FORM OF ITURF COMMON STOCK REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of ________ __, 1999 by and between iTurf Inc., a Delaware corporation
(the "Company"), and ▇▇▇▇▇*s Inc., a Delaware corporation ("▇▇▇▇▇*s").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Agreement:
(a) Form S-3. The term "Form S-3" means such form under the
Securities Act as is in effect on the date hereof or any successor registration
form under the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(b) Prospectus. The term "Prospectus" shall mean the prospectus
included in any registration statement filed pursuant to the provisions hereof
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the 1933 Act), as amended
or supplemented by any prospectus supplement (including, without limitation, any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by such registration statement), and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
(c) Effective Date. The term "Effective Date" means the date on
which the Company's registration statement relating to its initial public
offering is declared effective by the SEC.
(d) Registrable Securities. The term "Registrable Securities" means
(1) any common stock of the Company held as of the Effective Date by ▇▇▇▇▇*s,
its successors, its assigns under this Agreement, or any entity which controls,
is controlled by, or is under common control with ▇▇▇▇▇*s, and (2) any
securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement thereof, excluding in all
cases, however, (i) any Registrable Securities sold by ▇▇▇▇▇*s in a transaction
in which rights under this Section 1 are not assigned in accordance with this
Agreement, or (ii) any Registrable Securities sold in a public offering pursuant
to a registration statement filed with the SEC or sold pursuant to Rule 144
except to the extent reacquired by ▇▇▇▇▇*s or an entity which controls, is
controlled by or is under common control with ▇▇▇▇▇*s as provided in clause (1)
above.
(e) Registration. The terms "Register," "Registered," and
"Registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the 1933 Act, and the declaration or
ordering of effectiveness of such registration statement.
(f) SEC. The term "SEC" or "Commission" means the U.S. Securities
and Exchange Commission.
1.2 Demand Registration.
(a) Request by ▇▇▇▇▇*s. If the Company shall receive at any time
after 180 days following the effective date of the registration statement for
the Company's initial public offering, a written request from ▇▇▇▇▇*s that the
Company file a registration statement under the 1933 Act covering the
registration of Registrable Securities with a reasonably anticipated aggregate
price to the public of at least three million dollars ($3,000,000) pursuant to
this Section 1.2, then the Company shall effect, as soon as practicable, and in
any event use its best efforts to effect within 60 days of such request, the
registration under the 1933 Act of all Registrable Securities which ▇▇▇▇▇*s
requests to be registered and included in such registration, subject only to the
limitations of this Section 1.2.
(b) Underwriting. If ▇▇▇▇▇*s intends for the Registrable Securities
covered by its request to be distributed by means of an underwriting, then it
shall so advise the Company as a part of its request made pursuant to this
Section 1.2. ▇▇▇▇▇*s shall (a) select the managing underwriter to administer
such offering after consultation with the Company and subject to the approval of
the Company, which approval shall not be unreasonably withheld, and (b) enter
into an underwriting agreement in customary form with such managing underwriter.
Notwithstanding any other provision of this Section 1.2, if the underwriter(s)
advise(s) the Company in writing that marketing factors require a limitation of
the number of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto the Company will so advise ▇▇▇▇▇*s, and the number
of securities that may be included in the underwriting shall be reduced as
required by the underwriter(s) and allocated first, to the Registrable
Securities covered by ▇▇▇▇▇*s request, second, to the Company and third, among
any other holders of securities of the Company entitled to inclusion in such
registration.
(c) Maximum Number of Demand Registrations. The Company is obligated
to effect only one (1) such registration pursuant to this Section 1.2 in any
12-month period. The Company shall not be deemed to have effected a registration
pursuant to this Section 1.2 unless a registration statement in respect thereof
shall have been declared effective by the SEC and remains effective for 120 days
or such earlier time at which all Registrable Securities registered under such
Registration Statement have been sold (or withdrawn from such registration at
the request of ▇▇▇▇▇*s).
