EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "AGREEMENT"), dated as of
February 26, 1997, is entered into by and among Genesys Telecommunications
Laboratories, a California corporation (the "COMPANY"), the holders of Series A
Preferred Stock of the Company (the "SERIES A HOLDERS"), the holders of Series B
Preferred Stock of the Company (the "SERIES B HOLDERS"), the purchasers of
Series C Preferred Stock of the Company (the "SERIES C HOLDERS") pursuant to a
Series C Preferred Stock and Warrant Purchase Agreement and a Securities
Purchase Agreement (the "SERIES C AGREEMENTS") approved by the Company's Board
of Directors, and the purchaser of Common Stock of the Company (the "COMMON
HOLDER") pursuant to a Stock Exchange Agreement (the "STOCK EXCHANGE AGREEMENT")
approved by the Company's Board of Directors. Such Series A Holders, Series B
Holders, Series C Holders and Common Holder (the "Purchasers") are listed on
Exhibit A attached hereto.
R E C I T A L S
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A. All of the Series A Holders and the Company are parties to the Series
A Preferred Stock Purchase Agreement dated March 29, 1996 (the "SERIES A
AGREEMENT").
B. All of the Series B Holders and the Company are parties to the Series
B Preferred Stock Purchase Agreement dated June 13, 1996 (the "SERIES B
AGREEMENT").
C. The Company and certain of the Purchasers are parties to the
Registration Rights and Modification Agreement dated June 13, 1996 (the "PRIOR
AGREEMENT").
D. The Company and certain of the Purchasers are parties to the Series C
Agreements.
E. The Company and the Common Holder are parties to the Stock Exchange
Agreement.
F. In order to induce the Company and certain Purchasers to enter into
the Series C Agreements and the Stock Exchange Agreement, the Purchasers and the
Company desire to terminate the Prior Agreement and to enter into this Agreement
which shall govern the rights of the Purchasers to cause the Company to register
shares of Common Stock issuable to the Purchasers and certain other matters as
set forth herein, and replace and supersede the Prior Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the common stock of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"HOLDER" shall mean any holder, or an assignee under Section 14
hereof, of outstanding Registrable Securities.
"INITIATING HOLDERS" shall mean any Holders who in the aggregate are
Holders of fifty percent (50%) or more of the outstanding Registrable Securities
(except that for the purposes of this Agreement, Bruncor Inc. shall not be an
Initiating Holder).
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement.
"PURCHASERS" shall mean the purchasers of Series A Preferred, Series B
Preferred, Series C Preferred and Common Stock pursuant to the Series A
Agreement, Series B Agreement, Series C Agreements, and Stock Exchange
Agreement, respectively.
"REGISTRABLE SECURITIES" shall mean shares of Common Stock (i) issued
or issuable pursuant to the conversion of the Shares or exercise of warrants to
purchase the Series C Shares, and (ii) issued in respect of securities issued
pursuant to the conversion of the Shares upon any stock split, stock dividend,
recapitalization, substitution, or similar event; provided, however, that
Registrable Securities shall not include any (a) shares of Common Stock which
have previously been registered, (b) shares of Common Stock which have
previously been sold to the public, or (c) securities which would otherwise be
Registrable Securities held by a Holder who is then permitted to sell all of
such securities within any three (3) month period following the Company's
initial public offering pursuant to Rule 144.
"REGISTRABLE SERIES C SECURITIES" shall mean shares of Common Stock
(i) issued or issuable pursuant to the conversion of Series C Shares or exercise
of warrants to purchase the Series C Shares and (ii) issued in respect of
securities issued pursuant to the conversion of the Series C Shares upon any
stock split, stock dividend, recapitalization, substitution, or similar event;
provided, however, that Registrable Series C Securities shall not include any
(a) shares of Common Stock which have previously been registered, (b) shares of
Common Stock which have previously been sold to the public, or (c) securities
which would otherwise be Registrable Securities held by a Holder who is then
permitted to sell all of such securities within any three (3) month period
following the Company's initial public offering pursuant to Rule 144.
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"REGISTRATION EXPENSES" shall mean all expenses (excluding
underwriting discounts and selling commissions) incurred in connection with a
registration under Section 5 and Section 6 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration,
and the reasonable fees and expenses of one counsel for the selling Purchasers
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company).
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 3 hereof.
