EXHIBIT 4.2
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"Agreement") is made and entered into as of December 16, 2002 by and among
Greenfield Online, Inc., a Delaware corporation (the "Company") and the
Shareholders as defined herein. This Agreement amends and restates in its
entirety that certain Registration Rights Agreement among the Company and the
shareholders named therein, dated as of May 17, 1999 as amended as of August 23,
2000 and March 21, 2001.
WHEREAS, the Shareholders own or have the right to purchase or
otherwise acquire Common Shares (as defined below) of the Company. The Company
and the Shareholders deem it to be in their respective best interests to enter
into this Agreement to set forth the rights of the Shareholders in connection
with public offerings and sales of Common Shares.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Company and the
Shareholders hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms have the following
meanings:
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission or any
other governmental body or agency succeeding to the functions thereof.
"Common Shares" means the Common Stock, $0.0001 par value per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Majority of Registering Shareholders" means, with respect to a
registration that includes Registrable Shares, those Shareholders who at the
time in question own at least a majority of the Registrable Shares held by
Shareholders who initiated the registration.
"Other Shares" means at any time those Common Shares that do not
constitute Primary Shares or Registrable Shares.
"Person" shall be construed broadly and shall include an individual,
a partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental entity or any department, agency or political subdivision
thereof.
"Primary Shares" means at any time the authorized but unissued
Common Shares and the Common Shares held by the Company in its treasury.
"Prior Agreements" means the Registration Rights Agreement dated as
of August 9, 2001 between the Company and Silicon Valley Bank and the
Registration Rights Agreement dated as of December 3, 1999 between the Company
and Greyrock Capital, a division of Banc of America Commercial Finance
Corporation.
"Prospectus" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Public Offering" means the closing of a public offering of Common
Shares pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"Purchase Agreement" means the Purchase Agreement of even date
herewith, among the Company and the Investors named therein, as amended,
modified or supplemented from time to time.
"Registrable Shares" means Restricted Shares.
"Registration Date" means the date upon which a Registration
Statement pursuant to which the Company shall have initially registered Common
Shares under the Securities Act for sale in a Public Offering shall have been
declared effective by the Commission.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Registrable Shares and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Restricted Shares" means Common Shares, and includes (i)
shares which may be issued as a dividend or distribution, (ii) any other
securities which by their terms are exercisable or exchangeable for or
convertible into Common Shares, and (iii) any
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securities received in respect of the foregoing (including securities described
in Section 12), in each case in clauses (i) through (iii) which at any time are
held by the Shareholders. As to any particular Restricted Shares, once issued,
such Restricted Shares shall cease to be Restricted Shares when (A) they have
been registered under the Securities Act, the Registration Statement in
connection therewith has been declared effective and they have been disposed of
pursuant to and in the manner described in such effective Registration
Statement, (B) they are sold pursuant to Rule 144 or may be sold by the holder
thereof pursuant to Rule 144 (without regard to any volume restrictions), (C)
they have been otherwise transferred and new certificates or other evidences of
ownership for them not bearing a restrictive legend and not subject to any stop
transfer order or other restriction on transfer have been delivered by the
Company or the issuer of other securities issued in exchange for the Restricted
Shares, or (D) they have ceased to be outstanding.
"Rule 144" means Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Series C-1 Majority" means Series C-1 Shareholders who,
collectively at the time in question, own at least a majority of the Restricted
Shares held by the Series C-1 Shareholders.
"Series C-1 Registrable Shares" means Restricted Shares that were
converted into Common Shares from the Company's Series C-1 Convertible
Participating Preferred Stock.
"Series C-1 Shareholders" means those Shareholders who purchased the
Company's Series C-1 Convertible Participating Preferred Stock pursuant to the
Purchase Agreement and continue to own Restricted Shares.
"Shareholder Majority" means Shareholders who, collectively at the
time in question, own at least a majority of the Restricted Shares held by the
Shareholders.
"Shareholders" means the Persons executing this Agreement which are
shareholders of the Company on the date hereof, and includes any successor to,
or assignee or transferee of, any such Person who or which agrees in writing to
be treated as a Shareholder hereunder and to be bound by the terms and comply
with all applicable provisions hereof.
"Subsidiary" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body), at the time as of which any
determination is being
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made, are owned by such first Person either directly or through one or more of
its Subsidiaries.
SECTION 2. REQUIRED REGISTRATION.
