investors II LLC, a Delaware limited liability company ("TTC II"), TTC Investors
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IA LLC, a Delaware limited liability company ("TTC IA") and TTC Investors IIA
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LLC, a Delaware limited liability company ("TTC IIA"), (AEA, TTC I, TTC II, TTC
IA and TTC IIA are collectively referred to herein as "TTC").
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WHEREAS, the Company, the Tanning Parties (with the exception of Xxxxx
Xxxxxxx) and TTC are party to a Registration Rights Agreement dated as of
January 31, 1997, as amended prior to the date hereof, (the "Original
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Registration Rights Agreement");
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WHEREAS, the parties to the Original Registration Rights Agreement
desire to make certain changes to such Original Registration Rights Agreement,
including adding Xxxxx Xxxxxxx as a party thereto, and to amend and restate such
Original Registration Rights Agreement to read in its entirety as set forth
below;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
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"Agreement": as defined in the preamble to this Agreement.
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"Board of Directors": the board of directors of the Company.
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"CAT Trust": as defined in the preamble to this Agreement.
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"Commission": the Securities and Exchange Commission or any other
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Federal agency at the time administering the Securities Act.
"Common Stock": the common stock of the Company (all classes) now or
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hereafter authorized to be issued.
"Company": as defined in the preamble to this Agreement.
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"Xxxxxxxx": as defined in the preamble to this Agreement.
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"Demand Registrations": as defined in Section 3.1(a).
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"Director": a member of the Board of Directors.
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"Effective Date": as defined in Section 5.1.
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"Exchange Act": the Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the Commission thereunder, all as the same shall be
in effect at the time.
"Xxxxxxx": as defined in the preamble to this Agreement.
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"LGT Trust": as defined in the preamble to this Agreement.
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"Original Registration Rights Agreement": as defined in the preamble
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to this Agreement.
"Person": any natural person, corporation, partnership, firm,
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association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
"Piggyback Registration": as defined in Section 3.2(a).
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"Registrable Securities": (i) any shares of Common Stock owned by, or
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otherwise hereafter acquired by, TTC or the Tanning Parties and (ii) any
securities issued as a dividend on or other distribution with respect to or in
exchange, replacement or in subdivision of, any such Common Stock. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have been declared effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, or (ii) such securities shall have been sold pursuant to Rule 144 (or
any successor provision) under the Securities Act.
"Registration Expenses": as defined in Section 3.5(a).
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"Securities Act": the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder, as the same shall be in
effect at the time.
"Shareholders": TTC and the Tanning Parties.
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"Shares": shares of Common Stock.
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"Short-Form Registrations": as defined in Section 3.1(a).
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"Stock Purchase Agreement": the Stock Purchase Agreement, dated as of
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December 24, 1996, as amended and supplemented, among the Company, the Tanning
Parties, Xxxxxxx Xxxxxx and TTC.
"Subsidiary": of any Person shall mean any corporation or other legal
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entity of which such Person (either alone or through or together with any other
Subsidiary) owns, directly or indirectly, 50% or more of the stock or other
equity interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
"Tanning Parties": as defined in the preamble to this Agreement.
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"TFP": as defined in the preamble to this Agreement.
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"TTC": as defined in the preamble to this Agreement.
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"Voting Common Stock": Common Stock the holders of which are
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generally entitled to vote for the election of the board of directors of the
Company.
"WinSoft": as defined in the preamble to this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties. (a) Each of the
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parties hereto hereby represents and warrants to each other party hereto as
follows: It has all requisite power (corporate or otherwise) and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by it of this Agreement, and the consummation
by it of the transactions contemplated hereby, have been duly authorized by all
necessary action (corporate or otherwise) on its part. This Agreement has been
duly executed and delivered by it and constitutes a valid and binding obligation
enforceable against it in accordance with its terms except to the extent such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws relating to creditors'
rights generally and to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law). No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by, or with
respect to, it in connection with the execution and delivery of this Agreement
by it or the consummation by it of the transactions contemplated hereby. The
execution and delivery of this Agreement by it and the consummation of the
transactions contemplated hereby by it does not conflict with, or result in a
breach of, any law or regulation of any governmental authority applicable to it
or any material agreement to which it is a party.
(b) Each of the Shareholders hereby represents and warrants to each
other Shareholder and the Company, that he or it is the record and beneficial
owner of the Shares as set forth on Schedule 2.1, free and clear of all liens
and encumbrances.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Demand Registrations.
