EXHIBIT 4.1
FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT
This FOURTH AMENDED AND RESTATED RIGHTS AGREEMENT (this "Agreement") is
entered into as of January 12, 2000 by and among Xxxxx.xxx, a Delaware
corporation (the "Company"), and the holders of the Company's Common Stock and
Warrants to purchase Common Stock listed on Exhibits A and A1 hereto. The
Company and such holders are sometimes referred to herein collectively as the
"Parties" or each individually as a "Party."
RECITALS
WHEREAS, certain stockholders and warrant holders of the Company hold
registration rights pursuant to that certain Third Amended and Restated Rights
Agreement dated April, 1999 (the "Prior Rights Agreement");
WHEREAS, the Stock Purchase Agreement dated December 3, 1999 (the "Stock
Purchase Agreement") between the Company and Rainbow Media Holdings, Inc.
("Rainbow") provides that a condition to Rainbow's obligations thereunder is the
amendment of the Prior Rights Agreement to include Rainbow as a "Holder" for all
purposes of such agreement and to provide that all of the 1,125,000 shares of
the Company's Common Stock to be purchased pursuant to the Stock Purchase
Agreement shall be "Registrable Securities" for all purposes of such agreement;
and
WHEREAS, in order to induce the Company and Rainbow to enter into the Stock
Purchase Agreement, the parties hereto desire to enter into this Agreement to
amend, restate and supersede the Prior Rights Agreement as set forth in this
Agreement.
AGREEMENT
In consideration of the foregoing and of the mutual promises and covenants
contained herein, the Parties agree as follows:
1. Registration Rights.
-------------------
1.1 Certain Definitions. As used in this Agreement, the following
-------------------
terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Holder" means any person or persons to whom Registrable
Securities were originally issued or permitted transferees under Section 1.11
hereof who hold Registrable Securities.
(c) "Initiating Holders" shall mean any Holder or Holders of at
least forty percent (40%) of the Registrable Securities (excluding Registrable
Securities identified on Exhibit A1 hereto..
(d) "Registrable Securities" means (i) the Warrant Stock, (ii)
the shares of the Company's Common Stock listed on Exhibit A hereto and (iii)
stock issued in respect of the stock referred to in (i) and (ii) as a result of
a stock split, stock dividend, recapitalization or the like, which have not been
sold to the public. Except for subsections 1.2, 1.4, 1.5, 1.10 and 2.4 of this
Agreement or as otherwise provided herein, Registrable Securities shall also
mean shares of Common Stock identified on Exhibit A1 hereto. Notwithstanding
anything herein to the contrary, securities held by a Holder shall not be
Registrable Securities in the event such Holder would be able to sell all such
Registrable Securities on an unrestricted basis and without volume limitation
pursuant to Rule 144 promulgated under the Securities Act (or any successor
rule).
(e) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(f) "Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 1.2,
1.3 and 1.4 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and including the reasonable fees and costs
of one special counsel for the Holders whose shares are being registered.
(g) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(h) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and all reasonable fees and disbursements of counsel
for the selling Holders (other than those included in Registration Expenses).
(i) "Warrant Stock" means the shares of the Company's capital
stock issuable upon exercise of outstanding warrants issued to Imperial Bank,
America Online, ACT III Communications, Daiwa Securities America, Inc. and the
Prior Series C Holders.
1.2 Requested Registration.
----------------------
(a) Request for Registration. If the Company receives from
------------------------
Initiating Holders a written request that the Company effect a registration
covering either (i) not less than 25% of the then outstanding Registrable
Securities, or (ii) Registrable Securities having an anticipated aggregate
offering price of at least $5,000,000, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within twenty days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 1.2(a):
(A) Before the earlier of December 22, 2000, or 180
days after the closing of its initial public offering of its Common Stock;
(B) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
2
(C) After the Company has effected two such
registrations pursuant to this Section 1.2(a), and such registrations have been
declared or ordered effective;
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.2 shall be deferred for a period not to
exceed ninety days from the date of receipt of written request from the
Initiating Holders, provided that the Company may not use this right more than
once in any twelve month period; and
(E) Within 180 days after the effective date of any
registration of the Company under the Securities Act, other than a registration
relating solely to employee benefit plans or a registration relating solely to a
transaction under Rule 145 under the Securities Act.
