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Exhibit 10.11
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 10th day of June, 1999, by and among
net.Genesis Corp., a Delaware corporation (the "Company"), the holders of the
Company's Series B, Series C and Series D Convertible Preferred Stock listed on
Schedule I attached hereto and the several purchasers (the "Series F Investors")
of the Series F Convertible Preferred Stock, $.001 par value, of the Company,
pursuant to the Purchase Agreement between the Company and the Series F
Investors, dated as of the date hereof (the "Series F Stock Purchase
Agreement"), who are also listed on Schedule 1.
WHEREAS, the Company entered into a Second Amended and Restated
Registration Rights Agreement dated as of June 25, 1998 (the "1998 Agreement")
with the holders of the Company's Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock (the "Series B Investors," the "Series C
Investors" and the "Series D Investors," respectively) in connection with the
sale of the Company's Series D Convertible Preferred Stock to the Series D
Investors;
WHEREAS, the Company proposes to sell shares of its Series F
Convertible Preferred Stock, $.001 par value, to the Series F Investors in the
amounts set forth opposite their respective names on Exhibit 2.01A of the Series
F Stock Purchase Agreement pursuant to the terms of the Series F Stock Purchase
Agreement and it is a condition to the closing of such sale that this Agreement
be executed and delivered by the parties hereto; and
WHEREAS, the Company and the undersigned parties, being the requisite
number of Series B Investors, Series C Investors and Series D Investors, have
agreed to amend and restate the 1998 Agreement and the Series F Investors who
are not parties to the 1998 Agreement have agreed to enter into this Third
Amended and Restated Registration Rights Agreement.
NOW, THEREFORE, the parties hereto hereby agree that the 1998 Agreement
is hereby amended and restated in its entirety as follows:
1. Definitions. The following terms shall be used in this Agreement
with the following respective meanings:
"Affiliate" means (i) any Person directly or indirectly controlling,
controlled by or under common control with another Person; (ii) any Person
owning or controlling ten (10%) percent or more of the outstanding voting
securities of such other Person; (iii) any officer, director or partner of such
Person; and (iv) if such Person is an officer, director or partner, any such
company for which such Person acts in such capacity.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means and includes (a) the Company's Common Stock, $.001
par value per share, as authorized on the date of this Agreement and (b) any
other securities into which or for which the securities described in (a) above
may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
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"Exchange Act" means the Securities Exchange Act of 1934, or any
successor federal statute, and the rules and regulations of the Commission (or
of any other federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"Holder" means the Investors, any partner of an Investor, and any other
holder of Registrable Stock holding at least 400,000 shares of Registrable Stock
(as adjusted for stock splits, stock dividends, combinations and other
recapitalizations).
"Investors" means the Series B Investors, the Series C Investors, the
Series D Investors and the Series F Investors.
"Initial Public Offering" means the effective date for the Company's
first registration statement covering a public offering of securities of the
Company under the Securities Act.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means any natural person, partnership, corporation or other
legal entity.
"Prior Investors" means the Persons designated as such on Schedule I
attached hereto.