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(a) Requests for Registration. Subject to Sections 3.1(c) and 3.3,
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(x) TTC shall have the right to make a total of two requests for registration
under the Securities Act of all or part of the Registrable Securities held by
TTC on Form S-1 or any similar long-form registration or, if available, on Form
S-2 or S-3 or any similar short-form registration ("Short-Form Registrations")
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and (y) during any twelve month period following the date hereof, the
Shareholders owning a majority of the Shares held by the Tanning Parties shall
have the right to request one registration of all or part of the Registrable
Securities held by them; provided that any request for a Demand Registration (as
defined below) shall not be otherwise deemed to be effective unless such request
includes Registrable Securities which have an estimated value of no less than
$25 million
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in the case of Demand Registrations other than Short-Form Registrations, and $15
million, in the case of Short-Form Registrations. Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. All registrations requested pursuant to this Section 3.1(a) are
referred to herein as "Demand Registrations."
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(b) Short-Form Registrations. Demand Registrations will be Short-Form
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Registrations whenever the Company is permitted to use a Short-Form
Registration.
(c) Restrictions on Demand Registrations. The Company will not be
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obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. Not more than once in any
twelve month period following the date hereof, the Company may postpone for up
to six months the filing or the effectiveness of a registration statement for a
Demand Registration if the Board of Directors determines, in its good faith
judgment, that there exists material nonpublic information about the Company
which the Board of Directors does not wish to disclose in a registration
statement and which information would otherwise be required by the Securities
Act to be disclosed in a registration statement to be filed pursuant to this
Article III, provided that, in such event, the holders of Registrable Securities
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as a Demand Registration hereunder and the Company will pay all
Registration Expenses in connection with such registration.
(d) Selection of Underwriters. TTC shall have the right to select the
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managing underwriters for any Demand Registration requested by it. Such
managing underwriter shall be of national prominence and shall have nationally
recognized research coverage in the information technology sector. If the
Tanning Parties make a request for a Demand Registration, the Shareholders
owning a majority of the Shares held by the Tanning Parties will have the right
to select the managing underwriters to administer the offering, who shall be of
national prominence and reasonably acceptable to the Company.
(e) Other Registration Rights. Except as provided in this Agreement,
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the Company will not grant to any Person the right to request or require the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities without the
prior written consent of TTC.
Section 3.2. Piggyback Registration.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its equity securities under the Securities Act (other than its initial public
offering and other than a registration on Form S-4 or Form S-8 or any successor
or similar forms) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), whether or
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not for sale for its own account, the Company will give prompt written notice to
TTC and each Tanning Party, of its intention to effect such a registration and
will (subject to subparagraphs (b) and (c), below) include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice.
(b) Priority on Primary Registrations. If a Piggyback Registration is
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an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range reasonably acceptable to
the Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell and (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
respective holders thereof on the basis of the number of Shares of Registrable
Securities held (or subject to stock options held) by each such holder and (iii)
third, other securities requested to be included in such registration pro rata
among the respective holders thereof on the basis of the number of Shares of
securities held by each such holder.
(c) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering within a
price range reasonably acceptable to such holders, the Company will include in
such registration, subject to Section 3.2.(e), (i) first, the Registrable
Securities requested to be included in such registration, pro rata among the
respective holders thereof on the basis of the number of Shares of Registrable
Securities held (or subject to stock options held) by each such holder and (ii)
second, other securities requested to be included in such registration, pro rata
among the respective holders thereof on the basis of the number of Shares of
securities held by each such holder.
(d) Unlimited Piggyback Registrations. There is no limitation on the
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number of Piggyback Registrations which the Company is obligated to effect. No
Piggyback Registration shall relieve the Company of its obligations to effect
Demand Registrations.
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(e) The Company's Right to Participate in a Demand Registration. The
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Company may participate in any Demand Registration effected pursuant to Section
3.1 in an amount up to 25% of the shares of Common Stock to be registered for
sale in such offering.
Section 3.3. Holdback Agreements. (a) (i) If requested in writing
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by the Company or the managing underwriters, if any, of any registration
effected pursuant to Section 3.1 or 3.2, the parties hereto agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the time period reasonably requested by
the Company or the managing underwriters, not to exceed seven days prior to and
the 180-day period beginning on the effective date of such underwritten
registration (except as part of such underwritten registration).
