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Exhibit 4.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
among
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED,
GENERAL ATLANTIC PARTNERS 48, L.P.,
GAP COINVESTMENT PARTNERS, L.P.,
GENERAL ATLANTIC PARTNERS 50, L.P.,
and
THE STOCKHOLDERS NAMED HEREIN
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Dated as of December 8, 1998
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TABLE OF CONTENTS
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1. Definitions..............................................................1
2. General; Securities Subject to this Agreement............................6
(a) Grant of Rights......................................................6
(b) Registrable Securities...............................................6
(c) Holders of Registrable Securities....................................7
3. Demand Registration......................................................7
(a) Request for Demand Registration......................................7
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration.........................................................8
(c) Effective Demand Registration........................................8
(d) Expenses.............................................................9
(e) Underwriting Procedures..............................................9
(f) Selection of Underwriters............................................9
4. Incidental or "Piggy-Back" Registration.................................10
(a) Request for Incidental Registration.................................10
(b) Expenses............................................................10
5. Form S-3 Registration...................................................10
(a) Request for a Form S-3 Registration.................................10
(b) Form S-3 Underwriting Procedures....................................11
(c) Limitations on Form S-3 Registrations...............................12
(d) Expenses............................................................12
(e) No Demand Registration..............................................12
6. Holdback Agreements.....................................................12
(a) Restrictions on Public Sale by Designated Holders...................12
(b) Restrictions on Public Sale by the Company..........................13
7. Registration Procedures.................................................13
(a) Obligations of the Company..........................................13
(b) Seller Information..................................................16
(c) Notice to Discontinue...............................................16
(d) Registration Expenses...............................................17
8. Indemnification; Contribution...........................................17
(a) Indemnification by the Company......................................17
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(b) Indemnification by Designated Holders...............................18
(c) Conduct of Indemnification Proceedings..............................18
(d) Contribution........................................................19
9. Rule 144................................................................20
10. Miscellaneous...........................................................20
(a) Recapitalizations, Exchanges, etc...................................20
(b) No Inconsistent Agreements..........................................21
(c) Remedies............................................................21
(d) Amendments and Waivers..............................................21
(e) Notices.............................................................21
(f) Successors and Assigns; Third-Party Beneficiaries...................22
(g) Counterparts........................................................23
(h) Headings............................................................23
(i) Governing Law.......................................................23
(j) Severability........................................................23
(k) Entire Agreement....................................................24
(l) Further Assurances..................................................24
(m) Other Agreements....................................................24
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
December 8, 1998 (this "Agreement"), among ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a
Delaware corporation (the "Company"), General Atlantic Partners 48, L.P., a
Delaware limited partnership ("GAP LP"), GAP Coinvestment Partners, L.P., a New
York limited partnership ("GAP Coinvestment"), General Atlantic Partners 50,
L.P., a Delaware limited partnership ("GAP 50"), ▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇
Digital Corporation, a Delaware corporation ("WDC"), the ▇▇▇ ▇▇▇▇▇▇ Irrevocable
Credit Trust ("JWICT") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇").
WHEREAS, the Company, GAP LP, GAP Coinvestment and the Major
Stockholders (as hereinafter defined) entered into a Registration Rights
Agreement, dated as of July 31, 1998 (the "Original Registration Rights
Agreement"), in connection with the purchase by GAP LP and GAP Coinvestment of
shares of Series A Convertible Preferred Stock, par value $.01 per share, of the
Company (the "Series A Preferred Stock") pursuant to a Stock Purchase Agreement,
dated July 31, 1998, by and among the Company, GAP LP and GAP Coinvestment (the
"GAP Stock Purchase Agreement");
WHEREAS, the Company intends to issue and sell to certain investors
shares of Series B Convertible Preferred Stock, par value $.01 per share, of the
Company (the "Series B Preferred Stock");
WHEREAS, from time to time, the Company may issue and sell
additional shares of common stock or preferred stock of the Company, subject to
the terms and conditions of the Stockholders Agreement (as defined herein); and
WHEREAS, in connection with the issuance and sale of the shares of
Series B Preferred Stock, the Company, GAP LP, GAP Coinvestment and the Major
Stockholders desire to amend and restate the Original Registration Rights
Agreement, and the Company, GAP LP, GAP Coinvestment, the Major Stockholders
desire to have the investors purchasing the Series B Preferred Stock become a
party to this Agreement and such investors desire to become a party to this
Agreement, all in accordance with the terms and conditions set forth herein.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement the following terms have
the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act. The
following shall be deemed to be Affiliates of GAP LP: (a) GAP LLC, the members
of GAP LLC and the limited partners of GAP LP; (b) any Affiliate of GAP LLC, the
members of GAP LLC and the limited partners of GAP LP; and (c) any limited
liability company or partnership a majority of whose members or partners, as the
case may be, are members of GAP LLC. GAP LP, GAP Coinvestment and General
Atlantic Partners 50, L.P. shall be deemed to be Affiliates of one another.
"Agreement" has the meaning set forth in the recitals to this
Agreement.
"Approved Underwriter" has the meaning set forth in Section
3(f) of this Agreement.