"Registrable Stock" means (a) the Common Stock issued or issuable upon
conversion of the Series B Preferred Stock, the Series C Preferred Stock, the
Series D Preferred Stock or the Series F Preferred Stock, whether or not such
Common Stock is owned by any Investors, (b) all Common Stock, or shares of
Common Stock issuable upon conversion of any other security, now or hereafter
owned by any Series B Investor which is acquired otherwise than upon conversion
of the Series B Preferred Stock after September 18, 1996 so long as it is held
by any Investor or an Affiliate of any Investor, (c) all Common Stock, or shares
of Common Stock issuable upon conversion of any other security, now or hereafter
owned by any Series C Investor which is acquired otherwise than upon conversion
of the Series C Preferred Stock after September 12, 1997 so long as it is held
by any Investor or an Affiliate of any Investor, (d) all Common Stock, or shares
of Common Stock issuable upon conversion of any other security, now or hereafter
owned by any Series D Investor which is acquired otherwise than upon conversion
of the Series D Preferred Stock after June 25, 1998, so long as it is held by
any Investor or an Affiliate of any Investor, (e) all Common Stock, or shares of
Common Stock issuable upon conversion of any other security, now or hereafter
owned by any Series F Investor which is acquired otherwise than upon conversion
of the Series F Preferred Stock after the date of this Agreement so long as it
is held by any Investor or an Affiliate of any Investor, and (f) any other
shares of Common Stock issued in respect of such shares by way of a stock
dividend, or stock split or in connection with a combination of shares,
recapitalization, merger or consolidation or reorganization; provided, however,
that shares of Common Stock shall only be treated as Registrable Stock if and so
long as (i) they have not been sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction or (ii)
they have not been sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Section 4(1)
thereof so that all transfer restrictions and restrictive legends with respect
to such Common Stock are removed upon the consummation of such sale; and further
provided that shares of Common Stock issued by the Company in a public offering
pursuant to a Registration Statement shall not be deemed to constitute
Registrable Stock, nor shall any shares of Common Stock acquired by an Investor
in the public markets (including, without limitation, any market that may
develop pursuant to Rule 144(a) of the Securities Act) be deemed to be
Registrable Stock.
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"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form ▇-▇, ▇▇▇▇ ▇-▇, or successor
forms, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the Commission (or of any
other federal agency then administering the Securities Act) thereunder, all as
the same shall be in effect at the time.
"Series B Preferred Stock" means the Company's Series B Convertible
Preferred Stock, $.001 par value per share.
"Series C Preferred Stock" means the Company's Series C Convertible
Preferred Stock, $.001 par value per share.
"Series D Preferred Stock" means the Company's Series D Convertible
Preferred Stock, $.001 par value per share.
"Series F Preferred Stock" means the Company's Series F Convertible
Preferred Stock, $.001 par value per share.
2. Required Registration.
(a) At any time after the earlier of (i) one hundred eighty
(180) days after any Registration Statement covering a public offering of
securities of the Company under the Securities Act having become effective and
(ii) four (4) years from the date hereof, the Holder or Holders of at least
fifty (50%) percent of all Registrable Stock then outstanding may by notice in
writing to the Company request the Company to register under the Securities Act
all or any portion of shares of Registrable Stock held by such requesting Holder
or Holders for sale in the manner specified in such notice, provided that the
reasonably anticipated aggregate price to the public of all shares of
Registrable Stock requested to be included in such public offering would exceed
$7,500,000. Notwithstanding anything to the contrary contained herein, the
Company shall not be required to seek to cause a Registration Statement to
become effective pursuant to this Section 2: (A) within a period of ninety (90)
days (one hundred eighty (180) days if the Registration Statement covers an
underwritten distribution) after the effective date of a Registration Statement
filed by the Company (other than a Registration Statement on Forms ▇-▇, ▇-▇ or
any successors thereto), provided that the Company shall use its best efforts to
achieve effectiveness of a registration requested hereunder promptly following
such period if such request is made during such period; (B) if the Company shall
furnish to the Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company or its shareholders for a Registration
Statement to be filed in the near future due to pending Company events, or that
it would require disclosure of material non-public information relating to the
Company which, in the reasonable opinion of the Board of Directors, should not
be disclosed, then the Company's obligation to use all reasonable efforts to
register, qualify or comply under this Section 2 shall be deferred for a period
not to exceed one hundred twenty (120) days from the date of receipt of written
request from such Holders; provided, however, that the Company may not utilize
this deferral right more than once in any twelve-month period.