(ii) In connection with the termination, liquidation or dissolution of
any of the limited liability companies comprising TTC, AEA agrees (A) that
Common Stock of the Company owned by such limited liability companies shall be
distributed subject to such customary transfer restrictions (not to exceed 180
days in duration) as shall be reasonably requested (in connection with the
execution of such offering) by the managing underwriters of any registration
effected or to be effected pursuant to Section 3.1 or 3.2 (or, if no such
registration is then contemplated to be effected, transfer restrictions (not to
exceed 180 days in duration) of the same nature and extent as those agreed to by
holders of 80% of the registrable securities held by the Tanning Parties), and
(B) to arrange for extensions of such restrictions at the termination thereof to
the extent, on the terms (not to exceed 180 days in duration), and with respect
to those shareholders ("Covered Shareholders") reasonably requested (in
connection with the execution of such offering) by the managing underwriter of
any registration effected or to be effected pursuant to Section 3.1 or 3.2. In
no event shall the transfer restrictions referred to in the preceding sentence
exceed a total duration of 18 months, and in no event shall AEA be obligated to
obtain transfer restriction arrangements with respect to any holder of Common
Stock who was previously determined by the relevant underwriter not to be a
Covered Shareholder.
(b) If requested in writing by the managing underwriters of any
registration effected pursuant to Section 3.1 or 3.2, the Company agrees (i) not
to effect any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the time period reasonably requested by the managing underwriters, not to
exceed seven days prior to and during the 180-day period beginning on the
effective date of any such underwritten registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or Form S-8
or any successor forms), and (ii) to cause each holder of its Common Stock, or
any securities convertible into or exchangeable or exercisable for Common Stock,
purchased from the Company at any time after the date of this Agreement (other
than in a
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registered public offering), to so agree (except as part of such underwritten
registration, if otherwise permitted).
Section 3.4. Registration Procedures. Whenever the parties hereto
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have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the Commission a registration statement with
respect to such Registrable Securities and thereafter use its best efforts to
cause such registration statement to become effective (provided that, before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel selected by the holders of a
majority of the Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents will be
subject to review of such counsel);
(b) 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
a period of either (i) not less than six months (subject to extension pursuant
to Section 3.7(b)) or, if such registration statement relates to an underwritten
offering, such longer period as, in the opinion of counsel for the underwriters,
a prospectus is required by law to be delivered in connection with sales of
Registrable Securities by an underwriter or dealer or (ii) such shorter period
as will terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement (but in any event not before the expiration of any longer period
required under the Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or
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advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided 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
subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
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(j) otherwise use its best efforts to 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 beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain a cold "comfort letter", dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by cold comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request; and
(m) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included herein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
Section 3.5. Registration Expenses. (a) The Company shall pay all
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Registration Expenses relating to any registration of Registrable Securities
hereunder. "Registration Expenses" shall mean any and all fees and expenses
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incident to the Company's performance of or compliance with this Article III,
including, without limitation: (i) Commission, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees and all
listing fees and fees with respect to the inclusion of securities on the Nasdaq
National Market, (ii) fees and expenses of compliance with state securities or
"blue sky" laws and in connection with the preparation of a "blue sky" survey,
including, without limitation, reasonable fees and expenses of blue
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sky counsel, (iii) printing expenses, (iv) messenger and delivery expenses, (v)
fees and disbursements of counsel for the Company, (vi) with respect to each
registration, reasonable fees and disbursements of one counsel for all of the
selling holders of Shares (selected by the holders making the Demand
Registration request, in the case of a registration pursuant to Section 3.1, and
selected by the holders of a majority of the Registrable Securities included in
such registration, in the case of a registration pursuant to Section 3.2), (vii)
fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other persons, including special experts, retained by the Company, and (viii)
any other fees and disbursements of underwriters, if any, customarily paid by
issuers or sellers of securities.
(b) Notwithstanding the foregoing, (i) the provisions of this Section
3.5 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with "blue sky" laws of each state in which the offering is
made and (ii) in connection with any registration hereunder, each holder of
Registrable Securities being registered shall pay all underwriting discounts and
commissions and transfer taxes, if any, attributable to the Registrable
Securities included in the offering by such holder.