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Request for Registration by Registrable Securities issued
----------------------------------------------------------
upon Conversion of former Series C Preferred Stock. If the Company receives from
--------------------------------------------------
the Holders of not less than 20% of the Registrable Securities issued upon
conversion of the Series C Preferred Stock (the "Initiating Series C Holders") a
written request that the Company effect a registration in which the Registrable
Securities shall have an anticipated offering price of at least $1,500,000, the
Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within 20 days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 1.2(b):
(A) Before 180 days after the closing of its initial
public offering of its Common Stock;
(B) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(C) After the Company has effected two such
registrations pursuant to this Section 1.2(b), and such registrations have been
declared or ordered effective;
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to register,
qualify or comply under this Section 1.2 shall be
3
deferred for a period not to exceed ninety days from the date of receipt of
written request from the Initiating Holders, provided that the Company may not
use this right more than once in any twelve month period; and
(E) Within 180 days after the effective date of any
registration of the Company under the Securities Act, other than a registration
relating solely to employee benefit plans or a registration relating solely to a
transaction under Rule 145 under the Securities Act.
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Series C Holders.
(c) Underwriting. In the event that a registration pursuant to
------------
Section 1.2 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 1.2(a)(i) or 1.2(b)(i). In such event, the right of any Holder to
participate in such registration shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section 1.2, and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders or Initiating Series C Holders,
as applicable, but subject to the Company's reasonable approval.
Notwithstanding any other provision of this Section 1.2, if the managing
underwriter advises the Initiating Holders or Initiating Series C Holders, as
applicable, in writing that, in its good faith judgment, marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all participating Holders and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If the underwriter
has not limited the number of Registrable Securities to be underwritten, the
Company may include securities for its own account (or for the account of other
shareholders) in such registration if the underwriter so agrees and if the
number of Registrable Securities that would otherwise have been included in such
registration and underwriting will not thereby be limited.
If the number of Registrable Securities excluded from the underwriting
exceeds fifty percent (50%) of the total Registrable Securities requested to be
included in such underwriting by the Holders, then Holders of a majority of the
Registrable Securities requested to be included in such underwriting may elect
to terminate the registration and underwriting and such terminated registration
shall not count as a registration effected under this Section 1.2.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders or Initiating
Series C Holders, as applicable.
1.3 Company Registration.
--------------------
(a) Notice of Registration. If, at any time prior to the fifth
----------------------
anniversary of the closing date of the Company's initial public offering of its
Common Stock in a firm commitment underwritten public offering pursuant to a
registration statement under the Securities Act, the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders, other than (i) a registration relating solely to
employee benefit plans, (ii) a registration relating solely to a transaction
under Rule 145 under the Securities Act, or (iii) a registration effected
pursuant to Sections 1.2 or 1.4 hereof, the Company will:
(i) promptly give to each Holder written notice thereof;
and
4
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from the
Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
------------
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event the right of any Holder to
registration pursuant to Section 1.3 shall be conditioned upon such Holder's
participation in such underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other Holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company, but subject to the reasonable approval of Holders holding a majority of
the Registrable Securities to be included in such registration. Notwithstanding
any other provision of this Section 1.3, if the managing underwriter determines
in its good faith judgment that marketing factors require limitation of the
number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration. The Company shall so
advise all Holders and the number of shares of securities that may be included
in the registration and underwriting (other than in behalf of the Company) shall
first be allocated on a pro rata basis among all Holders in proportion to the
respective amounts of the Registrable Securities held by all Holders and then,
if additional Registrable Securities may be included, among all other Holders,
in each case in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders; provided, however, unless
-------- -------
otherwise agreed upon by the holders of a majority of the shares desiring to
participate in the offering, in no event shall the amount of Registrable
Securities of the Holders included in the offering be reduced below twenty
percent (20%) of the total amount of securities included in such offering. No
securities of the Company held by parties other than the Holders or the Company
shall be included in any registration and underwriting to which this section
applies if the number of Registrable Securities that would otherwise have been
included in such registration and underwriting will thereby be limited. If any
Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter.
