1
EXHIBIT 10.17
--------------------------------------------------
SCC COMMUNICATIONS CORP.
REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------
DATED AS OF NOVEMBER 20, 1997
2
TABLE OF CONTENTS
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 "PIGGYBACK" REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 REGISTRATION PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 UNDERWRITTEN OFFERINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.5 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. . . . . . . . . . . . . . . . . . . . 9
SECTION 3. RULE 144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4. INFORMATION REQUIRED BY RULE 144A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6. TERMINATION OF REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. SPECIFIC PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3
REGISTRATION RIGHTS AGREEMENT
This is the REGISTRATION RIGHTS AGREEMENT, dated as of November 20,
1997 ("Agreement"), by and among SCC COMMUNICATIONS CORP. ("SCC"), a Delaware
corporation, and BANC ONE CAPITAL PARTNERS II, LLC, a Delaware limited
liability company ("BOCP"), provided for and entered into pursuant to the
Senior Subordinated Note and Warrant Purchase Agreement dated as of November
20, 1997, ("Purchase Agreement") by and between BOCP, as purchaser, and SCC,
as seller. SCC, together with its successors and assigns, is referred to as
the "Company". BOCP, together with its successors and assigns, is referred to
as the "Holder".
THIS AGREEMENT IS ONE OF THE "RELATED DOCUMENTS" REFERRED TO IN THE
PURCHASE AGREEMENT.
In consideration of their mutual promises set forth in this Agreement
and the Purchase Agreement, the Parties hereby agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined in this Agreement shall have the definitions set forth in the Glossary
of Defined Terms attached to the Purchase Agreement which definitions are, to
the extent applicable, incorporated in this Agreement by reference.
SECTION 2. REGISTRATION RIGHTS.
2.1 DEMAND REGISTRATION.
(a) At any time after the earlier to occur of an Initial
Public offering or November 20, 2003, upon the written request of the Holder
requesting that the Company effect the registration under the Securities Act of
all or part of the Holder's Registrable Securities (specifying the intended
method of disposition thereof) and whether or not such requested registration
is to be an underwritten offering, the Company will promptly give written
notice of such requested registration to all other holders of Registrable
Securities and thereupon the Company will use its best efforts to effect the
registration under the Securities Act of:
(i) the Registrable Securities which the Company
has been so requested to register by the Holder; and
(ii) all other Registrable Securities which the
Company has been requested to register by the holders thereof
by written request to the Company within thirty (30) days
after the date of such written notice by the Company (which
request shall specify the intended method of disposition of
such Registrable Securities), all to the extent necessary to
permit the disposition (in accordance with the intended
methods thereof) of the Registrable Securities to be so
registered.
4
The Company shall not be required to effect more than one
registration pursuant to request made pursuant to this Section 2.1(a).
(b) Registration of Other Securities. Whenever the
Company shall effect a registration pursuant to this Section 2.1 in connection
with an underwritten offering, no securities other than Registrable Securities
shall be included among the securities covered by such registration unless (i)
the managing underwriter of such offering shall have advised each holder of
Registrable Securities to be covered by such registration in writing that the
inclusion of such other securities would not adversely affect such offering or
(ii) the holders of all Registrable Securities to be covered by such
registration shall have consented in writing to the inclusion of such other
securities.
(c) Registration Statement Form. Registrations under
this Section 2.1 shall be on such appropriate registration form as shall be
selected by the Company and as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of
disposition specified in any request for such registration. The Company agrees
to include in any such registration statement all information which holders of
Registrable Securities being registered shall reasonably request.
(d) Expenses. The Company will pay all Registration
Expenses in connection with any registration requested pursuant to this Section
2.1. If a registration begun pursuant to a request made under Section 2.1 is
withdrawn by the holders of the Registrable Securities making such request
because information concerning the Company is disclosed that is materially and
adversely different from the information known to such holders at the time such
request was made, the Company will pay all Registration Expenses in connection
with such request without reducing the number of registrations which the Holder
has a right to cause the Company to effect under Section 2.1 hereof.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 2.1 shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has become
effective, (ii) if after it has become effective, such registration becomes the
subject of any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason, or (iii) if
the conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied.