"RULE 144" shall mean Rule 144 as promulgated under the Securities
Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"SERIES C SHARES" shall mean shares of the Company's Series C
Preferred Stock and any shares of Series C Preferred Stock upon exercise of
warrants therefor outstanding as of the date of this Agreement.
"SHARES" shall mean (i) shares of the Company's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, (ii) any shares of
Series C Preferred Stock upon exercise of warrants therefor outstanding as of
the date of this Agreement and (iii) any shares of Common Stock held by the
Common Holder acquired through the Stock Exchange Agreement.
2. Restrictions on Transferability. The Restricted Securities held
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by the Purchasers shall not be transferred except upon the conditions specified
in this Agreement, which conditions are intended to insure compliance with the
provisions of the Securities Act and to assist in an orderly distribution. Each
Purchaser will cause any proposed transferee of Restricted Securities held by
that Purchaser to agree to take and hold those securities subject to the
provisions and upon the conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Shares,
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and (ii) shares of the Company's Common Stock issued upon conversion of the
Shares, and (iii) any other securities issued in respect of the Shares, or the
Common Stock issued upon conversion of the Shares, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted
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with a legend substantially in the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, (THE "ACT") OR ANY STATE SECURITIES LAWS. SUCH SHARES MAY NOT
BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE
OFFICE OF THE CORPORATION.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate and issue to such holder a new
certificate therefor free of any transfer legend, if, with such request, the
Company shall have received either the opinion referred to in Section 4(i) or
the "no-action" letter referred to in Section 4(ii) to the effect that any
transfer by such holder of the securities evidenced by such certificate will not
violate the Securities Act and applicable state securities laws, unless any such
transfer legend may be removed pursuant to Rule 144(k), in which case no such
opinion or "no-action" letter shall be required, and provided that the Company
shall not be obligated to remove any such legends prior to the date of the
initial public offering of the Company's Common Stock under the Securities Act.
4. Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
of any Restricted Securities (other than under circumstances described in
Sections 5, 6 and 8 hereof), the holder thereof shall give written notice to the
Company of such holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144 promulgated under the Securities Act or for a transfer
to a holder's spouse, ancestors, descendants or a trust for any of their
benefit, or in transactions involving the distribution without consideration of
Restricted Securities by a holder to any of its partners or retired partners or
to the estate of any of its partners or retired partners) by either (i) a
written opinion of legal counsel to the holder who shall be reasonably
satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act or (ii) a "no-action" letter from the
Commission to the effect that the distribution of such securities without
registration will not result in a recommendation by the staff of the Commission
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that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by such holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the restrictive legend set forth in Section 3 above,
except that such certificate shall not bear such restrictive legend after the
date of the Company's initial public offering under the Securities Act if the
opinion of counsel or "no-action" letter referred to above expressly indicates
that such legend is not required in order to establish compliance with the Act
or if such legend is no longer required pursuant to Rule 144(k).
5. Requested Registration.
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(a) Request for Registration. If the Company shall receive from:
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(1) Initiating Holders a written request that the Company effect any
registration with respect to the lesser of at least thirty percent (30%) of the
Registrable Securities or that number of Registrable Securities which would
result in an aggregate offering of at least $10,000,000, or
(2) Holders of 50% of the Registrable Series C Securities (who, for
the purposes of the remainder of this Agreement, shall also be deemed to be
Initiating Holders), the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request delivered
to the Company within fifteen (15) days after receipt of such written notice
from the Company; provided, however, that the Company shall not be obligated to
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effect, or to take any action to effect, any such registration pursuant to this
Section 5:
(A) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act; or
(B) More than three (3) years following the closing of the initial
offering to the public of the Company's stock pursuant to a firm commitment
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registered underwriting for the account of the Company in which the aggregate
gross proceeds received by the Company exceed $15,000,000 (the "PUBLIC
OFFERING"); provided, however, that with respect to the right set forth in
Section 5(a)(2) only, in the event that the Company does not qualify for
registration on Form S-3 in accordance with Section 8 of this Agreement and the
right to request registration pursuant to Section 5(a)(2) has not been
effected, than such right to request registration pursuant to Section 5(a)(2)
shall continue to remain outstanding notwithstanding the forgoing three (3) year
limitation; and provided further, however, that in no event shall the Company be
obligated to effect, or take any action to effect, any such registration
pursuant to Section 5(a)(2) more than seven (7) years following the Public
Offering, or
(C) Prior to six (6) months following the closing of
the Public Offering;
provided further, that the Company shall not be obligated to effect, or to take
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any action to effect, any such registration pursuant to:
(D) (i) Section 5(a)(1) after the Company has effected two (2) such
registrations pursuant to Section 5(a)(1) and such registrations have been
declared or ordered effective and the sales of such Registrable Securities have
closed; or (ii) Section 5(a)(2) after the Company has effected one (1) such
registration pursuant to Section 5(a)(2) and such registrations have been
declared or ordered effective and the sales of such Registrable Securities have
closed.