(a) Subject to Section 2(b), if the Company shall be requested by a
Series C-1 Majority at any time to effect the registration under the Securities
Act of Series C-1 Registrable Shares, the Company shall take best efforts to
promptly effect the registration under the Securities Act of the Series C-1
Registrable Shares which the Company has been so requested to register. The
number of requests permitted pursuant to this Section 2(a) shall be three (3).
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Company shall not be obligated to effect any registration
under the Securities Act pursuant to Section 2(a) except in accordance with the
following provisions:
(i) the registration requested pursuant to this Section 2 must
be for Series C-1 Registrable Shares having an anticipated aggregate
gross offering price (before underwriting discounts and commissions)
of at least $5,000,000;
(ii) the Company may include in such registration any Primary
Shares, other Registrable Shares or Other Shares; provided, however,
that, if the managing underwriter advises the Company that the
inclusion of all Registrable Shares, Primary Shares and/or Other
Shares proposed to be included in such registration would materially
interfere with the successful marketing (including pricing) of the
Registrable Shares proposed to be included in such registration,
then the number of Registrable Shares, Primary Shares and/or Other
Shares proposed to be included in such registration shall be
included (subject to rights provided in the Prior Agreements) in the
following order:
(A) first, all Series C-1 Registrable Shares requested
to be included in such registration by Series C-1
Shareholders, pro rata among the holders of Series C-1
Registrable Shares based on the number of Series C-1
Registrable Shares each such holder requests to be included in
the registration;
(B) second, all Registrable Shares requested to be
included in such registration by the other Shareholders who
requested the inclusion of their Registrable Shares in such
registration pursuant to Section 3, pro rata among all such
Shareholders based on the number of Registrable Shares
requested by each such Shareholder to be so registered;
(C) third, the Primary Shares; and
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(D) fourth, the Other Shares;
(iii) at any time before the Registration Statement covering
Registrable Shares becomes effective, the Series C-1 Majority may
request that the Company withdraw or not file the Registration
Statement;
(iv) the Company may, at its sole option, elect to satisfy a
request for a Registration pursuant to Section 2(a) on Form S-2 or
Form S-3 promulgated under the Securities Act (or any successor
forms thereto), if use of any such forms are then available to the
Company; provided that, if the proposed registration pursuant to
Section 2(a) involves an underwritten public offering, the Company
shall include in such registration statement such additional
information as reasonably requested by the requesting Shareholders
and/or such underwriter (whether or not such information is required
by Form S-2 or S-3, as applicable); and
(v) If the Company shall furnish to the requesting Series C-1
Majority a certificate signed by the chief executive officer of the
Company stating that in the good faith judgment of the Board it
would be seriously detrimental to the Company or its stockholders
for a registration statement to be filed in the near future; in
which case the Company's obligation to use its best efforts to
register, qualify or comply under this Section 2 shall be deferred
for a period not to exceed ninety (90) days from the date of receipt
of the written request from the Series C-1 Majority, provided that
such request for deferral shall not be exercised by the Company more
than once in any 12-month period.
SECTION 3. PIGGYBACK REGISTRATION.
If the Company at any time proposes for any reason to register Common Shares for
its own account or for the account of any holder of its securities under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto or in connection with any
acquisition), it shall promptly give written notice to the Shareholders of its
intention to so register such Common Shares and, upon the written request,
delivered to the Company within 10 days after delivery of any such notice by the
Company, of any Shareholder to include in such registration Registrable Shares
(which request shall specify the number of Registrable Shares proposed to be
included in such registration), the Company shall take best efforts to cause all
such Registrable Shares to be included in such registration on the same terms
and conditions as the Common Shares otherwise being sold in such registration;
provided, however, that, if the managing underwriter advises the Company that
the inclusion of all Registrable Shares requested to be included in such
registration would interfere with the successful marketing (including pricing)
of the Primary Shares or Other Shares proposed to be registered, then the number
of Primary Shares, Registrable Shares and Other Shares proposed to be included
in such registration shall be included (subject to rights provided in the Prior
Agreements) in the following order:
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(a) in a primary registration on behalf of the Company:
(i) first, the Primary Shares proposed to be registered by the
Company;
(ii) second, the Registrable Shares requested to be included
in such registration pursuant to this Section 3, pro rata among the
holders thereof based upon the number of Registrable Shares
requested to be registered by each such holder; and
(iii) third, the Other Shares.
