EXHIBIT 10.1
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
CONCENTRIC NETWORK CORPORATION
formerly known as
Concentric Research Corporation
GS CAPITAL PARTNERS, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII
COMDISCO, INC.
INTUIT, INC.
THE HOLDERS OF SERIES C CONVERTIBLE PREFERRED STOCK
APPEARING ON SCHEDULE I TO THIS AGREEMENT
THE HOLDERS OF COMMON STOCK APPEARING ON
SCHEDULE II TO THIS AGREEMENT
THE HOLDERS OF SERIES D CONVERTIBLE PREFERRED STOCK
APPEARING ON SCHEDULE III TO THIS AGREEMENT
and
RACAL-DATACOM, INC.
Dated as of April 20, 1995
and amended as of September 19, 1995,
December 11, 1995,
amended and restated as of
December 20, 1995,
amended and restated as of
February 20, 1996 and
amended and restated as of
August 21, 1996
TABLE OF CONTENTS
PAGE
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1. Certain Definitions..................................................... 3
1.1 "Commission........................................................ 3
1.2 "Holder" or "Holders".............................................. 3
1.3 "IPO .............................................................. 3
1.4 "Person ........................................................... 3
1.5 "Registrable Securities ........................................... 3
1.6 "Securities Act ................................................... 4
1.7 "Series C Parties ................................................. 4
1.8 "Series D Parties" ................................................ 4
2. Registration Rights..................................................... 4
2.1 Demand Registrations.................................................... 4
2.2 Piggyback Registrations ................................................ 7
2.3 Allocation of Securities Included in Registration Statement ............ 8
2.4 Registration Procedures ................................................ 9
2.5 Registration Expenses .................................................. 14
2.6 Certain Limitations on Registration Rights ............................. 15
2.7 Limitations on Sale or Distribution of Other Securities................. 15
2.8 No Required Sale........................................................ 16
2.9 Indemnification......................................................... 16
3. Underwritten Offerings.................................................. 19
3.1 Requested Underwritten Offerings........................................ 19
3.2 Piggyback Underwritten Offerings........................................ 20
4. General................................................................. 20
4.1 Adjustments Affecting Registrable Securities............................ 20
4.2 Rule 144/Form S-3....................................................... 20
4.3 Nominees for Beneficial Owners.......................................... 21
4.4 Amendments and Waivers.................................................. 21
4.5 Notices................................................................. 21
4.6 Miscellaneous........................................................... 24
4.7 No Inconsistent Agreements.............................................. 25
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EXHIBIT 10.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
--------------------------------------------------
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of April 20, 1995,
as amended as of September 19, 1995 and as of December 11, 1995 as amended and
restated as of December 20, 1995, as amended and restated as of February 20,
1996 and as amended and restated by this Agreement (this "Agreement"), as of
August 21, 1996, by and among Concentric Network Corporation (formerly known as
Concentric Research Corporation), a Florida corporation (the "Company"), GS
Capital Partners, L.P., a Delaware limited partnership ("GSCP"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, a California limited partnership ("KP"), Comdisco, Inc., a
Delaware corporation ("Comdisco"), Intuit, Inc., a Delaware corporation
("Intuit"), the holders of Series C Convertible Preferred Stock of the Company
appearing on Schedule I to this Agreement (the "Series C Holders"), the holders
of Class A Common Stock of the Company appearing on Schedule II hereto (the
"Common Holders")and the holders of Series D Convertible Preferred Stock of the
Company appearing on Schedule III to this Agreement (the "Series D Holders") and
Racal-Datacom, Inc. ("Racal").
Preliminary Statement
The Company, GSCP and KP have entered into a Preferred Stock and Warrant
Purchase Agreement (the "Purchase Agreement"), dated as of April 20, 1995, in
connection with a private placement of the Company's Series A Convertible
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"), and
warrants (the "Warrants") to purchase shares of Class A Common Stock of the
Company, par value $.01 per share.
▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, GSCP and KP have entered into a Common Stock
and Option Purchase Agreement (the "Stock Purchase Agreement"), dated as of
April 20, 1995, pursuant to which GSCP and KP have purchased shares of Class A
Common Stock of the Company and options (the "Options") to purchase shares of
Class A Common Stock from ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
The parties hereto (other than Comdisco, Intuit, the Series C Holders, the
Series D Holders, the Common Holders and Racal ) have entered into the original
Registration Rights Agreement dated as of April 20, 1995 (the "Original
Registration Rights Agreement") to provide certain registration rights with
respect to the shares of Class A Common Stock or Class B Common Stock, par value
$.01 per share (collectively, the "Common Stock") of the Company (i) issued upon
conversion of Series A Preferred Stock or exercise of Warrants held by any party
hereto or (ii) purchased pursuant to the Stock Purchase Agreement or upon
exercise of any Option held by any party hereto.
The Company subsequently entered into certain financing transactions with
Comdisco, and in that connection entered into a Warrant Agreement dated as of
July 20, 1995 (the "Comdisco Warrant Agreement"), providing for the purchase by
Comdisco of up to 257,671 shares of the Company's Class A Common Stock, and
Amendment Number One dated as of September 19, 1995, to add
Comdisco as a party to the Original Registration Rights Agreement.
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The Company also entered additional financing transactions providing for (i) the
issuance to Intuit of warrants dated December 11, 1995 (the "Intuit Warrants")
with an initial aggregate exercise price of $5,000,000 entitling Intuit to
purchase shares of the Company's Series B Convertible Preferred Stock (the
"Series B Preferred Stock"), (ii) the issuance to GSCP and KP of (a) warrants to
purchase shares of Series B Preferred Stock (the "Stand-By Financing Warrants")
and (b) notes that are convertible into shares of Series B Preferred Stock
pursuant to a Stand-By Financing Agreement dated December 11, 1995, among GSCP,
KP, Intuit and the Company (the "Stand-By Financing Agreement"), and (iii) the
issuance to GSCP and KP of additional shares of Series B Preferred Stock (the
"Additional Stand-By Financing Series B Preferred Stock") pursuant to the Stand-
By Financing Agreement upon the occurrence of certain events. In connection
with such financing transactions, the Company entered into Amendment Number Two
dated as of December 11, 1995, to provide for the participation of Intuit as a
party to the amended Original Registration Rights Agreement.
Thereafter the Company concluded a financing transaction providing for the
issuance to the Series C Holders of shares of the Company's Series C Convertible
Preferred Stock (the "Series C Preferred Stock"). In connection with such
transaction, the Company entered into the Amended and Restated Registration
Rights Agreement dated as of December 20, 1995 (the "Amended and Restated
Agreement"), to provide for the participation of the Series C Holders as parties
to the Amended and Restated Agreement.
