1
EXHIBIT 10.5
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SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
PROXICOM, INC.,
GENERAL ATLANTIC PARTNERS 34, L.P.,
GENERAL ATLANTIC PARTNERS 52, L.P.,
GAP COINVESTMENT PARTNERS, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST,
FBR VENTURE CAPITAL MANAGERS INC.,
GENERAL ELECTRIC CAPITAL CORPORATION,
GE CAPITAL EQUITY INVESTMENTS, INC.,
▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. LEONSIS,
▇▇▇▇ ▇▇▇▇▇▇▇▇,
THE WASHINGTON POST COMPANY
Dated: February 1, 1999
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TABLE OF CONTENTS
PAGE
1.Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 3
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2.General; Securities Subject to this Agreement . . . . . . . . 9
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(a) Grant of Rights . . . . . . . . . . . . . . . . . . . . . 9
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(b) Registrable Securities . . . . . . . . . . . . . . . . . 9
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(c) Holders of Registrable Securities . . . . . . . . . . . . 9
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3.Demand Registration . . . . . . . . . . . . . . . . . . . . 10
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(a) Request for Demand Registration . . . . . . . . . . . . 10
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(b) Incidental or . . . . . . . . . . . . . . . . . . . . . 10
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(c) Effective Demand Registration . . . . . . . . . . . . . 10
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(d) Expenses . . . . . . . . . . . . . . . . . . . . . . . 11
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(e) Underwriting Procedures . . . . . . . . . . . . . . . . 11
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(f) Selection of Underwriters . . . . . . . . . . . . . . . 11
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4.Incidental or . . . . . . . . . . . . . . . . . . . . . . . 12
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(a) Request for Incidental Registration . . . . . . . . . . 12
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(b) Expenses . . . . . . . . . . . . . . . . . . . . . . . 12
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5.Holdback Agreements . . . . . . . . . . . . . . . . . . . . 12
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(a) Restrictions on Public Sale by Designated Holders . . . 12
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(b) Restrictions on Public Sale by the Company . . . . . . 13
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6.Registration Procedures . . . . . . . . . . . . . . . . . . 13
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(a) Obligations of the Company . . . . . . . . . . . . . . 13
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(b) Seller Information . . . . . . . . . . . . . . . . . . 16
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(c) Notice to Discontinue . . . . . . . . . . . . . . . . . 16
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(d) Registration Expenses . . . . . . . . . . . . . . . . . 17
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7.Indemnification; Contribution . . . . . . . . . . . . . . . 17
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(a) Indemnification by the Company . . . . . . . . . . . . 17
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(b) Indemnification by Designated Holders . . . . . . . . . 17
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(c) Conduct of Indemnification Proceedings . . . . . . . . 18
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(d) Contribution . . . . . . . . . . . . . . . . . . . . . 18
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8.Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . 19
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9.Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 19
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(a) Recapitalizations, Exchanges, etc. . . . . . . . . . . 19
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(b) No Inconsistent Agreements . . . . . . . . . . . . . . 19
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(c) Remedies . . . . . . . . . . . . . . . . . . . . . . . 20
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(d) Amendments and Waivers . . . . . . . . . . . . . . . . 20
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(e) Notices . . . . . . . . . . . . . . . . . . . . . . . . 20
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(f) Successors and Assigns; Third Party Beneficiaries . . . 24
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(g) Counterparts . . . . . . . . . . . . . . . . . . . . . 25
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(h) Headings . . . . . . . . . . . . . . . . . . . . . . . 25
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(i) GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 25
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(j) Severability . . . . . . . . . . . . . . . . . . . . . 25
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(k) Entire Agreement . . . . . . . . . . . . . . . . . . . 25
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(l) Further Assurances . . . . . . . . . . . . . . . . . . 26
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SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT, dated February 1, 1999 (this "AGREEMENT"), among Proxicom, Inc., a
Delaware corporation (the "COMPANY"), General Atlantic Partners 34, L.P., a
Delaware limited partnership ("GAP LP"), General Atlantic Partners 52, L.P., a
Delaware limited partnership ("GAP 52"), GAP Coinvestment Partners, L.P., a New
York limited partnership ("GAP COINVESTMENT I"), GAP Coinvestment Partners II,
L.P., a Delaware limited partnership ("GAP COINVESTMENT II"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇"), The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust ("MORINO TRUST"), FBR Venture Capital
Managers Inc., a Delaware corporation ("FBR"), General Electric Capital
Corporation, a New York corporation ("GE CAPITAL"), GE Capital Equity
Investments, Inc., a Delaware corporation ("GE CAPITAL EQUITY"), ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (THE "IBIS STOCKHOLDERS"), and ▇▇▇▇ ▇▇▇▇
("▇▇▇▇"), ▇▇▇▇▇▇▇▇ ▇. Leonsis ("LEONSIS"), ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), and The
Washington Post Company, a Delaware corporation ("WPC", and together with ▇▇▇▇,
Leonsis, and ▇▇▇▇▇▇▇▇, THE "NEW STOCKHOLDERS").
WHEREAS, this Agreement is made in connection with the
Preferred Stock and Warrant Purchase Agreement, dated August 30, 1996 (the
"STOCK AND WARRANT PURCHASE AGREEMENT"), among the Company, GAP LP and GAP
Coinvestment I, pursuant to which the Company has agreed to, among other
things, issue and sell to (i) GAP LP, and GAP LP has agreed to purchase from
the Company, (x) an aggregate of 1,389,218 shares, par value $.01 per share, of
Series A Convertible Preferred Stock of the Company (the "SERIES A PREFERRED
STOCK") and (y) a warrant (the "GAP LP WARRANT") to purchase, subject to the
terms and conditions thereof, an aggregate of 861,834 shares of Series A
Preferred Stock and (ii) GAP Coinvestment I, and GAP Coinvestment I has agreed
to purchase from the Company, (x) an aggregate of 240,751 shares of Series A
Preferred Stock and (y) a warrant (the "GAPCO WARRANT" and, together with the
GAP LP Warrant, the "WARRANTS") to purchase, subject to the terms and
conditions thereof, an aggregate of 149,544 shares of Series A Preferred Stock.