1.4 Registration on Form S-3.
------------------------
(a) If any Holder or Holders holding in the aggregate not less
than ten percent of the then outstanding Registrable Securities, or if any
former Series C Holder or Holders holding in the aggregate not less than ten
percent of the then outstanding Common Stock issued upon conversion of the
Series C Preferred Stock which are Registrable Securities, request that the
Company file a registration statement on Form S-3 (or any successor form to Form
S-3) for a public offering of shares of the Registrable Securities the
reasonably anticipated aggregate price to the public of which would exceed
$500,000, and the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company shall use its best
efforts to cause such Registrable Securities to be registered for the offering
on such form and to cause such Registrable Securities to be qualified in such
jurisdictions as the Holder or Holders may reasonably request; provided,
however, that the Company shall not be required to effect more than one
registration pursuant to this Section 1.4(a) in any six month period. The
substantive provisions of Section 1.2(c) shall be applicable to each
registration initiated under this Section 1.4(a).
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to Section 1.4(a):
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(ii) within 180 days after the effective date of any
registration of the Company under the Securities Act, other than a registration
relating solely to employee benefit plans or a registration relating solely to a
transaction under Rule 145 under the Securities Act; or
5
(iii) if the Company shall furnish to such Holder a
certificate signed by the President of the Company stating that in good faith
judgment of the Board of Directors it would be seriously detrimental to the
Company or its shareholders for registration statements to be filed in the near
future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed ninety days
from the receipt of the request to file such registration by such Holder,
provided that the Company may not use this right more than once in any twelve
month period.
1.5 Limitations on Subsequent Registration Rights. From and after
---------------------------------------------
the date hereof, without the approval of the holders of a majority of the
Registrable Securities, the Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such new registration rights are
subordinate to the registration rights granted to Holders hereunder.
1.6 Expenses of Registration. All Registration Expenses shall be
------------------------
borne by the Company. All Selling Expenses relating to securities registered on
behalf of the Holders shall be borne by the Holders of such securities pro rata
on the basis of the number of shares so registered.
1.7 Registration Procedures. In the case of each registration,
-----------------------
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration and such amendment thereof and as to the completion thereof.
At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
twenty days or until the distribution described in the Registration Statement
has been completed;
(b) Furnish to the Holders participating in such registration
and to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such Holders or underwriters may
reasonably request in order to facilitate the public offering of such
securities.
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement 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.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) 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 in the light of the circumstances then
existing.
6
(g) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.8 Indemnification.
---------------
(a) The Company will indemnify each Holder, each of its officers
and directors and partners, and each person controlling such person within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, 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, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable to any such person 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 (or alleged untrue
statement or omission), made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person or underwriter and stated to be specifically for use
therein or the preparation thereby.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of 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 the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating, preparing 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 conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein or the preparation thereby.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited to an amount equal to the aggregate proceeds
received by such Holder from the sale of Registrable Securities in such
registration.
7
(c) Each party entitled to indemnification under this Section
1.8 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
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, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
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, and provided further 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 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. 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 as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Notwithstanding the foregoing, if (i) the Company and the
Indemnified Party have mutually agreed in writing to the retention of such
counsel or (ii) the named parties in any such action, suit or proceeding
(including impleaded parties) include the Company and the Indemnified Party, and
representation of the Company and the Indemnified Party by the same counsel
would, in the opinion of counsel to the Indemnified Party, create a conflict;
provided further that, unless otherwise agreed by the Company, if the Company is
obligated to pay the fees and expenses of such counsel, the Company shall be
obligated to pay only the fees and expenses associated with one attorney or law
firm, as applicable, for the Indemnified Party, as well as the fees and expenses
associated with local counsel.
1.9 Information by Holder. The Holders of securities included in any
---------------------
registration shall furnish to the Company such information regarding such
Holders, the Registrable Securities held by them and the distribution proposed
by such Holders as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 1.
1.10 Rule 144 Reporting. With a view to making available the
------------------
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx").
(b) Use its best efforts to 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);
(c) So long as a Holder owns any Registrable Securities to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety days after 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
of the Company and other information in the possession of or reasonably
obtainable by the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration. The Company will take action reasonably
requested by a Holder to facilitate the transfer of Registrable Securities
pursuant to Rule 144 of the Securities Act of 1933.