"▇▇▇▇▇▇▇▇" has the meaning set forth in the recitals to this
Agreement.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Closing Price" means, with respect to the Registrable
Securities, as of the date of determination, (a) the closing price per share of
a Registrable Security on such date published in the Wall Street Journal or, if
no such closing price on such date is published in the Wall Street Journal, the
average of the closing bid and asked prices on such date, as officially reported
on the principal national securities exchange (including, without limitation,
The Nasdaq Stock Market, Inc.) on which the Registrable Securities are then
listed or admitted to trading; or (b) if the Registrable Securities are not then
listed or admitted to trading on any national securities exchange but are
designated as national market system securities by the NASD, the last trading
price per share of a Registrable Security on such date; or (c) if there shall
have been no trading on such date or if the Registrable Securities are not so
designated, the average of the reported closing bid and asked prices of the
Registrable Securities on such date as shown by The Nasdaq Stock Market, Inc.
(or its successor) and reported by any member firm of the New York Stock
Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c) is
applicable, a market price per share reasonably determined in good faith by the
Company's Board of Directors or, if such determination is not reasonably
satisfactory to the Designated Holder for whom such determination is being made,
by a nationally recognized investment banking firm selected by the Company and
such Designated Holder, the expenses for which shall be borne equally by the
Company and such Designated Holder.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company or any other equity securities of the Company into which
such
securities are converted, reclassified, reconstituted or exchanged or any other
common stock of the Company.
"Company" has the meaning set forth in the recitals to this
Agreement.
"Company Underwriter" has the meaning set forth in Section
4(a) of this Agreement.
"Demand Registration" has the meaning set forth in Section
3(a) of this Agreement.
"Demand Stockholders" means each stockholder or group of
affiliated stockholders who (i) agree to become subject to this Agreement as a
Demand Stockholder by executing and delivering the instrument attached hereto as
Exhibit A and (ii) are approved as a Demand Stockholder by the Board of
Directors.
"Designated Holder" means each of the Major Stockholders, the
General Atlantic Stockholders, the Demand Stockholders, and the Piggy-Back
Stockholders and any transferee of any of them to whom Registrable Securities
have been transferred in accordance with the provisions of the Stockholders
Agreement and Section 10(f) of this Agreement, other than a transferee to whom
Registrable Securities have been transferred pursuant to a Registration
Statement under the Securities Act or Rule 144 or Regulation S under the
Securities Act (or any successor rule thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GAP Coinvestment" has the meaning set forth in the recitals
to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP, and any successor
to such entity.
"GAP LP" has the meaning set forth in the recitals to this
Agreement.
"GAP 50" has the meaning set forth in the recitals to this
Agreement.
"GAP Stock Purchase Agreement" has the meaning set forth in
the recitals to this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP
Coinvestment, GAP 50 and any Permitted Transferee (as defined in the
Stockholders Agreement) of either of them to which Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Holders' Counsel" has the meaning set forth in Section
7(a)(i) of this Agreement.
"Incidental Registration" has the meaning set forth in Section
4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in Section 8(c)
of this Agreement.
"Indemnifying Party" has the meaning set forth in Section 8(c)
of this Agreement.
"Initial Public Offering" means an underwritten initial public
offering pursuant to an effective Registration Statement filed under the
Securities Act with a per share purchase price equal to or greater than the
Conversion Price (as defined in the Certificate of Designations) then in effect
and resulting in aggregate net proceeds (after expenses and underwriting
commissions and discounts) to the Company and any selling stockholders of at
least $50,000,000.
"Initiating Holders" has the meaning set forth in Section 3(a)
of this Agreement.
"Inspector" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
"IPO Effectiveness Date" means the date upon which the
Registration Statement with respect to the Initial Public Offering is declared
effective.
"JWICT" has the meaning set forth in the recitals to this
Agreement.
"Major Stockholders" means ▇▇▇▇▇▇, WDC, JWICT and ▇▇▇▇▇▇▇▇ and
any Permitted Transferee of any of them to which Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement.
"Market Price" means, on any date of determination, the
average of the daily Closing Price of the Registrable Securities for the
immediately preceding thirty (30) days on which the national securities exchange
on which the Registrable Securities are listed is open for trading.
"NASD" has the meaning set forth in Section 7(a)(xiii) of this
Agreement.
"Original Registration Rights Agreement" has the meaning set
forth in the recitals to this Agreement.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Piggy-Back Stockholders" means each stockholder or group of
affiliated stockholders who (i) agree to become subject to this Agreement as a
Piggy-Back Stockholder by executing and delivering the instrument attached
hereto as Exhibit B and (ii) are approved as a Piggy-Back Stockholder by the
Board of Directors.
"Preferred Stock" means the Series A Preferred Stock, the
Series B Preferred Stock and any other class or series of preferred stock of the
Company that is convertible into shares of Common Stock, collectively.