WHEREAS, this Agreement is made in connection with the
Preferred Stock Purchase Agreement, dated February 20, 1997, among the Company,
GAP LP, GAP Coinvestment I, Morino Trust and FBR, pursuant to which the Company
has agreed to, among other things, issue and sell (i) GAP LP, and GAP LP has
agreed to purchase from the Company, an aggregate of 81,535 shares, par value
$.01 per share, of Series B Convertible Preferred Stock of the Company (the
"SERIES B PREFERRED STOCK"), (ii) GAP Coinvestment I and GAP Coinvestment I has
agreed to purchase from the Company an aggregate of 14,388 shares of Series B
Preferred Stock, (iii) Morino Trust, and Morino Trust has agreed to purchase
from the Company an aggregate of 239,808 shares of Series B Preferred Stock and
(iv) FBR, and FBR has agreed to purchase from the Company an aggregate of
23,981 shares of Series B Preferred Stock.
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WHEREAS, this Agreement is made in connection with the
Preferred Stock Purchase Agreement, dated November 24, 1997, between the
Company and GE Capital, pursuant to which the Company has agreed to, among
other things, issue and sell GE Capital, and GE Capital has agreed to purchase
from the Company, 419,302 shares, par value $.01 per share, of Series C
Convertible Preferred Stock of the Company (the "SERIES C PREFERRED STOCK").
WHEREAS, this Agreement is made in connection with the
Agreement and Plan of Merger by and among Proxicom, Inc., Proxicom Merger Sub,
Inc., IBIS Consulting, Inc. and the IBIS Stockholders, dated as of August 21,
1998 (the "MERGER AGREEMENT"), pursuant to which the Company has agreed to,
among other things, issue a total of 4,988,297 shares of Common Stock to the
IBIS Stockholders.
WHEREAS, this Agreement is made in connection with the Stock
Purchase Agreement, dated as of the date hereof (the "COMMON STOCK PURCHASE
AGREEMENT"), between the Company, certain selling stockholders named therein,
and the Purchasers named therein, pursuant to which, among other things,
certain selling stockholders named in the Common Stock Purchase Agreement agree
to sell and transfer to the Purchasers, and the Purchasers agree to purchase
from such selling stockholders, an aggregate of 758,667 shares of Common Stock
of the Company.
WHEREAS, this Agreement is made in connection with the
Preferred Stock Purchase Agreement, dated as of the date hereof (the "SERIES D
STOCK PURCHASE AGREEMENT"), between the Company and the Purchasers named
therein, pursuant to which, among other things, the Company agrees to issue and
sell to the Purchasers, and the Purchasers agree to purchase from the Company,
an aggregate of 1,218,333 shares, par value $.01 per share, of Series D
Convertible Preferred Stock of the Company (the "SERIES D PREFERRED STOCK";
and, together with the Series A Preferred Stock, the Series B Stock, and the
Series C Stock, the "PREFERRED STOCK").
WHEREAS, each share of Preferred Stock is convertible (subject
to adjustment) into one (1) share, par value $.01 per share, of Common Stock of
the Company (the "COMMON STOCK").
WHEREAS, the Company, GAP LP, GAP Coinvestment I, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ Trust and FBR are parties to the Original Stockholders Agreement (as
hereinafter defined), pursuant to which the parties thereto have agreed to,
among other things, certain first offer, preemptive and corporate governance
rights and obligations.
WHEREAS, the Company, GAP LP, GAP Coinvestment I, ▇▇▇▇▇▇▇▇▇,
Morino Trust, FBR and GE Capital are parties to Amendment No. 1 to the Original
Stockholders Agreement ("AMENDMENT NO. 1"), pursuant to which, among other
things, GE Capital became a party to the Original Stockholders Agreement.
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WHEREAS, the Company, GAP LP, GAP Coinvestment I, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ Trust, FBR, GE Capital and the IBIS Stockholders are parties to
Amendment No. 2 to the Original Stockholders' Agreement ("AMENDMENT NO. 2"),
pursuant to which, among other things, the IBIS Stockholders became a party to
the Original Stockholders' Agreement (as amended by the Amendment No. 1).
WHEREAS, concurrently with the execution hereof, the Company,
GAP LP, GAP Coinvestment I, GAP 52, GAP Coinvestment II, ▇▇▇▇▇▇▇▇▇, Morino
Trust, FBR, GE Capital, GE Capital Equity, the IBIS Stockholders, and the New
Stockholders are entering into Amendment No. 3 to the Original Stockholders'
Agreement ("AMENDMENT NO. 3"), pursuant to which, among other things, the New
Stockholders, GAP 52, GAP Coinvestment II and GE Capital Equity shall become
party to the Original Stockholders' Agreement (as amended by Amendment No. 1
and Amendment No. 2).
