EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of this
29th day of March, 2001 by and between Concurrent Computer Corporation, a
Delaware corporation (the "COMPANY"), Comcast Concurrent Holdings, Inc., a
Delaware corporation (the "PROVIDER," and, together with any and all of its
permitted assignees of the rights granted hereunder, the "HOLDERS").
WHEREAS, concurrently with the execution of this Agreement, the Company and
Comcast Cable Communications of Pennsylvania, Inc. ("COMCAST") are entering into
a video-on-demand purchase agreement (the "VOD PURCHASE AGREEMENT") regarding
the purchase and deployment of the Company's video-on-demand equipment and
technologies by cable television systems operators controlled by Comcast and its
subsidiaries;
WHEREAS, concurrently with the execution of the this Agreement and the VOD
Purchase Agreement, the Provider is receiving a warrant to purchase 50,000
shares of Common Stock of the Company;
WHEREAS, concurrently with the execution of this Agreement and the VOD
Purchase Agreement, the Company and the Provider entered into a Warrant Issuance
Agreement (the "WARRANT ISSUANCE AGREEMENT"), pursuant to which the Provider is
entitled to receive additional warrants to purchase shares of Common Stock of
the Company upon the satisfaction of certain thresholds set forth in the Warrant
Issuance Agreement.
WHEREAS, as an inducement for and a condition to the Provider entering into
the Warrant Issuance Agreement and to Comcast entering into the VOD Purchase
Agreement, the Company has agreed to enter into this Registration Rights
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
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have the following respective meanings:
(a) "AFFILIATE" shall mean any person directly or indirectly
controlled by, controlling or under common control with another person, where
the term "control," for purposes of this definition, means the power to direct
the management of the person in question.
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
(c) "FORM S-3" shall mean such form under the Securities Act as is
in effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC that permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(d) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(e) The term "PERSON" shall mean any individual, partnership,
corporation, business trust, trust, unincorporated association, joint venture or
other entity of whatever nature.
(f) "REGISTRABLE SECURITIES" shall mean (i) the Common Stock
issued or issuable upon exercise of the Warrants and (ii) any Common Stock
issued as (or issued or issuable upon the conversion, exchange or exercise of
any Rights of the Company that are issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Warrants or the
Common Stock issued upon exercise of the Warrants. Notwithstanding the
foregoing, Registrable Securities shall not include any shares of Common Stock
that have been sold (1) to the public pursuant to a registration statement filed
under the Securities Act or (2) in reliance on the exemption from registration
provided by Rule 144 under the Securities Act or (3) in a private transaction in
which the transferor's rights under this Agreement are not assigned.
(g) "REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in connection with any registration, qualification or compliance
pursuant to the provisions hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company and the underwriters (unless otherwise provided for in
subsection (k) below), blue sky fees and expenses and the expenses of any audits
incident to or required by any such registration.
(h) "RIGHTS" shall mean any options, warrants, securities, rights
or other instruments convertible into or exchangeable or exercisable for, or
otherwise giving the holder thereof the right to acquire, with or without
consideration, directly or indirectly, any Common Stock or any other such
option, warrant, security, right or instrument, including any instrument the
value of which is measured by reference to the value of the Common Stock.
(i) "SEC" shall mean the United States Securities and Exchange
Commission.
(j) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(k) "SELLING EXPENSES" shall mean (i) all underwriting discounts
and selling commissions applicable to a sale of Registrable Securities and (ii)
if the registration is demanded by the Provider or any other Holder, the fees
and expenses of counsel to the underwriters (if applicable).
(l) The term "UNDERWRITER" shall have the meaning ascribed to such
term in Section 2(11) of the Securities Act, including any person deemed to be
an underwriter within the meaning of Section 2(11) of the Securities Act.
(m) "WARRANTS" shall mean the Commitment Warrants, the Incentive
Warrants and the Cliff Warrants as those terms are defined in the Warrant
Issuance Agreement.
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2. Registration Under the Securities Act.
(a) Demand Registration.
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(i) Subject to the provisions set forth in this Section
2(a)(i), at any time and from time to time, any Holder or Holders may elect, by
giving written notice thereof to the Company, to require the Company to use its
reasonable best efforts to register all or a portion of the Registrable
Securities of such Holder or Holders (each, an "INITIATING HOLDER," and,
collectively, the "INITIATING HOLDERS") under the Securities Act; provided,
however, that the Company shall be obligated to use its reasonable best efforts
to register the Registrable Securities upon such demand only if the number of
Registrable Securities to be so registered is at least (A) 65,000 shares (as
adjusted for stock splits, stock dividends, combinations, reorganizations,
reclassifications and other similar events) or (B) all of the Initiating
Holder's shares of Registrable Securities, if such Holder holds fewer than
65,000 shares of Registrable Securities. Promptly following such demand, the
Company shall (A) give notice to each other Holder of Registrable Securities of
such demand, which notice shall set forth the identity of the Initiating
Holders, and (B) use its reasonable best efforts, in accordance with the
provisions of Section 3(a), to cause to be declared or become effective under
the Securities Act a Form S-3 registration statement providing for the
registration of, and the sale in accordance with the intended method or methods
of distribution thereof by the Initiating Holders of, the Registrable Securities
to be so registered. Any other Holder of Registrable Securities may elect, by
giving written notice to such effect to the Company no later than 10 business
days after the Company shall have given the notice referred to in clause (A) of
the preceding sentence, to have all or a portion of such Holder's Registrable
Securities included in such registration, and such Holder shall thereby become
an Initiating Holder with respect to such registration for all purposes
hereunder. If the Company is not then eligible to use Form S-3, the
registration statement shall be filed using such form as may be available for
the proposed distribution by the Initiating Holders with which it is least
burdensome for the Company to comply. Subject to the provisions in Section 5
and, as set forth in Section 10, the termination of the registration rights
granted under this Agreement, the Holders shall be limited to two demands made
under this Section 2(a)(i) for an underwritten registration of Registrable
Securities and the Company shall not be required to effect any registration (A)
within 90 days of the effective date of any registration made under Section 2(a)
or Section 2(b) or (B) within 90 days of the date on which any registration has
been withdrawn under Section 2(c).