(f) Selection of Underwriters. If a requested
registration pursuant to this Section 2.1 involves an underwritten offering,
the underwriter or underwriters thereof shall be selected by the Company.
(g) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2.1 involves an underwritten offering,
and the managing underwriter shall advise the
5
Company in writing that, in its opinion, the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering within a price range acceptable to the Holder, the Company will so
advise the Holder in writing and will include in such registration first the
number of Registrable Securities held by the Holder that the Company is so
advised can be sold in such offering, and second, such Registrable Securities
requested to be included in such registration by other holders and all other
Capital Stock proposed to be sold by the Company pro rata.
2.2 "PIGGYBACK" REGISTRATION.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its Capital Stock under the
Securities Act (other than by a registration on Form S-4 or Form S-8 or any
successor or similar form and other than pursuant to Section 2.1), whether or
not for sale for its own account, it will each such time give prompt written
Notice to the Holder. Upon the written request of the Holder made within 30
days after the receipt of any such Notice (which request shall specify the
Registrable Securities intended to be disposed of by the Holder and the
intended method of disposition thereof), the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Holder,
to the extent necessary to permit the disposition (in accordance with the
intended methods thereof) of the Registrable Securities to be registered. If,
at any time after giving written notice of its intention to register any
Capital Stock and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register or to delay registration of such Capital Stock, the
Company may, at its election, give written notice of such determination to each
holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligations to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights of the Holder to request that such
registration be effected as a registration under Section 2.1 subject to the
terms of that Section, and (ii) in the case of a determination to delay
registration, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other Capital
Stock. No registration effected under this Section 2.2 shall relieve the
Company of its obligation to effect any registration under Section 2.1. The
Company will pay all Registration Expenses in connection with each registration
of Registrable Securities requested pursuant to this Section 2.2.
(b) Priority in Registrations. If (i) a registration
pursuant to this Section 2.2 involves an underwritten offering of the Capital
Stock, and (ii) the managing underwriter shall inform the Company and the
holders of the Registrable Securities requesting such registration of its
belief that the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering, then the
Company will include in such registration, to the extent to which the Company
is advised can be sold in such offering, securities as follows:
6
(1) if such registration is for an offering of
Capital Stock for the account of the Company, first,
all Capital Stock proposed by the Company to be sold
for its own account, second, such Registrable
Securities requested by the Holder to be included in
such registration, and third, all other Capital Stock
of the Company requested to be included in such
registration pro rata on the basis of the number of
shares of such Capital Stock so requested to be
included;
(2) if such registration is for other than an
offering described in (1), such Registrable
Securities requested to be included in such
registration and all other Capital Stock proposed by
the Company to be sold for its own account shall be
included in such registration pro rata on the basis
of the number of shares of such Registrable
Securities and such other Capital Stock so proposed
to be sold.
2.3 REGISTRATION PROCEDURES. If the Company is required
to use its best efforts to effect the registration of any Registrable
Securities as provided in Sections 2.1 and 2.2, the Company will as
expeditiously as possible:
(i) prepare and as soon thereafter as reasonably
practicable file with the Commission the registration
statement to effect such registration and thereafter use its
best efforts to cause such registration statement to become
effective, provided that the Company may discontinue any
registration of its Capital Stock which are not Registrable
Securities (and, under the circumstances specified in Section
2.2(a), its securities which are Registrable Securities) at
any time prior to the effective date of the registration
statement relating thereto;
(ii) prepare and file with the Commission 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 and to
comply with the provisions of the Securities Act with respect
to the disposition of all Capital Stock covered by such
registration statement until such time as all of such
securities have been disposed of in accordance with the
intended methods of disposition by the Holder set forth in
such registration statement;
(iii) furnish to Holder such number of prospectuses
and copies of each such amendment and supplement thereto and
such other documents as Holder may reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities and other Capital Stock covered by such
registration statement under such other securities or blue sky
laws of such jurisdictions as the Holder shall reasonably
7
request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect,
and take any other action which may be reasonably necessary or
advisable to enable the Holder to consummate the disposition
in such jurisdictions of the securities owned by the Holder,
except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for
the requirements of this subdivision (iv) be obligated to be
so qualified or to consent to general service of process in
any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the