Thereafter the Company agreed to grant registration rights to certain purchasers
of shares of the Company's Class A Common Stock sold by ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ (the
"Common Shares"). The Company also entered additional financing transactions
providing for the issuance to Sattel Communications Company ("Sattel") of (a)
warrants to purchase shares of Series D Preferred Stock (the "Series D
Preferred Stock") (the "Sattel Standby Warrant") and (b) a note that is
convertible into Series D Preferred Stock pursuant to a Bridge Loan Financing
Agreement dated June 6, 1996, between the Company and Sattel (the "Sattel
Note").
Concurrently with the execution of this Agreement the Company is entering into a
Network Provision and Distribution Agreement with TMI Telemedia International,
Ltd. ("TMI") pursuant to which the Company has issued or agreed to issue
Warrants to purchase 7,950,514 shares of Series D Preferred Stock to TMI (the
"TMI Warrants"). In July 1996, the Company issued warrants to purchase 955,882
shares of Series D Preferred Stock to a group of individuals and entities in
consideration of a bridge loan of $1,300,000 (the "Bridge Warrants"). The
undersigned now desire to amend and restate the Amended and Restated Agreement
to provide for the participation as parties to this Agreement of (i) Racal with
respect to shares of Common Stock issuable to Racal (the "Racal Stock") upon
exercise of warrants dated September 1, 1994, and February 19, 1995 (the "Racal
Common Warrants"), (ii) Racal with respect to shares of Common Stock issuable to
Racal upon conversion of the Series D Preferred Stock issuable upon exercise of
warrants to purchase Series D Preferred dated August 1, 1996 (the "Racal Series
D
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Warrants," and, collectively with the Racal Common Warrant, the "Racal
Warrants"), (iii) Sattel with respect to the shares of Common Stock issuable
upon conversion of the Series D Preferred Stock issuable upon exercise of the
Sattel Standby Warrants, (iv) TMI with respect to shares of Common Stock
issuable to TMI upon conversion of the Series D Preferred Stock issuable upon
exercise of the TMI Warrants, (v) the holders of the Bridge Warrants with
respect to shares of Common Stock issuable to such holders upon conversion of
the Series D Preferred Stock issuable upon exercise of the Bridge Warrants, and
(vi) the holders of the Company's Series D Preferred Stock with respect to the
shares of Common Stock issuable to the Series D Holders upon the conversion of
the Company's Series D Preferred Stock.
Accordingly, the parties hereto agree as follows:
1. Certain Definitions.
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As used in this Agreement, the following terms shall have the meanings ascribed
to them below:
1.1 "Commission": the Securities and Exchange Commission.
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1.2 "Holder" or "Holders": GSCP, KP, Comdisco, Intuit, the Series C
------ -------
Holders, the Common Holders, Racal, Sattel, the Series D Holders and any party
who shall hereafter acquire and hold Registrable Securities or securities
exercisable for or convertible into Registrable Securities, provided such party
becomes a party to, and agrees to be bound by, this Agreement.
1.3 "IPO": the initial underwritten offering pursuant to which the Common
---
Stock becomes registered under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1.4 "Person" any natural person, corporation, partnership, firm,
------
association, trust, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.
1.5 "Registrable Securities": any shares of Common Stock (i) issued upon
----------------------
conversion of any share of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock, or upon exercise of any
Warrant, the Intuit Warrants or the Stand-By Financing Warrants or upon the
conversion of the Notes (including the Prior Notes, as such terms are defined in
the Stand-By Financing Agreement), (ii) issued pursuant to Section 12 of the
Purchase Agreement, (iii) purchased pursuant to the Comdisco Warrant Agreement,
(iv) purchased pursuant to the Stock Purchase Agreement or the Stand-By
Financing Agreement or upon exercise of any Option, (v) purchased by a Common
Holder from ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇ pursuant to that certain Common
Stock Purchase Agreement dated as of February 15, 1996, (vi) issued upon
conversion of the Sattel Notes, (vii) issued upon exercise of the Racal Warrants
or the Sattel Standby Warrant (viii) issued upon exercise of the TMI Warrants or
(ix) issued upon exercise of the Bridge Warrants (and any shares issued upon any
subdivision,
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combination or reclassification of such shares or any stock dividend in respect
of any of the foregoing shares). As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (ii) such securities shall
have been sold (other than in a privately negotiated sale) pursuant to Rule 144
(or any successor provision) under the Securities Act.
1.6 "Securities Act": the Securities Act of 1933, as amended.
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1.7 "Series C Parties": the Holders of at least a majority of all
----------------
outstanding shares of Series C Preferred Stock and of Common Stock issued upon
conversion of any shares of Series C Preferred Stock, in each case which are, or
are convertible into, Registrable Securities, who jointly deliver a written
request to the Company in accordance with Section 2.1(a)(i) below, treating, for
purposes of this calculation, all shares of Series C Preferred Stock as having
been converted into shares of Common Stock.
1.8 "Series D Parties": the Holders of at least a majority of all
------------------
outstanding shares of Series D Preferred Stock and of Common Stock issued upon
conversion of any shares of Series D Preferred Stock, in each case which are, or
are convertible into, Registrable Securities, who jointly deliver a written
request to the Company in accordance with Section 2.1(a)(i) below, treating, for
purposes of this calculation, all shares of Series D Preferred Stock as having
been converted into shares of Common Stock.
2. Registration Rights.
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2.1 Demand Registrations.
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(a) (i) Subject to Section 2.1(b) below, (x) at any time and from
time to time after the earlier of the closing of an IPO or June 30, 1997, any of
the GSCP Parties (as defined in the Purchase Agreement), the KP Parties (as
defined in the Purchase Agreement), the Series C Parties, or, the Series D
Parties shall have the right to require the Company to file a registration
statement under the Securities Act covering all or part of their respective
Registrable Securities, and (y) at any time and from time to time after the
fifteenth month anniversary of the closing of the IPO, Intuit, on the one hand,
and the Common Holders, on the other hand shall have the right to require the
Company to file a registration statement under the Securities Act covering all
or part of its or their Registrable Securities, in each case by delivering a
written request therefor to the Company specifying the number of Registrable
Securities to be included in such registration by the parties making the request
and the intended method of distribution thereof. All requests pursuant to this
Section 2.1(a)(i) are referred to herein as "Demand Registration Requests," and
the registrations requested are referred to herein as "Demand Registrations." As
promptly as practicable, but no later than ten days after receipt of a Demand
Registration Request, the Company shall give written notice of such Demand
Registration
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Request to all Holders of record.