(b) in a secondary registration of Series C-1 Registrable Shares
pursuant to Section 2(a):
(i) first, all Series C-1 Registrable Shares requested to be
included in such registration by Series C-1 Shareholders, pro rata
among the holders of Series C-1 Registrable Shares based on the
number of Series C-1 Registrable Shares each such holder requests to
be included in the registration;
(ii) second, the Registrable Shares (other than Series C-1
Registrable Shares) requested to be included in such registration
pursuant to this Section 3, pro rata among the holders thereof based
upon the number of Registrable Shares requested to be registered by
each such holder; and
(iii) third, the Other Shares.
SECTION 4. REGISTRATIONS ON FORM S-3.
Anything contained in Section 2 to the contrary notwithstanding, at
such time as the Company shall have qualified for the use of Form S-3
promulgated under the Securities Act or any successor form thereto, a
Shareholder Majority shall have the right to request in writing an unlimited
number of registrations of Registrable Shares on Form S-3 or such successor
form, which request or requests shall (i) specify the number of Registrable
Shares intended to be sold or disposed of and the holders thereof, (ii) state
the intended method of disposition of such Registrable Shares and (iii) relate
to Registrable Shares having an anticipated aggregate gross offering price
(before underwriting discounts and commissions) of at least $5,000,000, and upon
receipt of any such request, the Company shall make best efforts to promptly
effect the registration under the Securities Act of the Registrable Shares so
requested to be registered. The Company may delay requests for registration
under this Section 4 for up to 90 days if the Board makes the determination and
provides the certification as contemplated by Section 2(b)(v) to the requesting
Shareholder Majority.
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SECTION 5. HOLDBACK AGREEMENT.
(a) If the Company at any time shall register Common Shares under
the Securities Act (including any registration pursuant to Sections 2, 3 or 4)
for sale to the public pursuant to an underwritten offering, the Shareholders
shall not sell publicly, make any short sale of, grant any option for the
purchase of, or otherwise dispose publicly of, any Registrable Shares (other
than those Common Shares included in such registration pursuant to Sections 2, 3
or 4) without the prior written consent of the Company for such period as shall
be determined by the relevant managing underwriters not to exceed 180 days;
provided, however, such selling restriction shall apply only to those
Shareholders who hold one percent (1%) or more of the voting securities of the
Company on a fully diluted basis and only if all executive officers, directors,
and Shareholders holding more than one percent (1%) of the voting securities of
the Company on a fully diluted basis are subject to the same restriction. The
Company shall obtain the agreement of any Person permitted to sell shares of
stock in a registration and each of its directors and executive officers to be
bound by and to comply with this Section 5 with respect to such registration as
if such Person were a Shareholder hereunder.
(b) If the Company at any time pursuant to Sections 2 or 3 of this
Agreement shall register under the Securities Act Registrable Shares held by
Shareholders for sale to the public pursuant to an underwritten offering, the
Company shall not effect any public sale or distribution of securities similar
to those being registered, or any securities convertible into or exercisable or
exchangeable for such securities, for such period as shall be determined by the
managing underwriters.
SECTION 6. PREPARATION AND FILING.
(a) If and whenever the Company is under an obligation pursuant to
the provisions of this Agreement to make best efforts to effect the registration
of, and keep effective a Registration Statement for, any Registrable Shares, the
Company shall, as expeditiously as practicable:
(i) make best efforts to cause a Registration Statement that
registers such Registrable Shares to become and remain effective for
a period of 90 days (extended for such period of time as the
Shareholders are required to discontinue disposition of Registrable
Shares pursuant to Section 6(b) below) or until all of such
Registrable Shares have been disposed of (if earlier);
(ii) furnish, at least five (5) business days before filing a
Registration Statement that relates to the registration of such
Registrable Shares, a Prospectus relating thereto or any amendments
or supplements relating to such a Registration Statement or
Prospectus, to one counsel (the "Shareholders' Counsel") selected by
a Majority of Registering Shareholders;
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(iii) notify the Shareholders whose Registrable Shares are
included therein of the effectiveness of such Registration Statement
and prepare and promptly file with the Commission such amendments
and supplements to such Registration Statement and the Prospectus
used in connection therewith as may be necessary to (A) keep such
Registration Statement effective for a period of 90 days (extended
for such period of time as Shareholders are required to discontinue
disposition of Registrable Shares pursuant to Section 6(b) below) or
until all of such Registrable Shares have been disposed of, if
earlier, (B) correct any statements or omissions if any event with
respect to the Company shall have occurred as a result of which any
such Registration Statement or Prospectus as then in effect would
include an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not
misleading, and (C) comply with the provisions of the Securities Act
with respect to the sale or other disposition of such Registrable
Shares;
(iv) notify in writing the Shareholders' Counsel, and the
Shareholders whose Registrable Shares may be included in such
Registration Statement, promptly of (A) the receipt by the Company