WHEREAS, as a condition precedent to the obligations of the
Purchasers under the Common Stock Purchase Agreement and the transactions under
the Series D Stock Purchase Agreement to consummate the transactions
thereunder, the Company has agreed to amend and restate in its entirety the
Amended and Restated Registration Rights Agreement (as hereinafter defined) by
entering into this Agreement pursuant to which the Company has agreed to grant
registration rights with respect to the Registrable Securities (as hereinafter
defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereby agree
as follows:
1. Definitions. As used in this Agreement the following
terms have the meanings indicated:
"Affiliate" shall mean, with respect to any Person,
any other Person who controls, is controlled by or is under common control with
such Person. In addition, the following shall be deemed to be Affiliates of
GAP LP and GAP 52: (a) GAP LLC, the members of GAP LLC, the limited partners
of GAP LP and the limited partners of GAP 52; (b) any Affiliate of GAP LLC, the
members of GAP LLC, the limited partners of GAP LP and the limited partners of
GAP 52; and (c) any limited liability company or partnership a majority of
whose members or partners, as the case may be, are members of GAP LLC. In
addition, GAP LP, GAP 52, GAP Coinvestment I and GAP Coinvestment II shall be
deemed to be Affiliates of one another.
"Amended and Restated Registrations Rights Agreement"
means the Amended and Restated Registration Rights Agreement dated August 21,
1998, among the Company, GAP LP, GAP Coinvestment I, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Trust,
FBR, GE Capital, and the IBIS Stockholders.
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"Amendment No. 1" has the meaning assigned to such
term in the recital to this Agreement.
"Amendment No. 2" has the meaning assigned to such
term in the recital to this Agreement.
"Amendment No. 3" has the meaning assigned to such
term in the recital to this Agreement.
"Approved Underwriter" has the meaning set forth in
Section 3(f) of this Agreement.
"Common Stock" means the Common Stock, par value $.01
per share, of the Company or any other equity securities of the Company into
which such securities are converted, reclassified, reconstituted or exchanged.
"Common Stock Purchase Agreement" has the meaning
assigned to such term in the recital to this Agreement.
"Company" has the meaning assigned to such term in
the recital to this Agreement.
"Company Underwriter" has the meaning set forth in
Section 4(a) of this Agreement.
"Demand Registration" has the meaning set forth in
Section 3(a) of this Agreement.
"Designated Holder" means each of the ▇▇▇▇▇▇▇▇▇
Stockholders, the Morino Stockholders, the General Atlantic Stockholders, the
FBR Stockholders, the GE Capital Stockholders, the IBIS Stockholders, the ▇▇▇▇
Stockholders, the Leonsis Stockholders, the ▇▇▇▇▇▇▇▇ Stockholders and the WPC
Stockholders and any transferee of any of them to whom Registrable Securities
have been transferred in accordance with the provisions of the Stockholders
Agreement (as hereinafter defined) and Section 9(f) of this Agreement, other
than a transferee to whom such securities have been transferred pursuant to a
registration statement under the Securities Act or Rule 144 or Regulation S
under the Securities Act.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"FBR" has the meaning assigned to such term in the
recital to this Agreement.
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"FBR Stockholders" means FBR and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
"▇▇▇▇▇▇▇▇▇" has the meaning assigned to such term in
the recital to this Agreement.
"▇▇▇▇▇▇▇▇▇ Stockholders" means ▇▇▇▇▇▇▇▇▇ and any
Permitted Transferee (as defined in the Stockholders Agreement) thereof to
which Registrable Securities are transferred in accordance with Section 2.2 of
the Stockholders Agreement.
"GAP 52" has the meaning assigned to such term in
the recital to this Agreement.
"GAP Coinvestment I" has the meaning assigned to such
term in the recital to this Agreement.
"GAP Coinvestment II" has the meaning assigned to
such term in the recital to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a
Delaware limited liability company and the general partner of GAP LP, and any
successor to such entity.
"GAP LP" has the meaning assigned to such term in the
recital to this Agreement.
"GAP LP Warrant" has the meaning assigned to such
term in the recital to this Agreement.
"GAPCO Warrant" has the meaning assigned to such term
in the recital to this Agreement.
"GE Capital" has the meaning assigned to such term in
the recital to this Agreement.
"GE Capital Equity" has the meaning assigned to such
term in the recital to this Agreement.
"GE Capital Stockholders" means GE Capital, GE
Capital Equity and any Affiliate thereof to which Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 52,
GAP Coinvestment I, GAP Coinvestment II and any Affiliate thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
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"Holders' Counsel" has the meaning set forth in
Section 6(a)(i) of this Agreement.
"IBIS Stockholders" means the IBIS Stockholders as
such term is defined in the recital to this Agreement and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
"Incidental Registration" has the meaning set forth
in Section 4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in
Section 7(c) of this Agreement.
"Indemnifying Party" has the meaning set forth in
Section 7(c) of this Agreement.
"Initial Public Offering" means a firm commitment
underwritten initial public offering pursuant to an effective Registration
Statement filed under the Securities Act covering the offer and sale of shares
of Common Stock for the account of the Company at a price per share of Common
Stock not less than $6.60 and resulting in aggregate net proceeds (after
expenses and underwriting commissions and discounts) to the Company of at least
$10,000,000.
"Initiating Holder" has the meaning set forth in
Section 3(a) of this Agreement.
"Inspector" has the meaning set forth in Section
6(a)(viii) of this Agreement.
"IPO Effectiveness Date" means the date upon which
the Company commences its Initial Public Offering.
"▇▇▇▇" has the meaning assigned to such term in the
recital to this Agreement.
"▇▇▇▇ Stockholders" means ▇▇▇▇ and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
"Leonsis" has the meaning assigned to such term in
the recital to this Agreement.