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(b) Following receipt of any notice given under this Section 2
by Holders of Registrable Stock, the Company shall immediately notify all
Holders from whom notice has not been received that such registration is to be
effected and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from requesting Holders, the number of shares of Registrable Stock,
specified in such notice (and in all notices received by the Company from other
Holders within twenty (20) days after the giving of such notice by the Company
to such other Holders). The Holders of a majority of the shares of Registrable
Stock to be sold in such offering may designate the managing underwriter of such
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed. The Company shall be obligated to register
Registrable Stock pursuant to this Section 2 on one occasion only, provided,
however, that such obligation shall be deemed satisfied only when a Registration
Statement covering all shares of Registrable Stock, specified in notices
received as aforesaid and which have not been withdrawn by the Holder thereof,
for sale in accordance with the method of disposition specified by the
requesting Holders, shall have become effective. A registration which does not
become effective after the Company has filed a Registration Statement with
respect thereto solely by reason of the refusal of the requesting Holders to
proceed shall be deemed to have been effected by the Company at the request of
such requesting Holders unless such requesting Holders shall have elected to pay
all the Company's reasonable expenses in connection with such registration,
unless such refusal to proceed follows disclosure or discovery of material
adverse information concerning the Company, which information was unknown to
such requesting Holders at the time of such request.
(c) If the Registration Statement is to cover an underwritten
distribution and in the good faith judgment of the managing underwriter of such
public offering the inclusion of all of the Registrable Stock, requested for
inclusion pursuant to this Section 2 would interfere with the successful
marketing of a smaller number of shares to be offered, then the number of shares
of Registrable Stock, to be included in the Offering shall be reduced to the
required level with the participation in such offering to be pro rata among the
Holders requesting such registration, based upon the number of shares of
Registrable Stock owned by such Holders. The Company shall be entitled to
include in any Registration Statement referred to in this Section 2, for sale in
accordance with the method of disposition specified by the requesting Holders,
shares of Common Stock to be sold by the Company for its own account, except as
and to the extent that, in the opinion of the managing underwriter, if any, such
inclusion would adversely affect the marketing of the Registrable Stock to be
sold. Except for registration statements on Forms ▇-▇, ▇-▇ or any successors
thereto, the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or that
of other stockholders, from the date of receipt of a notice from requesting
Holders pursuant to this Section 2 until the completion of the period of
distribution of the registration contemplated thereby.
3. Incidental Registration. Each time the Company shall determine to
file a Registration Statement in connection with the proposed offer and sale for
money of any of its securities by it or any of its security holders, the Company
will give written notice of its determination to all Holders of Registrable
Stock. Upon the written request of a Holder given within twenty (20) days after
the giving of any such notice by the Company, the Company will use its best
efforts to cause all such shares of Registrable Stock, the Holders of which have
so requested registration thereof, to be included in such Registration
Statement, all to the extent requisite to permit the sale or other disposition
by the prospective seller or sellers of the Registrable Stock to be so
registered. If the Registration Statement is to cover an underwritten
distribution, the Company shall use its best efforts to cause the Registrable
Stock requested for inclusion pursuant to this Section 3 to be included in the
underwriting on the same
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terms and conditions as the securities otherwise being sold through the
underwriters. If, in the good faith judgment of the managing underwriter of such
public offering, the inclusion of all of the Registrable Stock requested for
inclusion pursuant to this Section 3 and other securities would interfere with
the successful marketing of a smaller number of shares to be offered, then the
number of shares of Registrable Stock and other securities to be included in the
offering (except for shares to be issued (i) by the Company in an offering
initiated by the Company or (ii) by any other party in an offering initiated by
such party pursuant to registration rights granted to such party) shall be
reduced to the required level by reducing (down to zero, in the Company's
Initial Public Offering, or to not less than thirty (30%) percent thereafter, if
so required) the participation of the Holders of Registrable Stock in such
offering (such reduction to be made to the amounts of shares requested for
inclusion in such offering by such Holders on a pro rata basis among the Holders
of Registrable Stock requesting such registration, based upon the number of
shares of Registrable Stock owned by such Holders).