of any notification with respect to any comments by the Commission
with respect to such Registration Statement or Prospectus or any
amendment or supplement thereto or any request by the Commission for
the amending or supplementing thereof or for additional information
with respect thereto, (B) the receipt by the Company of any
notification or written information with respect to the issuance or
threatened issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement or Prospectus or
any amendment or supplement thereto or the initiation or threatening
of any proceeding for that purpose (and the Company shall make best
efforts to prevent the issuance thereof or, if issued, to obtain its
withdrawal) and (C) the receipt by the Company of any notification
with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(v) make best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such
jurisdictions as the Shareholders reasonably request and do any and
all other acts and things which may be reasonably necessary or
advisable to enable the Shareholders to consummate the disposition
in such jurisdictions of the Registrable Shares owned by the
Shareholders; provided, however, that the Company will not be
required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required to do so but
for this clause (v);
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(vi) furnish to the Shareholders holding such Registrable
Shares such number of copies of a summary Prospectus, if any, or
other Prospectus, including a preliminary Prospectus, in conformity
with the requirements of the Securities Act, and such other
documents as such Shareholders may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Shares;
(vii) make best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the Shareholders holding such
Registrable Shares to consummate the disposition of such Registrable
Shares;
(viii) notify the Shareholders holding such Registrable Shares
on a timely basis at any time when a Prospectus relating to such
Registrable Shares is required to be delivered under the Securities
Act within the appropriate period mentioned in clause (i) of this
Section 6(a), 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, in light of the circumstances under
which they were made, not misleading and, subject to Section 6(b),
prepare and furnish to such Shareholders a reasonable number of
copies of, and file with the Commission, a supplement to or an
amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the offerees of such Registrable Shares,
such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided
that, the filing of such supplement or amendment and the furnishing
of such copies may be delayed by the Company for up to 90 days if
the Board makes the determination and provides the certification as
contemplated by Section 2(b)(v) to the Shareholders participating in
the registration.
(ix) subject to the execution of confidentiality agreements in
form and substance reasonably satisfactory to the Company, make
available upon reasonable notice and during normal business hours,
for inspection by the Shareholders holding Registrable Shares
requested to be included in such registration, any underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by
the Shareholders or underwriter (collectively, the "Inspectors"),
all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records"), and cause the Company's officers, directors and
employees to supply all
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information (together with the Records, the "Information")
reasonably requested by any such Inspector, in each case as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection with such Registration Statement;
provided, however, that any of the Information that the Company
determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed
by the Inspectors unless (A) the disclosure of such Information is
necessary to avoid or correct a misstatement or omission in the
Registration Statement or Prospectus, (B) the release of such
Information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or, upon the written advice of
counsel, is otherwise required by law, or (C) such Information has
been made generally available to the public, and the Shareholders
agree that they will, upon learning that disclosure of such
Information is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of
the Information deemed confidential;
(x) make best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered
by cold comfort letters;
(xi) make best efforts to obtain from its counsel an opinion
or opinions in customary form addressed to any underwriters;
(xii) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable
Shares;
(xiii) issue to any underwriter to which the Shareholders
holding such Registrable Shares may sell shares in such offering
certificates evidencing such Registrable Shares;
(xiv) list such Registrable Shares on any national securities
exchange or electronic quotation system on which any Common Shares
are then listed;
(xv) otherwise make best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12
months beginning within three months after the effective date of the
Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
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(xvi) make best efforts to take all other steps necessary to
effect the registration of, and maintain an effective Registration
Statement with respect to, such Registrable Shares contemplated
hereby.
(b) Each holder of the Registrable Shares, upon receipt of any
notice from the Company of any event of the kind described in Section 6(a)(viii)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the Registration Statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(a)(viii) hereof, and, if so directed by the Company,
such holder shall deliver to the Company all copies, other than permanent file
copies then in such holder's possession, of the most recent Prospectus covering
such Registrable Shares at the time of receipt of such notice.
SECTION 7. EXPENSES.