Section 3.6. Indemnification. (a) The Company agrees to indemnify
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and hold harmless, to the extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, to which such holder or any such director or
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue or alleged untrue statement of a material fact
contained (A) in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or (B) in any
application or other document or communication (in this Section 3.6 collectively
called an "application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such registration
statement under the "blue sky" or securities laws thereof, or (ii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer and controlling person for
any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or
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alleged omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and documents as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) and its attorneys and
accountants against any losses, claims, damages, liabilities, joint or several,
to which the Company or any such director or officer, controlling person,
attorney or accountant may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any untrue or alleged untrue statement of a material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such holder expressly for
use therein, and such holder will reimburse the Company and each such director,
officer and controlling person for any legal or any other expenses incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the obligation to indemnify will
be individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with
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respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). 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 judgment of any indemnified party a conflict of interest exists
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive (for the benefit of the transferor) the
transfer of securities by any holder thereof. The Company also agrees to make
such provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
Section 3.7. Participation in Underwritten Registrations. (a) If
-------------------------------------------
requested by the underwriters for any underwritten offering pursuant to a Demand
Registration requested under Section 3.1, the Company shall enter into a
customary underwriting agreement with the underwriters. Such underwriting
agreement shall be satisfactory in form and substance to the party making such
Demand Registration and shall contain such representations and warranties by,
and such other agreements on the part of, the Company and such other terms as
are generally prevailing in agreements of that type, including, without
limitation, indemnities and contribution agreements. Such underwriting agreement
shall also contain such representations, warranties, indemnities and
contributions by the participating holders as are customary in agreements of
that type. In the case of a registration pursuant to Section 3.2 hereof, if the
Company shall have determined to enter into any underwriting agreements in
connection therewith, all of the holders' Registrable Securities to be included
in such registration shall be subject to such underwriting agreement. Such
underwriting agreement shall also contain such representations, warranties,
indemnities and contributions by the participating holders as are customary in
agreements of that type. Any holder participating in such Piggyback Registration
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligations of such holder.
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(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3.4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such Section 3.4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in Section 3.4(b) during which a registration statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 3.4(e).
Section 3.8. Current Public Information. At all times after the
--------------------------
Company has filed a registration statement with the Commission pursuant to the
requirements of either the Securities Act or the Exchange Act, the Company will
file all reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder,
and will take such further action as any holder or holders of Registrable
Securities may reasonably request, all to the extent required to enable such
holders to sell Registrable Securities pursuant to Rule 144.
Section 3.9. Cooperation. Each of the parties hereto agrees to
-----------
cooperate with the Company and to take all action necessary to assist the
Company in the registration of any debt or equity securities, subject to the
terms and conditions of this Agreement.
ARTICLE IV
TERMINATION
The rights and obligations of any Shareholder contained in this
Agreement, including the rights to Demand Registrations and Piggyback
Registration shall terminate, at any time from and after the date hereof, upon
the earlier of (a) the first date on which such Shareholder (including TTC,
prior to the termination, liquidation or dissolution of the limited liability
companies comprising TTC) owns less than 200,000 shares of Common Stock or, (b)
with respect to the persons who were members of the limited liability companies
comprising TTC (following the termination, liquidation or dissolution thereof),
the date that the transfer restrictions to which such persons are subject
pursuant to Section 3.3(a)(ii) lapse, are terminated, or otherwise cease to be
effective, but, with respect to this clause (b), in no event later than 18
months following the date of termination, liquidation, or dissolution of any of
the limited liability companies comprising TTC.
-14-
ARTICLE V
GENERAL PROVISIONS
Section 5.1. Effective Date. The effective date of this Agreement
--------------
shall be the closing date of the Company's initial public offering (the
"Effective Date"). If the Effective Date does not occur on or prior to October
--------------
31, 1999, or the transactions contemplated thereby are abandoned, this Agreement
shall be of no further force and effect and the Original Registration Rights
Agreement shall continue to be in full force and effect. Notwithstanding the
foregoing, by their execution hereof, the parties hereto confirm their waiver of
any rights to participate in the initial public offering contemplated by the
Company's Registration Statement on S-1 initially filed with the Securities and
Exchange Commission on May 17, 1999.
Section 5.2. Exclusive Agreement; No Third-Party Beneficiaries. This
-------------------------------------------------
Agreement, the Stock Purchase Agreement and the Related Agreements (as defined
in the Stock Purchase Agreement) constitute the sole understanding of the
parties with respect to the subject matter hereof and any verbal or written
communication between the parties prior to the adoption of this Agreement shall
be deemed merged herein and of no further force and effect. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
express or implied, is intended to confer on any Person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
Section 5.3. Governing Law, Etc. This Agreement shall be construed
------------------
in accordance with and governed by the laws of the State of Delaware applicable
to agreements made and to be performed wholly within such jurisdiction. Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of Delaware and of the
United States of America in each case located in the County of New Castle for
any Litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any Litigation relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 5.6 shall be effective service of process for any Litigation 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 Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of Delaware or the United States of America in each case
located in the County of New Castle and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
-15-
Section 5.4. Successors and Assigns. Except as otherwise provided
----------------------
herein, neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the holders of 80% of
the issued and outstanding Voting Common Stock held by the parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Notwithstanding anything contained in this Agreement to the
contrary, but subject to Article IV hereof, following the termination,
liquidation or dissolution of any of the limited liability companies comprising
TTC, the rights herein to request and participate in registrations, and all
other rights with respect to TTC, shall continue in full force and effect for
the benefit of the members of such limited liability companies, such rights to
be exercised on their behalf by AEA.