4. Registration on Form S-3.
(a) If at any time after two (2) years from the date hereof
(i) a Holder or Holders request that the Company file a registration statement
on Form S-3 or any successor thereto for a public offering of all or any portion
of the shares of Registrable Stock held by such requesting Holder or Holders,
the reasonably anticipated aggregate price to the public of which would exceed
$1,000,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition specified
in such notice, the number of shares of Registrable Stock specified in such
notice. Whenever the Company is required by this Section 4 to use its best
efforts to effect the registration of Registrable Stock, each of the procedures
and requirements of Section 2 (including but not limited to the requirement that
the Company notify all Holders from whom notice has not been received and
provide them with the opportunity to participate in the offering) shall apply to
such registration, provided, however, that there shall be no limitation on the
number of registrations on Form S-3 which may be requested and obtained under
this Section 4, except that the Company shall not be obligated to effect more
than two registrations under this Section 4 in any twelve (12) month period, and
provided, further, however, that the $7,500,000 minimum dollar amount set forth
in the first sentence of Section 2(a) shall not apply to any registration on
Form S-3 which may be requested and obtained under this Section 4.
(b) If, twelve (12) months after the effective date of the
Company's Initial Public Offering, and if the Company is a registrant entitled
to use Form S-3 or any successor thereto to register shares of Registrable
Stock, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with any method of disposition specified by any Holder or Holders,
all of the shares of Registrable Stock. The Company agrees to maintain the
registration effective as a shelf-registration for a period of two (2) years,
except: (i) within ninety (90) days after the effective date of a Registration
Statement filed by the Company (except for Registration Statements on Forms ▇-▇,
▇-▇ or any successors thereto) or (ii) if the Company shall furnish to the
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company's shareholders for a Form S-3 Registration Statement to be
effective due to pending Company events, or that keeping such Registration
Statement effective at such time would require disclosure of material non-public
information relating to the Company which, in the reasonable opinion of the
Board of Directors, should not be disclosed, or if the Company intends to file a
Registration Statement within sixty (60) days and agrees to register shares of
the Holders' Registrable Stock therein, provided,
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however, that the Company shall not utilize these rights more than once in any
12-month period, nor for a period of more than ninety (90) days, and further
provided that the shelf-registration shall be kept effective for an additional
period equal to the period of time during which the shelf-registration was not
kept effective pursuant hereto.
5. Registration Procedures. If and whenever the Company is required by
the provisions of Sections 2, 3 or 4 hereof to effect the registration of shares
of Registrable Stock under the Securities Act, the Company will, at its expense,
as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
Registration Statement with respect to such securities and use its best efforts
to cause such Registration Statement to become and remain effective until the
securities covered by such Registration Statement have been sold, and prepare
and file with the Commission such amendments to such Registration Statement and
supplements to the prospectus contained therein as may be necessary to keep such
Registration Statement effective and such Registration Statement and prospectus
accurate and complete until the securities covered by such Registration
Statement have been sold;
(b) If the offering is to be underwritten in whole or in part,
enter into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter, if any, of the public offering and the
Holders participating in such offering;
(c) Furnish to the participating Holders and to the
underwriters such reasonable number of copies of the Registration Statement,
preliminary prospectus, final prospectus and such other documents as such
underwriters and participating Holders may reasonably request in order to
facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the securities
covered by such Registration Statement under such state securities or blue sky
laws of such jurisdictions (i) as shall be reasonably appropriate for the
distribution of the securities covered by such Registration Statement or (ii) as
such participating Holders and underwriters may reasonably request within twenty
(20) days following the original filing of such Registration Statement, except
that the Company shall not for any purpose be required to execute a general
consent to service of process, to subject itself to taxation, or to qualify to
do business as a foreign corporation in any jurisdiction where it is not so
qualified;
(e) Notify the Holders participating in such registration,
promptly after it shall receive notice, thereof, of the date and time when such
Registration Statement and each post-effective amendment thereto has become
effective or a supplement to any prospectus forming a part of such Registration
Statement has been filed;
(f) Notify the Holders participating in such registration
promptly of any request by the Commission or any state securities commission or
agency for the amending or supplementing of such Registration Statement or
prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the