All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares) incurred by the Company and the Shareholders
in complying with this Agreement, including, without limitation, all
registration and filing fees (including all expenses incident to filings with
the National Association of Securities Dealers, Inc.), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Company's counsel and accountants and fees and expenses of the
Shareholders' Counsel, shall be paid by the Company in connection with
registrations requested under Sections 2, 3 or 4; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares and Other Shares shall be borne by the holders selling such Registrable
Shares and Other Shares, in proportion to the number of Registrable Shares and
Other Shares sold by each such holder.
SECTION 8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless, to the fullest extent permitted by law, each holder of
Registrable Shares, each underwriter, broker or any other Person acting on
behalf of the holders of Registrable Shares and each other Person, if any, who
controls any of the foregoing Persons within the meaning of the Securities Act
(each such indemnified Person being referred to herein as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several
(or actions in respect thereof), to which any of the foregoing Persons may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or allegedly untrue statement of a material
fact contained in or incorporated by reference in the Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary Prospectus or final Prospectus contained therein or otherwise
filed with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact
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required to be stated therein or necessary to make the statements therein not
misleading or, with respect to any Prospectus, necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and shall promptly reimburse the Indemnified Persons for any legal
or other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to any
such Indemnified Person to the extent that any such loss, claim, damage,
liability or action (including any legal or other expenses incurred) arises out
of or is based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said Registration Statement, preliminary
Prospectus, final Prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Indemnified Person specifically for use in the
preparation thereof.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each holder of Registrable Shares
being registered shall, severally and not jointly, to the fullest extent
permitted by law, indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 8(a) above) the Company, each director of
the Company, each officer of the Company who shall have signed such Registration
Statement, each other holder of Registrable Shares or Other Shares, each agent,
underwriter, broker or other Person acting on behalf of the Company, each other
holder of Registrable Shares or Other Shares and each Person who controls any of
the foregoing Persons within the meaning of the Securities Act with respect to
any statement or omission from such Registration Statement, any preliminary
Prospectus or final Prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus, amendment,
supplement or document; provided, however, that the maximum amount of liability
in respect of such indemnification shall be limited, in the case of each seller
of Registrable Shares, to an amount equal to the net proceeds actually received
by such seller from the sale of Registrable Shares effected pursuant to such
registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in Section 8(a) or (b),
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the indemnified party's failure to give
such notice shall not release, relieve or in any way affect the indemnifying
party's obligation hereunder to indemnify the indemnified party, unless and to
the extent that the rights of the indemnifying party are prejudiced thereby. In
case any such action is brought against an indemnified party, the
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indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that he, she, or it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of his, her or its election so to assume the defense thereof,
the indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that, if any indemnified party shall have reasonably
concluded (based on the written advice of counsel) that there may be one or more
legal or equitable defenses available to such indemnified party which are
additional to or conflict with those available to the indemnifying party, or
that such claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 8, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party and such indemnifying party shall reimburse
such indemnified party and any Person controlling such indemnified party for
that portion of the fees and expenses of one counsel retained by the indemnified
party which is reasonably related to the matters covered by the indemnity
agreement provided in this Section 8.
(d) If the indemnification provided for in this Section 8 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein
(other than as a result of the applicability of the proviso in Section 8(a)),
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations;
provided, however, that the maximum amount of liability in respect of such
contribution (together with any indemnification amount under Section 8(b) shall
be limited, in the case of each seller of Registrable Shares, to an amount equal
to the net proceeds actually received by such seller from the sale of
Registrable Shares effected pursuant to such registration. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
SECTION 9. UNDERWRITING AGREEMENT.
(a) If any registration pursuant to Sections 2, 3 or 4 is or is
requested to be an underwritten offering, the Company shall negotiate in good
faith to enter into a reasonable and customary underwriting agreement with the
underwriters thereof. The Company shall be entitled to receive indemnities from
lead institutions, underwriters,
13
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement and to the extent
customary given their role in such distribution.
(b) No Shareholder may participate in any registration hereunder
that is underwritten unless such Shareholder agrees to (i) sell such
Shareholder's Registrable Shares proposed to be included therein on the basis
provided in any underwriting arrangements approved by the Company and the
Majority of Registering Shareholders and (ii) as expeditiously as possible,
notify the Company of the occurrence of any event concerning such Shareholder as
a result of which the Prospectus relating to such registration contains 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, in light of
the circumstances under which they were made, not misleading.
SECTION 10. INFORMATION BY HOLDER.
The Shareholders shall furnish to the Company such written
information regarding the Shareholders and the distribution proposed by the
Shareholders as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
SECTION 11. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a Registration
Statement filed by the Company pursuant to the Exchange Act relating to any
class of the Company's securities shall have become effective, the Company shall
make best efforts to comply with all of the reporting requirements of the
Exchange Act applicable to it and shall make best efforts to comply with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Shares.