(ii) If, in connection with a registration of Registrable
Securities pursuant to Section 2(a)(i), any managing underwriter shall advise
the Initiating Holders in writing that, in its opinion, the inclusion in the
registration statement of some or all of the Registrable Securities sought to be
registered by the Initiating Holders creates a substantial risk that the price
per unit that such Initiating Holders will derive from such registration will be
materially and adversely affected or that the number of Registrable Securities
sought to be registered is too large a number to be reasonably sold, the Company
will include in such registration statement such number of Registrable
Securities as the Initiating Holders are so advised can reasonably be sold in
such offering, or can be sold without such an effect, allocated pro rata and
without any priority as between the Initiating Holders, in proportion to the
number of Registrable Securities that each Initiating Holder owns or has the
right to acquire relative to
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the total number of Registrable Securities that all Initiating Holders own or
have the right to acquire.
(b) "Piggyback" Registration.
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(i) If, at any time, the Company proposes to register any of
its Common Stock, Rights or other equity securities under the Securities Act on
Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form then
in effect) for purposes of an offering or sale by or on behalf of the Company of
its Common Stock, Rights or other equity securities for its own account (a
"PRIMARY OFFERING"), or upon the request or for the account of any holder of its
Common Stock, Rights or other equity securities (a "SECONDARY OFFERING"), or for
purposes of a combined primary and secondary offering (a "COMBINED OFFERING"),
then each such time the Company shall, at least 20 business days prior to the
time when any such registration statement is filed with the Commission, give
prompt written notice to the Holders of its intention to do so. Such notice
shall specify, at a minimum, the number and class of shares, Rights or equity
securities so proposed to be registered, the proposed date of filing of such
registration statement, any proposed means of distribution of such shares,
Rights or securities, any proposed managing underwriter or underwriters of such
shares, Rights or securities and a good faith estimate by the Company of the
proposed maximum offering price thereof, as such price is proposed to appear on
the facing page of such registration statement. Upon the written direction of
any Holder or Holders, given within 15 business days following the receipt by
such Holder of any such written notice (which direction shall specify the number
of Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall include in such
registration statement any or all of the Registrable Securities then held by
such Holder requesting such registration (a "SELLING HOLDER") to the extent
necessary to permit the sale or other disposition of such number of Registrable
Securities as such Holder has so directed the Company to be so registered.
Notwithstanding the foregoing, the Holders shall not have any right under this
Section 2(b)(i) if the registration proposed to be effected by the Company
relates solely to shares of Common Stock, Rights or other equity securities
which are issuable solely to officers or employees of the Company or any
subsidiary thereof pursuant to a bona fide employee stock option, bonus or other
employee benefit plan or as direct consideration in connection with a merger,
exchange offer or acquisition of a business.
(ii) If the Company proposes to register shares of Common
Stock, Rights or other equity securities for purposes of a primary offering, and
any managing underwriter shall advise the Company and the Selling Holders in
writing that, in its opinion, the inclusion in the registration statement of
some or all of the Registrable Securities sought to be registered by such
Selling Holders creates a substantial risk that the price per unit the Company
will derive from such registration will be materially and adversely affected or
that the number of shares, Rights or securities sought to be registered
(including, in addition to the securities sought to be registered by the
Company, any securities sought to be included in such registration statement by
any other stockholder pursuant to "piggyback" registration rights (a "PIGGYBACK
STOCKHOLDER") and those sought to be registered by the Selling Holders) is too
large a number to be reasonably sold, then the Company will include in such
registration statement such number of shares, Rights or securities as the
Company, the Piggyback Stockholders and such Selling Holders are so advised can
be sold in such offering without such an effect (the "PRIMARY
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MAXIMUM NUMBER"), as follows and in the following order of priority: (A) first,
such number of shares, Rights or securities as the Company, in its reasonable
judgment and acting in good faith and in accordance with sound financial
practice, shall have determined, and (B) second, if and to the extent that the
number of shares, Rights or securities to be registered under clause (A) is less
than the Primary Maximum Number, shares, Rights or securities of each Selling
Holder and Piggyback Stockholder pro rata, and without any priority as between
the Selling Holders and such Piggyback Stockholders, in proportion to the number
sought to be registered by each Selling Holder and each such Piggyback
Stockholder relative to the number sought to be registered by all the Selling
Holders and all such Piggyback Stockholders, which in the aggregate, when added
to the number of shares, Rights or securities to be registered under clause (A),
equals the Primary Maximum Number.