Holder to consummate the disposition of such Registrable
Securities;
(vi) furnish to the Holder a signed counterpart,
addressed to the Holder (and underwriters, if any) of:
(1) an opinion of counsel for the Company,
dated the effective date of such registration
statement (and, if such registration includes
an underwritten public offering, dated the
date of the closing under the underwriting
agreement), reasonably satisfactory in form
and substance to the Holder, and
(2) a "comfort" letter, dated the effective
date of such registration statement (and, if
such registration includes an underwritten
public offering, dated the date of the
closing under the underwriting agreement),
signed by the independent public accountants
who have certified the Company's financial
statements included in such registration
statement,
covering substantially the same matters as
are customarily covered in opinions of
issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten
public offerings and such other matters as
the Holder may reasonably request;
(vii) notify Holder upon discovery that, or upon the
happening of any event as a result of which, the prospectus
included in such registration statement includes an untrue
statement of any material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made, and at
8
the request of the Holder promptly prepare and furnish to
Holder a reasonable number of copies of a supplement to or an
amendment to such prospectus as may be necessary;
(viii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
furnish to Holder prior to the filing thereof a copy of any
amendment or supplement to such registration statement or
prospectus;
(ix) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by
such registration statement from and after a date not later
than the effective date of such registration statement;
(x) use its best efforts to list all Registrable
Securities covered by such registration statement on any
securities exchange on which any of the Registrable Securities
is then listed; and
(xi) enter into such agreements and take such other
actions as the Holder shall reasonably request in order to
expedite or facilitate the disposition of such Registrable
Securities.
The Company many require the Holder to furnish the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Holder agrees that upon receipt of any Notice from the Company of the
happening of any event of the kind described in the subdivision (vii) of this
Section 2.3, the Holder will forthwith discontinue the disposition of
Registrable Securities pursuant to the registration statement until Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
subdivision (vii) of this Section 2.3 and, if so directed by the Company, will
destroy all copies, other than permanent file copies, then in Holder's
possession of the prospectus relating to such Registrable Securities.
2.4 UNDERWRITTEN OFFERINGS.
(a) Demand Underwritten Offerings. If requested by the
underwriters for any underwritten offering, the Company will enter into an
underwriting agreement with such underwriters, such agreement to be
satisfactory is substance and form to the Company and the underwriters and to
contain such terms as are generally prevailing in agreements of this type. If
the Holder is a party to such underwriting agreement it may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holder. Holder
shall not be required to make any representations and warranties to or
agreements with
9
the Company or the underwriters other than representations, warranties or
agreements regarding the Holder, the Holder's Registrable Securities and the
Holder's intended method of distribution and any other representation required
by law.
(b) Piggyback Underwritten Offerings. If the Company at
any time proposes to register any of its Capital Stock as contemplated by
Section 2.2 and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by the Holder, arrange for such
underwriters to include all the Registrable Securities to be offered and sold
by the Holder among the securities to be distributed to such underwriters. The
Holder shall be a party to the underwriting agreement and may, at its option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holder. Holder
shall not be required to make any representations or warranties to or agreement
with the Company or the underwriters other than representations, warranties or
agreements regarding the Holder, the Holder's Registrable Securities and the
Holder's intended method of distribution and any other representation required
by law.
2.5 INDEMNIFICATION.
(a) Indemnification by the Company. In the event of any
registration pursuant to Section 2.1 or 2.2, the Company will, and hereby does,
indemnify and hold harmless the Holder, its directors, partners, members and
officers, each other Person who participates as an underwriter in the offering
on behalf of the Holder and each other Person, if any, who controls such seller
or underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any one of them may
become subject under the Securities Act or otherwise, and the Company will
reimburse the Holder and each other Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expenses arises out of or is based upon any statement or material omission
furnished in writing to the Company by the Holder or other Person in connection
with the preparation of the registration statement, and (ii) the Company shall
not be liable to any Person who participates as an underwriter or any other
Person who controls such underwriter within the meaning of the Securities Act,
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arise out of such Person's failure to
provide a copy of the final prospectus, as the same may be then supplemented or
amended, to the purchaser at or prior to the written confirmation of the sale
of Registrable Securities, if such final prospectus differs from the
preliminary prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder or other
Person and shall survive the transfer of such securities by the Holder.
