EXHIBIT 4.2(ii)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 25, 2002,
between the investor or investors signatory hereto (each an "Investor" and
together the "Investors"), and RAZORFISH, INC., a Delaware corporation (the
"Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Investor is purchasing from the Company, pursuant to a Common
Stock and Warrants Purchase Agreement dated the date hereof (the "Purchase
Agreement"), shares of the Company's Common Stock and Warrants (terms not
defined herein shall have the meanings ascribed to them in the Purchase
Agreement); and
WHEREAS, the Company desires to grant to the Investors the
registration rights set forth herein with respect to the shares of Common Stock
purchased pursuant to the Purchase Agreement and shares of Common Stock issuable
upon exercise of the Warrants or adjustment of the Warrants as provided for
therein (hereinafter referred to as the "Stock" or "Securities" of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
----------------------
"Registrable Security" means the Securities until (i) the Registration Statement
has been declared effective by the Commission, and all Securities have been
disposed of pursuant to the Registration Statement, (ii) all Securities have
been sold under circumstances under which all of the applicable conditions of
Rule 144 (or any similar provision then in force) under the Securities Act
("Rule 144") are met, (iii) all Securities have been otherwise transferred to
holders who may trade such Securities without restriction under the Securities
Act, and the Company has delivered a new certificate or other evidence of
ownership for such Securities not bearing a restrictive legend or (iv) such time
as, in the opinion of counsel to the Company, all Securities may be sold at any
time, without volume or manner of sale limitations pursuant to Rule 144(k) (or
any similar provision then in effect) under the Securities Act. The term
"Registrable Securities" means any and/or all of the securities falling within
the foregoing definition of a "Registrable Security." In the event of any stock
split, stock dividend, stock exchange, merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be deemed to be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Agreement.
Section 2. Restrictions on Transfer. Each Investor acknowledges and
------------------------
understands that prior to the registration of the Securities as provided herein,
the Securities are "restricted securities" as defined in Rule 144 promulgated
under the Act. Each Investor understands that no disposition or transfer of the
Securities may be made by such Investor in the absence of (i) an opinion of
counsel to the Investor, in form and substance reasonably satisfactory to the
Company, that such transfer may be made without registration under the
Securities Act or (ii) such registration.
1
With a view to making available to the Investors the benefits of
Rule 144 under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Investors to sell securities of the
Company to the public without registration ("Rule 144"), so long as any Investor
holds any Registrable Securities, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144; and
(b) file with the Commission in a timely manner all reports and
other documents required to be filed with the Commission pursuant to Section 13
or 15(d) under the Exchange Act by companies subject to either of such sections,
irrespective of whether the Company is then subject to such reporting
requirements.
Section 3. Registration Rights With Respect to the Securities.
--------------------------------------------------
(a) Assuming compliance by the Investors with Section 4 hereof, the
Company agrees that it will prepare and file with the Securities and Exchange
Commission ("Commission"), within fifteen (15) days after the Closing Date a
registration statement (on Form S-3, or other appropriate registration statement
form) under the Securities Act (the "Registration Statement"), at the sole
expense of the Company (except as provided in Section 3(c) hereof), in respect
of the Investors, so as to permit a non-underwritten public offering and resale
of the Registrable Securities under the Securities Act by the Investors as
selling stockholders and not as underwriters.