(iii) If the Company proposes to register shares of Common
Stock or other equity securities for purposes of a secondary offering, upon the
request or for the account of any holder thereof pursuant to "demand"
registration rights of such holder including, without limitation, the Provider
or any other Holder (each a "REQUESTING HOLDER"), and any managing underwriter
shall advise the Requesting Holder or Holders and the Selling Holders in writing
that, in its opinion, the inclusion in the registration statement of some or all
of the shares, Rights or securities sought to be registered by the Requesting
Holders and of the Registrable Securities sought to be registered by the Selling
Holders creates a substantial risk that the price per unit that such Requesting
Holder or Holders and such Selling Holders will derive from such registration
will be materially and adversely affected or that the number of shares, Rights
or securities sought to be registered (including any securities sought to be
registered at the instance of the Requesting Holder or Holders, any securities
sought to be included in such Registration Statement by any Piggyback
Stockholder and those sought to be registered by the Selling Holders) is too
large a number to be reasonably sold, the Company will include in such
registration statement such number of shares, Rights or securities as the
Requesting Holders and the Selling Holders are so advised can reasonably be sold
in such offering, or can be sold without such an effect (the "SECONDARY MAXIMUM
NUMBER"), as follows and in the following order of priority: (A) first, such
number of shares, Rights or securities as the Requesting Holder shall have
requested, and (B) second, if and to the extent that the number of shares,
Rights or securities to be registered under clause (A) is less than the
Secondary Maximum Number, shares, Rights or securities of each Selling Holder
and Piggyback Stockholder pro rata, and without any priority as between the
Selling Holders and each such Piggyback Stockholders, in proportion to the
number sought to be registered by each Selling Holder and such Piggyback
Stockholder relative to the number sought to be registered by all the Selling
Holders and all such Piggyback Stockholders, which, in the aggregate, when added
to the number of shares, Rights or securities to be registered under clause (A),
equals the Secondary Maximum Number.
(iv) If the Company proposes to register shares of Common
Stock, Rights or other equity securities for purposes of a combined offering,
and any managing underwriter shall advise the Company, the Requesting Holder or
Holders and the Selling Holders in writing that, in its opinion, the inclusion
in the registration statement of some or all of the Registrable Securities
sought to be registered by the Selling Holders and any shares, Rights or
securities sought to be registered by Piggyback Stockholders creates a
substantial risk that the price per unit the Company and/or the Requesting
Holders will derive from such registration will
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be materially and adversely affected, then the Company will include in such
registration statement such number of shares, Rights or securities as the
Company, the Requesting Holders, the Piggyback Stockholders and the Selling
Holders are so advised can be sold in such offering without such an effect (the
"COMBINED MAXIMUM NUMBER"), as follows and in the following order of priority:
(A) first, such number of shares, Rights or securities as the Company, in its
reasonable judgment and acting in good faith and in accordance with sound
financial practice, shall have determined, and any shares, Rights or securities
sought to be registered by any Requesting Holders, (B) second, if and to the
extent that the number of shares, Rights or securities to be registered under
clause (A) is less than the Combined Maximum Number, shares, Rights or
securities of each Selling Holder and Piggyback Stockholder pro rata, and
without any priority as between the Selling Holders and each such Piggyback
Stockholders, in proportion to the number sought to be registered by each
Selling Holder and each such Piggyback Stockholder relative to the number sought
to be registered by all the Requesting Holders and Selling Holders, which, in
the aggregate, when added to the number of shares, Rights or securities to be
registered under clause (A), equals the Combined Maximum Number.
(c) Withdrawals. Any Holder having notified or directed the Company
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to include any or all of such Holder's Registrable Securities in a registration
statement pursuant to Section 2(a) or 2(b) hereof shall have the right to
withdraw such notice or direction with respect to any or all of the Registrable
Securities designated for registration thereby by giving written notice to such
effect to the Company at least five business days prior to the anticipated
effective date of such registration statement. In the event of any such
withdrawal, the Company shall amend such registration statement and take such
other actions as may be necessary so that such withdrawn Registrable Securities
are not included in the applicable registration and not sold pursuant thereto,
and such withdrawn Registrable Securities shall continue to be Registrable
Securities in accordance herewith. No such withdrawal shall affect the
obligations of the Company with respect to Registrable Securities not so
withdrawn; provided, however, that in the case of a registration pursuant to
Section 2(a) if such withdrawal shall reduce the total number of Registrable
Securities to be so registered to less than 65,000 shares (as adjusted for stock
splits, stock dividends, combinations, reorganizations, reclassifications and
other similar events), then the Company shall, prior to the filing or
effectiveness, as appropriate, of such registration statement, give each Holder
of Registrable Securities so to be registered notice, referring to this
Agreement, of such fact and, within 10 business days following the giving of
such notice, either the Company or the Holders of a majority of such Registrable
Securities may, by written notice to each Holder of such Registrable Securities
and the Company, as the case may be, elect that such registration statement not
be filed or, if it has theretofore been filed, that it be withdrawn. During
such 10 business day period, the Company shall not file such registration
statement or, if it has theretofore been filed, shall use its reasonable best
efforts not to permit it to become effective. In the event of any election
contemplated by the proviso to the next preceding sentence, no registration
statement with respect to Registrable Securities shall thereafter be filed with
the SEC without compliance with all of the procedures set forth in Section 2(a)
hereof.