"Records" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
"Registrable Securities" means each of the following: (a) any
and all shares of Common Stock owned by the Designated Holders or issued or
issuable upon conversion of shares of Preferred Stock or exercise of warrants,
and any shares of Common Stock issued or issuable upon conversion of any shares
of preferred stock of the Company acquired by any of the Designated Holders
after the date hereof, (b) any other shares of Common Stock acquired or owned by
any of the Designated Holders prior to the IPO Effectiveness Date, or acquired
or owned by any of the Designated Holders after the IPO Effectiveness Date if
such Designated Holder is an Affiliate of the Company and (c) any shares of
Common Stock issued or issuable to any of the Designated Holders with respect to
the Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise and any shares of Common Stock or voting
common stock issuable upon conversion, exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in Section
7(d) of this Agreement.
"Registration Statement" means a Registration Statement filed
pursuant to the Securities Act.
"Rule 144" has the meaning set forth in Section 9 of this
Agreement.
"S-3 Initiating Holders" has the meaning set forth in Section
5(a) of this Agreement.
"S-3 Registration" has the meaning set forth in Section 5(a)
of this Agreement.
"SEC" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Series A Preferred Stock" has the meaning set forth in the
recitals to this Agreement.
"Series B Preferred Stock" has the meaning set forth in the
recitals to this Agreement.
"Stockholders Agreement" means the Amended and Restated
Stockholders Agreement, dated as of the date hereof, among the Company, GAP LP,
GAP Coinvestment, the Major Stockholders and certain other stockholders of the
Company.
"▇▇▇▇▇▇" has the meaning set forth in the recitals to this
Agreement.
"WDC" has the meaning set forth in the recitals to this
Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration
rights to the Major Stockholders, the General Atlantic Stockholders, the Demand
Stockholders and the Piggy-Back Stockholders upon the terms and subject to the
conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective Registration
Statement, (ii) such Registrable Securities
shall have been distributed pursuant to Rule 144, or (iii) the entire amount of
Registrable Securities proposed to be sold in a single sale, in the opinion of
counsel satisfactory to the Company and the Designated Holder, each in their
reasonable judgment, may be distributed to the public without any limitation as
to volume pursuant to Rule 144 (or any successor provision then in effect) under
the Securities Act or (iv) the Registrable Securities are proposed to be sold or
distributed by a Person not entitled to the registration rights granted by this
Agreement.
(c) Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
3. Demand Registration.
(a) Request for Demand Registration. At any time after the IPO
Effectiveness Date, each of (i) one or more of the General Atlantic Stockholders
as a group, acting through GAP LLC or its written designee, (ii) one or more of
the Major Stockholders as a group, acting through ▇▇▇▇▇▇ or his written
designee, or (iii) one or more of the Demand Stockholders, acting through its
representative identified on the instrument executed by it in the form attached
hereto as Exhibit A or such representative's written designee (the "Initiating
Holders"), may make a written request to the Company to register, under the
Securities Act (other than pursuant to a Registration Statement on Form S-4 or
S-8 or any successor thereto) (a "Demand Registration"), the number of
Registrable Securities stated in such request; provided, however, that the
Company shall not be obligated to effect more than one Demand Registration for
the General Atlantic Stockholders, one Demand Registration for the Major
Stockholders and one Demand Registration for each of the Demand Stockholders
pursuant to this Section 3. For purposes of the preceding sentence, two or more
Registration Statements filed in response to one demand shall be counted as one
Registration Statement. If at the time of any request to register Registrable
Securities pursuant to this Section 3(a), the Company is engaged in, or has
fixed plans to engage in within 90 days of the time of such request, a
registered public offering or is engaged in or has fixed plans to engage in any
other activity which, in the good faith determination of the Board of Directors
of the Company, would be adversely affected in any material respect by the
requested registration, then the Company may at its option direct that such
request be delayed for a reasonable period not in excess of three months from
the effective date of such offering or the date of completion of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period. In addition,
the Company shall not be required to effect any registration within 90 days
after the effective date of any other Registration Statement of the Company.
Each request for a Demand Registration by the Initiating Holders shall state the
amount of the Registrable Securities proposed to be sold and the intended method
of disposition thereof. Upon a request for a Demand Registration, the Company
shall promptly take such steps as are necessary or appropriate to prepare for
the registration of the Registrable Securities to be registered.
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than Initiating Holders
which have requested the relevant registration under Section 3(a)) may offer its
or his Registrable Securities under any Demand Registration pursuant to this
Section 3(b). Within 10 days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested such registration under Section 3(a)) and (ii) subject to
Section 3(e), include in such registration all of the Registrable Securities
held by such Designated Holders from whom the Company has received a written
request for inclusion therein within 10 days of the receipt by such Designated
Holders of such written notice referred to in clause (i) above. Each such
request by such Designated Holders shall specify the number of Registrable
Securities proposed to be registered and the intended method of disposition
thereof. The failure of any Designated Holder to respond within such 10-day
period referred to in clause (ii) above shall be deemed to be a waiver of such
Designated Holder's rights under this Section 3 with respect to such Demand
Registration, provided that any Designated Holder may waive its rights under
this Section 3 prior to the expiration of such 10-day period by giving written
notice to the Company, with a copy to the Initiating Holders. If a Designated
Holder sends the Company a written request for inclusion of part or all of such
Designated Holder's Registrable Securities in a registration, such Designated
Holder shall not be entitled to withdraw or revoke such request without the
prior written consent of the Company in its sole discretion unless, as a result
of facts or circumstances arising after the date on which such request was made
relating to the Company or to market conditions, such Designated Holder
reasonably determines that participation in such registration would have a
material adverse effect on such Designated Holder.