Assuming compliance by the Investors with Section 4 hereof, the
Company shall use its reasonable best efforts to cause such Registration
Statement to become effective within sixty (60) days from the Closing Date
(ninety (90) days if the Registration Statement receives a "full review" or one
hundred twenty (120) days if such review includes comments on the Company's Form
10-K for the year ended December 31, 2001) or, if earlier, within five (5) days
of SEC clearance to request acceleration of effectiveness. The number of shares
designated in the Registration Statement to be registered shall include all of
the Registrable Securities and shall include appropriate language regarding
reliance upon Rule 416 to the extent permitted by the Commission. The Company
will notify the Investors of the effectiveness of the Registration Statement
within one Trading Day of such event. In the event that the number of shares so
registered shall prove to be insufficient to register the resale of all of the
Securities, then the Company shall be obligated to file, within thirty (30) days
of notice from any Investor, a further Registration Statement registering such
remaining shares and shall use reasonable best efforts to prosecute such
additional Registration Statement to effectiveness within ninety (90) days of
the date of such notice.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 effective under the
Securities Act until the earlier of (i) the date that none of the Registrable
Securities covered by such Registration Statement are or may become issued and
outstanding, (ii) the date that all of the Registrable Securities have been sold
pursuant to such Registration Statement, (iii) the date the Investors receive an
opinion of counsel to the Company, which counsel shall be reasonably acceptable
to the Investors, that the Registrable Securities may be sold under the
provisions of Rule 144 without limitation as to
2
volume, (iv) all Registrable Securities have been otherwise transferred to
persons who may trade such shares without restriction under the Securities Act,
and the Company has delivered a new certificate or other evidence of ownership
for such securities not bearing a restrictive legend, or (v) all Registrable
Securities may be sold at any time, without volume or manner of sale limitations
pursuant to Rule 144(k) or any similar provision then in effect under the
Securities Act in the opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Investor (the "Effectiveness Period").
(c) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of the
Registration Statement under subparagraph 3(a) and in complying with applicable
securities and Blue Sky laws (including, without limitation, all attorneys' fees
of the Company) shall be borne by the Company. The Investors shall bear the cost
of underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Registrable Securities being registered and the fees and
expenses of their counsel. The Investors and one counsel for all of the
Investors shall have a reasonable period, not to exceed three (3) Trading Days,
to review the proposed Registration Statement or any amendment thereto, prior to
filing with the Commission, but the Company shall not be required to incorporate
any comments of the Investor or such counsel, and the Company shall provide each
Investor with copies of any comment letters received from the Commission with
respect thereto within two (2) Trading Days of receipt thereof. The Company
shall use its reasonable best efforts to qualify any of the securities for sale
in such states as any Investor reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the Company
shall not be required to qualify in any state which will require an escrow or
other restriction relating to the Company and/or the sellers, or which will
require the Company to qualify to do business in such state or require the
Company to file therein any general consent to service of process. The Company
at its expense will supply the Investors with copies of the applicable
Registration Statement and the prospectus included therein and other related
documents in such quantities as may be reasonably requested by the Investors.
(d) In the event that (i) the Registration Statement to be filed by
the Company pursuant to Section 3(a) above is not filed with the Commission
within fifteen (15) days from the Closing Date, (ii) such Registration Statement
is not declared effective by the Commission within the earlier of sixty (60)
days from the Closing Date (ninety (90) days if the Registration Statement
receives a "full review" or one hundred twenty (120) days if such review
includes comments on the Company's Form 10-K for the year ended December 31,
2001) or five (5) days of clearance by the Commission to request effectiveness,
(iii) such Registration Statement is not maintained as effective by the Company
for the period set forth in Section 3(b) above or (iv) the additional
Registration Statement referred to in Section 3(a) is not filed within thirty
(30) days or declared effective within ninety (90) days as set forth therein
(each a "Registration Default") then the Company will pay Investor (pro rated on
a daily basis), as partial compensation for such failure and not as a penalty
two percent (2%) of the Purchase Price of the Registrable Securities purchased
from the Company and held by the Investor for each month (or portion thereof)
until such Registration Statement has been filed (in the case of clause (i) and
clause (iv)), and in the event of late effectiveness (in case of clause (ii)
above) or lapsed effectiveness (in the case of clause (iii) above), two percent
(2%) of the Purchase Price of the Registrable Securities purchased from the
Company and held by the Investor each month (or
3
portion thereof) (regardless of whether one or more such Registration Defaults
are then in existence, but without duplication of such partial compensatory
payments) until such Registration Statement has been declared effective. Such
compensatory payments shall be made to the Investors in cash, within five (5)
calendar days of demand, provided, however, that the payment of such amounts
shall not relieve the Company from its obligations to register the Securities
pursuant to this Section.