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"Leonsis Stockholders" means Leonsis and any
Permitted Transferee (as defined in the Stockholders Agreement) thereof to
which Registrable Securities are transferred in accordance with Section 2.2 of
the Stockholders Agreement.
"▇▇▇▇▇▇▇▇" has the meaning assigned to such term in
the recital to this Agreement.
"▇▇▇▇▇▇▇▇ Stockholders" means ▇▇▇▇▇▇▇▇ and any
Permitted Transferee (as defined in the Stockholders Agreement) thereof to
which Registrable Securities are transferred in accordance with Section 2.2 of
the Stockholders Agreement.
"Morino Trust" has the meaning assigned to such term
in the recital to this Agreement.
"Morino Stockholders" means Morino Trust and any
Permitted Transferee (as defined in the Stockholders Agreement) thereof to
which Registrable Securities are transferred in accordance with Section 2.2 of
the Stockholders Agreement.
"NASD" has the meaning set forth in Section 6(a)(xiv)
of this Agreement.
"New Stockholders" means the New Stockholders as such
term is defined in the recital to this Agreement and any Permitted Transferee
(as defined in the Stockholders Agreement) thereof to which Registrable
Securities are transferred in accordance with Section 2.2 of the Stockholders
Agreement.
"Original Stockholders Agreement" means,
collectively, the Stockholders Agreement, dated August 30, 1996, among the
Company, GAP LP, GAP Coinvestment and ▇▇▇▇▇▇▇▇▇, as amended and restated by the
Amended and Restated Stockholders Agreement, dated February 20, 1997, among the
Company, GAP LP, GAP Coinvestment, ▇▇▇▇▇▇▇▇▇, Morino Trust and FBR.
"Person" means any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, limited liability company,
government (or an agency or political subdivision thereof) or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Purchasers" means GAP LP, GAP Coinvestment, Morino
Trust, GE Capital and the New Stockholders.
"Preferred Stock" has the meaning assigned to such
term in the recital to this Agreement.
"Records" has the meaning set forth in Section
6(a)(viii) of this Agreement.
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"Registrable Securities" means each of the following:
(a) any and all shares of Common Stock owned by the Designated Holders or
issued or issuable upon conversion of shares of Preferred Stock or exercise of
the Warrants, including, without limitation, any additional shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or warrants exercisable for shares of Common Stock or Series A
Preferred Stock or Series B Preferred Stock or Series C Preferred Stock or
Series D Preferred Stock acquired by any of the Designated Holders after the
date hereof, (b) any other shares of Common Stock acquired or owned by any of
the Designated Holders prior to the IPO Effectiveness Date, or acquired or
owned by any of the Designated Holders after the IPO Effectiveness Date if such
Designated Holder is an Affiliate of the Company and (c) any shares of Common
Stock issued or issuable to any of the Designated Holders with respect to
shares of Common Stock, shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise
and shares of Common Stock issuable upon conversion, exercise or exchange
thereof.
"Registration Expense Cap" has the meaning set forth
in Section 3(d) of this Agreement.
"Registration Expenses" has the meaning set forth in
Section 6(d) of this Agreement.
"Registration Statement" means a registration
statement filed pursuant to the Securities Act.
"SEC" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Series A Preferred Stock" has the meaning assigned
to such term in the recital to this Agreement.
"Series B Preferred Stock" has the meaning assigned
to such term in the recital to this Agreement.
"Series C Preferred Stock" has the meaning assigned
to such term in the recital to this Agreement.
"Series D Preferred Stock" has the meaning assigned
to such term in the recital to this Agreement.
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"Series D Stock Purchase Agreement" has the meaning
assigned to such term in the recital to this Agreement.
"Stockholders Agreement" means, collectively, the
Original Stockholders Agreement, as amended by Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇.
▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇.
"WPC" has the meaning assigned to such term in the
recital to this Agreement.
"WPC Stockholders" means WPC and any Permitted
Transferee (as defined in the Stockholders Agreement) thereof to which
Registrable Securities are transferred in accordance with Section 2.2 of the
Stockholders Agreement.
"Warrants" has the meaning assigned to such term in
the recital to this Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants
registration rights to the ▇▇▇▇▇▇▇▇▇ Stockholders, the Morino Stockholders, the
General Atlantic Stockholders, the FBR Stockholders, the GE Capital
Stockholders, the IBIS Stockholders, and the New Stockholders upon the terms
and conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of
this Agreement, Registrable Securities will cease to be Registrable Securities
when (i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (ii) the entire amount of Registrable Securities proposed to be sold
in a single sale, in the opinion of counsel satisfactory to the Company and the
Designated Holder thereof, each in their reasonable judgment, may be
distributed to the public without any limitation as to volume for such sale
pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act or (iii) the Registrable Securities are proposed to be sold or
distributed by a Person not entitled to the registration rights granted by this
Agreement.
(c) Holders of Registrable Securities. A Person
is deemed to be a holder of Registrable Securities whenever such Person owns of
record Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If
the Company receives conflicting instructions, notices or elections from two or
more Persons with respect to the same Registrable Securities, the Company may
act upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities
issuable upon exercise of an option or upon conversion of another security
shall be deemed outstanding for the purposes of this Agreement.
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3. Demand Registration.