(ii) The Company, subject to Sections 2.3 and 2.6, shall
include in a Demand Registration (x) the Registrable Securities of the party
making the demand under subsection (a) (i) above and (y) the Registrable
Securities of any Holder which shall have made a written request to the Company
for registration thereof (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder) within 30 days
after the receipt of written notice from the Company (or, 15 days if, at the
request of the Holder(s) which requested such registration, the Company states
in such written notice or gives telephonic notice to all Holders, with written
confirmation to follow promptly thereafter, that such registration will be on
Form S-3).
(iii) The Company shall, as expeditiously as possible following
a Demand Registration Request, use its best efforts to (x) effect such
registration under the Securities Act (including, without limitation, by means
of a shelf registration pursuant to Rule 415 under the Securities Act if so
requested and if the Company is then eligible to use such a registration) of the
Registrable Securities which the Company has been so requested to register, for
distribution in accordance with such intended method of distribution, and (y) if
requested by the Holder(s) which requested such registration, obtain
acceleration of the effective date of the registration statement relating to
such registration.
(b) The Demand Registration rights granted to the GSCP Parties, the
KP Parties, Intuit, the Series C Parties, the Series D Parties and the Common
Holders in Section 2.1(a) are subject to the following limitations: (i) each
registration in respect of a Demand Registration Request, must include (A)
500,000 Registrable Securities or (B) Registrable Securities having an aggregate
market value of at least $10,000,000 which market value shall be determined by
multiplying the number of Registrable Securities to be included in the Demand
Registration by the proposed per share offering price (provided that the
limitations set forth in this clause (i) shall not be in effect at any time the
Holders' Registrable Securities would otherwise be able to be sold under Rule
144 under the Securities Act but for the Company's failure to comply with the
information requirements thereunder, unless at such time, the Company's outside
counsel (which shall be reasonably acceptable to the Holders requesting such
registration) delivers a written opinion of counsel to such Holders to the
effect that such Holders' Registrable Securities may be publicly offered and
sold without registration under the Securities Act); (ii) the Company shall not
be required to cause a registration pursuant to Section 2.1(a)(i) to be declared
effective within a period of 180 days after the effective date of any
registration statement of the Company effected in connection with a Demand
Registration Request; (iii) if the Board of Directors of the Company, in its
good faith judgment, determines that any registration of Registrable Securities
should not be made or continued because it would materially interfere with any
material financing, acquisition, corporate reorganization or merger or other
transaction involving the Company or any of its subsidiaries (a "Valid Business
Reason"), the Company may postpone filing a registration statement relating to a
Demand Registration Request until such Valid Business Reason no longer exists,
but in no event for more than six months, and, in case a
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registration statement has been filed relating to a Demand Registration Request,
if the Valid Business Reason has not resulted from actions taken by the Company,
the Company may cause such registration statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
registration statement; and the Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof; (iv) the offering
of Registrable Securities requested to be registered pursuant to Section
2.1(a)(i) shall be pursuant to a firm commitment underwritten offering unless
the Company has previously sold Common Stock pursuant to a registration
statement under the Securities Act; (v) Intuit shall have only one right to
initiate a Demand Registration (for which Intuit shall have the sole right to
select the managing underwriter to be reasonably satisfactory to the Company),
and it shall only be effective in the event the Company is able to register the
securities subject to such right on Form S-3 or a substantially equivalent form
promulgated by the Commission, provided, that if the number of Registrable
Securities Intuit seeks to register upon exercise of its Demand Registration
initiation right is reduced pursuant to Section 2.3(a)(i), then Intuit shall be
deemed not to have exercised a Demand Registration with respect to such
Registrable Securities; (vi) the GSCP Parties, the KP Parties, the Series C
Parties and the Series D Parties shall each have only two rights to initiate a
Demand Registration (for which the GSCP Parties, the KP Parties, the Series C
Parties or the Series D Parties, as the case may be, shall have the sole right
to select the managing underwriter to be reasonably satisfactory to the
Company), provided, that if the number of Registrable Securities the GSCP
Parties, the KP Parties, the Series C Parties or Series D Parties seek to
register upon exercise of their Demand Registration initiation rights, is
reduced pursuant to section 2.3(a)(i), then the GSCP Parties, the KP Parties,
the Series C Parties or the Series D Parties, as the case may be, shall be
deemed not to have exercised a Demand Registration with respect to such
Registrable Securities and (vii) the Common Holders shall have only one right to
initiate a Demand Registration (for which a majority of the Common Holders shall
have the sole right to select a managing underwriter to be reasonably
satisfactory to the Company) and it shall only be effective in the event the
Company is able to register the securities subject to such right on Form S-3 or
a substantially equivalent form promulgated by the Commission.
If the Company shall give any notice of postponement or withdrawal of any
registration statement, the Company shall not, during the period of postponement
or withdrawal, register any Common Stock, other than pursuant to a registration
statement on Form S-4 or S-8 (or an equivalent registration form then in
effect). Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company that the Company has determined to withdraw any
registration statement pursuant to clause (iii) above, such Holder will
discontinue its disposition of Registrable Securities pursuant to such
registration statement and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. If the
Company shall have withdrawn or prematurely terminated a registration statement
filed under Section 2.1(a)(i) (whether pursuant to clause (iii) above or as a
result of any stop order, injunction or
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other order or requirement of the Commission or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall have
filed a new registration statement covering the Registrable Securities covered
by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company
shall give any notice of withdrawal or postponement of a registration statement,
the Company shall, at such time as the Valid Business Reason that caused such
withdrawal or postponement no longer exists (but in no event later than six
months after the date of the postponement), use its best efforts to effect the
registration under the Securities Act of the Registrable Securities covered by
the withdrawn or postponed registration statement in accordance with this
Section 2.1 (unless the Holder(s) delivering the Demand Registration Request
shall have withdrawn such request, in which case the Company shall not be
considered to have effected an effective registration for the purposes of this
Agreement), and such registration shall not be withdrawn or postponed pursuant
to clause (iii) above.
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to Section
2.1(a)(i), authorized but unissued shares of Common Stock or shares of Common
Stock held by the Company as treasury shares; provided, that such inclusion
shall be permitted only to the extent that it is pursuant to and subject to the
terms of the underwriting agreement or arrangements, if any, entered into by the
Holders exercising the Demand Registration rights granted to the Holders under
Section 2.1(a)(i). With respect to any Demand Registration, except as set forth
in the preceding sentence, no securities other than the Registrable Securities
of the Holders permitted to be included in such registration pursuant to Section
2.1(a)(ii) shall be included among the securities covered by such registration.
(d) The managing underwriter for any Demand Registration shall be
selected by the party or parties making the demand for such registration,
provided that such underwriter shall be reasonably satisfactory to the Company.