request of any such participating Holders, any amendments or supplements to such
Registration Statement or prospectus which, in the opinion of counsel
representing the Company in such Registration (and which counsel is reasonably
acceptable to such participating Holders), is required under the Securities Act
or the rules
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and regulations thereunder in connection with the distribution of the
Registrable Stock by such participating Holders;
(h) Prepare and promptly file with the Commission, and
promptly notify such participating Holders of the filing of, such amendments or
supplements to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act, any
event has occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an 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 not misleading;
(i) In case any of such participating Holders or any
underwriter for any such Holders is required to deliver a prospectus at a time
when the prospectus then in circulation is not in compliance with the Securities
Act or the rules and regulations of the Commission, prepare promptly upon
request such amendments or supplements to such Registration Statement and such
prospectus as may be necessary in order for such prospectus to comply with the
requirements of the Securities Act and such rules and regulations;
(j) Advise such participating Holders, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
(k) At the request of any such participating Holder (i)
furnish to such Holder on the effective date of the Registration Statement or,
if such registration includes an underwritten public offering, at the closing
provided for in the underwriting agreement, an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the Holder or Holders making such
request, covering such matters with respect to the Registration Statement, the
prospectus and each amendment or supplement thereto, proceedings under state and
federal securities laws, other matters relating to the Company, the securities
being registered and the offer and sale of such securities as are customarily
the subject of opinions of issuer's counsel provided to underwriters in
underwritten public offerings and (ii) use its best effort to furnish to such
Holder letters dated each such effective date and such closing date, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to the Holder or Holders making such request, stating
that they are independent certified public accountants within the meaning of the
Securities Act and dealing with such matters as the underwriters may request,
or, if the offering is not underwritten, that in the opinion of such accountants
the financial statements and other financial data of the Company included in the
Registration Statement or the prospectus or any amendment or supplement thereto
comply in all material respects with the applicable accounting requirements of
the Securities Act, and additionally covering such other financial matters,
including information as to the period ending not more than five (5) business
days prior to the date of such letter with respect to the Registration Statement
and prospectus, as such requesting Holder or Holders may reasonably request;
(l) Use its best efforts to ensure the obtaining of all
necessary approvals from the NASD.
6. Expenses.
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(a) With respect to each registration effected pursuant to
Sections 2, 3 or 4 hereof, all fees, costs and expenses of and incidental to
such registration and the public offering in connection therewith shall he borne
by the Company; provided, however, (i) that security holders participating in
any such registration shall bear their pro rata share of the underwriting
discounts and selling commissions, and (ii) any such fee, cost or expense which
does not constitute a normal fee, cost or expense of such registration and which
is attributable solely to one (1) security holder participating in any such
registration shall be borne by that holder.
(b) The fees, costs and expenses of registration to be borne
as provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if the Company and/or
selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, reasonable fees and
disbursements of one counsel for the selling security holders and the premiums
and other costs of policies of insurance insuring the Company against liability
arising out of such public offering.
7. Indemnification and Contribution.
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Holder of shares of Registrable Stock, whether
or not such Holder's shares of Registrable Stock are included in a Registration
Statement pursuant to the provisions of this Agreement, and any underwriter (as
defined in the Securities Act) for such Holder, and any Person who controls such
Holder or such underwriter within the meaning of the Securities Act, and each of
their successors, from and against, and will reimburse such Holder and each such
underwriter and controlling Person with respect to any and all claims, actions,
demands, losses, damages, liabilities, costs and expenses to which such Holder
or any such underwriter or controlling Person may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, any prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or arise out of any
violation by the Company of any rule or regulation under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
action, demand, loss, damage, liability, cost or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in reliance upon and in strict conformity with
information furnished by such Holder, such underwriter or such controlling
Person in writing specifically for use in the preparation thereof; and provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations.