If the Company does not remit the payment to the Investors as set
forth above, the Company will pay the Investors reasonable costs of collection,
including attorneys' fees, in addition to the liquidated damages. The
registration of the Securities pursuant to this provision or payment of such
compensatory amounts shall not affect or limit the Investors' other rights or
remedies as set forth in this Agreement or at law.
(e) No provision contained herein shall preclude the Company from
selling securities, or including other selling shareholders who are not
Investors, pursuant to any Registration Statement in which it is required to
include Securities pursuant to this Section 3.
(f) If at any time or from time to time after the effective date of
any Registration Statement, the Company notifies the Investors in writing of the
existence of a Potential Material Event (as defined in Section 3(g) below), the
Investors shall not offer or sell any Registrable Securities pursuant to the
prospectus contained in the Registration Statement from the time of the giving
of notice with respect to a Potential Material Event until the Investors receive
written notice from the Company that such Potential Material Event either has
been disclosed to the public or no longer constitutes a Potential Material
Event; provided, however, that the Company may not so suspend the right to such
holders of Securities for more than sixty (60) days in the aggregate during any
twelve month period (and no longer than twenty (20) days as to any single
delay), during the period the Registration Statement is required to be in
effect, and if such period is exceeded, such event shall be a Registration
Default.
(g) "Potential Material Event" means any of the following: (a) the
possession by the Company of material information not ripe for disclosure in a
registration statement, as determined in good faith by the Chief Executive
Officer or the Board of Directors of the Company that disclosure of such
information in a Registration Statement would be detrimental to the business and
affairs of the Company; or (b) any material engagement, activity or transaction
by the Company which would, in the good faith determination of the Chief
Executive Officer or the Board of Directors of the Company, be adversely
affected by disclosure in a registration statement at such time, which
determination shall be accompanied by a good faith determination by the Chief
Executive Officer or the Board of Directors of the Company that the applicable
Registration Statement would be materially misleading absent the inclusion of
such information; or (c) any event described in Section 5(f) herein.
Section 4. Cooperation with Company. The Investors will cooperate
------------------------
with the Company in all respects in connection with this Agreement, including
timely supplying all information reasonably requested by the Company (which
shall include all information regarding the Investors and proposed manner of
sale of the Registrable Securities required to be disclosed in any Registration
Statement) and executing and returning all documents reasonably requested
4
in connection with the registration and sale of the Registrable Securities and
entering into and performing their obligations under any underwriting agreement,
if the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such underwritten offering. Nothing
in this Agreement shall obligate any Investor to consent to be named as an
underwriter in any Registration Statement or to receive any permission from or
provide any pre-notification to the Company of any sale of any Registrable
Security. Any delay or delays caused by the Investors by failure to cooperate as
required hereunder shall not constitute or be counted toward a Registration
Default.
Section 5. Registration Procedures. If and whenever the Company is
-----------------------
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Act, the Company shall (except as
otherwise provided in this Agreement), as expeditiously as possible, subject to
the Investors' assistance and cooperation as reasonably required with respect to
each Registration Statement:
(a) (i) prepare and file with the Commission such amendments
and supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Act with respect to the sale
or other disposition of all securities covered by such registration statement
whenever the Investors shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of securities from
time to time in connection with a registration statement pursuant to Rule 415
promulgated under the Act) and (ii) take all lawful action such that each of (A)
the Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (B) the prospectus forming part of the Registration Statement,
and any amendment or supplement thereto, does not at any time during the
Registration Period include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(b) (i) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the distribution
or delivery of any prospectus (including any supplements thereto), provide draft
copies of the Selling Stockholders and Plan of Distribution sections (or
equivalents) to the Investors as required by Section 3(c) and (ii) furnish to
each Investor such numbers of copies of a prospectus including a preliminary
prospectus or any amendment or supplement to any prospectus, as applicable, in
conformity with the requirements of the Act, and such other documents, as such
Investor may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by such Investor;
(c) Subject to Section 7.1 of the Purchase Agreement, the
Company shall make available for inspection and review by the Investors,
advisors to and representatives of the Investors (who may or may not be
affiliated with the Investors and who are reasonably acceptable to the Company),
and any underwriter participating in any disposition of the Registrable
Securities on behalf of the Investors pursuant to the Registration Statement,
upon the request of the Investors, any such registration statement or amendment
or supplement thereto or
5
any blue sky, Nasdaq or other filing, all publicly available SEC Documents and
other filings with the SEC, and all other publicly available corporate documents
and properties of the Company as may be reasonably necessary for the purpose of
such review, and cause the Company's officers, directors and employees to supply
all such publicly available information reasonably requested by the Investors or
any such representative, advisor or underwriter in connection with such
Registration Statement (including, without limitation, in response to all
questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Investors and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of the Registration Statement.