The Company shall cooperate with the Shareholders in supplying such information
as may be necessary for the Shareholders to complete and file any information
reporting forms presently or hereafter required by the Commission as a condition
to the availability of Rule 144.
SECTION 12. NO CONFLICT OF RIGHTS; SELECTION OF UNDERWRITER.
The Company shall not, at any time after the date hereof, grant any
registration rights that conflict with or impair, or have any priority over, the
registration rights granted hereby. In any Public Offering, the managing
underwriter shall be a nationally recognized investment banking firm chosen by
the Board with, in the case of registrations requested pursuant to Section 2(a),
the advise and consent of the Series C-1 Majority.
14
SECTION 13. TERMINATION.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Restricted Shares outstanding.
SECTION 14. MISCELLANEOUS.
(A) SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the Company and the Shareholders and, subject to Section 14(b),
the respective successors and assigns of the Company and the Shareholders.
Except as expressly set forth herein, this Agreement is not intended to create
any third party beneficiaries.
(B) ASSIGNMENT. Each Shareholder may assign its rights hereunder to
any purchaser or transferee of Registrable Shares; provided, however, that such
purchaser or transferee shall, as a condition to the effectiveness of such
assignment, unless already a party to this Agreement, be required to execute a
counterpart to this Agreement agreeing to be treated as Shareholder hereunder,
whereupon such purchaser or transferee shall have the benefits of and shall be
subject to the restrictions contained in this Agreement as if such purchaser or
transferee was originally included in the definition of a Shareholder and had
originally been a party hereto.
(C) SEVERABILITY. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(D) ENTIRE AGREEMENT. This Agreement and the other writings referred
to herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous arrangements or understandings with respect hereto and
thereto.
(E) NOTICES. All communications hereunder to any party shall be
deemed to be sufficient if contained in a written instrument delivered in person
or sent by telecopy, nationally-recognized overnight courier guaranteeing next
day delivery or first class registered or certified mail, return receipt
requested, postage prepaid, addressed to
15
such party at its address below or such other address as such party may
hereafter designate in writing:
(i) if to the Company to:
Greenfield Online, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax no.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary;
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax no.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
(ii) if to a Shareholder, to the address or telecopy number
appearing on the signature page hereto.
All such notices, requests, consents and other communications shall
be deemed to have been given and received (A) in the case of personal delivery
or delivery by telecopy (if confirmed), on the date of such delivery, (B) in the
case of dispatch by nationally-recognized overnight courier, on the next
business day following such dispatch and (C) in the case of mailing, on the
third business day after the posting thereof.
(F) MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and provisions of
this Agreement may not be modified or amended, nor may any provision be waived,
except pursuant to a writing signed by the Company and two-thirds in interest of
the Shareholders of each class and series of Registrable Shares; provided,
however, that no such modification, amendment or waiver shall adversely affect
the rights of any party hereto disproportionately to other parties holding the
same class or series of stock without such party's consent. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(G) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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(H) HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING,
THE INTERNAL LAWS OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW
OR CONFLICTS OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY.
(J) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(K) NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.
(L) CONSTRUCTION. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(M) EFFECTIVENESS. This Agreement shall not be deemed effective
until the Closing as defined in the Purchase Agreement.
* * * * *
17
The foregoing Agreement is hereby executed as of the date first
above written.
GREENFIELD ONLINE, INC.
By __________________________
Name:
Title:
18
The foregoing Agreement is hereby executed as of the date first
above written.
* By __________________________
Name:
Title:
* The following are parties to the Amended and Restated Registration Rights
Agreement:
Greenfield Holdings, LLC, Insight Capital Partners III, L.P., Insight
Capital Partners III, (CAMAN) L.P., Insight Capital Partners III, (CO-INVESTORS)
L.P., UBS Capital II LLC, MSD Capital, L.P., Imprimis SB, L.P., Techvantage
Partners, L.P., Techvantage Qualified Partners, L.P., Techvantage Overseas Fund,
Inc., 701 Venture Investments, LLC, G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, GOL, L.L.C., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ Family LLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1999 Descendants'
Trust, ▇▇▇▇▇▇▇ Friday, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Family Foundation, Forestor
Research, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Koutoupes, ▇▇▇▇▇
Leppia, ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Yanawan M. Saguansataya, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇.
19