3. REGISTRATION PROCEDURES
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(a) Company Obligations. In connection with the Company's
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obligations with respect to any registration of Registrable Securities pursuant
to Section 2 hereof, the
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Company shall use its reasonable best efforts to effect or cause such
registration to permit the sale of the Registrable Securities by the Holders
thereof in accordance with the intended method or methods of distribution
thereof described in the registration statement relating thereto and to maintain
the effectiveness of such registration statement for the period from the date of
effectiveness (the "EFFECTIVE DATE") of such registration statement until the
earlier of (x) 180 days after the Effective Date and (y) the date on which the
disposition of all of the Registrable Securities covered by such registration
statement is completed (such period, the "REGISTRATION PERIOD"). In connection
therewith, the Company shall, as soon as reasonably possible:
(i) prepare and file with the SEC a registration statement on
Form S-3, or such other form as may be utilized by the Company and as shall
permit the disposition of the Registrable Securities in accordance with the
intended method or methods thereof, as specified in writing by the Holders
thereof, and use its reasonable best efforts to cause such registration
statement to become effective as soon as reasonably possible thereafter;
(ii) (A) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to keep such registration
statement effective during the Registration Period and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of the Registrable Securities by the Holders, and (B) furnish to the Holders of
Registrable Securities registered thereby and the underwriters, if any, thereof
and the sales or placement agent, if any, therefor copies of any such supplement
or amendment prior to its being used and/or filed with the SEC;
(iii) comply in all material respects with the provisions of
the Securities Act applicable to the Company with respect to the disposition of
all of the Registrable Securities covered by such registration statement in
accordance with the intended method or methods of disposition by the Holders
thereof;
(iv) provide (A) any Holder registering more than 10% of the
Registrable Securities to be registered, (B) the underwriters, if any, thereof,
(C) the sales or placement agent, if any, therefor, (D) counsel for such
underwriters or agent, and (E) counsel for the Holders thereof the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the SEC and each supplement or
amendment thereto;
(v) furnish to each of the parties referred to in Section
3(a)(iv) and to each other Holder of Registrable Securities to be registered in
such registration statement (A) such number of copies (including manually
executed and conformed copies) of such registration statement and of each
amendment thereof and supplement thereto (including all annexes, appendices,
schedules and exhibits), (B) such number of copies of the prospectus used in
connection with such registration statement (including each preliminary
prospectus, any summary prospectus and the final prospectus and including
prospectus supplements), and (C) such number of copies of other documents, if
any, incorporated by reference in such registration statement or prospectus, in
each case as each respective party may reasonably request in order to facilitate
the offering and disposition of the Registrable Securities owned by any such
Holder,
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offered or sold by such agent, or underwritten by such underwriter, and to
permit each Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including each preliminary prospectus, any summary
prospectus and the final prospectus) and any amendment or supplement thereto by
each Holder and by any such agent and underwriter, in each case in the form most
recently provided to such party by the Company, in connection with the offering
and sale of the Registrable Securities covered by the prospectus (including each
preliminary prospectus, any summary prospectus and the final prospectus) or any
supplement or amendment thereto;
(vi) promptly notify the Holders of Registrable Securities
registered thereby, the managing underwriter or underwriters, if any, thereof
and the sales or placement agent, if any, therefor and, if requested by any such
party, confirm such notification in writing, (A) when a prospectus or any
prospectus supplement has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has been filed with and
declared effective by the SEC, (B) of the issuance by the SEC of any stop order
or the coming to its knowledge of the initiation of any proceedings for that
purpose, (C) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (D) of the occurrence of any event that requires the making of any
changes to the registration statement or related prospectus so that such
documents will not contain any untrue statement of a material fact or omit to
state any 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 the Company shall promptly prepare and furnish to the
parties referred to in Section 3(a)(v), upon request, a reasonable number of
copies of a supplemented or amended prospectus such that, as thereafter
delivered to the purchasers of the Registrable Securities, 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 are made, not misleading), and
(E) of the Company's determination that the filing of a post-effective amendment
to the registration statement shall be necessary or appropriate; and, upon the
receipt of any notice from the Company of the occurrence of any event of the
kind described in this Section 3(a)(vi)(B), (C) (but only with respect to the
jurisdiction suspending qualification), (D) or (E), (1) the Holders,
underwriters and agents shall forthwith discontinue any offer and disposition of
the Registrable Securities pursuant to the registration statement covering such
Registrable Securities and, if so directed by the Company, shall deliver to the
Company all copies (other than permanent file copies) of the defective
prospectus covering such Registrable Securities that are then in the Holders',
underwriters' and agents' possession or control, and (2) the Company shall, as
promptly as practicable thereafter (subject, in the case of Section 3(a)(vi)(D),
to the provisions of Section 5), take such action as shall be necessary to
remedy such event to permit the Holders (and the underwriters and agents, if
any) to continue to offer and dispose of the Registrable Securities, including,
without limitation, preparing and filing with the SEC and furnishing to the
parties referred to in Section 3(a)(v) a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of the
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
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the statements therein, in the light of the circumstances under which they were
made, not misleading;
(vii) use its reasonable best efforts to register or qualify
the Registrable Securities covered by such registration statement under and to
the extent required by such other securities or state blue sky laws of such
jurisdictions as any Holder, underwriter or sales or placement agent shall
request, and do any and all other acts and things that may be necessary under
such securities or blue sky laws to enable the Holders, underwriters and agents
to consummate the public sale or other disposition in such jurisdictions of the
Registrable Securities owned by the Holders, except that the Company shall not
for any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or submit to
liability for state or local taxes where it would not otherwise be liable for
such taxes;
(viii) for a reasonable period prior to the filing of such
registration statement, and throughout the Registration Period, make available
for inspection by the parties referred to in Section 3(a)(iv), subject to
execution and delivery of a confidentiality agreement in customary form in favor
of the Company by the Holders seeking to exercise such inspection rights, such
financial and other information and books and records of the Company, and cause
the officers, directors, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in Section
3(a)(iv), to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act;
(ix) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Holder, promptly incorporate
in a prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the SEC and as such managing
underwriter or underwriters, such agent or such Holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold by the Holders or agent or to any
underwriters, the name and description of the Holders, agent or underwriter, the
offering price of such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by the Holders or agent or to
such underwriters; and make all required filings of such prospectus supplement
or post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(x) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state or
local, that may be required to effect such registration or the offering or sale
in connection therewith or to enable the Holders to offer, or to consummate the
disposition of, the Registrable Securities;
(xi) furnish to the Holders or the managing underwriters, if
any, on a timely basis and at the Company's expense, certificates free of any