(c) Effective Demand Registration. The Company shall use its
reasonable best efforts to cause any such Demand Registration to become and
remain effective not later than ninety (90) days after it receives a request
under Section 3(a) hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and (ii) 90 days; provided,
however, that a registration shall not constitute a Demand
Registration if (x) after such Demand Registration has become effective, such
registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the Initiating Holders and such interference is not
thereafter eliminated or (y) the conditions specified in the underwriting
agreement, if any, entered into in connection with such Demand Registration are
not satisfied or waived, other than by reason of a failure by any Designated
Holder.
(d) Expenses. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses in connection
therewith, whether or not such Demand Registration becomes effective.
(e) Underwriting Procedures. If the Company or the Initiating
Holders holding a majority of the Registrable Securities held by all of the
Initiating Holders to which the requested Demand Registration relates so elect,
the Company shall use reasonable best efforts to cause such Demand Registration
to be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter selected in accordance with Section 3(f). In connection with any
Demand Registration under this Section 3 involving an underwritten offering,
none of the Registrable Securities held by any Designated Holder making a
request for inclusion of such Registrable Securities pursuant to Section 3(b)
hereof shall be included in such underwritten offering unless such Designated
Holder accepts the terms of the offering as agreed upon by the Company, the
Initiating Holders and the Approved Underwriter. If the Approved Underwriter
advises the Company in writing that in its opinion the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently
large to have a material adverse effect on the success of such offering, then
the Company shall include in such registration only the aggregate amount of
Registrable Securities that in the opinion of the Approved Underwriter may be
sold without any such material adverse effect and shall reduce the amount of
Registrable Securities to be included in such registration, first as to the
Company and, second as to the Initiating Holders and any other Designated
Holders who requested inclusion of their Registrable Securities pursuant to
Section 3(b), pro rata based on the number of Registrable Securities owned by
each such Initiating Holder and Designated Holder.
(f) Selection of Underwriters. If any Demand Registration or
S-3 Registration, as the case may be, of Registrable Securities is in the form
of an underwritten offering, the Company shall select and obtain an investment
banking firm of national reputation to act as the managing underwriter of the
offering (the "Approved Underwriter"); provided, however, that the Approved
Underwriter shall, in any case, also be approved by the Initiating Holders or
S-3 Initiating Holders, as the case may be, such approval not to be unreasonably
withheld.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the
IPO Effectiveness Date, if the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own
account (other than a Registration Statement on Form S-4 or S-8 or any successor
thereto), then the Company shall give written notice of such proposed filing to
each of the Designated Holders at least 30 days before the anticipated filing
date, and such notice shall describe the proposed registration and distribution
and offer such Designated Holders the opportunity to register the number of
Registrable Securities as each such holder may request (an "Incidental
Registration"). The Company shall, and shall use its best efforts (within 10
days of the notice provided for in the preceding sentence) to cause the managing
underwriter or underwriters of a proposed underwritten offering (the "Company
Underwriter") to permit each of the Designated Holders who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company included therein. In connection with any Incidental
Registration under this Section 4(a) involving an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the holders thereof accept the terms of the
underwritten offering as agreed upon between the Company and the Company
Underwriter, and then only in such quantity as will not, in the opinion of the
Company Underwriter, jeopardize the success of the offering by the Company. If
in the written opinion of the Company Underwriter the registration of all or
part of the Registrable Securities which the Designated Holders have requested
to be included would materially adversely affect the success of such offering,
then the Company shall be required to include in such Incidental Registration,
to the extent of the amount that the Company Underwriter believes may be sold
without causing such adverse effect, first, all of the securities to be offered
for the account of the Company; second, the Registrable Securities to be offered
for the account of the Designated Holders pursuant to this Section 4, pro rata
based on the number of Registrable Securities owned by each such Designated
Holder; and third, any other securities requested to be included in such
underwritten offering.
(b) Expenses. The Company shall bear all Registration Expenses
in connection with any Incidental Registration pursuant to this Section 4,
whether or not such Incidental Registration becomes effective.
5. Form S-3 Registration.
(a) Request for a Form S-3 Registration. Upon the Company
becoming eligible for use of Form S-3 in connection with a public offering of
its securities, in the event that the Company shall receive from (i) one or more
of the General Atlantic Stockholders as a group, acting through GAP LLC or its
written
designee, (ii) one or more of the Major Stockholders, as a group, acting through
▇▇▇▇▇▇ or his written designee, or (iii) one or more of the Demand Stockholders,
acting through its representative identified on the instrument executed by it in
the form attached hereto as Exhibit A or such representative's written designee
(the "S-3 Initiating Holders"), a written request that the Company register,
under the Securities Act, on Form S-3 (or any successor form then in effect) (an
"S-3 Registration"), all or a portion of the Registrable Securities owned by
such S-3 Initiating Holders, the Company shall give written notice of such
request to all of the Designated Holders (other than S-3 Initiating Holders
which have requested an S-3 Registration under this Section 5(a)) at least 30
days before the anticipated filing date of such Form S-3, and such notice shall
describe the proposed registration and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request in writing to the Company, given within 15 days
after their receipt from the Company of the written notice of such registration.