(d) register and qualify the Registrable Securities covered by
the Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Investors shall reasonably request (subject to the
limitations set forth in Section 3(c) above), and do any and all other acts and
things which may be necessary or advisable to enable each Investor to consummate
the public sale or other disposition in such jurisdiction of the securities
owned by such Investor;
(e) list such Registrable Securities on the Principal Market,
if the listing of such Registrable Securities is then permitted under the rules
of such Principal Market;
(f) notify each Investor at any time when a prospectus
relating thereto covered by the Registration Statement is required to be
delivered under the Act, of the happening of any event of which it has knowledge
as a result of which the prospectus included in the Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and the Company shall prepare and file a curative amendment under
Section 5(a) as quickly as commercially possible;
(g) as promptly as practicable after becoming aware of such
event, notify each Investor who holds Registrable Securities being sold (or, in
the event of an underwritten offering, the managing underwriters) of the
issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible time and
take all lawful action to effect the withdrawal, rescission or removal of such
stop order or other suspension;
(h) cooperate with the Investors to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and enable such certificates for
the Registrable Securities to be in such denominations or amounts, as the case
may be, as the Investors reasonably may request and registered in such names as
the Investors may request; and, on the date the Registration Statement which
includes Registrable Securities is declared effective by the Commission, deliver
and cause legal counsel selected by the Company to deliver to the transfer agent
for the Registrable Securities (with
6
copies to the Investors) an appropriate instruction and, to the extent
necessary, an opinion of such counsel;
(i) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Investors of their Registrable
Securities in accordance with the intended methods therefor provided in the
prospectus which are customary for Razorfish, Inc.s to perform under the
circumstances;
(j) in the event of an underwritten offering, promptly include
or incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree should
be included therein and to which the Company does not reasonably object and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment; and
(k) maintain a transfer agent and registrar for its Common
Stock.
Section 6. Indemnification.
---------------
(a) To the maximum extent permitted by law, the Company agrees
to indemnify and hold harmless the Investors, and each Investor's officers,
directors, partners, employees and agents and each person, if any, who controls
an Investor within the meaning of the Securities Act (each a "Distributing
Investor") against any losses, claims, damages or liabilities, joint or several
(which shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), to which the Distributing Investor may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Investor, its counsel, affiliates or any underwriter, specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) To the maximum extent permitted by law, each Distributing
Investor agrees that it will indemnify and hold harmless the Company, and each
officer and director of the Company or person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses) to which the Company or any such
officer,
7
director or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
or any related final prospectus or amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in such Registration Statement, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Investor, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Distributing Investor
may otherwise have. Notwithstanding anything to the contrary herein, the
Distributing Investor shall not be liable under this Section 6 for any amount in
excess of the net proceeds to such Distributing Investor as a result of the sale
of Registrable Securities pursuant to the Registration Statement (including any
amount that could be received by such Investor for Registrable Securities not
yet sold).
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action against such indemnified
party, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party except to the extent the failure of
the indemnified party to provide such written notification actually prejudices
the ability of the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof with
counsel reasonably satisfactory to the indemnified party, subject to the
provisions herein stated and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless the indemnifying party shall not pursue the
action to its final conclusion. The indemnified parties as a group shall have
the right to employ one separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall not be
at the expense of the indemnifying party if the indemnifying party has assumed
the defense of the action with counsel reasonably satisfactory to the
indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been reasonably advised by its counsel in writing that there may be one or
more legal defenses available to the indemnifying party different from or in
conflict with any legal defenses which may be available to the indemnified party
or any other indemnified party (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall, in connection with any one such action
8
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable only for the reasonable fees and expenses of one separate firm of
attorneys for the indemnified party, which firm shall be designated in writing
by the indemnified party). No settlement of any action against an indemnified
party shall be made without the prior written consent of the indemnified party,
which consent shall not be unreasonably withheld or delayed so long as such
settlement includes a full release of all claims against the indemnified party.