Subject to the foregoing clauses (A), (B), (C) and (D) the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable, after receipt of the request
or requests of the Initiating Holders; provided, however, that if the Company
shall furnish to such Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be filed on or before the time filing would
be required and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
(but not more than once during any twelve month period) for a period of not more
than one hundred twenty (120) days after receipt of the request of the
Initiating Holders.
The registration statement filed pursuant to the request of the
Initiating Holders, may, subject to the provisions of Section 5(b) below,
include other securities of the Company which are held by officers or directors
of the Company or which are held by persons who, by virtue of agreements with
the Company, are entitled to include their securities in any such registration,
but the Company shall have no right to include any of its securities in any such
registration except as provided in Section 5(b) below.
(b) Underwriting. If the Initiating Holders intend to distribute the
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Registrable Securities covered by their request by means of an underwriting,
they shall so advise
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the Company as a part of their request made pursuant to Section 5(a), and the
Company shall include such information in the written notice referred to in
Section 5(a) above. The right of any Holder to registration pursuant to Section
5(a) shall be conditioned upon such Holder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder with respect to such participation and inclusion) to the
extent provided herein. A Holder may elect to include in such underwriting all
or a part of the Registrable Securities he holds.
If officers or directors of the Company shall request inclusion of
securities of the Company other than Registrable Securities in any registration
pursuant to Section 5(a)(1), or if holders of securities of the Company who are
entitled by contract with the Company to have securities included in such a
registration (such officers, directors, and other shareholders being
collectively referred to as the "OTHER PURCHASERS") request such inclusion, the
Initiating Holders shall, on behalf of all Holders, offer to include the
securities of such Other Purchasers in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this
Agreement. The Company shall (together with all Holders and Other Purchasers
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters (the "UNDERWRITER") selected for such underwriting
by the Initiating Holders holding at least fifty percent (50%) of the Shares
held by the Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 5, if the Underwriter
determines that marketing factors require a limitation on the number of shares
to be underwritten, the Underwriter may (subject to the allocation priority set
forth below) limit the number of Registrable Securities to be included in the
registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated in the following priority:
(i) with respect to a request for registration pursuant to
Section 5(a)(1): first, among all Holders of Registrable Securities to the
extent of not less than fifty percent (50%) of the Registrable Securities
offered for sale in such offering (and pro rata among such holders on the
basis of all Registrable Securities then held by such holders), provided
that if the Underwriter determines that marketing factors require the sale
of less than such amount, then the entire offering shall be composed of
such Registrable Securities; and second, among all Other Purchasers in
proportion, as nearly as practicable, to the respective amounts of
securities which they had requested to be included in such registration at
the time of filing the registration statement; or
(ii) with respect to a request for registration pursuant to
Section 5(a)(2): first, among all Holders of Series C Registrable
Securities to the fullest extent (and pro rata among such holders on the
basis of such Series C Registrable Securities then held by such holders),
provided that if the Underwriter determines that marketing factors require
the sale of less than such amount, then the entire offering shall be
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composed of such Registrable Securities; and second, among all Other
Purchasers in proportion, as nearly as practicable, to the respective
amounts of securities which they had requested to be included in such
registration at the time of filing the registration statement.
If any Holder or Other Purchaser disapproves of the terms of any such
underwriting, such holder may elect to withdraw therefrom by written notice to
the Company and the Underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
the Underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company may include its securities for its
own account in such registration if the underwriter so agrees and if the number
of Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
6. Company Registration.
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(a) If the Company shall determine to register any of its securities
either for its own account or for the account of a security holder or holders
exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans or a registration
relating solely to a Commission Rule 145 transaction or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(i) promptly give to each Holder written notice thereof (which, to the
extent then known, shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws); and
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all of the Registrable Securities specified in a written request or requests
made by any Holder within fifteen (15) days after receipt of the written notice
from the Company described in clause (b) above, except as set forth in Section
6(b) below. Such written request may specify all or a part of a Holder's
Registrable Securities.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event the right of any Holder to
registration pursuant to Section 6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the Other Purchasers distributing their
securities through such underwriting) enter into an underwriting agreement in
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customary form with the Underwriter selected for underwriting by the Company.