The Company shall (i) take such steps as are necessary or appropriate to prepare
for the registration of the Registrable Securities to be registered and (ii)
subject to Section 5(b), use reasonable best efforts to (x) cause such
registration pursuant to this Section 5(a) to become and remain effective as
soon as practicable, but in any event not later than ninety (90) days after it
receives a request therefor and (y) include in such offering the Registrable
Securities of the Designated Holders (other than S-3 Initiating Holders which
have requested an S-3 Registration under this Section 5(a)) who have requested
in writing to participate in such registration on the same terms and conditions
as the Registrable Securities of the S-3 Initiating Holders included therein.
(b) Form S-3 Underwriting Procedures. If the Company or the
S-3 Initiating Holders holding a majority of the Registrable Securities held by
all of the S-3 Initiating Holders to which the requested S-3 Registration
relates so elect, the Company shall use reasonable best efforts to cause such
S-3 Registration pursuant to this Section 5 to be in the form of a firm
commitment underwritten offering and the managing underwriter or underwriters
selected for such offering shall be the Approved Underwriter selected in
accordance with Section 3(f). In connection with any S-3 Registration under
Section 5(a) involving an underwritten offering, the Company shall not be
required to include any Registrable Securities in such underwritten offering
unless the Designated Holders thereof accept the terms of the underwritten
offering as agreed upon between the Company, the Approved Underwriter and the
S-3 Initiating Holders. If in the written opinion of the Approved Underwriter
the registration of all or part of the Registrable Securities which the S-3
Initiating Holders and the other Designated Holders have requested to be
included would materially adversely affect the success of such public offering,
then the Company shall be required to include in the underwritten offering, to
the extent of the amount that the Approved Underwriter believes may be sold
without causing such adverse effect, first, the Registrable Securities to be
offered for the account of the S-3 Initiating Holders and the other Designated
Holders who requested inclusion of their Registrable Securities pursuant to
Section 5(a), pro rata based on the number of Registrable Securities owned by
each
such S-3 Initiating Holder and Designated Holder and second, any other
securities requested to be included in such underwritten offering.
(c) Limitations on Form S-3 Registrations. If at the time of
any request to register Registrable Securities pursuant to Section 5(a), the
Company is engaged in, or has fixed plans to engage in within 90 days of the
time of such request, a registered public offering or is engaged or has fixed
plans to engage in any other activity which, in the good faith determination of
the Board of Directors of the Company, would be adversely affected in any
material respect by the requested S-3 Registration then the Company may at its
option direct that such request be delayed for a reasonable period not in excess
of three months from the effective date of such offering or the date of
completion of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any
one-year period. In addition, the Company shall not be required to effect any
registration pursuant to Section 5(a) (i) within three months after the
effective date of any other Registration Statement of the Company, (ii) if
within the 12-month period preceding the date of such request, the Company has
effected two registrations on Form S-3 pursuant to Section 5(a) and all of the
Registrable Securities registered therein have been sold, (iii) if Form S-3 is
not available for such offering by the S-3 Initiating Holders or (iv) if the S-3
Initiating Holders, together with the Designated Holders (other than S-3
Initiating Holders which have requested an S-3 Registration under Section 5(a))
registering Registrable Securities in such registration, propose to sell their
Registrable Securities at an aggregate price (calculated based upon the Market
Price of the Registrable Securities on the date of filing of the Form S-3 with
respect to such Registrable Securities) to the public of less than $2,500,000.
(d) Expenses. In connection with any registration pursuant to
this Section 5, the Company shall pay all Registration Expenses, whether or not
such registration becomes effective.
(e) No Demand Registration. No registration requested by any
Designated Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. If and
to the extent requested by the Company, the Initiating Holders or the S-3
Initiating Holders, as the case may be, in the case of a non-underwritten public
offering or if and to the extent requested by the Approved Underwriter or the
Company Underwriter, as the case may be, in the case of an underwritten public
offering, each Designated Holder of Registrable Securities agrees (i) not to
effect any public sale or distribution of any Registrable Securities or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144, and
(ii) not to make any request for a Demand Registration or S-3 Registration under
this Agreement, during the 120-day period or such shorter period agreed upon by
such Designated Holder and the requesting party beginning thirty days prior to
the anticipated effective date of such Registration Statement (except as part of
such registration).
(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities (except pursuant to such registrations on Form S-4 or S-8 or
any successor thereto), during the period beginning on the effective date of any
Registration Statement in which the Designated Holders of Registrable Securities
are participating and ending on the earlier of (i) the date on which all
Registrable Securities registered on such Registration Statement are sold and
(ii) 90 days after the effective date of such Registration Statement (except as
part of such registration).
7. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use reasonable best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method of distribution thereof as quickly as practicable, and
in connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the SEC a Registration
Statement on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof, and use its best efforts to cause such Registration
Statement to become effective; provided, however, that (x) before filing a
Registration Statement or prospectus or any amendments or supplements thereto,
the Company shall provide one counsel selected by the Designated Holders holding
a majority of the Registrable Securities being registered in such registration
("Holders' Counsel") and any other Inspector with an adequate opportunity to
review and comment on such Registration Statement and each prospectus included
therein (and each amendment or supplement thereto) to be filed with the SEC,
subject to such documents being under the Company's control, and (y) the Company
shall notify the Holders' Counsel and each seller of Registrable Securities of
any stop order issued or threatened by the SEC and take all reasonable action
required to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
the
lesser of (x) 90 days and (y) such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold,
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) as soon as reasonably practicable, furnish to each
seller of Registrable Securities, prior to filing a Registration Statement, at
least one copy of such Registration Statement as is proposed to be filed, and
thereafter such number of copies of such Registration Statement, each amendment
and supplement thereto (in each case including all exhibits thereto), and the
prospectus included in such Registration Statement (including each preliminary
prospectus) as each such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable Securities
under such other securities or "blue sky" laws of such jurisdictions as any
seller of Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as permissible pursuant
to the laws of such jurisdiction, or for as long as any such seller requests or
until all of such Registrable Securities are sold, whichever is shortest, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller; provided, however, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) notify each seller of Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of such supplement to or an
amendment of such prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made;
(vi) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3,
Section 4 or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(vii) make available at reasonable times for inspection
by any seller of Registrable Securities, any managing underwriter participating
in any disposition of such Registrable Securities pursuant to a Registration
Statement, Holders' Counsel and any attorney, accountant or other agent retained
by any such seller or any managing underwriter (each, an "Inspector" and
collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and its
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors (and
the Inspectors shall confirm their agreement in writing in advance to the
Company if the Company shall so request) unless (x) the disclosure of such
Records is necessary, in the Company's judgment, to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction after exhaustion of all appeals therefrom or (z) the
information in such Records was known to the Inspectors on a non-confidential
basis prior to its disclosure by the Company or has been made generally
available to the public. Each seller of Registrable Securities agrees that it
shall, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(viii) if such sale is pursuant to an underwritten
offering, use reasonable best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as Holders'
Counsel or the managing underwriter reasonably request;
(ix) use its reasonable best efforts to furnish, at the
request of any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration
Statement with respect to such securities becomes effective, an opinion, dated
such date, of counsel representing
the Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering such legal
matters with respect to the registration in respect of which such opinion is
being given as such seller may reasonably request and are customarily included
in such opinions;
(x) otherwise use reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the Registration Statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Company
are then listed, provided that the applicable listing requirements are
satisfied;
(xii) keep Holders' Counsel advised as to the initiation
and progress of any registration under Section 3, Section 4 or Section 5
hereunder;
(xiii) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(xiv) take all other steps reasonably necessary to
effect the registration of the Registrable Securities contemplated hereby.
(b) Seller Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 7(a)(v), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 7(a)(v) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which
such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
7(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 7(a)(v) to and including the date
when sellers of such Registrable Securities under such Registration Statement
shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 7(a)(v).
(d) Registration Expenses. The Company shall pay all expenses
arising from or incident to its performance of, or compliance with, this
Agreement, including, without limitation, (i) SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the fees, charges and disbursements of
counsel to the Company and of its independent public accountants and any other
accounting fees, charges and expenses incurred by the Company (including,
without limitation, any expenses arising from any "cold comfort" letters or any
special audits incident to or required by any registration or qualification) and
any legal fees, charges and expenses incurred by the Company and, in the case of
a Demand Registration, the Initiating Holders and (v) any liability insurance or
other premiums for insurance for the benefit of the Company or its directors and
officers obtained in connection with any Demand Registration or piggy-back
registration thereon, Incidental Registration or S-3 Registration pursuant to
the terms of this Agreement, regardless of whether such Registration Statement
is declared effective. All of the expenses described in the preceding sentence
of this Section 7(d) are referred to herein as "Registration Expenses."
"Registration Expenses" shall not include, and the Designated Holders of
Registrable Securities sold pursuant to a Registration Statement shall bear, the
expense of any broker's commission or underwriter's discount or commission
relating to registration and sale of such Holders' Registrable Securities and
any fees and expenses of counsel to or accountants or other advisors for, such
Designated Holders, all of which shall be borne by the Designated Holders,
provided, however, that nothing in this Section 7(d) shall be construed to
supersede the Company's obligations with respect to the payment of expenses in
connection with a Demand Registration or an Incidental Registration, as
described in Sections 3(d) and 4(b) above and clause (iv) above.
8. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Designated Holder and each Person who controls
(within the meaning of Section 15 of the Securities Act) such Designated Holder
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) incurred by them arising out of or
based
upon any untrue, or allegedly untrue, statement of a material fact contained in
any Registration Statement, prospectus or preliminary prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same are made in
reliance upon, caused by or contained in any information concerning such
Designated Holder furnished in writing to the Company by or on behalf of such
Designated Holder expressly for use therein, including, without limitation, the
information furnished to the Company pursuant to Section 8(b). The Company shall
also provide customary indemnities to any underwriters of the Registrable
Securities and each Person who controls such underwriters (within the meaning of
Section 15 of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection with
any Registration Statement in which a Designated Holder is participating
pursuant to Section 3, Section 4 or Section 5 hereof, each such Designated
Holder shall promptly furnish to the Company in writing such information with
respect to such Designated Holder as the Company may reasonably request or as
may be required by law for use in connection with any such Registration
Statement or prospectus and all information required to be disclosed in order to
make the information previously furnished to the Company by such Designated
Holder not materially misleading or necessary to cause such Registration
Statement not to omit a material fact with respect to such Designated Holder
necessary in order to make the statements therein not misleading. Each
Designated Holder agrees to indemnify and hold harmless the Company, any
underwriter retained by the Company and each Person who controls the Company or
such underwriter (within the meaning of Section 15 of the Securities Act) to the
same extent as the foregoing indemnity from the Company to the Designated
Holders, but only with respect to any such information with respect to such
Designated Holder furnished in writing to the Company by or on behalf of such
Designated Holder expressly for use therein, including, without limitation, the
information furnished to the Company pursuant to this Section 8(b); provided,
however, that the total amount to be indemnified by such Designated Holder
pursuant to this Section 8(b) shall be limited to the net proceeds received by
such Designated Holder in the offering to which the Registration Statement or
prospectus relates.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying Party shall not relieve
the Indemnifying Party of any liability that it may have to the Indemnified
Party hereunder; except to the extent that the Indemnifying Party is prejudiced
or otherwise forfeits substantive rights or defenses by reason of such failure.
If notice of commencement of any such action is given to the Indemnifying Party
as above provided, the Indemnifying Party shall be entitled to participate in
and, to the extent it may wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense of such action at its own expense,
with counsel chosen by it and reasonably satisfactory to such Indemnified Party.
The Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying
Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the
defense of such action with counsel reasonably satisfactory to the Indemnified
Party or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and such
parties have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party. In
any of such cases, 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 not be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent shall not
be unreasonably withheld. No Indemnifying Party shall, without the consent of
such Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is a party and indemnity
has been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
for claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Sections 8(a), 8(b) and 8(c), any legal or other fees,
charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding; provided that the total amount to be indemnified by
such Designated Holder shall be limited to the net proceeds received by such
Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) 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 immediately preceding paragraph.
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.
9. Rule 144. The Company covenants that from and after the IPO
Effectiveness Date it shall (a) file any reports required to be filed by it
under the Exchange Act and (b) take such further action as each Designated
Holder of Registrable Securities may reasonably request (including providing any
information necessary to comply with Rule 144), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time ("Rule 144"), or (ii) any similar rules or
regulations hereafter adopted by the SEC. The Company shall, upon the request of
any Designated Holder of Registrable Securities, deliver to such Designated
Holder a written statement as to whether it has complied with such requirements.
10. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to (i)
the shares of Common Stock, (ii) any and all shares of voting common stock of
the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this Agreement as a condition of any such
transaction.
(b) No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Designated Holders herein. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company, (ii) the
Major Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Major Stockholders, (iii) the General
Atlantic Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the General Atlantic Stockholders, (iv)
the holders holding Registrable Securities representing (after giving effect to
any adjustments) at least a majority of the aggregate number of Registrable
Securities owned by each Demand Stockholder and, if the amendment, supplement,
modification, waiver or consent adversely affects the rights or obligations of
the Piggy-Back Stockholders, then also by (v) the holders holding Registrable
Securities representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by each
Piggy-Back Stockholder. Any such written consent shall be binding upon the
Company and all of the Designated Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company or the Major Stockholders:
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Chuff, Esq.
(ii) if to the General Atlantic Stockholders
c/o General Atlantic Service Corporation:
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iii) if to any other Designated Holder, at its address
as it appears on the record books of the Company.
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
properly telecopied.
(f) Successors and Assigns; Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the heirs, legatees,
legal
representatives, successors and permitted assigns of each of the parties hereto
as hereinafter provided. The Demand Registration Rights and/or the S-3
Registration Rights of the General Atlantic Stockholders, the Major Stockholders
and any Demand Stockholders in Sections 3 and 5 hereof, respectively, and the
other rights of each of the General Atlantic Stockholders, the Major
Stockholders, any Demand Stockholders and any Piggy-Back Stockholders with
respect thereto shall be, with respect to any Registrable Security, (i)
automatically transferred upon a transfer of Registrable Securities in
accordance with the Stockholders Agreement, in the case of such rights of the
General Atlantic Stockholders, among the General Atlantic Stockholders, in the
case of such rights of the Major Stockholders, among the Major Stockholders, in
the case of any Demand Stockholders, among any stockholders collectively
included in the definition of said Demand Stockholder, and, in the case of any
Piggy-Back Stockholders, among any stockholders collectively included in the
definition of said Piggy-Back Stockholder and (ii) in all other cases,
transferred only with the consent of the Company. The incidental or "piggy-back"
registration rights of the Designated Holders contained in Sections 3(b) and 4
hereof and the other rights of each of the Designated Holders with respect
thereto shall be, with respect to any Registrable Security, automatically
transferred upon a transfer of Registrable Securities in accordance with the
Stockholders Agreement by such Designated Holder to any Person who is the
transferee of such Registrable Security. All of the obligations of the Company
hereunder shall survive any such transfer. No Person other than the parties
hereto and their heirs, legatees, legal representatives, successors and
permitted assigns is intended to be a beneficiary of any of the rights granted
hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of any jurisdiction.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the GAP Stock Purchase Agreement, the Stockholders Agreement and
any stock purchase agreement between the Company and a Demand Stockholder or a
Piggy-Back Stockholder. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter,
including, without limitation, the Original Registration Rights Agreement.