restrictive legends representing ownership of the Registrable Securities being
sold in such denominations and
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registered in such names as the Holders or managing underwriters shall request,
and notify the transfer agent of the Company's securities that it may effect
transfers of the Registrable Securities upon notification from each respective
Holder that it has complied with this Agreement and the prospectus delivery
requirements of the Securities Act;
(xii) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, and take such other actions in connection
therewith as the Holders shall reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities so registered;
(xiii) (A) make such representations and warranties to the
Holders and the placement or sales agent, if any, therefor and the underwriters,
if any, thereof in form, substance and scope as are customarily made in
connection with an underwritten or a non-underwritten offering, as the case may
be, of common stock or other equity securities pursuant to any appropriate
agreement and/or to a registration statement filed on the form applicable to
such registration; (B) if any portion of the offering contemplated by the
registration statement is an underwritten offering, use its reasonable best
efforts to obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an opinion, as
the managing underwriters, if any, and as the Holders may reasonably request,
addressed to the Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof, and dated the Effective Date (and if such
registration statement contemplates an underwritten offering of a part or all of
the Registrable Securities, dated the date of the closing under the underwriting
agreement relating thereto); (C) if any portion of the offering contemplated by
the registration statement is an underwritten offering, use its reasonable best
efforts to obtain a "comfort" letter or letters from the independent certified
public accountants of the Company addressed to the Holders and the placement or
sales agent, if any, therefor and the underwriters, if any, thereof, dated (1)
the Effective Date, (2) the effective date of each prospectus supplement, if
any, to the prospectus included in such registration statement or post-effective
amendment to such registration statement that includes unaudited or audited
financial statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus and (3) if such registration
statement contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement that includes unaudited
or audited financial statements as of a date or for a period subsequent to that
of the latest such statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto, such letter or
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably requested
by the Holders and the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) of this Section
3(a)(xiii) and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement entered
into by the Company; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in Section 6
hereof;
- 10 -
(xiv) If (A) any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the NASD) thereof,
whether as a Holder of Registrable Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise, or (B)
more than 10% of the net offering proceeds, not including underwriting
compensation, of such distribution is intended to be paid to any such
broker-dealer or "associated or affiliated persons" of such broker-dealer or
"members of the immediate family of such persons" (each within the meaning of
such Rules), the Company shall take reasonable steps to assist such
broker-dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by (1) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in such Schedule) to
participate in the preparation of the registration statement relating to such
Registrable Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a placement or sales
agent, to recommend the price of such Registrable Securities, (2) indemnifying
any such qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 6 hereof, and (3) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules of Fair Practice of the NASD;
(xv) comply with all applicable rules and regulations of the
SEC, and make generally available to its securityholders, as soon as practicable
but in any event not later than 18 months after the Effective Date, an earning
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company, Rule 158
thereunder); and
(xvi) use its reasonable best efforts to list prior to the
Effective Date, subject to notice of issuance, the Registrable Securities
covered by such registration statement, to the extent they are not already so
listed, on the Nasdaq National Market System or such other securities exchange
or quotation system on which the Common Stock is then listed or quoted.
(b) Holders' Obligations.
--------------------
(i) It shall be a condition precedent to the Company's
obligations under Section 2 hereof that each of the Holders included in any
registration hereunder furnish to the Company in writing such information
regarding that Holder and the distribution of the Registrable Securities
proposed by that Holder as the Company may reasonably request to complete or
amend the information required by the registration statement to be filed by the
Company pursuant to Section 3(a).
(ii) The Holders included in any registration hereunder
shall, and shall cause the underwriters, if any, thereof and the sales or
placement agents, if any, therefor to, (A) offer to sell or otherwise distribute
the Registrable Securities in reliance upon a registration contemplated by this
Agreement only after a registration statement shall have been filed with the
SEC, (B) sell or otherwise distribute the Registrable Securities in reliance
upon such registration
- 11 -
only if a registration statement is then effective under the Securities Act, (C)
comply with the provisions of Section 3(a)(vi)(1) hereof, (D) distribute the
Registrable Securities only in accordance with the manner of distribution
contemplated by the prospectus and (E) report to the Company distributions made
by the Holders, the underwriters or the agents of Registrable Securities
pursuant to the prospectus.
(iii) The Holders of Registrable Securities included in any
registration hereunder, and the underwriters, if any, thereof and the sales or
placement agents, if any, therefor, shall not, during the Registration Period,
(A) effect any stabilization transactions or engage in any stabilization
activity in connection with the Common Stock or other equity securities of the
Company in contravention of Regulation M under the Exchange Act, or (B) permit
any "Affiliated Purchaser" (as that term is defined in Regulation M under the
Exchange Act) to bid for or purchase for any account in which any such Holder
has a beneficial interest, or attempt to induce any other Person to purchase,
any shares of Common Stock or other equity securities in contravention of
Regulation M under the Exchange Act.
4. REGISTRATION EXPENSES. The Company shall bear and pay or cause to be
---------------------
paid promptly upon request being made therefor all Registration Expenses;
provided that the Company shall not be obligated to pay the costs related to the
preparation of any audited financial statements included in any registration
statement required to be prepared and filed by it pursuant to the terms hereof
as of any date other than June 30 (or the end of any fiscal year, if other than
June 30) or for any audited financial statements for a period of less than
twelve months or ending on any date other than June 30 (or the end of its fiscal
year, if other than June 30), unless such audited financial statements are
prepared in conjunction with a primary offering by the Company. The Holders of
the Registrable Securities so registered shall bear and pay or cause to be paid
promptly upon request being made therefor all Selling Expenses, allocated pro
rata on the basis of the number of Registered Securities so registered by each
Holder.
5. INFORMATION BLACKOUT.
--------------------
(a) In the event that, following any demand pursuant to Section
2(a)(i) hereof but prior to the filing of a registration statement in respect of
such demand, (i) the Company, after consultation with outside counsel,
determines reasonably and in good faith that the sale of Registrable Securities
pursuant to a registration statement filed hereunder would require disclosure of
non-public material information, the disclosure of which at such time could
reasonably be expected to have a material adverse effect on the business or
affairs of the Company or a material adverse effect on any proposal or plan by
the Company or any of its subsidiaries to engage in any extraordinary engagement
or activity by the Company, including, without limitation, any material
acquisition of assets or any merger, consolidation, tender offer or similar
transaction, and (ii) the Company gives the Initiating Holders written notice of
such determination (which notice shall include a copy of the resolutions of the
Board of Directors of the Company reflecting such determination), the Company
shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to
postpone for up to 60 days the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 2(a)(i) hereof (the
- 12 -
number of days of any such postponement is hereinafter called a "REGISTRATION
POSTPONEMENT PERIOD").