(d) Deferral; Jurisdictional Requirements. Notwithstanding the
foregoing, if the Company shall furnish to ▇▇▇▇▇*s a certificate signed by the
President or Chief Executive Officer of the Company stating that it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the
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filing of such registration statement, then the Company shall have the right to
defer such filing for a period of not more than 120 days after receipt of the
request of ▇▇▇▇▇*s or such earlier time as such a certificate could no longer be
given in good faith; provided, however, that the Company may not utilize this
right more than once in any twelve (12) month period.
(e) Withdrawn Request. ▇▇▇▇▇*s may withdraw a request for
registration under this Section 1.2 at any time prior to the effective date of
the Registration Statement related to such registration, provided that if it
elects to remain liable for all expenses incurred in conjunction therewith then
such withdrawn registration statement shall not be considered to be a demand
registration for the purposes of Section 1.2(c).
1.3 Piggyback Registrations.
(a) ▇▇▇▇▇*s Rights. The Company shall notify ▇▇▇▇▇*s in writing at
least thirty (30) days (or such shorter period of time as is practicable) prior
to filing any registration statement under the 1933 Act for purposes of
effecting a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements on Form S-8 or
S-4 or relating solely to any employee benefit plan or an acquisition of any
entity or business) and will afford ▇▇▇▇▇*s, subject to the terms and conditions
set forth herein, an opportunity to include in such registration statement all
or any part of the Registrable Securities. ▇▇▇▇▇*s shall, within ten (10) days
after receipt of the above-described notice from the Company, so notify the
Company in writing, and in such notice shall inform the Company of the number of
Registrable Securities it requests to be included in such registration
statement. If ▇▇▇▇▇*s decides not to include all of its Registrable Securities
in any registration statement filed by the Company, it shall nevertheless
continue to have the right to include any Registrable Securities not included in
such registration statement in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(b) Underwriting. If a registration statement with respect to which
the Company gives notice under this Section 1.3 pertains to an underwritten
offering, then the Company shall so advise ▇▇▇▇▇*s. In such event, the right of
▇▇▇▇▇*s to have Registrable Securities included in a registration pursuant to
this Section 1.3 shall be conditioned upon ▇▇▇▇▇*s participation in such
underwriting and the inclusion of the Registrable Securities in the underwriting
to the extent provided herein. ▇▇▇▇▇*s shall enter into an underwriting
agreement in customary form with the managing underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Agreement, if the managing underwriter or underwriters determine(s) in good
faith that marketing factors require a limitation of the number of securities to
be underwritten, then the managing underwriter(s) may exclude securities
(including Registrable Securities) from the registration and the underwriting,
and the number of securities that may be included in the registration and the
underwriting shall be allocated, first, to the Company, second to ▇▇▇▇▇*s and
third to any other holders of securities of the Company entitled to inclusion in
such registration, provided that if the registration is a registration pursuant
to Section 1.2, the "cut-back" provisions described in the last sentence of
Section 1.2(b) shall
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apply. If ▇▇▇▇▇*s disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Company and the managing
underwriter(s), delivered at least ten (10) business days prior to the effective
date of the registration statement or if notified of the terms thereafter,
promptly after such notification. Any Registrable Securities excluded or
withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
1.4 Form S-3 Registration. In case the Company shall receive from ▇▇▇▇▇*s
a written request or requests that the Company effect a registration on Form S-3
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by ▇▇▇▇▇*s, then the Company will:
(a) Registration. As soon as practicable, effect such registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of ▇▇▇▇▇*s
Registrable Securities as are specified in such request, provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 1.4:
(1) if Form S-3 is not available for such offering by
▇▇▇▇▇*s;
(2) if ▇▇▇▇▇*s, together with any other holders of securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public of less than one million dollars ($1,000,000); or
(3) if the Company shall furnish to ▇▇▇▇▇*s a certificate
signed by the President or Chief Executive Officer of the Company stating that
it would be seriously detrimental to the Company and its stockholders for such
Form S-3 Registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration statement
no 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 ▇▇▇▇▇*s under this
Section 1.4 or such earlier time as such a certificate could no longer be given
in good faith.
(b) Not Demand Registration. Form S-3 registrations shall not be
deemed to be demand registrations as described in Section 1.2 above.