(l) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
necessary to carry out or to perform the provisions of this Agreement.
(m) Other Agreements. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under, or any restrictions on the transfer of Registrable
Securities or other securities of the Company imposed by, any other agreement
including, but not limited to, the Stock Purchase Agreement, the Stockholders
Agreement, the Certificate of Designations for the Series A Preferred Stock,
Series B Preferred Stock or any other series of preferred stock issued to a
Demand Stockholder or a Piggy-Back Stockholder and any stock purchase agreement
between the Company and a Demand Stockholder or a Piggy-Back Stockholder.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT on the date
first written above.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:
-------------------------------------
Name:
Title:
GENERAL ATLANTIC PARTNERS 48, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
-------------------------------------
Name:
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT on the date
first written above.
GENERAL ATLANTIC PARTNERS 50, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
-------------------------------------
Name:
Title: A Managing Member
▇▇▇▇▇▇ DIGITAL CORPORATION
By:
-------------------------------------
Name:
Title:
THE ▇▇▇ ▇▇▇▇▇▇ IRREVOCABLE CREDIT TRUST
By:
-------------------------------------
Name:
Title:
Exhibit A
---------
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a [ ], the undersigned [wishes] [wish] to
receive from ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation (the "Company"),
_______ shares, par value $0.01 per share, of [Common Stock] [Preferred Stock],
or certain newly issued options, warrants or other rights to purchase _______
shares of Common Stock (the "Shares"), of the Company; and
WHEREAS, the undersigned [wishes] [wish] to receive certain
registration rights with respect to such Shares; and
WHEREAS, the undersigned [has] [have] reviewed a copy of that
certain Amended and Restated Registration Rights Agreement, dated as of December
8, 1998 (the "Agreement"), among the Company, General Atlantic Partners 48,
L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and
the stockholders named therein and [has] [have] been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned [is] [are] thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce the
Company to issue such Shares and to grant such registration rights, the
undersigned [does] [collectively do] hereby acknowledge and agree that (i) the
undersigned [has] [have] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms, (ii) the Shares are subject to terms and
conditions set forth in the Agreement, (iii) the undersigned [does]
[collectively do] hereby agree fully to be bound by the Agreement collectively
as a group as a "Demand Stockholder" (as therein defined), and upon the
execution and delivery of this Acknowledgment and Agreement by the Company, the
undersigned shall have [collectively as a group] all of the rights and
obligations under the Agreement as a Demand Stockholder and (iv) the undersigned
[does] [collectively do] hereby name ____________________ to serve as [its]
[their] representative under the Agreement.
This _____ day of ____________, 19__.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:
-------------------------------------
Name:
Title:
-------------------------------------
Exhibit B
---------
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a [ ], the undersigned [wishes] [wish] to
receive from ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation (the "Company"),
_______ shares, par value $0.01 per share, of [Common Stock] [Preferred Stock],
or certain newly issued options, warrants or other rights to purchase _______
shares of Common Stock (the "Shares"), of the Company; and
WHEREAS, the undersigned [wishes] [wish] to receive certain
registration rights with respect to such Shares; and
WHEREAS, the undersigned [has] [have] reviewed a copy of that
certain Amended and Restated Registration Rights Agreement, dated as of December
8, 1998 (the "Agreement"), among the Company, General Atlantic Partners 48,
L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and
the stockholders named therein and [has] [have] been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned [is] [are] thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce the
Company to issue such Shares and to grant such registration rights, the
undersigned [does] [collectively do] hereby acknowledge and agree that (i) the
undersigned [has] [have] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms, (ii) the Shares are subject to terms and
conditions set forth in the Agreement, (iii) the undersigned [does]
[collectively do] hereby agree fully to be bound by the Agreement as a
Piggy-Back Stockholder (as therein defined), and upon the execution and delivery
of this Acknowledgment and Agreement by the Company, the undersigned shall have
[collectively as a group] all of the rights and obligations under the Agreement
as a Piggy-Back Stockholder, and (iv) the undersigned [does] [collectively do]
hereby name ____________________ to serve as [its] [their] representative under
the Agreement.
This _____ day of ____________, 19__.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:
-------------------------------------
Name:
Title:
-------------------------------------