(a) Request for Demand Registration. At any time
after the IPO Effectiveness Date, one or more of the General Atlantic
Stockholders as a group, acting through GAP LLC or its written designee (the
"INITIATING HOLDER(S)"), may make a written request to the Company to register,
under the Securities Act (other than pursuant to a registration statement on
Form S-4 or S-8 or any successor thereto) and under the securities or "blue
sky" laws of any jurisdiction designated by such holder or holders (a "DEMAND
REGISTRATION"), the number of Registrable Securities stated in such request;
provided, however, that the Company shall not be obligated to effect more than
one (1) Demand Registration pursuant to this Section 3. If at the time of any
request to register Registrable Securities pursuant to this Section 3(a), the
Company is engaged in, or has fixed plans to engage in within ninety (90) days
of the time of such request, a registered public offering or is engaged in any
other activity which, in the good faith determination of the Board of Directors
of the Company, would be materially adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a reasonable period not in
excess of (i) one hundred eighty (180) days from the effective date of such
offering or (ii) ninety (90) days from the date of completion of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period. In
addition, the Company shall not be required to effect any registration within
sixty (60) days after the effective date of any other Registration Statement of
the Company. Each request for a Demand Registration by the Initiating
Holder(s) shall state the amount of the Registrable Securities proposed to be
sold and the intended method of disposition thereof. Upon a request for a
Demand Registration, the Company shall promptly take such steps as are
necessary or appropriate to prepare for the registration of the Registrable
Securities to be registered.
(b) Incidental or "Piggy-Back" Rights with
Respect to a Demand Registration. Each of the Designated Holders (other than
the Initiating Holders) may offer its or his Registrable Securities under any
Demand Registration pursuant to this Section 3. Within ten (10) days after the
receipt from an Initiating Holder of a request for a Demand Registration, the
Company shall (i) give written notice thereof to all of the Designated Holders
(other than the Initiating Holder) and (ii) subject to Section 3(e), include in
such registration all of the Registrable Securities held by such Designated
Holders from whom the Company has received a written request for inclusion
therein within ten (10) days of the receipt by such Designated Holders of such
written notice referred to clause (i) above. Each such request by such
Designated Holders shall specify the number of Registrable Securities proposed
to be registered and the intended method of disposition thereof. The failure
of any Designated Holder to respond within such 10-day period referred to in
clause (ii) above shall be deemed to be a waiver of such Designated Holder's
rights under this Section 3, provided that any Designated Holder may waive its
rights under this Section 3 prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holder.
(c) Effective Demand Registration. The Company
shall use its best efforts to cause any such Demand Registration to become and
remain effective not later than
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13
ninety (90) days after it receives a request under Section 3(a) hereof. A
registration shall not constitute a Demand Registration until it has become
effective and remains continuously effective for the lesser of (i) the period
during which all Registrable Securities registered in the Demand Registration
are sold and (ii) 120 days; provided, however, that a registration shall not
constitute a Demand Registration if (x) after such Demand Registration has
become effective, such registration or the related offer, sale or distribution
of Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental
agency or court for any reason not attributable to the Initiating Holders and
such interference is not thereafter eliminated or (y) the conditions to closing
specified in the underwriting agreement, if any, entered into in connection
with such Demand Registration are not satisfied or waived, other than by reason
of a failure by the Initiating Holders.
(d) Expenses. In any registration initiated as a
Demand Registration pursuant to Section 3(a), the Company shall pay 50% of all
Registration Expenses (other than underwriting discounts and commissions) in
connection therewith (the "REGISTRATION EXPENSE CAP"), whether or not such
Demand Registration becomes effective.
(e) Underwriting Procedures. If the Initiating
Holders holding a majority of the Registrable Securities held by all of the
Initiating Holders to which the requested Demand Registration relates so elect,
the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of a firm commitment underwritten offering
and the managing underwriter or underwriters selected for such offering shall
be the Approved Underwriter (as hereinafter defined) selected in accordance
with Section 3(f). In connection with any Demand Registration under this
Section 3 involving an underwriting, none of the Registrable Securities held by
any Designated Holder making a request for inclusion of such Registrable
Securities pursuant to Section 3(b) hereof shall be included in such
underwriting unless such Designated Holder accepts the terms of the
underwriting as agreed upon by the Company, the Initiating Holders and the
Approved Underwriter, and then only in such quantity as will not, in the
opinion of the Approved Underwriter, jeopardize the success of such offering by
the Initiating Holders. If the Approved Underwriter advises the Company in
writing that in its opinion the aggregate amount of such Registrable Securities
requested to be included in such offering is sufficiently large to have a
material adverse effect on the success of such offering, then the Company shall
include in such registration only the aggregate amount of Registrable
Securities that in the opinion of the Approved Underwriter may be sold without
any such material adverse effect and shall reduce, first as to the Designated
Holders who requested to participate in such registration pursuant to Section
3(b) hereof) as a group, if any (other than the Initiating Holders and the GE
Capital Stockholders); and second as to the Initiating Holders and the GE
Capital Stockholders as a group, pro rata within each group based on the number
of Registrable Securities included in the request for Demand Registration.