(c) Number of Registrations. Notwithstanding anything to the
contrary herein, the Company is obligated to effect only one (1) registration on
Form S-3 per year pursuant to this Section 1.4.
(d) Withdrawn Request. ▇▇▇▇▇*s may withdraw its request for
registration under this Section 1.4 at any time prior to the effective date of
the Registration Statement related to such registration, provided that if
provided that if it elects to remain liable for all expenses incurred in
conjunction therewith then such withdrawn registration statement shall not be
considered to be a Form S-3 registration for the purposes of this Section 1.4.
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1.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities, use its best efforts to cause such
registration statement to become effective as soon as practicable and with
respect to registrations effected pursuant to Sections 1.2, 1.3 and 1.4 keep
such registrations effective for up to one hundred twenty (120) days, excluding
any lock-up period, or such shorter period of time as is agreed to in writing by
the Company and ▇▇▇▇▇*s.
(b) For such period of time as shall be required in connection with
the transactions contemplated thereby and permitted by applicable rules,
regulations and administrative practice of the SEC (but not for more than 120
days from the effective date thereof), file such post-effective amendments and
supplements to such registration statement as shall be necessary so that neither
such registration statement nor any related prospectus shall contain any
material misstatement or omission relative to the Company or any of its assets
or liabilities or its businesses of affairs and will otherwise comply with all
applicable federal, state and foreign securities laws.
(c) Furnish to ▇▇▇▇▇*s such number of copies of a Prospectus,
including a preliminary Prospectus, in conformity with the requirements of the
1933 Act, and such other documents as it may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by it that are
included in such registration.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by ▇▇▇▇▇*s, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions unless already subject thereto.
(e) If requested by the underwriters for any underwritten offering
by ▇▇▇▇▇*s pursuant to any registration requested under Section 1.2, 1.3 or 1.4,
the Company shall enter into an underwriting agreement with such underwriters
for such offering, such agreement to be satisfactory in form and substance to
▇▇▇▇▇*s and to contain such representations and warranties by the Company and
such other terms and provisions (including, without limitation, provisions for
indemnification of such underwriters by the Company) as are customarily
contained in such underwriting agreements. ▇▇▇▇▇*s shall be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the agreements on the part of, the
Company to and for the benefit of such underwriters be made to and for the
benefit of ▇▇▇▇▇*s and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of ▇▇▇▇▇*s.
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(f) Notify ▇▇▇▇▇*s promptly, (i) of the time such registration
statement becomes effective or when any amendment or supplement or prospectus
forming a part of such registration statement has been filed or becomes
effective, (ii) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of a registration
statement for amendments or supplements to such registration statement or
related prospectus or for additional information, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a registration statement or the initiation or
threatening of any proceedings for that purpose (and the Company will use its
best efforts to prevent the issuance of any such stop order or to obtain its
withdrawal promptly if such stop order should be issued), (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event which makes any
statement made in a registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in the registration
statement or prospectus so that, in the case of a registration statement, it
will not contain any untrue statement of a material fact required to be stated
therein or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and, at the reasonable request of ▇▇▇▇▇*s, the Company
shall also promptly prepare and file with the Securities and Exchange Commission
and make available to ▇▇▇▇▇*s any supplement or amendment reasonably necessary
so that neither such registration statement nor any related prospectus shall
contain any material misstatement or omission as a result of such event
(provided that the 120 day period referred to in Section 1.2, 1.3 or 1.4 shall
be extended by the period from which the Company gives the notice specified in
this clause until such supplement or amendment is made available to ▇▇▇▇▇*s),
and (vi) of the Company's reasonable determination that a post-effective
amendment to a registration statement would be appropriate; except that notice
of an event or determination referred to in (v) or (vi) above need be made only
if a registration statement relating to Registrable Securities is then in
effect.
(g) Provide for the listing of the Registrable Securities on the
stock exchange or authorization for trading on automated quotation system on
which the Registrable Securities' class of securities are then listed or quoted;
provided however, nothing contained herein shall obligate the Company to have
listed any Registrable Securities which are of a class of securities of the
Company not then listed on a stock exchange or authorized for trading on
automated quotation system.