It is the current intention of the parties that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("GS&Co.")
will act as managing underwriter in any registration of the Registrable
Securities. If GS&Co. acts as managing underwriter in any such registered
offering, to the extent required by applicable law, a Qualified Independent
Underwriter (as defined in Schedule E to the National Association of Securities
Dealers, Inc. By-Laws) shall be retained, and the Company shall pay all fees and
expenses (other than underwriting discounts and commissions) of such Qualified
Independent Underwriter.
2.2 Piggyback Registrations.
-----------------------
(a) If, at any time, the Company proposes or is required to register
any of its equity securities under the Securities Act (other than pursuant to
(i) registrations on such form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation or (ii) a Demand Registration under Section
2.1) on a registration statement on Form S-1, Form S-2 or Form S-3 (or an
equivalent
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general registration form then in effect), whether or not for its own account,
the Company shall give prompt written notice of its intention to do so to each
of the Holders of record. Upon the written request of any Holder, made within 15
days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), the Company
shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its best efforts to
cause all such Registrable Securities, the Holders of which have so requested
the registration thereof, to be registered under the Securities Act (with the
securities which the Company at the time proposes to register) to permit the
sale or other disposition by the Holders (in accordance with the intended method
of distribution thereof) of the Registrable Securities to be so registered. No
registration effected under this Section 2.2(a) shall relieve the Company of its
obligations to effect Demand Registrations.
(b) If, at any time after giving written notice of its intention to
register any equity securities 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
equity securities, the Company may, at its election, give written notice of such
determination to all Holders of record and (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, without prejudice,
however, to the rights of Holders under Section 2.1, and (ii) in the case of a
determination to delay such registration of its equity securities, shall be
permitted to delay the registration of such Registrable Securities for the same
period as the delay in registering such other equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 2.2 by giving written notice to the Company of its request to
withdraw; provided, that (i) such request must be made in writing prior to the
earlier of the execution of the underwriting agreement or the execution of the
custody agreement with respect to such registration and (ii) such withdrawal
shall be irrevocable and, alter making such withdrawal, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such withdrawal was made.
2.3 Allocation of Securities Included in Registration Statement.
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(a) If any requested registration pursuant to Section 2.1 involves an
underwritten offering and a co-manager of such offering, which shall be a
prominent investment banking firm which is unaffiliated with the Holders (the
"Co-Manager"), shall advise the Company that, in its view, the number of
securities requested to be included in such registration (including those
securities requested by the Company to be included in such registration) exceeds
the largest number (the "Section 2.1 Sale Number") that can be sold in an
orderly manner in such offering within a price range acceptable to the Holders
of a majority of the Registrable Securities proposed to be registered, the
Company shall include in such registration:
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(i) all Registrable Securities requested to be included in such
registration by Holders, provided, that if the number of such Registrable
Securities exceeds the Section 2.1 Sale Number, the number of such Registrable
Securities (not to exceed the Section 2.1 Sale Number) to be included in such
registration shall be allocated on a pro rata basis among all Holders requesting
that Registrable Securities be included in such registration, based on the
aggregate number of Registrable Securities then owned by, and issuable upon
exercise or conversion of other securities to, each Holder requesting inclusion
in relation to the aggregate number of Registrable Securities owned by, and
issuable upon exercise or conversion of other securities to, all Holders
requesting inclusion; and
(ii) to the extent that the number of Registrable Securities to
be included by all Holders is less than the Section 2.1 Sale Number, securities
that the Company proposes to register.
If, as a result of the proration provisions of this Section 2.3(a), any
Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be included, such Holder may
elect to withdraw his request to include Registrable Securities in such
registration or may reduce the number requested to be included; provided, that
(x) such request must be made in writing prior to the earlier of the execution
of the underwriting agreement or the execution of the custody agreement with
respect to such registration and (y) such withdrawal shall be irrevocable and,
after making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Co-Manager shall advise the Company that, in its
view, the number of securities requested to be included in such registration
exceeds the number (the "Section 2.2 Sale Number") that can be sold in an
orderly manner in such registration within a price range acceptable to the
Company, the Company shall include in such registration:
(i) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Company proposes to
register for its own account (the "Company Securities"), and
(ii) to the extent that the number of Company Securities is less
than the Section 2.2 Sale Number, all Registrable Securities requested to be
included by all Holders; provided, that, if the number of such Registrable
Securities exceeds the Section 2.2 Sale Number less the number of Company
Securities, then the number of such Registrable Securities included in such
registration shall be allocated on a pro rata basis, based on the aggregate
number of Registrable Securities owned by, and issuable upon exercise or
conversion of other securities to, each Holder requesting inclusion in relation
to the aggregate number of Registrable Securities owned by, and issuable upon
exercise or conversion of other securities to, all Holders requesting inclusion.