All expenses of the indemnified party (including costs of defense and
investigation incurred in a manner not inconsistent with this Section and,
except as otherwise provided above, reasonable attorneys' fees and expenses)
shall be paid by the indemnifying party to the indemnified party within ten (10)
Trading Days of written notice thereof to the indemnifying party; provided, that
the indemnifying party may require such indemnified party to undertake to
reimburse the indemnifying party for all of such fees and expenses, with
interest at market rates, if and to the extent that it is finally judicially
determined that such indemnified party is not entitled to indemnification
hereunder.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but 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 the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Investor shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees and
expenses), in either such case (after contribution from others) on the basis of
relative fault as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the applicable Distributing Investor on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Distributing Investor agree that it would not necessarily be just and
equitable if contribution pursuant to this Section 7 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 this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7, in no event
shall any (i) Investor be required to undertake liability to any person under
this Section 7 for any amounts in excess of the dollar amount of the proceeds
received by such Investor from the sale of such Investor's
9
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto, but including any amount that could be received by such
Investor for Registrable Securities not yet sold) pursuant to any Registration
Statement under which such Registrable Securities are registered under the
Securities Act and (ii) underwriter be required to undertake liability to any
person hereunder for any amounts in excess of the aggregate discount, commission
or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed pursuant to such
Registration Statement.
Section 8. Notices. All notices, demands, requests, consents,
-------
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) hand delivered,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by facsimile, addressed as set forth in the
Purchase Agreement or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the first business day following the date of sending
by reputable courier service, fully prepaid, addressed to such address, or (c)
upon actual receipt of such mailing, if mailed. Either party hereto may from
time to time change its address or facsimile number for notices under this
Section 8 by giving at least ten (10) days' prior written notice of such changed
address or facsimile number to the other party hereto.
Section 9. Assignment. This Agreement is binding upon and inures to
----------
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. The rights granted the Investors under this Agreement may be
assigned to any permitted transferee of an Investor as permitted by the Purchase
Agreement, provided that such transferee shall agree to be bound by the terms of
this Agreement.
Section 10. Additional Covenants of the Company. The Company agrees
-----------------------------------
that at such time as it otherwise meets the requirements for the use of
Securities Act Registration Statement on Form S-3 for the purpose of registering
the Registrable Securities, it shall file all reports and information required
to be filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of such form.
Section 11. Counterparts/Facsimile. This Agreement may be executed
----------------------
in two or more counterparts, each of which shall constitute an original, but all
of which, when together shall constitute but one and the same instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective and
enforceable as the original.
10
Section 12. Remedies. The remedies provided in this Agreement are
--------
cumulative and not exclusive of any remedies provided by law or at equity,
including the right to specific performance. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
Section 13. Conflicting Agreements. The Company shall not enter into
----------------------
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 14. Headings. The headings in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 15. Governing Law, Attorney's Fees. This Agreement shall be
------------------------------
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made in New York by persons domiciled in New York City
and without regard to its principles of conflicts of laws that would result in
the application of the laws of any other jurisdiction. The non-prevailing party
to any action brought under this Agreement shall pay the expenses of the
prevailing party, including reasonable attorneys' fees, in connection with such
action. Any party shall be entitled to obtain injunctive relief from a court in
any case where such relief is available, and the non-prevailing party in any
such injunctive proceeding shall pay the expenses of the prevailing party,
including reasonable attorneys' fees, in connection with such injunctive
proceeding.
[Signature pages follow]
11
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed, on the day and year first above written.
RAZORFISH, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Chief Financial Officer
--------------------------------
[Signature pages continued]
12
INVESTORS:
Gundyco -- In Trust For The K2
Arbitrage Fund
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatory
Royal capital management inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tite: President and CEO
13