(h) Make available for inspection by any underwriter participating
in any disposition pursuant to such registration statement, and any attorney,
accountant or other professional retained by such underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all
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information reasonably requested by any such Inspector in connection with such
registration statement.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.2, 1.3 or
1.4 that ▇▇▇▇▇*s shall furnish to the Company such information regarding
▇▇▇▇▇*s, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of its Registrable Securities.
1.7 Expenses. All expenses incurred in connection with a registration
pursuant to Sections 1.2, 1.3 and 1.4, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for ▇▇▇▇▇*s (but excluding underwriters' discounts
and commissions), shall be borne by the Company. ▇▇▇▇▇*s shall bear a
proportionate share (based on the total number of shares sold in a registration
pursuant to Section 1 other than for the account of the Company) of all
discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering.
1.8 Indemnification. In the event any registration statement is filed by
the Company:
(a) By the Company. To the extent permitted by law, the Company will
indemnify and hold harmless ▇▇▇▇▇*s, each officer and director of ▇▇▇▇▇*s, any
agent or underwriter (as defined in the ▇▇▇▇ ▇▇▇) for ▇▇▇▇▇*s and each person
(as defined in Section 2(2) of the 1933 Act), if any, who controls ▇▇▇▇▇*s or
such underwriter within the meaning of Section 15 of the 1933 Act or the Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") or any
similar federal statute then in effect, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the 1933
Act, the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or in any
amendments or supplements thereto; (ii) the omission or alleged omission to
state in such registration statement, including any preliminary prospectus or
final prospectus contained therein or in any amendments or supplements thereto,
a material fact required to be stated therein, or necessary to make the
statements therein not misleading (in the case of any preliminary prospectus or
final prospectus, in the light of the circumstances under which they are made);
or (iii) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any federal or state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any federal or state securities
law in connection with the offering covered by such registration statement; and
the Company will reimburse ▇▇▇▇▇*s, each officer or director of ▇▇▇▇▇*s, and
each such agent, underwriter or controlling person for any legal or other
expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity
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agreement contained in this subsection 1.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage or liability to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by ▇▇▇▇▇*s, or by such officer, director, agent, underwriter or
controlling person of ▇▇▇▇▇*s.
(b) By ▇▇▇▇▇*s. To the extent permitted by law, ▇▇▇▇▇*s will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act, as applicable, and any agent or underwriter, against any losses,
claims, damages or liabilities (joint or several) to which the Company or any
such director, officer, controlling person, agent or underwriter may become
subject under the 1933 Act, the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information concerning ▇▇▇▇▇*s furnished by ▇▇▇▇▇*s
expressly for use in connection with such registration; and ▇▇▇▇▇*s will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action to
the extent that (and only to the extent that) such Violation occurs in reliance
upon and in conformity with written information concerning ▇▇▇▇▇*s furnished by
▇▇▇▇▇*s for use in connection therewith; provided, however, that the indemnity
agreement contained in this subsection 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of ▇▇▇▇▇*s, which consent shall not
be unreasonably withheld; and provided further, that the total amounts payable
in indemnity by ▇▇▇▇▇*s under this Section 1.8(b) in respect of any Violation
shall not exceed the net proceeds received by ▇▇▇▇▇*s in the registered offering
out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
this Section 1.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.8, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.8 except to the extent that the
indemnifying party is actually prejudiced by
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the failure to give such notice. In addition, the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.8. The
indemnification provided in this Section 1.8 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any indemnified
party, and shall survive the transfer of any Registrable Securities being
registered pursuant to Section 1.2, 1.3 or 1.4.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity
agreements of the Company and ▇▇▇▇▇*s are subject to the limitation that,
insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or in the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreements shall not inure to the benefit of