Notwith standing any other provision of this Section 6, if the Underwriter
determines that marketing factors require a limitation on the number of shares
to be underwritten, and (a) if such registration is the first registered
offering of the Company's securities to the public, the Underwriter may
(subject to the allocation priority set forth below) exclude from such
registration and underwriting some or all of the Registrable Securities which
would otherwise be underwritten pursuant hereto, and (b) if such registration is
other than the first registered offering of the sale of the Company's securities
to the public, the Underwriter may (subject to the allocation priority set forth
below) limit the number of Registrable Securities to be included in the
secondary portion of the registration and underwriting to not less than fifty
percent (50%) of the securities to be included therein. The Company shall so
advise all holders of securities requesting registration, and the number of
shares of securities that are entitled to be included in the registration and
underwriting by persons other than the Company shall be allocated in the
following priority: first, to Holders of Registrable Securities to the extent of
fifty percent (50%) of the securities to be included therein (and pro rata among
such Holders on the basis of all Registrable Securities then held by such
Holders); and second, among all Other Purchasers and Holders in proportion, as
nearly as practicable, to the respective amounts of securities, including
Registrable Securities, which they had requested to be included in such
registration at the time of filing the registration statement. If any Holder or
Other Purchaser disapproves of the terms of any such underwriting, he may elect
to withdraw therefrom by written notice to the Company and the Underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
7. Expenses of Registration. All Registration Expenses incurred in
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connection with any three (3) registrations or qualifications pursuant to
Section 5 of this Agreement and any registrations or qualifications pursuant to
Sections 6 and 8 of this Agreement shall be borne by the Company, and all
Selling Expenses shall be borne by the holders of the securities so registered
pro rata on the basis of the number of their shares so registered; provided,
however, that the Company shall not be required to pay any Registration Expenses
if, as a result of the withdrawal of a request for registration by Initiating
Holders, the registration statement does not become effective, unless such
withdrawal is caused by a material adverse change in the business or operations
of the Company after such request for registration, or unless the Initiating
Holders agree to have such registration considered a registration pursuant to
Section 5(a)(1)(ii)(D) or Section 5(a)(2)(ii)(D), as applicable. If the Company
is not required to pay any Registration Expenses, then the Holders and Other
Purchasers requesting registration shall bear such Registration Expenses pro
rata on the basis of the number of their shares so included in the registration
request, and such registration shall not be considered a registration for
purposes of Section 5(a)(1)(ii)(D) or 5(a)(2)(ii)(D), as applicable.
8. Registration on Form S-3. The Company shall use its best efforts
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to qualify for registration on Form S-3, and to that end, the Company shall
comply with the reporting requirements of the Exchange Act following the
effective date of the first registration of any securities of the Company for a
registered public offering. After the Company has qualified for the use of Form
S-3, each holder of Registrable Securities shall have the right to
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request an unlimited number of registrations on Form S-3 (such requests shall be
in writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended method of disposition of such shares by each such
holder), subject only to the following limitations:
(a) The Company shall not be obligated to cause a registration on Form
S-3 to become effective prior to one hundred eighty (180) days following the
effective date of a Company-initiated registration (other than a registration
effected solely to qualify an employee benefit plan or to effect a business
combination pursuant to Rule 145), provided that notice of such Company-
initiated registration is given to Holders prior to receipt of a request from a
holder of Registrable Securities for registration on Form S-3, and provided that
the Company shall use its best efforts to achieve such effectiveness promptly
following such one hundred eighty (180) day period;
(b) The Company shall not be obligated to cause a registration on Form
S-3 to become effective prior to expiration of one hundred eighty (180) days
following the effective date of the most recent registration pursuant to a
request by a holder of Registrable Securities under this Agreement or pursuant
to a request by a holder of registration rights under any other agreement of the
Company granting Form S-3 demand registration rights; provided, however, that
the Company shall use its best efforts to achieve such effectiveness promptly
following such one hundred eighty (180) day period;
(c) The Company shall not be required to effect a registration
pursuant to this Section 8 unless the Holder or Holders requesting registration
represent at least twenty-five percent (25%) or more of the outstanding
Registrable Securities and propose to dispose of shares of Registrable
Securities having an aggregate disposition price (before deduction of
underwriting discounts and expenses of sale) of at least $2,000,000;
(d) The Company shall not be required to file more than one (1) such
registration statement on Form S-3 during any 12-month period; and
(e) The Company shall not be required to maintain and keep any such
registration on Form S-3 effective for a period exceeding thirty (30) days from
the effective date thereof. The Company shall give notice to all Holders and
all holders of registration rights under any other agreement of the Company
granting Form S-3 or similar demand registration rights of the receipt of a
request for registration pursuant to this Section 8 and shall provide a
reasonable opportunity for all such other holders to participate in the
registration. Subject to the foregoing, the Company will use its best efforts
to effect promptly the registration of all shares of Registrable Securities on
Form S-3 to the extent requested by the Holder or Holders thereof for purposes
of disposition. In the event the Underwriter determines that market factors
require a limitation on the number of shares to be underwritten, then shares
shall be excluded from such registration and underwritten pursuant to the method
described in Section 6(b).