(b) Each Holder of shares of the Registrable Stock which are
included in a registration pursuant to the provisions of this Agreement will,
severally and not jointly, indemnify and hold harmless the Company from and
against, and will reimburse the Company with respect to, any and all losses,
damages, liabilities, costs or expenses to which the Company may become subject
under the Securities Act or otherwise, to the extent that any such loss, damage,
liability, cost or expense arises
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out of or is based upon any untrue or alleged untrue statement of any material
fact contained therein or any amendment or supplement thereto, or arises out of
or is 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, in each case to the extent, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
so made in reliance upon and in strict conformity with written information
furnished by such Holder under an instrument duly executed by such Holder and
stated to be specifically for use in the preparation thereof; provided that the
liability of each Holder hereunder shall be limited to the proportion of any
such claim, action, demand, loss, damage, liability, cost or expense which is
equal to the proportion that the public offering price of the shares of
Registrable Stock sold by such Holder under such Registration Statement bears to
the total offering price of all securities sold thereunder, but not, in any
event, to exceed the net proceeds received by such Holder from the sale of
shares of Registrable Stock covered by Registration Statement; and provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations.
(c) Promptly after receipt by a party to be indemnified
pursuant to the provisions of paragraph (a) or (b) of this Section 7 (an
"indemnified party") of notice of the commencement of any action involving the
subject matter of the foregoing indemnity provisions, such indemnified party
will, if a claim thereof is to be made against the indemnifying party pursuant
to the provisions of paragraph (a) or (b), notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 7 and shall not relieve the indemnifying party
from liability under this Section 7 unless such indemnifying party is prejudiced
by such omission. In case such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of such paragraph (a) and (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall be liable to an indemnified party for any settlement of any action or
claim without the consent of the indemnifying party; no indemnifying party may
unreasonably withhold its consent to any such settlement. No indemnifying party
will consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
Holder of shares of Registrable Stock exercising rights under this Agreement, or
any controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 7 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 7; then, in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such
proportions
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so that such Holder is responsible for the portion represented by the percentage
that the public offering price of its shares of Registrable Stock offered by the
Registration Statement bears to the public offering price of all securities
offered by such Registration Statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the net proceeds to it of
all shares of Registrable Stock sold by it pursuant to such Registration
Statement, and (B) no person or entity guilty of fraudulent misrepresentation,
within the meaning of Section 11(f) of the Securities Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
8. Reporting Requirements Under Securities Exchange Act of 1934. When
it is first legally required to do so, the Company shall register its Common
Stock under Section 12 of the Exchange Act and shall keep effective such
registration and shall timely file such information, documents and reports as
the Commission may require or prescribe under Section 13 of the Exchange Act.
From and after the effective date of the first Registration Statement filed by
the Company, the Company shall (whether or not it shall then be required to do
so) timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act. Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall forthwith upon
request furnish any Holder of Registrable Stock (i) a written statement by the
Company that it has complied with such reporting requirements, (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Stock without registration under the Securities Act. The Company
acknowledges and agrees that the purposes of the requirements contained in this
Section 8 are (a) to enable any such Holder to comply with the current public
information requirement contained in Paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar or successor exemptive provision),
and (b) to qualify the Company for the use of Registration Statements on Form
S-3. In addition, the Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be required by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar or successor exemptive provision hereafter in effect) and
the use of Form S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify for the use
of Form S-3. From and after the effective date of the first Registration
Statement filed by the Company, the Company agrees to use its best efforts to
facilitate and expedite transfers of Registrable Stock pursuant to Rule 144
under the Securities Act (or any similar or successor exemptive provision
hereafter in effect), which efforts shall include timely notice to its transfer
agent to expedite such transfers of Registrable Stock.
9. Stockholder Information. The Company may require each Holder of
Registrable Stock as to which any registration is to be effected pursuant to
this Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
10. Lock-Up Agreements.
(a) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or other distribution of its equity
securities, or any securities convertible into or
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11
exchangeable or exercisable for such equity securities, during the period, not
to exceed one hundred eighty (180) days (as requested by the managing
underwriter), following the effective date of the Initial Public Offering,
except in connection with any such underwritten offering and except for equity
securities issued pursuant to employee stock option plans or in conjunction with
any merger or consolidation with, or acquisition of the stock or assets of, any
other entity.