(f) Selection of Underwriters. If any Demand
Registration of Registrable Securities is in the form of an underwritten
offering, the Initiating Holders holding a majority of the Registrable
Securities held by all such Initiating Holders shall select and
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14
obtain an investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER"); provided, however,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any
time after the IPO Effectiveness Date, if the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering by
the Company for its own account (other than a registration statement on Form
S-4 or S-8 or any successor thereto), then the Company shall give written
notice of such proposed filing to each of the Designated Holders of Registrable
Securities at least twenty (20) days before the anticipated filing date, and
such notice shall describe the proposed registration and distribution and offer
such Designated Holders the opportunity to register the number of Registrable
Securities as each such holder may request (an "INCIDENTAL REGISTRATION"). The
Company shall, and shall use its best efforts (within ten (10) days of the
notice provided for in the preceding sentence) to cause the managing
underwriter or underwriters of a proposed underwritten offering (the "COMPANY
UNDERWRITER") to permit each of the Designated Holders who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company included therein. In connection with any Incidental
Registration under this Section 4(a) involving an underwriting, the Company
shall not be required to include any Registrable Securities in such
underwriting unless the holders thereof accept the terms of the underwriting as
agreed upon between the Company and the Company Underwriter, and then only in
such quantity as will not, in the opinion of the Company Underwriter,
jeopardize the success of the offering by the Company. If in the written
opinion of the Company Underwriter the registration of all or part of the
Registrable Securities which the Designated Holders have requested to be
included would materially adversely affect such offering, then the Company
shall be required to include in such Incidental Registration, to the extent of
the amount that the Company Underwriter believes may be sold without causing
such adverse effect, first, all of the securities to be offered for the account
of the Company; second, the Registrable Securities to be offered for the
account of the Designated Holders pursuant to this Section 4, pro rata based on
the amount recommended by the Company Underwriter; and third, any other
securities requested to be included in such underwriting.
(b) Expenses. The Company shall bear all
Registration Expenses (other than underwriting discounts and commissions) in
connection with any Incidental Registration pursuant to this Section 4, whether
or not such Incidental Registration becomes effective; provided, however, that
each Designated Holder participating in such registration shall bear the costs
and expenses (including disbursements) of its own legal counsel.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Designated
Holders. Each of the Designated Holders agrees not to effect any public sale
or distribution of any Registrable
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15
Securities being registered or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a public
sale pursuant to Rule 144 under the Securities Act, during the ninety (90) day
period beginning on the effective date of such registration statement (except
as part of such registration), (i) in the case of a non-underwritten public
offering, if and to the extent requested by the Initiating Holders (in the
event of a Demand Registration pursuant to Section 3) or the Company (in the
event of an Incidental Registration pursuant to Section 4(a)), as the case may
be, or (ii) in the case of an underwritten public offering, if and to the
extent requested by the Approved Underwriter (in the event of a Demand
Registration pursuant to Section 3) or the Company Underwriter (in the event of
an Incidental Registration pursuant to Section 4(a)), as the case may be.
(b) Restrictions on Public Sale by the Company.
The Company agrees not to effect any public sale or distribution of any of its
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
registration statement in which the Designated Holders of Registrable
Securities are participating and ending on the earlier of (i) the date on which
all Registrable Securities registered on such registration statement are sold
and (ii) 90 days after the effective date of such registration statement.
6. Registration Procedures.
(a) Obligations of the Company. Whenever
registration of Registrable Securities has been requested pursuant to Section 3
or Section 4 of this Agreement, the Company shall use its best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method of distribution thereof as quickly as practicable, and
in connection with any such request, the Company shall, as expeditiously as
possible:
(i) use its best efforts to prepare and
file with the SEC a registration statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof, and use its best
efforts to cause such registration statement to become effective; provided,
however, that (x) before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall provide counsel selected
by the Designated Holders holding a majority of the Registrable Securities
being registered in such registration ("HOLDERS' COUNSEL") and any other
Inspector (as hereinafter defined) with an adequate and appropriate opportunity
to participate in the preparation of such registration statement and each
prospectus included therein (and each amendment or supplement thereto) to be
filed with the SEC, which documents shall be subject to the review of Holders'
Counsel, and (y) the Company shall notify the Holders' Counsel and each seller
of Registrable Securities of any stop order issued or threatened by the SEC and
take all reasonable action required to prevent the entry of such stop order or
to remove it if entered;
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16
(ii) prepare and file with the SEC 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 the lesser of (x) twelve (12) months and (y) such
shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold, and comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(iii) as soon as reasonably possible,
furnish to each seller of Registrable Securities, prior to filing a
registration statement, copies of such registration statement as is proposed to
be filed, and thereafter such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as each such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) use its reasonable best efforts to
register or qualify such Registrable Securities under such other securities or
"blue sky" laws of such jurisdictions as any seller of Registrable Securities
may request, and to continue such qualification in effect in such jurisdiction
for as long as permissible pursuant to the laws of such jurisdiction, or for as
long as any such seller requests or until all of such Registrable Securities
are sold, whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, however, that the Company shall not be required
to (x) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6(a)(iv), (y) subject
itself to taxation in any such jurisdiction or (z) consent to general service
of process in any such jurisdiction;
(v) use its reasonable best efforts to
cause the Registrable Securities covered by such registration statement 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 seller or sellers of Registrable Securities to consummate the
disposition of such Registrable Securities;
(vi) notify each seller of 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 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 to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made, and the Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
after delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
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17
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made;
(vii) enter into and perform customary
agreements (including an underwriting agreement in customary form with the
Approved Underwriter or Company Underwriter, if any, selected as provided in
Section 3 or Section 4, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(viii) make available for inspection by any
seller of Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (x)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the registration statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (z) the information in such Records was known to the Inspectors
on a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable Securities
agrees that it shall, upon learning that disclosure of such Records 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 Records deemed confidential;
(ix) if such sale is pursuant to an
underwritten offering, use its best efforts to obtain a "cold comfort" letter
from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort" letters
as Holders' Counsel or the managing underwriter reasonably request;
(x) use its reasonable best efforts to
furnish, at the request of any seller of Registrable Securities on the date
such securities are delivered to the underwriters for sale pursuant to such
registration or, if such securities are not being sold through underwriters, on
the date the registration statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if any, and
to the seller making such request, covering such legal matters with respect to
the registration in respect of which such opinion is being given as such seller
may reasonably request and are customarily included in such opinions;
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18
(xi) otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the SEC, and
make available to its security holders, as soon as reasonably practicable but
no later than fifteen (15) months after the effective date of the registration
statement, an earnings statement covering a period of twelve (12) months
beginning after the effective date of the registration statement, in a manner
which satisfies the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder;
(xii) cause all such Registrable Securities
to be listed on each securities exchange on which similar securities issued by
the Company are then listed, provided that the applicable listing requirements
are satisfied;
(xiii) keep Holders' Counsel advised in
writing as to the initiation and progress of any registration under Section 3
or Section 4 hereunder;
(xiv) cooperate with each seller of
Registrable Securities and each underwriter participating in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD"); and
(xv) use reasonable best efforts to take
all other steps necessary to effect the registration of the Registrable
Securities contemplated hereby.