1.11 Transfer of Registration Rights. The rights to cause the
-------------------------------
Company to register securities granted to the Holders under this Agreement may
be assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by a Holder provided that: (i) such
assignment or transfer may
8
otherwise be effected in accordance with applicable securities laws, (ii) such
assignee or transferee agrees to be bound by the terms and conditions of this
Agreement, and (iii) either (A) such assignee or transferee acquires at least
100,000 shares of Registrable Securities (appropriately adjusted for stock
splits, combinations, dividends, distributions and recapitalizations) not sold
to the public, or (B) such assignee or transferee is a partner or limited
partner, shareholder, subsidiary, affiliate, family member, family trust or the
estate of the Holder.
1.12 Termination of Prior Rights Agreement. Pursuant to Section 6.4
-------------------------------------
of the Prior Rights Agreement, the Company and the undersigned Holders, who are
the holders of at least two-thirds of currently outstanding Registrable
Securities agree that all rights and obligations under the Prior Rights
Agreement shall be amended and restated as set forth in this Agreement and that
the Prior Rights Agreement shall be of no further force and effect.
2. Miscellaneous.
-------------
2.1 Governing Law. This Agreement shall be governed in all respects
-------------
by the laws of the State of California as applied to transactions taking place
between California residents and wholly within the State of California
2.2 Survival. The representations, warranties, covenants and
--------
agreements made herein shall survive any investigation made by any Preferred
Holder and the closing of the transactions contemplated hereby.
2.3 Successors and Assigns. Except as otherwise provided 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.
2.4 Entire Agreement; Amendment. This Agreement constitutes the
---------------------------
full and entire understanding and agreement between the parties with regard to
the subjects hereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein. With the written consent of the Company and
beneficial Holders of at least two-thirds of the then outstanding Registrable
Securities, the obligations of the Company and the rights of the Holders of the
Registrable Securities under this Agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively, and either for
a specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
-------- -------
the aforesaid percentage of Registrable Securities without the consent of all of
the Holders of the Registrable Securities, and provided, however, that no
-------- -------
modification, amendment or waiver of the rights of the Holders of Series C
Shares under Sections 1 and 2 of this Agreement shall be effective without the
consent of the Holders of at least two-thirds of then outstanding Registrable
Securities issued upon conversion of the Series C Preferred Stock. Upon the
effectuation of each such waiver, consent, agreement of amendment or
modification, the Company shall promptly give written notice thereof to the
record holders of the Registrable Securities who have not previously consented
thereto in writing. This Agreement or any provision hereof may be changed,
waived, discharged of terminated only by a statement in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought, except to the extent provided in this Section 2.4
2.5 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be delivered personally,
mailed by certified or registered mail, postage prepaid, return receipt
requested, or by courier, addressed (a) if to any Preferred Holder or Holder, at
such Holder's address as set forth in the Company's records, or at such other
address as such Holder shall have furnished to the Company in writing, or (b) if
to the Company, at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, or at
such other address as the Company shall have furnished to such Holders in
writing. Notices that are mailed shall be deemed to have been given five days
after deposit in the United States mail and notices delivered personally or by
courier shall be deemed to have been given upon delivery to recipient's address.
9
2.6 Delays or Omissions. Except as expressly provided herein, no
-------------------
delay or omission to exercise any right, power or remedy accruing to any Holder,
upon any breach or default of the Company under this Agreement, shall impair any
such right, power or remedy of such Holder 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 Holder of any breach or default under
this Agreement, or any waiver on the part of any Holder of any provisions or
conditions of this agreement, must be 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 Holder, shall be
cumulative and not alternative.
2.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.8 Severability. If any provision of this Agreement, or the
------------
application thereof, shall for any reason and to any extent be invalid or
unenforceable the remainder of this Agreement and application of such provision
to persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto, the parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision which will achieve to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amended
and Restated Rights Agreement as of the date first written above.
XXXXX.XXX
By:_________________________________________
Xxxxxxx X'Xxxxxxx, President
10
ADOBE VENTURES, L.P.
By: Its general partner,
H&Q Adobe Ventures Management L.P.,
By: Its general partner,
H&Q Adobe Ventures Management Corp.,
By: Its authorized officer named below
___________________________________________
Name:
Title:
11