Section 5.5. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any adverse
manner to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner so that the
transactions contemplated hereby are fulfilled to the greatest extent possible.
Section 5.6. Notices. Any notice, request, instruction or other
-------
document to be given hereunder by any party hereto to any other party shall be
in writing and shall be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by electronic facsimile transmission, cable,
telegram, telex or other standard forms of written telecommunications, by
overnight courier or by registered or certified mail, postage prepaid:
(a) If to any of the Tanning Parties, to:
Tanning Technology Corporation
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy: 000 000-0000
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(b) If to TTC, to:
AEA Tanning Investors Inc.
c/o AEA Investors Inc.
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Telecopy: 000 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telecopy: 212 859-4000
or at such other address for a party as shall be specified by like notice.
Section 5.7. Counterparts; Facsimile Signatures. This Agreement may
----------------------------------
be executed in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute but one and the same
agreement. Delivery of a photocopy or transmission by telecopy of a signed
signature page of this Agreement shall constitute delivery of such signed
signature page; provided, however, that each party shall provide each other
party an originally executed copy of such signature page as promptly as
practicable.
Section 5.8. Interpretation. When a reference is made in this
--------------
Agreement to Articles, Sections, Schedule or Exhibits, such reference is to an
Article or a Section of, Schedule to, or an Exhibit to, this Agreement, unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be understood
to be followed by the words "without limitation."
Section 5.9. Amendment. This Agreement may not be amended except
---------
by an instrument in writing signed on behalf of the holders of 80% of the issued
and outstanding Voting Common Stock held by the parties hereto; provided
however, that no amendment may be made which adversely affects any rights of a
party hereto without the written agreement of such party (except to the extent
affecting all Shareholders equally with respect to rights granted to all
Shareholders equally).
-17-
Section 5.10. Extension; Waiver. At any time the parties may
-----------------
extend the time for the performance of any of the obligations or other acts of
the other parties, waive any inaccuracies in the representations and warranties
contained in this Agreement and waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
signed on behalf of such party. The waiver by any party hereto of a breach of
any provision hereunder shall not operate to be construed as a waiver of any
prior or subsequent breach of the same or any other provision hereunder.
Section 5.11. Enforcement of Agreement. The parties hereto agree
------------------------
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to any injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware court, this
being in addition to any other remedy to which they may be entitled at law or in
equity.
Section 5.12. Further Assurances. At any time, or from time to time,
------------------
after the date hereof, the parties agree to cooperate with each other , and at
the request of any other party, to execute and deliver any further instruments
or documents and to take all such further actions as any party may reasonably
request in order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
-18-
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto as of the date first above written.
TANNING TECHNOLOGY CORPORATION
By: ___________________________________
Name:
Title:
XXXXXXXX XXXX CORPORATION
By: ___________________________________
Name:
Title:
WINSOFT CORPORATION
By: ___________________________________
Name:
Title:
XXXXXXX ENTERPRISES, INC.
By: ___________________________________
Name:
Title:
-19-
___________________________________
Xxxxxxx Xxxxxx
TANNING FAMILY PARTNERSHIP, L.L.L.P.
By Xxxxxxxx Xxxx Corporation,
its general partner
By: ___________________________________
Name:
Title:
___________________________________
Xxxxx X. Tanning
___________________________________
Xxxxxxxxx X. Tanning
XXXXX X. TANNING GRANTOR
RETAINED ANNUITY TRUST
By Xxxxx X. Tanning,
its trustee
By: ___________________________________
Name: Xxxxx X. Tanning
Title: Trustee
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XXXXXXXXX X. TANNING GRANTOR
RETAINED ANNUITY TRUST
By Xxxxxxxxx X. Tanning,
its trustee
By: ___________________________________
Name: Xxxxxxxxx X. Tanning
Title: Trustee
___________________________________
Xxxxx Xxxxxxx
___________________________________
Xxxx Xxxxxxx
___________________________________
Xxxxx Xxxxxxx
AEA TANNING INVESTORS INC.
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
-00-
XXX XXXXXXXXX I LLC
By AEA Tanning Investors Inc.,
its managing member
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
TTC INVESTORS II LLC
By AEA Tanning Investors Inc.,
its managing member
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
TTC INVESTORS IA LLC
By AEA Tanning Investors Inc.,
its managing member
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
-00-
XXX XXXXXXXXX IIA LLC
By AEA Tanning Investors Inc.,
its managing member
By: ___________________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
-23-