(b) Seller Information. The Company may require
each seller of Registrable Securities as to which any registration is being
effected to furnish to the Company such information regarding the seller and
the distribution of such securities as the Company may from time to time
reasonably request in writing.
(c) Notice to Discontinue. Each Designated
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
6(a)(vi), such Designated Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Designated Holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 6(a)(vi) and, if
so directed by the Company, such Designated Holder shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Designated Holder's possession, of the prospectus covering such
Registrable Securities which is current at the time of receipt of such notice.
If the Company shall give any such notice, the Company shall extend the period
during which such registration statement shall be maintained effective pursuant
to this Agreement (including, without limitation, the period referred to in
Section 6(a)(ii)) by the number of days during the period from and including
the date of the giving of such notice pursuant to Section 6(a)(vi) to and
including the date when the Designated Holder shall have received the copies of
the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 6(a)(vi).
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19
(d) Registration Expenses. Subject to the
Registration Expense Cap in the case of a Demand Registration pursuant to
Section 3 and subject to Section 4(b) in the case of an Incidental
Registration, the Company shall pay all expenses arising from or incident to
the performance of, or compliance with, this Agreement, including, without
limitation, (i) SEC, stock exchange and NASD registration and filing fees, (ii)
all fees and expenses incurred in complying with securities or "blue sky" laws
(including reasonable fees, charges and disbursements of counsel in connection
with "blue sky" qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting fees, charges and expenses incurred by the
Company (including, without limitation, any expenses arising from any special
audits incident to or required by any registration or qualification) and any
legal fees, charges and expenses incurred by the Company and, in the case of a
Demand Registration, the Initiating Holders and (v) any liability insurance or
other premiums for insurance obtained in connection with any Demand
Registration or Incidental Registration pursuant to the terms of this
Agreement, regardless of whether such registration statement is declared
effective. All of the expenses described in this Section 6(d) are referred to
herein as "REGISTRATION EXPENSES".
7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any registration statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon 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, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In
connection with any registration statement in which a Designated Holder is
participating pursuant to Section 3 or Section 4 hereof, each such Designated
Holder shall furnish to the Company in writing such information with respect to
such Designated Holder as the Company may reasonably request or as may be
required by law for use in connection with any such registration statement or
prospectus and each Designated Holder agrees to indemnify and hold harmless, to
the fullest
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20
extent permitted by law, the Company, any underwriter retained by the Company
and their respective directors, officers, employees and each Person who
controls the Company or such underwriter (within the meaning of the Securities
Act and the Exchange Act) to the same extent as the foregoing indemnity from
the Company to the Designated Holders, but only with respect to any such
information with respect to such Designated Holder furnished in writing to the
Company by such Designated Holder expressly for use therein.
(c) Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees
to give prompt written notice to the indemnifying party (the "INDEMNIFYING
PARTY") after the receipt by the Indemnified Party of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; provided, however,
that the failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability that it may have to the Indemnified Party
hereunder. If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be entitled
to participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and satisfactory to such Indemnified
Party. The Indemnified Party shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall
be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to
pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel satisfactory to the Indemnified Party in its reasonable
judgment or (iii) the named parties to any such action (including any impleaded
parties) have been advised by such counsel that either (x) representation of
such Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to it which are different from or
additional to those available to the Indemnifying Party. In either of such
cases, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party. No Indemnifying Party shall
be liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification
provided for in this Section 7 from the Indemnifying Party is unavailable to an
Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and Indemnified Party in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative faults of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying
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Party or Indemnified Party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Sections 7(a), 7(b) and 7(c), any legal or
other fees, charges or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person.
8. Rule 144. The Company covenants that it shall file
(a) any reports required to be filed by it under the Exchange Act and (b) take
such further action as each Designated Holder of Registrable Securities may
reasonably request (including providing any information necessary to comply
with Rules 144 and 144A under the Securities Act), all to the extent required
from time to time to enable such Designated Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, or (ii) any similar rules or regulations
hereafter adopted by the SEC. The Company shall, upon the request of any
Designated Holder of Registrable Securities, deliver to such Designated Holder
a written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) Recapitalizations, Exchanges, etc.. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to (i) the shares of Common Stock and (ii) any and all equity
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in conversion of, in exchange for or in substitution of, the shares
of Common Stock and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof. The Company shall cause any successor or assign
(whether by merger, consolidation or otherwise) to enter into a new
registration rights agreement with the Designated Holders on terms
substantially similar to this Agreement as a condition of any such transaction.
(b) No Inconsistent Agreements. The Company
shall not enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Designated Holders in this
Agreement or grant any additional registration rights to any Person or with
respect to any securities which are not Registrable Securities which are prior
in right to or inconsistent with the rights granted in this Agreement.