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9. Registration Procedures. In the case of each registration
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effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of such registration and as to
the completion thereof. At its expense, the Company will:
(a) Keep such registration effective for a period of thirty (30) days
or until the Holder or Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs; and
(b) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request; and
(c) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 5 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions, and provided further that if the underwriter
so requests the underwriting agreement will contain customary indemnification
and contribution provisions, and provided further that the Underwriter is
reasonably acceptable to the Company.
10. Indemnification.
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(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, if Registrable
Securities held by such Holder are included in the securities with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act including any rule or
regulation thereunder applicable to the Company relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement (or alleged untrue statement) or omission (or alleged omission) based
upon written information furnished to the Company by such Holder or underwriter
and stated to be specifically for use therein.
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(b) Each Holder and Other Purchaser will, if Registrable Securities or
other securities held by such Holder are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers and agents and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other such Holder
and Other Purchaser and each of their officers, directors and partners, and each
person controlling such Holder or Other Purchaser, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
and will reimburse the Company and such Holders, Other Purchasers, directors,
officers, agents, partners, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
of defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
or Other Purchaser and stated to be specifically for use therein; provided,
however, that the obligations of such Holders and Other Purchasers hereunder
shall be limited to an amount equal to the proceeds received by each such Holder
or Other Purchaser for securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 10 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement. No Indemnifying
Party in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
11. Information by Holder. Each Holder and each Other Purchaser
---------------------
holding securities included in any registration shall furnish to the Company
such information regarding
12
such Holder or Other Purchaser as the Company may reasonably request in writing
and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
12. Rule 144 Reporting. With a view to making available the benefits
------------------
of certain rules and regulations of the Commission which may permit the sale of
the Restricted Securities to the public without registration, the Company agrees
to:
(a) Make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements;
(c) So long as a Purchaser owns any Restricted Securities, furnish to
the Purchaser forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 (at any time from and
after ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed as a Purchaser may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Purchaser to sell any such securities
without registration.
13. No-Action Letter or Opinion of Counsel in Lieu of Registration.
--------------------------------------------------------------
Notwithstanding anything in this Agreement to the contrary, if at any time
after the date of the Company's initial public offering of its securities under
the Securities Act the Company shall have obtained from the Commission a "no-
action" letter in which the Commission has indicated that it will take no action
if, without registration under the Securities Act, any Holder disposes of
Registrable Securities covered by any request for registration made under this
Agreement in the manner in which such Holder proposes to dispose of the
Registrable Securities included in such request, or if in the opinion of counsel
for the Company concurred in by counsel for such Holder no registration under
the Securities Act is required in connection with such disposition, the
Registrable Securities included in such request shall not be eligible for
registration under this Agreement; provided, however, with respect to any Holder
who may deemed to be an "affiliate," as that term is defined under Rule 144, if,
notwithstanding the opinion of such counsel, the Holder is unable to dispose of
all of the Registrable Securities included in his request in the manner in which
such Holder so proposes without registration, the Registrable Securities
included in such request shall be eligible for registration under this
Agreement.