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2.4 Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement on
an appropriate registration form of the Commission for the disposition of such
Registrable Securities in accordance with the intended method of disposition
thereof, which form (i) shall be selected by the Company and (ii) shall, in the
case of a shelf registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and such registration statement shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the Commission
to be filed therewith, and the Company shall use its best efforts to cause such
registration statement to become and remain effective (provided, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, or comparable statements under securities or blue sky laws of any
jurisdiction, the Company will furnish to one counsel for the Holders
participating in the planned offering (selected by the Holders making the Demand
Registration Request, in the case of a registration pursuant to Section 2.1, and
selected by the Holders of a majority of the Registrable Securities included in
such registration, in the case of a registration pursuant to Section 2.2) and
the underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the Company shall
not file any registration statement or amendment thereto or any prospectus or
supplement thereto to which the Holders of a majority of the Registrable
Securities covered by such registration statement or the underwriters, if any,
shall reasonably object in writing);
(b) 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 for
such period (which shall not be required to exceed 150 days in the case of a
registration pursuant to Section 2.1 or 120 days in the case of a registration
pursuant to Section 2.2) as any seller of Registrable Securities pursuant to
such registration statement shall request and to comply with the provisions of
the Securities Act with respect to the sale or other disposition of all
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by the seller or sellers thereof set forth
in such registration statement;
(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits), and
the prospectus included in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, and other documents, as such seller and underwriter may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (the Company hereby
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consenting to the use in accordance with all applicable law of each such
registration statement (or amendment or post-effective amendment thereto) and
each such prospectus (or preliminary prospectus or supplement thereto) by each
such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such registration statement or prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or
"blue sky" laws of such jurisdictions as any sellers of Registrable Securities
or any managing underwriter, if any, shall reasonably request, and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such sellers or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions, except that in no event shall the
Company be required to qualify to do business as a foreign corporation in any
jurisdiction where it would not, but for the requirements of this paragraph (d),
be required to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any posteffective amendment, when the same has become effective;
(ii) of any request by the Commission or state securities authority for
amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation of any proceeding for such
purpose; (v) of the existence of any fact of which the Company becomes aware
which results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference containing an untrue statement of
a material fact or omitting to state a material fact required to be stated
therein or necessary to make any statement therein not misleading; and (vi) if
at any time the representations and warranties contemplated by Section 3 below
cease to be true and correct in all material respects; and, if the notification
relates to an event described in clause (v), the Company shall promptly prepare
and furnish to each such seller and each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon as
reasonably practicable after the effective date of the registration statement
(and in any event within 16 months thereafter), an earnings statement (which
need not be audited) covering the period of at least twelve consecutive months
beginning with the first day of the Company's first calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of
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Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Registrable Securities is then permitted under the rules of such
exchange, or (ii) if no similar securities are then so listed, cause all such
Registrable Securities to be listed on a national securities exchange or,
failing that, secure designation of all such Registrable Securities as a
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") "national market security" within the meaning of Rule 11 Aa2-1 of the
Commission or, failing that, secure NASDAQ authorization for such shares and,
without limiting the generality of the foregoing, take all actions that may be
required by the Company as the issuer of such Registrable Securities in order to
facilitate the managing underwriter's arranging for the registration of at least
two market makers as such with respect to such shares with the National
Association of Securities Dealers, Inc. (the "NASD");
(h) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable,
an underwriting agreement) and take such other actions as the Holders of a
majority of the Registrable Securities participating in such offering shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities, provided that the underwriting agreement, if any, shall
be reasonably satisfactory in form and substance to the Company. The Holders of
the Registrable Securities which are to be distributed by such underwriters
shall be parties to such underwriting agreement and may, at their option,
require that the Company make to and for the benefit of such Holders the
representations, warranties and covenants of the Company which are being made to
and for the benefit of such underwriters and which are of the type customarily
provided to institutional investors in secondary offerings;
(j) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and "cold
comfort" letters delivered to underwriters in underwritten public offerings,
which opinion and letter shall be reasonably satisfactory to the underwriter, if
any, and to the Holders of a majority of the Registrable Securities
participating in such offering, and furnish to each Holder participating in the
offering and to each underwriter, if any, a copy of such opinion and letter
addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the offering and
each underwriter, if any, copies of all correspondence between the Commission
and the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the registration
statement, other than those portions of any such correspondence and memoranda
which contain information subject to attorney-client privilege with respect to
the Company, and, upon receipt of such confidentiality agreements as the Company
may reasonably request, make reasonably available for inspection by any seller
of such Registrable Securities
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covered by such registration statement, by any underwriter, if any,
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any underwritten
offering;
(o) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of such
document to counsel to the selling Holders of Registrable Securities and to the
managing underwriter, if any, and make the Company's representatives reasonably
available for discussion of such document and make such changes in such document
concerning the selling Holders prior to the filing thereof as counsel for such
selling Holders or underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(q) cooperate with the selling Holders of Registrable Securities and
the managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing the
Registrable Securities to be sold, and cause such Registrable Securities to be
issued in such denominations and registered in such names in accordance with the
underwriting agreement prior to any sale of Registrable Securities to the
underwriters or, if not an underwritten offering, in accordance with the
instructions of the selling Holders of Registrable Securities at least three
business days prior to any sale of Registrable Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable Securities as
to which any registration is
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being effected furnish the Company such information regarding such seller and
the distribution of such securities as the Company may from time to time
reasonably request provided that such information shall be used only in
connection with such registration.
Each 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
clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by paragraph
(e) of this Section 2.4 and, if so directed by the Company, will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. In the
event the Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 2.4 shall be extended by the number of days during
such period from and including the date of the giving of such notice to and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph (e) of this Section 2.4.
If any such registration statement or comparable statement under "blue
sky" laws refers to any Holder by name or otherwise as the Holder of any
securities of the Company, then such Holder shall have the right to require (i)
the insertion therein of language, in form and substance satisfactory to such
Holder and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion of
the reference to such Holder.
2.5 Registration Expenses.
---------------------
(a) "Expenses" shall mean any and all fees and expenses incident to
the Company's performance of or compliance with this Article 2, including,
without limitation: (i) Commission, stock exchange or NASD registration and
filing fees and all listing fees and fees with respect to the inclusion of
securities in NASDAQ, (ii) fees and expenses of compliance with state securities
or "blue sky" laws and in connection with the preparation of a "blue sky"
survey, including without limitation, reasonable fees and expenses of blue sky
counsel, (iii) printing expenses, (iv) messenger and delivery expenses, (v) fees
and disbursements of counsel for the Company, (vi) with respect to each
registration, the fees and disbursements of one counsel for the selling Holders
(selected by the Holders making the Demand Registration Request, in the case of
a registration pursuant to Section 2.1, and selected by the Holders of a
majority of the Registrable Securities included in such registration, in the
case of a registration pursuant to Section 2.2) as well as of one local counsel,
(vii) fees and disbursements of all independent public accountants (including
the expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other
-15-
persons, including special experts, retained by the Company, (viii) fees and
expenses payable to a Qualified Independent Underwriter and (ix) any other fees
and disbursements of underwriters, if any, customarily paid by issuers or
sellers of securities (collectively, "Expenses").
(b) The Company shall pay all Expenses with respect to any Demand
Registration that shall not be deemed to have been effected as contemplated by
Section 2.1(b) and any registration effected under Section 2.2. With respect to
any Demand Registration effected pursuant to Section 2.1, (i) the Company shall
pay all Expenses related to (A) two Demand Registrations which GSCP elects to
have the Company pay the Expenses related thereto, (B) two Demand Registrations
which KP elects to have the Company pay the Expenses related thereto, (C) one
Demand Registration which Intuit elects to have the Company pay the Expenses
related thereto, (D) two Demand Registrations which the Series C Parties elect
to have the Company pay the Expenses related thereto, (E) two Demand
Registrations which the Series D Parties elect to have the Company pay the
Expenses related thereto and (F) one Demand Registration which the Common
Holders elect to have the Company pay the Expenses related thereto, and (ii) the
Holders of Registrable Securities shall pay all Expenses related to any other
Demand Registration effected pursuant to Section 2.1, (such Expenses shall be
allocated among the Holders of Registrable Securities participating in a Demand
Registration on a pro rata basis based on the number of Registrable Securities
included in such offering by a Holder relative to the number of Registrable
Securities included in such offering by all Holders, except to the extent
Expenses are attributable to a Holder or to securities included in an offering
by a Holder).