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22
(c) Remedies. The Designated Holders, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, shall be entitled to specific performance of their rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive in any action for
specific performance the defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless consented to in writing by (i) the Company, (ii)
the ▇▇▇▇▇▇▇▇▇ Stockholders holding Registrable Securities representing (after
giving effect to any adjustments) at least 60% of the aggregate number of
Registrable Securities owned by all of the ▇▇▇▇▇▇▇▇▇ Stockholders, (iii) the
General Atlantic Stockholders holding Registrable Securities representing
(after giving effect to any adjustments) at least 60% of the aggregate number
of Registrable Securities owned by all of the General Atlantic Stockholders,
(iv) the Morino Stockholders holding Registrable Securities representing (after
giving effect to any adjustments) at least 60% of the aggregate number of
Registrable Securities owned by all of the Morino Stockholders, (v) the FBR
Stockholders holding Registrable Securities representing (after giving effect
to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the FBR Stockholders, (vi) the GE Capital
Stockholders holding Registrable Securities representing (after giving effect
to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the GE Capital Stockholders, (vii) the IBIS
Stockholders holding Registrable Securities representing (after giving effect
to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the IBIS Stockholders, (viii) the ▇▇▇▇ Stockholders
holding Registrable Securities representing (after giving effect to any
adjustments) at least 60% of the aggregate number of Registrable Securities
owned by all of the ▇▇▇▇ Stockholders, (ix) the Leonsis Stockholders holding
Registrable Securities representing (after giving effect to any adjustments) at
least 60% of the aggregate number of Registrable Securities owned by all of the
Leonsis Stockholders, (x) the ▇▇▇▇▇▇▇▇ Stockholders holding Registrable
Securities representing (after giving effect to any adjustments) at least 60%
of the aggregate number of Registrable Securities owned by all of the ▇▇▇▇▇▇▇▇
Stockholders and (xi) the WPC Stockholders holding Registrable Securities
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by all of the WPC
Stockholders. Any such written consent shall be binding upon the Company and
all of the Designated Holders.
(e) Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be made by registered or certified first-class mail, return receipt
requested, telecopier, courier service, overnight mail or personal delivery:
- 20 -
23
(i) if to the Company:
Proxicom, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
General Counsel
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(ii) if to the ▇▇▇▇▇▇▇▇▇ Stockholders:
c/o Proxicom, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
General Counsel
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
- 21 -
24
(iii) if to GAP LP, GAP 52, GAP Coinvestment I or GAP
Coinvestment II:
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iv) if to Morino Trust:
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust
c/o Morino Institute
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(v) if to FBR:
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ Capital Managers Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
- 22 -
25
(vi) if to GE Capital or GE Capital Equity:
GE Capital Equity Capital Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Legal Department
(vii) if to the IBIS Stockholders:
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o IBIS Consulting, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. Low
(viii) if to the ▇▇▇▇ Stockholders:
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- 23 -
26
(ix) if to the Leonsis Stockholders:
▇▇▇▇▇▇▇▇ ▇. Leonsis
America Online
▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: Attention: T. ▇▇▇▇▇ ▇▇▇▇, Esq.
(x) if to the ▇▇▇▇▇▇▇▇ Stockholders:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(xi) if the WPC Stockholders:
The Washington Post Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
with a copy to:
(x) if to any other Designated Holder, at its address as it
appears on the record books of the Company.
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied.
(f) Successors and Assigns; Third Party
Beneficiaries. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each
- 24 -
27
of the parties hereto. The Demand Registration rights of the General Atlantic
Stockholders contained in Section 3 hereof and the other rights of each of the
General Atlantic Stockholders with respect thereto shall be, with respect to
any Registrable Security, (i) automatically transferred among the General
Atlantic Stockholders and (ii) in all other cases, transferred only with the
consent of the Company. The incidental or "piggy-back" registration rights of
the Designated Holders contained in Sections 3(b) and 4 hereof and the other
rights of each of the Designated Holders with respect thereto shall be, with
respect to any Registrable Security, automatically transferred by such
Designated Holder to any Person who is the transferee of such Registrable
Security. All of the obligations of the Company hereunder shall survive any
such transfer. No Person other than the parties hereto and their successors
and permitted assigns is intended to be a beneficiary of any of the rights
granted hereunder.
(g) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) Severability. If any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired, it being intended that all of the rights and privileges of the
Designated Holders shall be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement, the other
Transaction Documents (as defined in the Series D Stock Purchase Agreement)
and, as between the Company and the IBIS Stockholders, the Merger Agreement,
are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein or therein.
This Agreement, the other Transaction Documents and, as between the Company and
the IBIS Stockholders, the Merger Agreement, supersede all prior agreements and
understandings between the parties with respect to such subject matter,
including, without limitation, the Amended and Restated Registration Rights
Agreement.
- 25 -
28
(l) Further Assurances. Each of the parties
shall execute such documents and perform such further acts as may be reasonably
required or desirable to carry out or to perform the provisions of this
Agreement.
- 26 -
29
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
PROXICOM, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
GENERAL ATLANTIC PARTNERS 34,
L.P.
By: GENERAL ATLANTIC
PARTNERS, LLC, Its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 52,
L.P.
By: GENERAL ATLANTIC
PARTNERS, LLC, Its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: A Managing Member
30
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: A General Partner
GAP COINVESTMENT PARTNERS II,
L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: A General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Trustee
FBR VENTURE CAPITAL MANAGERS
INC.
By: [signature illegible]
--------------------------------
Name:
------------------------------
Title:
-----------------------------
31
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: Regional Operations Manager
-----------------------------
GE CAPITAL EQUITY INVESTMENTS,
INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
32
THE WASHINGTON POST COMPANY
By: [signature illegible]
--------------------------------