(b) At any time when a registration statement covering Registrable
Securities is effective, upon written notice from the Company to the Holders of
Registrable Securities included in such registration statement, and the
underwriters, if any, thereof and the sales or placement agents, if any,
therefor, that the Company, after consultation with outside counsel, has
determined reasonably and in good faith that the sale of Registrable Securities
pursuant to the registration statement would require disclosure of non-public
material information, the disclosure of which at such time could reasonably be
expected to have a material adverse effect on the business or affairs of the
Company or a material adverse effect on any proposal or plan by the Company or
any of its subsidiaries to engage in any extraordinary engagement or activity by
the Company, including, without limitation, any material acquisition of assets
or any merger, consolidation, tender offer or similar transaction, such Holders,
underwriters and agents shall suspend sales of the Registrable Securities
pursuant to the registration statement until the earlier of (i) 60 days after
the Company notifies the Holders, underwriters and agents of such good faith
determination, or (ii) such time as the Company notifies the Holders,
underwriters and agents that such material information has been disclosed to the
public or has ceased to be material or that sales pursuant to the registration
statement may otherwise be resumed (the number of days from such suspension of
sales by the Holders until the day when such sales may be resumed hereunder is
hereinafter called a "SALES BLACKOUT PERIOD").
(c) No Registration Postponement Period or Sales Blackout Period
shall be commenced by the Company within 90 days after the end of a Registration
Postponement Period or Sales Blackout Period, and the Company shall not be
permitted to commence more than two Registration Postponement Periods or Sales
Blackout Periods, collectively, in any 12 month period.
(d) No Registration Postponement Period or Sales Blackout Period
shall preclude any sales of Registrable Securities that the Holder thereof may
effect in compliance with Rule 144 without registration of such Registrable
Securities under the Securities Act; provided that the Holder otherwise conforms
with the requirements under the Securities Act and the Exchange Act.
6. INDEMNIFICATION.
---------------
(a) Indemnification by the Company. Upon the registration of any
------------------------------
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless the Holders, their respective officers, directors, members and
partners, and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act ("HOLDER INDEMNITEES"), from and against any and
all claims, liabilities, losses, damages, expenses and judgments, joint or
several, to which they or any of them may become subject, including any amount
paid in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as such losses, claims, damages, liabilities or actions shall arise out
of, or shall be based upon, any violation or alleged violation by the Company of
the Securities Act, any blue sky laws or securities laws of
- 13 -
any state or county in which the Registrable Securities are offered, and
relating to action taken or action or inaction required of the Company in
connection with such offering, or shall arise out of, or shall be based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement (or in any preliminary or final prospectus included
therein) relating to the offering and sale of the Registrable Securities, or any
amendment thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, the Company shall not be liable to any Holder
Indemnitee in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission or alleged omission, if such statement
or omission shall have been (i) made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of any Holder
Indemnitee for inclusion in such registration statement (or in any preliminary
or final prospectus included therein), or any amendment thereof or supplement
thereto, or (ii) made in any preliminary prospectus and the final prospectus
shall have corrected such statement or omission and a copy of such final
prospectus shall have been delivered to the Holder Indemnitee prior to the time
such final prospectus is required to be delivered by such Holder Indemnitee
under applicable law. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder Indemnitee
and shall survive the transfer of such securities. The foregoing indemnity
agreement is in addition to any liability that the Company may otherwise have to
any Holder Indemnitee.
(b) Indemnification by the Holder and Any Underwriters. The Company
--------------------------------------------------
may require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2 hereof and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking from the Holder thereof and from each underwriter named
in such underwriting agreement, severally and not jointly, to indemnify and hold
harmless the Company and all other Holders, if any, of Registrable Securities
selling under the same registration statement, their respective officers and
directors and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act (the "COMPANY INDEMNITEES"), from and against any
and all claims, liabilities, losses, damages, expenses and judgments, joint or
several, to which they or any of them may become subject, including any amount
paid in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions shall arise
out of, or shall be based upon, any violation or alleged violation by the Holder
or underwriters of the Securities Act, any blue sky laws or securities laws of
any state or country in which the Registrable Securities are offered, and
relating to action taken or action or inaction required of the Holder or
underwriters in connection with such offering, or shall arise out of, or shall
be based upon, any untrue statement or alleged untrue statement of a material
fact contained in such registration statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of the
Registrable Securities or any amendment thereof or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but in each case (i)
- 14 -
only to the extent that such untrue statement is contained in, or such fact is
omitted from, information furnished to the Company in writing by or on behalf of
the Holder for inclusion in the registration statement (or in any preliminary or
final prospectus included therein), and (ii) if such statement or omission is
incorporated by the Company in any preliminary prospectus, only to the extent
that such statement or omission shall not have been corrected in writing by or
on behalf of the Holder prior to the time the final prospectus is required to be
delivered by the Company under applicable law. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Company Indemnitee. The foregoing indemnity is in addition to any liability
that the Holder and underwriters may otherwise have to any Company Indemnitee.