(c) Notwithstanding the foregoing, (x) the provisions of this Section
2.5 shall be deemed amended to the extent necessary to cause these expense
provisions to comply with "blue sky" laws of each state in which the offering is
made and (y) in connection with any registration hereunder, each Holder of
Registrable Securities being registered shall pay all underwriting discounts and
commissions and transfer taxes, if any, attributable to the Registrable
Securities included in the offering by such Holder and (z) the Company shall, in
the case of all registrations under this Article 2, be responsible for all its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties).
2.6 Certain Limitations on Registration Rights. In the case of any
------------------------------------------
registration under Section 2.1 pursuant to an underwritten offering, or in the
case of a registration under Section 2.2 if the Company has determined to enter
into an underwriting agreement in connection therewith, all Registrable
Securities to be included in such registration shall be subject to an
underwriting agreement and no person may participate in such registration unless
such person agrees to sell such person's securities on the basis provided
therein and completes and/or executes all questionnaires and other documents
(other than powers of attorney) which must be executed in connection therewith,
and provides such other information to the Company or the underwriter as may be
necessary to register such Holder's Registrable Securities.
2.7 Limitations on Sale or Distribution of Other Securities.
-------------------------------------------------------
(a) If requested in writing by the Company or the managing
underwriter, if any, of any registration effected pursuant to Section 2.1 or
2.2, each Holder agrees not to effect
-16-
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, or of any other equity
security of the Company or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than as part of such
underwritten public offering) during the time period reasonably requested by the
managing underwriter, not to exceed 90 days (and the Company hereby also so
agrees (except that the Company may effect any sale or distribution of any such
securities pursuant to a registration on Form S-4 (if reasonably acceptable to
the managing underwriter) or Form S-8, or any successor or similar form which is
then in effect) and agrees to use its best efforts to cause each holder of any
equity security or of any security convertible into or exchangeable or
exercisable for any equity security of the Company purchased from the Company at
any time other than in a public offering so to agree).
(b) The Company hereby agrees that if it shall previously have
received a request for registration pursuant to Section 2.1 or 2.2, and if such
previous registration shall not have been withdrawn or abandoned, the Company
shall not effect any registration of any of its securities under the Securities
Act (other than a registration on Form S-4 or Form S-8 or any successor or
similar form which is then in effect), whether or not for sale for its own
account, until a period of 90 days shall have elapsed from the effective date of
such previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its securities.
2.8 No Required Sale. Nothing in this Agreement shall be deemed to create
----------------
an independent obligation on the part of any Holder to sell any Registrable
Securities pursuant to any effective registration statement.
2.9 Indemnification.
---------------
(a) In the event of any registration of any securities of the Company
under the Securities Act pursuant to this Article 2, the Company will, and
hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, the seller of any Registrable Securities covered by such registration
statement, its directors, officers, fiduciaries, employees and stockholders or
general and limited partners (and the directors, officers, employees and
stockholders thereof, each other individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof (each, a "Person")) any underwriter or Qualified Independent
Underwriter, if any, who participates in the offering or sale of such
securities, each officer, director, employee, stockholder or partner of such
underwriter or Qualified Independent Underwriter, and each other Person, if any,
who controls such seller or any such underwriter within the meaning of the
Securities Act, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof ("Claims") and expenses (including reasonable fees of counsel
and any amounts paid in any settlement effected with the Company's consent,
which consent shall not be unreasonably withheld or delayed) to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such securities were registered under the
Securities Act or the omission or alleged omission to state therein a material
fact required to be stated therein or
-17-
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement thereto,
together with the documents incorporated by reference therein, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (iii) any
violation by the Company of any federal, state or common law rule or regulation
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration, and the Company will reimburse
any such indemnified party for any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
Claim as such expenses are incurred; provided, that the Company shall not be
liable to any such indemnified party in any such case to the extent such Claim
or expense arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
made in such registration statement or amendment thereof or supplement thereto
or in any such prospectus or any preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such indemnified party specifically for use therein.
Such indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by or on behalf of such indemnified
party and shall survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in the
securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if
any) shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section 2.9)
to the extent permitted by law the Company, its officers and directors, each
Person controlling the Company within the meaning of the Securities Act. and all
other prospective sellers and their directors, officers, general and limited
partners and respective controlling Persons with respect to any untrue statement
or alleged untrue statement of any material fact in, or omission or alleged
omission of any material fact from, such registration statement, any
preliminary, final 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 or its representatives by or on behalf of
such Holder or underwriter or Qualified Independent Underwriter, if any,
specifically for use therein and reimburse such indemnified party for any legal
or other expenses reasonably incurred in connection with investigating or
defending any such Claim as such expenses are incurred, provided, however, that
the aggregate amount which any such Holder shall be required to pay pursuant to
this Section 2.9(b) and Sections 2.9(c) and (e) shall in no case be greater than
the amount of the net proceeds received by such person upon the sale of the
Registrable Securities pursuant to the registration statement giving rise to
such claim. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and
-18-
each seller of Registrable Securities with respect to any required registration
or other qualification of securities under any state securities and "blue sky"
laws.
(d) Any person entitled to indemnification under this Agreement shall
notify promptly the indemnifying party in writing of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 2.9, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 2.9, except to the extent the
indemnifying party is materially prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Article 2. In case any action or proceeding is brought
against an indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, unless in the reasonable opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof jointly with any other indemnifying party similarly notified, to the
extent that it chooses, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party that it so chooses, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, that (i) if the indemnifying
party fails to take reasonable steps necessary to defend diligently the action
or proceeding within 20 days after receiving notice from such indemnified party
that the indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party; or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the indemnified party
shall have the right to assume or continue its own defense as set forth above
(but with no more than one firm of counsel for all indemnified parties in each
jurisdiction, except to the extent any indemnified party or parties reasonably
shall have concluded that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 2.9(a), (b) or
(c), then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any
-19-
Claim in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, with respect to such offering of securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second preceding sentence
is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also
the relative benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 2.9(e) were to be 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 preceding sentences of this Section 2.9(e). The amount paid
or payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding anything in this Section 2.9(e) to
the contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(e) to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or liabilities
of the indemnified parties relate, less the amount of any indemnification
payment made pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on behalf
of any indemnified party and shall survive the transfer of the Registrable
Securities by any such party.