(b) Indemnification by the Holder. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2.1 or 2.2,
10
that the Company shall have received an undertaking satisfactory to it from the
Holder to indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 2.5) the Company, each
director and officer of the Company and each other Person, if any, who controls
the Company within the meaning of the Securities Act, with respect to any
statement, or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by the Holder specifically stating that it is for use in preparation of
such registration statement. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the transfer
of such Registrable Securities by the Holder. Notwithstanding the foregoing,
the aggregate liability of any Holder for any indemnification under this
Section 2.5(b) shall be limited to the aggregate net proceeds received by the
Holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of Notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.5, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written Notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give Notice as provided herein shall not relieve the indemnifying party of
its obligation under the preceding subdivisions of this Section 2.5, except to
the extent that the indemnifying party is actually prejudiced by such failure.
Unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying party may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party, with counsel
reasonably satisfactory to such indemnified party. After Notice from the
indemnifying party of its election to assume the defense, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
2.6 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not effect or permit to occur any combination or subdivision of
Registrable Securities which would adversely affect the ability of the Holder
to include such Registrable Securities in any registration contemplated by
this Section 2 or the marketability of such Registrable Securities under any
such registration.
SECTION 3. RULE 144. If the Company shall have filed a
registration statement, the Company will file the reports required to be filed
by it under the Securities Act and the Securities
11
Exchange Act and the rules and regulations adopted by the Commission thereunder
(or, if the Company is not required to file such reports, will, upon the
request of any Holder, make publicly available other information) and will take
such further action as such Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time or (b) any similar rule or regulation hereafter
adopted by the Commission.
SECTION 4. INFORMATION REQUIRED BY RULE 144A. The Company
covenants that it will, upon the request of the Holder, provide the Holder, and
any institutional investor designated by such Holder, such financial and other
information as such Holder may reasonably determine to be necessary in order to
permit the Holder's compliance with the informational requirements of Rule 144A
under the Securities Act in connection with the resale of any Registrable
Securities, except at such time as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act.
SECTION 5. COVENANTS. The Company covenants and agrees that:
(a) it shall not sell any shares of the Capital Stock of
the Company except in an offering subject to (i) registration under the
Securities Act, and (ii) the terms of this Agreement;
(b) it shall not participate in or cooperate with any
offering of the Capital Stock of the Company, either directly or indirectly, by
any shareholder of the Company under Regulation S of the Securities Act; and
(c) no other shareholder of the Company owns any share of
Capital Stock which has registration rights, and the Company shall not, without
the prior written consent of Holder, which may be withheld in it sole
discretion, grant registration rights to any Person.
SECTION 6. TERMINATION OF REGISTRATION RIGHTS. The registration
rights granted pursuant to this Agreement shall terminate at the earlier of (i)
the time neither the Holder nor any Affiliate of the Holder owns any of the
Capital Stock of the Company, or (ii) all shares of Capital Stock of the
Company held by the Holder or any affiliate thereof can be sold pursuant to
Rule 144(k), provided, however, that the average weekly reported volume of
trading in such securities on all national securities exchanges and/or reported
through the automated quotation system of a registered securities association
for the past twelve months is greater than one percent of the class of shares
so registered.
SECTION 7. SPECIFIC PERFORMANCE. The Parties recognize and
agree that money damages may be insufficient to compensate the Holder for
breaches by the Company of terms hereof and, consequently, that the equitable
remedy of specific performance of the terms hereof will be available in the
event of any such breach
12
SECTION 8. MISCELLANEOUS.
The provisions of Section 13 of the Purchase Agreement are applicable
to this Agreement and are, to the extent applicable, incorporated by reference
in this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
COMPANY: HOLDER:
SCC COMMUNICATIONS BANC ONE CAPITAL PARTNERS II,
CORP. LLC
By: Banc One Capital Partners Holdings,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Ltd., Manager
-------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ----------------------------------
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CHIEF FINANCIAL OFFICER
---------------------------- Title: Authorized Signer