(c) Indemnification Procedures. In case any proceeding (including
--------------------------
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this Section 6, such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing. No
indemnification provided for in subsection (a) or (b) shall be available to any
person who shall fail to give notice as provided in this subsection (c) if the
indemnifying party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was materially prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability that it or they may
have to the indemnified party for indemnification pursuant to subsection (a) or
(b) to the extent it was not materially prejudiced. In case any such proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing,
the indemnifying party shall pay as incurred the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel, in the written opinion
of such counsel, would be inappropriate due to actual or potential differing
interests between them, or (iii) the indemnifying party does not promptly defend
the indemnified party. The indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties (in addition to local counsel if required). Such firm shall
be designated in writing by the Holder in the case of Holder Indemnitees and by
the Company in the case of Company Indemnitees. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent (which consent shall not be unreasonably withheld) but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. The obligations of the
Company and the Holders and underwriters under this Section 6 shall survive the
- 15 -
completion of any offering of Registrable Securities pursuant to a registration
effected pursuant to Section 2 hereof.
(d) Limitations on Indemnity.
------------------------
(i) The indemnity provided for hereunder shall not inure to the
benefit of any indemnified party to the extent that the claim is based on such
indemnified party's failure to comply with the applicable prospectus delivery
requirements of the Securities Act as then applicable to the person asserting
the loss, claim, damage or liability for which indemnity is sought.
(ii) In no event shall the liability of any Holder or
underwriter under this Section 6, whether for indemnification or contribution,
exceed the net proceeds received by the Holder or underwriter from the sale of
Registrable Securities pursuant to the registration effected pursuant to Section
2 hereof.
(e) Contribution. If the indemnification provided for in this
------------
Section 6 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any claims, liabilities, losses, damages,
expenses or judgments referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall to the extent permitted by
applicable law contribute to the amount paid or payable by such indemnified
party as a result of such claim, liability, loss, damage, expense or judgment 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 circumstances that resulted in such claim, liability, loss,
damage, expense or judgment, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or any other method of allocation that does not take into account the
equitable consideration referred to in this paragraph (e).
7. DESIGNATION OF MANAGING UNDERWRITER(S).
--------------------------------------
(a) Demand Registration. If any of the Registrable Securities
-------------------
covered by any registration statement filed pursuant to Section 2(a) hereof are
to be sold pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be a nationally recognized investment banking firm
designated by the Initiating Holders, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the Company.
(b) Company Registration. If any of the Registrable Securities
--------------------
covered by any registration statement filed pursuant to Section 2(b) hereof are
to be sold pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be designated by
- 16 -
the Company, and no Holder of Registrable Securities so to be offered shall be
entitled to participate therein unless such Holder agrees to sell its
Registrable Securities pursuant to the terms of the underwriting arrangement as
agreed upon between the Company and the designated managing underwriter or
underwriters, and to complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangement.
8. RULE 144. With a view to making available to the Holders the benefits
--------
of Rule 144 and any other rule or regulation of the SEC that may at any time
permit the Holders to sell securities of the Company to the public without
registration, in addition to the foregoing provisions of this Agreement, the
Company shall:
(a) make and keep adequate current public information with respect to
the Company available, as those terms are understood and defined in Rule 144;
(b) use its reasonable best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each Holder upon written request (A) a written
statement by the Company as to whether it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (B) a copy of
the most recent annual or quarterly report of the Company, and (C) such other
reports and documents of the Company as such Holder may reasonably request and
as is publicly available to enable such Holder to avail itself of any rule or
regulation of the SEC that permits the selling of any such securities without
registration;
provided that nothing in this Section 8 shall require the Company to take any
action that would subject the Company to the requirements of the Exchange Act if
at such time the Company is not subject to the requirement of the Exchange Act.
9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
---------------------------------
use its reasonable best efforts to register Registrable Securities pursuant to
Section 2 hereof may not be assigned, in whole or in part, by a Holder to a
transferee or assignee of Registrable Securities (or Rights or other securities
upon the conversion, exchange or exercise of which Registrable Securities are
issuable) without the prior written consent of the Company (which consent will
not be unreasonably withheld), except that a Holder may assign its rights to
cause the Company to use its reasonable best efforts to register Registrable
Securities pursuant to Section 2 hereof (a) to an Affiliate of such Holder or
(b) to a person that holds least 65,000 shares (as adjusted for stock splits,
stock dividends, combinations, reorganizations, reclassifications and other
similar events) of Registrable Securities (or Rights or other securities upon
the conversion, exchange or exercise of which Registrable Securities are
issuable) following the transfer or assignment; provided, however, that (i) the
transferor furnishes to the Company prior to such transfer written notice of the
name and address of such assignee or transferee and the securities with respect
to which such registration rights are being assigned or transferred and such
other information as the Company may reasonably request and (ii) the transferee
agrees in writing reasonably acceptable to the Company concurrently with such
assignment or transfer to be subject to all restrictions set forth
- 17 -
in this Agreement with respect to the rights assigned or transferred to such
transferee. Notwithstanding the foregoing, (x) no assignment or transfer of the
rights to cause the Company to use its reasonable best efforts to register
Registrable Securities pursuant to Section 2 hereof in accordance with this
Section 9 shall relieve the transferor of responsibility for any of its
obligations hereunder and (y) the rights to cause the Company to use reasonable
best efforts to register Registrable Securities pursuant to Section 2.1 may not
be assigned by a Holder to SeaChange International, Inc, nCUBE Corporation or
Diva Systems Corporation, unless with respect to provision (y) of this Section
9, such corporation is: (A) an Affiliate of such Holder, (B) the purchaser of
substantially all of the assets of such Holder or an Affiliate of such Holder,
(C) the purchaser of all or substantially all of the assets of a division or
line of business of such Holder or an Affiliate of such Holder, or (D) in the
case of a consolidation or merger in which such Holder is not the surviving
entity, to the surviving entity of such consolidation or merger. Any attempted
assignment or transfer by a Holder of any rights to cause the Company to use its
reasonable best efforts to register Registrable Securities pursuant to Section 2
hereof in violation of this Section 9 shall be null and void.