(b) Restrictions on Public Sale by the Holders of Registrable
Stock. Each Holder of Registrable Stock agrees that it will not, to the extent
requested by the Company and the managing underwriter of such offering, sell or
otherwise dispose of any Registrable Stock of the Company, including any sale
pursuant to Rule 144, during a period specified by the Company and such
underwriter (not to exceed one hundred eighty (180) days after the effective
date of the Initial Public Offering) except in conjunction with such
underwritten offering; provided that each officer and director of the Company
shall enter into similar agreements.
(c) Restrictions on Public Sale by Subsequent Holders. Except
in a public offering registered under the Securities Act, the Company shall not
issue or sell any equity security unless each recipient thereof agrees in
writing with the Company not to offer to sell or sell such equity security
during a period specified by the Company and the underwriter thereof (not to
exceed one hundred eighty (180) days after the effective date of the Initial
Public Offering), except in conjunction with such underwritten offering.
(d) Amendments. Any provision of this Agreement to the
contrary notwithstanding, no amendment to this Section 10 that would adversely
affect a Holder that is an Investment Company registered under the Investment
Company Act of 1940, as amended, will apply to such Holder unless it has
consented in writing to such amendment.
11. Notices. Any notice required or permitted to be given hereunder
shall be in writing and shall be deemed to be properly given when sent by
registered or certified mail, return receipt requested, by Federal Express, DHL
or other guaranteed overnight delivery service or by facsimile transmission,
addressed as follows:
If to the Company: net.Genesis Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Investor: To the address of such Investor set forth on
Schedule I attached hereto
and if to any other Holder at such Holder's address for notice as set forth in
the register maintained by the Company, or, as to any of the foregoing, to such
other address as any such party may give the
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12
others notice of pursuant to this Section, provided that a change of address
shall only be effective upon receipt.
12. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of The Commonwealth of Massachusetts
(without regard to conflict of laws provisions).
13. Waivers; Amendments. No waiver of any right hereunder by any party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and the Holders of at least sixty (60%) percent of the Registrable Stock
and the securities convertible into, exchangeable for or exercisable for
Registrable Stock (calculated on an as converted, exchanged or exercised basis).
14. Other Registration Rights. The Company shall not grant to any third
party any registration rights equivalent to or more favorable than any of those
contained herein, or which would interfere with or delay the exercise by the
holders of Registrable Stock of their registrations rights hereunder, so long as
any of the registration rights under this Agreement remains in effect unless
approved by Holders of sixty (60%) percent of the shares of Registrable Stock,
which approval may require that such rights be granted only pursuant to an
amendment or restatement of this Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto; provided, however, that no expansion of the
definition of Holders set forth above shall be effected by this Section 15.
16. Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Prior Understandings. This Agreement represents the complete
agreement of the parties with respect to the transactions contemplated hereby
and supersedes all prior agreements and understandings.
18. Headings. Headings in this Agreement are included for reference
only and shall have no effect upon the construction or interpretation of any
part of this Agreement.
19. Severability. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
20. Adjustment to Stock. Any reference in this Agreement to a
particular number of shares of the Company's Common Stock or preferred stock, of
any class or series, shall be automatically
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13
adjusted to account for a stock dividend, stock split or in connection with a
combination of shares, recapitalization, merger or consolidation or
reorganization of the Company.
21. Termination of Registration Rights. The rights of each Holder under
Sections 2 through 4 of this Agreement and the obligations of each such Holder
under Section 10 of this Agreement shall terminate with respect to such Holder
if (a) such Holder holds less than 1% of the outstanding capital stock of the
Company and (b) such Holder is permitted to sell all of its shares of capital
stock of the Company within any 90-day period under Rule 144 of the Securities
Act.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer, and the requisite number of Investors has
duly executed this Agreement (or has caused it to be executed by a duly
authorized officer, partner, trustee or agent, as the case may be), as of the
date first above recited.