(g) The indemnification and contribution required by this Section 2.9
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
3. Underwritten Offerings.
----------------------
3.1 Requested Underwritten Offerings. If requested by the underwriters
--------------------------------
for any underwritten offering by the Holders pursuant to a registration
requested under Section 2.1, the Company shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement shall
be satisfactory in form and substance to the Holders which requested such
registration and shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities and contribution agreements. Any Holder participating in the
offering shall be a party to such underwriting agreement and
-20-
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
such Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligations of such Holder; provided, the Company shall not be required
to make any representations or warranties with respect to information
specifically provided by a selling holder for inclusion in the registration
statement. Such underwriting agreement shall also contain such representations
and warranties by the participating Holders as are customary in agreements of
that type.
3.2 Piggyback Underwritten Offerings. In the case of a registration
--------------------------------
pursuant to Section 2.2 hereof, if the Company shall have determined to enter
into any underwriting agreements in connection therewith, all of the Holders'
Registrable Securities to be included in such registration shall be subject to
such underwriting agreements. Any Holder participating in such registration
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
such Holder and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to the obligations of such Holder. Such underwriting agreement shall also
contain such representations and warranties by the participating Holders as are
customary in agreements of that type.
4. General.
-------
4.1 Adjustments Affecting Registrable Securities. The Company agrees that
--------------------------------------------
it shall not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Holder of any Registrable
Securities to include such Registrable Securities in any registration
contemplated by this Agreement or the marketability of such Registrable
Securities in any such registration. The Company agrees that it will take all
reasonable steps necessary to effect a subdivision of shares if in the
reasonable judgment of (a) the Holder of Registrable Securities that makes a
Demand Registration Request and (b) the managing underwriter for the offering in
respect of such Demand Registration Request, such subdivision would enhance the
marketability of the Registrable Securities. Reference in this Agreement to any
specific number of securities required to be held, registered or transferred
with respect to the exercise or transfer of rights hereunder (including, without
limitation, Sections 2.1(b)(i)(A) and 4.6(a)), shall be deemed adjusted, as
appropriate, to reflect any subdivision, combination or reclassification of such
securities (including, without limitation, a stock split) or any stock dividend
in respect of any such securities which occurs on or after April 20, 1995.
4.2 Rule 144/Form S-3. If the Company shall have filed a registration
-----------------
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act in
respect of the Common Stock or securities of the Company convertible into or
exchangeable or exercisable for Common Stock, the Company covenants that it will
timely file the reports required to be filed by it under the Securities Act or
the Exchange Act (including, but not limited to, the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
under the Securities
-21-
Act), and will take such further action as any Holder of
Registrable Securities 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 (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act in
respect of the Common Stock or securities of the Company convertible into or
exchangeable or exercisable for Common Stock, the Company covenants that it will
take all actions as are necessary for the Company to meet the registrant
requirements for the use of Form S-3 (or a substantially equivalent form
promulgated by the Commission). The Company acknowledges that the covenant of
the foregoing sentence is for the benefit of Intuit (with reference to the
provisions of Section 2.1(b)(v) of this Agreement), and upon the request of
Intuit the Company will deliver to Intuit a written statement as to whether the
Company meets and expects to continue to meet the registrant requirements for
the use of Form S-3 (or a substantially equivalent form promulgated by the
Commission).
4.3 Nominees for Beneficial Owners. If Registrable Securities, or
------------------------------
securities which are convertible or exercisable into Registrable Securities, are
held by a nominee for the beneficial owner thereof, the beneficial owner thereof
may, at its option, be treated as the Holder of such securities for purposes of
any request or other action by any Holder or Holders pursuant to this Agreement
(or any determination of any number or percentage of shares constituting
Registrable Securities held by, and issuable upon exercise or conversion of
other securities to, any Holder or Holders contemplated by this Agreement);
provided that the Company shall have received assurances reasonably satisfactory
to it of such beneficial ownership.
4.4 Amendments and Waivers. This Agreement may be amended, modified,
----------------------
supplemented or waived only upon the written agreement of the party against whom
enforcement of such amendment, modification, supplement or waiver is sought;
provided, that in any instance where such enforcement is sought against the
Holders of the Series C Preferred Stock, the Series D Preferred Stock or the
Registrable Securities issuable with respect thereto, this Agreement may be
amended, modified, supplemented or waived upon the written agreement of the
Holders of at least a majority of all outstanding shares of Series C Preferred
Stock or Series D Preferred Stock, as the case may be, and of Common Stock
which are then Registrable Securities issued upon conversion of any shares of
Series C Preferred Stock or Series D Preferred Stock, as the case may be,
treating, for purposes of this calculation, all shares of Series C Preferred
Stock or Series D Preferred Stock as having been converted into shares of Common
Stock; and provided further, that this Agreement may be amended to grant only
---------------------
additional piggyback registration rights to additional parties upon the written
agreement of the Holders of a majority of the Registrable Securities, GSCP, KP
and Intuit.
4.5 Notices. Except as otherwise provided in this Agreement, notices and
-------
other communications under this Agreement shall be in writing and delivered
personally, by telecopy (with confirmation sent within three business days by
overnight courier) or by overnight courier,
-22-
addressed to such party at the address set forth below:
(i) if to the Company, to:
Concentric Network Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(ii) if to GSCP, to:
GS Capital Partners, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(iii) if to KP, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(iv) if to Intuit, to:
Intuit, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-23-
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq
(v) if to any other Holder, to the address set forth on Schedule
I, Schedule II or Schedule III.
Each Holder, by written notice given to the Company in accordance with this
Section 4.5 may change the address to which such notice or other communications
are to be sent to such Holder. All such notices and communications shall be
deemed to have been received on the date of delivery thereof if delivered by
hand, on the filth day after the mailing thereof, if mailed, on the next day
after the sending thereof if by overnight courier, when answered back if telexed
and when receipt is acknowledged, if telecopied.
4.6 Miscellaneous.
-------------
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and the respective successors and
assigns of the parties hereto, whether so expressed or not. No Person other
than a Holder shall be entitled to any benefits under this Agreement, except as
otherwise expressly provided herein. This Agreement and the rights of the
parties hereunder may be assigned by any of the parties hereto to any transferee
of Registrable Securities or securities exercisable for or convertible into
Registrable Securities, provided such transferee becomes a party to this
Agreement and agrees to be bound by its terms, provided further, in the case of
the Series C Preferred Stock, or Common Stock issued upon its conversion, such
transfer is (i) from the original Series C Holder, and (ii) the transferee
acquires at least 50,000 of such shares in a transaction involving at least 80%
of the aggregate of shares of Series C Preferred Stock originally acquired by
the Series C Holder and Common Stock issued upon their conversion; provided
further, in the case of transfers of Common Stock by a Common Holder, such
transfer is (i) from the original Common Holder, and (ii) the transferee
acquires at least 50,000 of such shares in a transaction involving at least 80%
of the aggregate of Common Stock originally acquired by the Common Holder;
provided further, in the case of transfers of Racal Warrants or Racal Stock,
such transfer is (i) from Racal and (ii) the transferee acquires at least 50,000
of such shares in a transaction involving at least 80% of the aggregate of the
Racal Warrants or Racal Stock; and provided further, in the case of Series D
Preferred Stock, such transfer is (i) from the original Series D Holder and (ii)
the transferee acquires at least 50,000 of such shares in a transaction
involving at least 80% of the aggregate of the Series D Preferred Stock
originally acquired by the Series D Holder and Common Stock issuable upon its
conversion, except that the preceding condition shall not apply to the transfer
of Series D Preferred Stock by SOFTBANK Holdings Inc. to one or more affiliated
partnerships managed by it nor to the transfer of Series D Preferred Stock by
Telemedia International Ltd., Sattel Communications LLC or Racal-Datacom, Inc.