10. TERMINATION OF REGISTRATION RIGHTS. A Holder's registration rights
----------------------------------
provided hereunder with respect to any Registrable Securities shall terminate
upon the earlier of (a) the second anniversary of the date on which the shares
of Common Stock that are the subject of such Registrable Securities are actually
issued to such Holder or (b) the date on which all Registrable Securities issued
or issuable to such Holder on the basis of a cash exercise price may be sold in
accordance with the provisions of Rule 144(k) under the Securities Act.
11. NO INCONSISTENT AGREEMENTS. The Company shall not (a) grant
--------------------------
registration rights with respect to any shares of Common Stock, Rights or other
equity securities that would be inconsistent with the terms contained in this
Agreement, or (b) enter into or become bound by, or permit any subsidiary of the
Company to enter into or become bound by, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument that would prohibit, be
violated by, conflict with or provide that a default would arise from, the
compliance by the Company with any of the provisions of this Agreement or the
consummation of the transactions herein contemplated, except for any such
prohibitions, violations, conflicts or defaults that, individually and in the
aggregate, would not have a material adverse effect on the business, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole and would not impair, delay or restrict the
exercise by the Holders of their rights hereunder. The Company represents and
warrants that it is not currently a party to any agreement with respect to any
of its equity or debt securities granting any registration rights to (i) any
person that would prohibit, be violated by, conflict with or provide that a
default would arise from, the compliance by the Company with any of the
provisions herein or consummation of any of the transactions contemplated
hereby, or (ii) any customer of the Company other than Comcast and its
Affiliates.
12. MISCELLANEOUS.
-------------
(a) Governing Law. This Agreement shall be governed in all respects
-------------
by the internal laws of the State of Delaware as applied to contracts entered
into solely between
- 18 -
residents of, and to be performed entirely within, such state, and without
reference to principles of conflicts of laws or choice of laws.
(b) Specific Enforcement; Venue. The parties hereto acknowledge and
---------------------------
agree that each would be irreparably damaged if any of the provisions of this
Agreement are not performed by the other in accordance with their specific terms
or are otherwise breached. It is accordingly agreed that each party shall be
entitled to seek an injunction or injunctions to prevent breaches of this
Agreement by the other and to enforce this Agreement and the terms and
provisions hereof specifically against the other, in addition to any other
remedy to which such aggrieved party may be entitled at law or in equity. Any
action or proceeding seeking to enforce any provision of, or based on any rights
arising out of, this Agreement may be brought against any of the parties in the
courts of the State of Delaware, County of New Castle, or in the United States
District Court for the District of Delaware, and each of the parties consents to
the jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
(c) Survival. The respective indemnitees, agreements,
--------
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall survive delivery of and payment for the Shares,
Additional Shares (if any) and Investment Warrant pursuant to the Amended and
Restated Purchase Agreement, the delivery of the Incentive Warrants pursuant to
the Service Agreement, the delivery of the shares of Common Stock issuable upon
exercise of the Warrants and the transfer and registration of Registrable
Securities by any Holder.
(d) Successors and Assigns. The rights and obligations set forth
----------------------
herein may not be assigned or delegated, in whole or in part, by the Company or
the Holders without the prior written consent of the other party, except that
the Holders may assign, in whole or in part, any of its rights and delegate its
obligations hereunder in accordance with the provisions of Section 9 hereof
without obtaining the prior written consent of the Company. Any attempted
assignment by a party of any of its rights or obligations hereunder in violation
of this Section 13(d) shall be null and void. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(e) Entire Agreement; Amendment. Except as expressly provided to the
---------------------------
contrary in any separate agreement, this Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof, and supersedes all prior agreements and understandings
among the parties relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
(f) Notices. All notices, requests, demands or other communications
-------
that are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given: (A) on the date of
delivery if personally delivered by hand, (B) upon the third day after such
notice is (1) deposited in the United States mail, if mailed by
- 19 -
registered or certified mail, postage prepaid, return receipt requested, or (2)
sent by a nationally recognized overnight express courier, or (C) by facsimile
upon written confirmation (other than the automatic confirmation that is
received from the recipient's facsimile machine) of receipt by the recipient of
such notice:
(i) if to the Company, to it at:
Concurrent Computer Corporation
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
King & Spalding
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
(ii) if to the Provider or any Holder, to it at:
c/o Comcast Corporation
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Attention: General Counsel
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One ▇▇▇▇▇ Square
18th and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any other Holder, to it at such address as is
provided to the Company in the written notice described in Section 9;
or to such other address or facsimile number as any party may have furnished to
the others in writing in accordance herewith, except that notices of change of
address or facsimile number shall be effective only upon receipt.
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(g) Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any person hereunder shall impair any such right,
power or remedy nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring, nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any person hereunder of any breach or default under this Agreement,
or any waiver on the part of any such person of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies either under this
Agreement or by law or otherwise shall be cumulative and not alternative.
(h) Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restriction of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
(i) Counterparts. This Agreement may be executed in two or more
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partially or fully executed counterparts and by facsimile signatures, each of
which shall be deemed an original and shall bind the signatory, but all of which
together shall constitute but one and the same instrument. The execution and
delivery of the signature page to this Agreement by any party hereto who shall
have been furnished the final form of this Agreement shall constitute the
execution and delivery of this Agreement by such party.
(j) Further Assurances. Each of the Company and the Holders shall
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use its reasonable efforts at any time and from time to time to execute and
deliver to the other such further documents and instruments and to take all such
further actions as the other may reasonably request in order to consummate the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective authorized officers as of the date first above written.
CONCURRENT COMPUTER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: EVP and CFO
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COMCAST CONCURRENT HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Peta
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Name: ▇▇▇▇▇▇▇▇▇ ▇. Peta
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Title: Vice President
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]