▇▇▇▇▇*s (or any officer or director of ▇▇▇▇▇*s or any such agent, underwriter or
controlling Person of ▇▇▇▇▇*s) if a copy of the Final Prospectus was timely
furnished to the indemnified party, and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the 1933 Act; provided, however, that this subparagraph
(d) shall not apply with respect to any underwritten offering.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the 1933 Act in any case in which either
(i) ▇▇▇▇▇*s (and/or any officer, director, agent, underwriter or controlling
person who may be indemnified under Section 1.8(a)) makes a claim for
indemnification pursuant to this Section 1.8 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 1.8 provides for indemnification in such case, or (ii)
contribution under the 1933 Act may be required on the part of ▇▇▇▇▇*s (and/or
any officer, director, underwriter or controlling person who may be indemnified
under Section 1.8(b)) in circumstances for which indemnification is provided
under this Section 1.8; then, and in each such case, the Company and ▇▇▇▇▇*s
(and/or such other person) will contribute to the aggregate losses, claims,
damages and expenses or liabilities to which they may be subject (after
contribution from others) in proportion to their relative fault. The relative
fault of the Company and ▇▇▇▇▇*s shall be determined by reference to, among
other things, whether the untrue or alleged omission of a material fact relates
to information supplied by the Company or by s ▇▇▇▇▇*s and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and ▇▇▇▇▇*s agree that it would not be
just and equitable if contribution pursuant to this Section 1.8(e) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the two
immediately preceding sentences; provided however, that in no event, except in
instances of fraud by ▇▇▇▇▇*s in which there is no limitation, (i) shall ▇▇▇▇▇*s
be responsible for more than the portion represented by the percentage that the
public offering price of the Registrable Securities of ▇▇▇▇▇*s offered by and
sold under the registration statement bears to the public offering price of all
securities offered by and sold under such registration statement and (ii) shall
▇▇▇▇▇*s be required to contribute any amount in excess of the public offering
price of all such securities offered and sold by it pursuant
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to such registration statement; and in any event, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and ▇▇▇▇▇*s under this
Section 1.8 shall survive the completion of any offering of Registrable
Securities in a registration statement or otherwise.
1.9 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, for so
long as ▇▇▇▇▇*s owns any Registrable Securities, the Company agrees to:
(a) Make and keep adequate, current public information available, as
required by and defined in Rule 144, at all times;
(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 1934
Act;
(c) So long as ▇▇▇▇▇*s owns any Registrable Security, furnish to
▇▇▇▇▇*s forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company as ▇▇▇▇▇*s may reasonably request in availing itself of
any rule or regulation of the Commission allowing a stockholder of the Company
to sell any such securities without registration; and
(d) Take such further action as ▇▇▇▇▇*s may reasonably request.
1.10 Termination of the Company's Obligations. The Company shall have no
obligations to register Registrable Securities (i) if all Registrable Securities
have been registered and sold pursuant to registrations effected pursuant to
this Agreement, or (ii) at such time as all outstanding Registrable Securities
may be sold within a three month period under Rule 144, as it may be amended
from time to time, including but not limited to amendments that reduce the
period of time that securities must be held before such securities may be sold
pursuant to such rule.
1.11 "Market Stand-Off" Agreement. ▇▇▇▇▇*s hereby agrees that it shall
not, to the extent requested by the Company or an underwriter of securities of
the Company, sell or otherwise transfer or dispose of any Registrable Securities
then owned by it (other than to donees or affiliates of ▇▇▇▇▇*s who agree to be
similarly bound) for up to (1) one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act with respect to the initial public offering of securities of the
Company (the "IPO"), and (2) ninety (90) days following the first underwritten
public offering of securities of the Company following the IPO; provided,
however, that all executive officers and directors of the Company then holding
securities of the Company enter into similar agreements. In order to
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enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the shares subject to this
Section and to impose stop transfer instructions with respect to the Registrable
Securities and such other shares of stock of ▇▇▇▇▇*s (and the shares or
securities of every other person subject to the foregoing restriction) until the
end of such period.