ATTEST: net.Genesis Corp.
By:_________________________ By:________________________________
Name: ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇
Title: Secretary Title: President
(See counterpart signature pages.)
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14
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
▇▇▇▇▇▇▇ RIVER PARTNERSHIP VII
By: ______________________________________
Name: _______________________________
Title:_______________________________
BESSEMER VENTURE PARTNERS IV L.P.
By: Deer IV & Co. L.L.C.,
General Partner
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
BVP IV SPECIAL SITUATIONS L.P.
By: Deer IV & Co. L.L.C.,
General Partner
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BESSEC VENTURES IV L.P.
By: Deer IV & Co. L.L.C.,
General Partner
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, attorney-in-fact
signing for those designated below by the
"*" notation
*_________________________________________
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15
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BRIMSTONE ISLAND CO. L.P.
*By: ____________________________________
Name:_______________________________
Title:______________________________
*________________________________________
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
*________________________________________
▇▇▇▇ ▇. ▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
*________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BELISARIUS CORPORATION
*By: ____________________________________
Name:_______________________________
Title:______________________________
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Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
*________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
*________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ CORPORATION
*By: ____________________________________
Name:_______________________________
Title:______________________________
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17
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
By:______________________________________
Name:_______________________________
Title:______________________________
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18
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
ONELIBERTY FUND IV
By: OneLiberty Partners IV LLC
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
ONE LIBERTY ADVISORS IV LP
By: OneLiberty Partners IV LLC
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
ST. ▇▇▇▇ VENTURE CAPITAL V, LLC
By:
By:___________________________________
Its
ST. ▇▇▇▇ VENTURE CAPITAL AFFILIATES
FUND I, LLC
By: St. ▇▇▇▇ Venture Capital, Inc.
its Manager
By:___________________________________
Its
_______________________________________
▇▇▇▇▇ ▇▇▇▇
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19
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1999 TRUST
By:_____________________________________
Name:___________________________________
Title:__________________________________
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20
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
BankAmerica Ventures
By:______________________________________
Name:____________________________________
Title:___________________________________
GS CAPITAL PARTNERS
By_______________________________________
NEXUS GROUP
By_______________________________________
Boston Milennia Partners Limited Partnership
By: ▇▇▇▇ Partners Limited Partnership
By:_____________________________________
Name:_____________________, General Partner
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21
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
Boston Milennia Associates Partnership
By:_____________________________________
Name:_____________________, General Partner
▇▇▇▇▇▇▇▇ Communications and Information
Fund, Inc.
By:______________________________________
▇▇▇▇▇-▇▇▇▇▇, Inc.
By:_____________________________________
Name:___________________________________
Title:__________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Employee Venture Fund,
▇.▇. ▇▇
By: H&Q Venture Management, L.L.C.,
Its General Partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
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22
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
Comdisco, Inc.
By:_____________________________________
Name:___________________________________
Title:__________________________________
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23
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
By:____________________________________
Name:__________________________________
Title:_________________________________
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street 1999 Corp.,
Its General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street 1999 Corp.,
Its General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
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24
Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
SCHEDULE I
BankAmerica Ventures
St. ▇▇▇▇ Venture Capital
GS Capital Partners
Nexus Group
Boston Millennia Partners
▇▇▇▇▇▇▇▇ Communications and Information Fund, Inc.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ Harymond
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Gabrieli Family Foundation
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Belisarius Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ Corporation
BVP IV Special Situations L.P.
Bessemer Venture Partners
Bessex Ventures IV L.P.
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ One
Liberty Fund IV
One Liberty Advisors IV LP
▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
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Third Amended and Restated Registration Rights Agreement
*Counterpart Signature Page*
▇▇▇▇▇▇▇ Associates
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ River Partnership VII
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Brimestone Island Co. L.P.
Niel Browenstein
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