13
14. Transfer or Assignment of Registration Rights. The rights to
---------------------------------------------
cause the Company to register Purchaser's securities granted to Purchaser by the
Company under Sections 5, 6 and 8 hereof may be transferred or assigned by
Purchaser to a transferee or assignee of any of the Restricted Securities;
provided that the Company is given written notice by Purchaser at the time of
said transfer or assignment, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned; and provided further that the
transferee or assignee of such rights is not deemed by the Board of Directors of
the Company, in its reasonable judgment, to be a competitor of the Company; and
provided further that the transferee or assignee of such rights assumes the
obligations of a Purchaser under this Agreement; and provided further that the
transferee or assignee of such rights is transferred at least twenty percent
(20%) of the Registrable Securities originally issued to Purchaser.
15. Subsequent Grant of Registration Rights. The Company shall not
---------------------------------------
grant rights to have securities other than the Registrable Securities registered
under the Securities Act that are pari passu or superior to the registration
----------
rights granted herein without the written consent of the holders of at least a
majority of the outstanding Registrable Securities.
16. "Market Stand-off" Agreement. Each Purchaser agrees, if
----------------------------
requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, not to sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by Purchaser during a
period of time determined by the Company and its underwriters (not to exceed 180
days) following the effective date of a registration statement of the Company
filed under the Securities Act, provided that all officers and directors of the
Company who then hold Common Stock (or other securities) of the Company enter
into similar agreements. Such agreement shall be in writing in a form
satisfactory to the Company and such underwriter. The Company may impose stop-
transfer instructions with respect to the Shares (or securities) subject to the
foregoing restriction until the end of said period.
17. Right of First Refusal.
----------------------
(a) New Issuances. The Company hereby grants to the Holders the right
-------------
of first refusal (the "RIGHT OF FIRST REFUSAL") to purchase, pro rata, all (or
any part) of "NEW SECURITIES" (as defined in this Section 17) that the Company
may, from time to time propose to sell and issue. Such pro rata share, for
purposes of this right of first refusal, is the ratio of (X) the sum of the
number of shares of Common Stock then owned by such Holder and the number of
shares of Common Stock issuable upon the conversion of the Shares then owned by
such Holder, to (Y) the sum of the total number of shares of Common Stock then
outstanding and the total number of shares of Common Stock issuable upon the
conversion of the total number of shares then outstanding. This right of first
refusal shall be subject to the following provisions:
(i) "NEW SECURITIES" shall mean any Common Stock and Preferred Stock
--------------
of the Company whether or not authorized on the date hereof, and rights,
options, or
14
warrants to purchase Common Stock or Preferred Stock and securities of any type
whatsoever that are, or may become, convertible into Common Stock or Preferred
Stock; provided, however, that "NEW SECURITIES" does not include the shares of
Common Stock and Preferred Stock issued or issuable:
(A) upon conversion of shares of Preferred Stock (i) outstanding as of
the date hereof or (ii) acquired upon exercise of any warrants to Preferred
Stock outstanding as of the date hereof;
(B) as a dividend or distribution on Preferred Stock or as a result of
any event for which adjustment is made pursuant to any antidilution adjustments
made pursuant the Company's Articles of Incorporation;
(C) to officers, directors and employees of, and consultants to, the
Company pursuant to the Company's 1995 Stock Option Plan or such other
arrangement approved by the Company's Board of Directors (up to an additional
2,300,000 shares after the date hereof, with such 2,300,000 limitation not
applicable to any shares of Common Stock issued or issuable upon exercise of any
option, warrant or other right issued, granted or outstanding on or prior to the
date hereof);
(D) upon exercise of any option, warrant or other right issued,
granted or outstanding on or prior to the date hereof; or
(E) shares of Common Stock or Preferred Stock issued in connection
with any stock split, stock dividend, or recapitalization by the Company.
(F) by way of dividend or other distribution on shares of Common Stock
excluded by the foregoing clause(s) (A), (B), (C), (D) and (F).
(ii) In the event that the Company proposes to undertake an issuance
of New Securities, it shall give each Holder written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Each Holder shall have twenty
(20) business days after receipt of such notice to agree to purchase its pro
rata share of such New Securities at the price and upon the terms specified in
the notice by giving written notice to the Company and stating therein the
quantity of New Securities to be purchased. If any Holder fails to agree to
purchase its full pro rata share within such twenty (20) business day period,
the Company will give the Holders who did so agree (the "ELECTING HOLDERS")
notice of the number of shares which were not subscribed for. Such notice may
be by telephone if followed by written confirmation within two days. The
Electing Holders shall have ten (10) business days from the date of such notice
to agree to purchase pro rata all of the New Securities not purchased by such
non-purchasing Holders.