1.12 Review. ▇▇▇▇▇*s shall have the right to require the insertion in any
registration statement filed by the Company of language, in form and substance
satisfactory to it, to the effect that the holding by ▇▇▇▇▇*s of any Registrable
Securities is not to be construed as a recommendation by the it of the
investment quality of the securities of the Company and that such holding does
not imply that ▇▇▇▇▇*s will assist in meeting any future financial requirements
of the Company. The Company covenants that it will not file any registration
statement under the Securities Act unless it shall first have given notice
thereof to ▇▇▇▇▇*s. The Company further covenants that ▇▇▇▇▇*s shall have the
right prior to filing with the SEC, to receive copies of such registration
statement and any amendment thereof or supplement thereto and any prospectus
forming a part thereof in a timely fashion to enable it to participate in the
preparation of such registration statement, amendment, supplement or prospectus
and to request the insertion therein of material furnished in timely fashion
(not to exceed ten business days from the date of receipt of such material) in
writing to the Company, which in ▇▇▇▇▇*s' judgment should be included therein.
Notwithstanding the foregoing provisions of this Section 1.12, the rights of
▇▇▇▇▇*s under this Section 1.12 shall not apply if the Registrable Securities
held by it are equal to or less than five percent (5%) of the total Common Stock
of the Company then outstanding.
2. ASSIGNMENT.
Notwithstanding anything herein to the contrary, the registration rights
of ▇▇▇▇▇*s under Section 1 hereof shall inure to the benefit of and be binding
upon its successors and assigns; provided, however that (i) no party may be
assigned any of the foregoing rights until the Company is given written notice
by ▇▇▇▇▇*s at the time of such assignment stating the name and address of the
assignee and identifying the securities of the Company as to which the
particular rights in question are being assigned; and (ii) any such Assignee
shall receive such assigned rights subject to all the terms and conditions of
this Agreement, including without limitation the provisions of this Section 2.
Notwithstanding anything to the contrary contained herein, no assignment of
rights hereunder shall increase the obligations of the Company hereunder and, in
any event, the Company shall not be obligated to effect more than one
registration pursuant to Section 1.2 in any 12-month period.
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3. GENERAL PROVISIONS.
3.1 Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service) as follows:
(a) if to iTurf Inc.:
iTurf Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
(b) if to ▇▇▇▇▇*s, at:
▇▇▇▇▇*s Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
3.2 Entire Agreement. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties respecting
the subject matter hereof.
3.3 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company, and ▇▇▇▇▇*s (and/or any of its permitted
successors or assigns pursuant to Section 2) affected by such amendment or
waiver; provided, however, that as long as ▇▇▇▇▇*s has direct or beneficial
ownership of 30% or more of the voting power represented by the voting
securities of the Company and no other person directly or beneficially owns a
greater percentage of such voting power, no amendment of a material term or
waiver of a material obligation of this Agreement shall be valid unless it has
been approved by a majority of the members of the board of directors of the
Company who are not directors or officers of ▇▇▇▇▇*s or the beneficial owners of
five percent or more of the outstanding voting securities of ▇▇▇▇▇*s.
3.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without regard to
the conflicts of law principles of such State.
3.5 Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any Person or circumstance
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shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision hereof (or the remaining portion thereof) or the
application of such provision to any other Persons or circumstances.
3.6 Third Parties. This Agreement is for the sole benefit of the
parties hereto and, except as expressly provided in Section 1.8, nothing herein
expressed or implied, shall give or be construed to give to any person, other
than the parties hereto any legal or equitable rights hereunder. The parties to
this Agreement are independent contractors. There is no relationship of
partnership, joint venture, employment, franchise, or agency between the
parties. Neither party shall have the power to bind the other or incur
obligations on the other's behalf without the other's prior written consent.
3.7 Successors And Assigns. Subject to the provisions of Section 2,
the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of ▇▇▇▇▇*s.
3.8 Captions. The captions and headings contained in this Agreement
or in any Exhibit hereto are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. When a reference is
made in this Agreement to a Section or an Exhibit, such reference shall be to a
Section of this Agreement unless otherwise indicated.
3.9 Counterparts. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the
parties and delivered to each of the other parties.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
iTurf Inc.
By:_________________________________________
Name:
Title:
▇▇▇▇▇*s Inc.
By:_________________________________________
Name:
Title:
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