(iii) In the event that the Holders fail to exercise in full the
right of first refusal within the twenty (20) business plus ten (10) business
day period specified above, the
15
Company shall have one hundred twenty (120) days thereafter to sell (or enter
into an agreement pursuant to which the sale of New Securities covered thereby
shall be closed, if at all, within sixty (60) days from the date of said
agreement) the New Securities respecting which the rights of the Holders were
not exercised at a price and upon terms no more favorable to the purchasers
thereof than specified in the Company's notice. In the event the Company has
not sold the New Securities within such one hundred twenty (120) day period (or
sold and issued New Securities in accordance with the foregoing within sixty
(60) days from the date of such agreement) the Company shall not thereafter
issue or sell any New Securities, without first offering such New Securities to
the Holders in the manner provided above.
(iv) The Right of First Refusal granted under this Section 17
shall expire immediately prior to the Public Offering.
(v) This Right of First Refusal is nonassignable except to any
transferee to whom registration rights may be transferred pursuant to Section 15
of this Agreement.
(vi) This Right of First Refusal shall terminate as to any Holder (or
any transferee or assignee of such Holder) at such time as such Shareholder
ceases to own any Shares or Common Stock issuable upon conversion of the Shares.
18. Governing Law. This Agreement and the legal relations between
-------------
the parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
19. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties regarding rights to registration
and terminates the Prior Agreement. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
20. Notices, Etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or otherwise delivered by hand or by messenger, addressed (a)
if to a Purchaser, at the address set forth on Exhibit A attached hereto, or at
---------
such other address as the Purchaser shall have furnished to the other parties
hereto in writing, or (b) if to any other holder of any securities, at such
address as such holder shall have furnished the other parties hereto in writing,
or, until any such holder so furnishes an address to the Company, then to and at
the address of the last holder of such Shares who has so furnished an address to
the Company, or (c) if to the Company, at the address of its principal offices
set forth on the signature page of this Agreement, or at such other address as
the Company shall have furnished to the other parties hereto in writing.
16
21. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
22. Amendments. Any provision of this Agreement may be amended,
----------
waived or modified upon the written consent of the Company, and the Purchasers
(or their assignees to whom Purchasers have expressly assigned their rights in
compliance with Section 14 hereof) who then hold (a) at least fifty percent
(50%) of the Registrable Securities then held by persons entitled to
registration rights hereunder, and (b) at least seventy-five percent (75%) of
the Series C Registrable Securities then held by persons entitled to
registration rights hereunder, (except with respect to Section 15, as to which
any amendment, waiver or modification shall require the approval of not less
than a majority of such Registrable Securities); provided any such amendment,
--------
waiver or modification applies by its terms to each applicable Purchaser and
each such assignee of a Purchaser and that Purchaser or such assignee of
Purchaser may waive any of such Holder's rights or the Company's obligations
hereunder without obtaining the consent of any other Purchaser or assignee;
provided further, that Exhibit A hereto shall be automatically amended to add
---------------- ---------
thereto (i) any Purchaser that executes this Agreement subsequent to the date
hereof with the consent of the Company's Board of Directors, and (ii) any
warrant holder who receives a warrant to purchase the Company's equity
securities in connection with an equipment lease or debt transaction unanimously
offered by the Company's Board of Directors.
[intentionally blank]
17
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
GENESYS TELECOMMUNICATIONS LABORATORIES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER
MCI Telecommunications Corporation
-----------------------------------------------
(Print Name of Purchaser)
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
(Signature of Purchaser or Authorized Signatory)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President
-----------------------------------------------
(Print Name and Title of Authorized Signatory)
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
-----------------------------------------------
Washington, D.C. 20006
-----------------------------------------------
18
EXHIBIT A
---------
Series A Holders
----------------
Benchmark Capital Partners, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Benchmark Founders' Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Cisco Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Handelgesellschaft MBH TSD
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RJ Family Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ori ▇. ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WS Investments 96A
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Series B Holders
----------------
Benchmark Capital Partners, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Benchmark Founders' Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ Venture Associates III, L.P.
c/▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WPG Enterprise Fund II, L.P.
c/▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Series C Holders
----------------
MCI Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Intel Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Common Holder
-------------
Bruncor Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ 41 A
Attn: C. ▇▇▇▇ ▇▇▇▇▇▇