to one or more affiliates; (who shall be treated as an original Series D Holder)
the parties hereto acknowledge and agree that with respect to the transfer of
1,838,235 shares of Series D Preferred Stock from Sattel Communications LLC to
StreamLogic Corporation, such transfer shall be treated as if it were a transfer
to an affiliate.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto relating to the subject matter hereof and supersedes
all prior agreements and understandings
-24-
relating to the subject matter hereof, specifically including, but not limited
to, the Registration Rights Agreements dated September 1, 1994 and February 15,
1995 between Racal and the Company, and each such agreement (and any rights such
Holder has pursuant to such agreement) shall be terminated, null and void and no
longer in effect.
(c) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New York without giving effect to the
conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof. All section
references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
(g) It is hereby agreed and acknowledged that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved person will be irreparably damaged and will
not have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief including specific performance, to enforce such
obligations, without the posting of any bond and if any action should be brought
in equity to enforce any of the provisions of this Agreement, none of the
parties hereto shall raise the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.7 No Inconsistent Agreements. Without the prior written consent of
--------------------------
GSCP, the Company will not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which is inconsistent with the
rights granted in this Agreement or otherwise conflicts with the provisions
hereof other than any lock-up agreement with the underwriters in connection with
any registered offering effected hereunder, pursuant to which the Company shall
agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period following
the registered offering.
-25-
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Registration Rights Agreement as of the date set forth above.
CONCENTRIC NETWORK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: President
----------------------------------------
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ C. H. Scodinski
----------------------------------------------
Name: C. H. Scodinski
-----------------------------------------
Title: Vice President
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII
By: KPCB VII ASSOCIATES, its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title:________________________________________
COMDISCO, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Assistant Vice President
---------------------------------------
INTUIT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Executive Vice President
-------------------------------------
SERIES C HOLDER
By: /s/
---------------------------------------------
Name:________________________________________
Title:_______________________________________
COMMON HOLDER
By: /s/
---------------------------------------------
Name:________________________________________
Title:_______________________________________
SERIES D HOLDER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Sr. Vice President
--------------------------------------------
SERIES D HOLDER
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title: ______________________________________
SERIES D HOLDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: President
--------------------------------------
SERIES D HOLDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President, Finance & Treasurer
--------------------------------------
RACAL-DATACOM, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President, Finance & Treasurer
---------------------------------------
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
KPCB VII FOUNDERS FUND
By: KPCB VII ASSOCIATES, its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title:______________________________________
KPCB INFORMATION SCIENCES ZAIBATSU FUND II
By: KPCB VII ASSOCIATES, its general partner
By: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title:______________________________________
SCHEDULE I
----------
AMERINDO TECHNOLOGY CAPITAL TRUST MANAGEMENT
One Embarcadero Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 94111 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇
APPLEWOOD ASSOCIATES, L.P. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
BT HOLDINGS ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ CORE TECHNOLOGY FUND INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇ Squared Affiliate
No. 219 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Center Place CVMG GENERAL
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, III ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: Dr. ▇▇▇
Center Place Karlsberg
Suite 800 ESSEX HIGH TECHNOLOGY
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Bermuda) L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇
ESSEX PERFORMANCE FUND, L.P. MANCHESTER RESORTS, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 33rd Floor
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
EXECUTIVE TECHNOLOGY L.P.
c/o S Squared Technology Corp MARITIME CAPITAL PARTNERS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RAINBOW TRADING CORP. MATRIX TECHNOLOGY GROUP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ c/o S Squared Technology
Group
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attention: ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ MELLC-CNC, L.P.
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ c/o Menlo Equities
Suite 300 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
G.S. CAPITAL PARTNERS, L.P. Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ c/o S Squared TechnologyCorp
515 Madison Avenue
▇▇▇▇▇ ▇▇▇▇ Suite 4200
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇▇▇▇▇ Securities ▇▇▇ ▇▇▇▇▇/MIDWEST -
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ INDUSTRIES, INC. MASTER TRUST ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ESSEX SPECIAL GROWTH OPPORTUNITIES FUND, L.P. RAINBOW TRADING CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Suite 400
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
NAVIGATOR GLOBAL FUND LIMITED
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ RAINBOW TRADING PARTNERS,
9th Floor LTD. & RAINBOW TRADING
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ VENTURE PARTNERS, L.P.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
THE NEW DISCOVERY FUND LIMITED ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
c/o Essex Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ SCI-TECH INVESTMENT
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PARTNERS, L.P. & S SQUARED
AFFILIATE
PERMAL MEDIA & COMMUNICATION LTD. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SG PARTNERS
Trustees of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the c/o S Squared Affiliate
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1992 Trust UTA 1/10/92 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇ ▇▇▇▇▇▇▇▇▇
PORRIDGE PARTNERS II PKD TRUST DTD 1/8/92
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/▇ ▇▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
VPN INVESTORS, L.P.
c/o CMH Capital
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
RAINBOW TRADING CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
YALE UNIVERSITY RETIREMENT FUND FOR STAFF EMPLOYEES &
YALE UNIVERSITY
c/o S Squared Affiliates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE II
-----------
APPLEWOOD ASSOCIATES L.P. VPN INVESTORS II
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ EMPLOYEE PENSION PLAN
c/o CMH Capital
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
CRITICAL TECHNOLOGIES
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
EARLY BIRD INVESTMENT CLUB
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sales Co.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MINGLEWOOD MANAGEMENT, LTD.
c/▇ ▇▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
c/o Palm Harbor Homes
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE III
------------
RACAL-DATACOM, INC. TMI TELEMEDIA INTERNATIONAL, LTD.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Telecopy: 954/846-5026 Telecopy: ▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Legal Department Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: with a copy to:
Dechert Price & ▇▇▇▇▇▇ ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Telecopy: 212/755-7306
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SATTEL COMMUNICATIONS LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: 818/878-7633
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
SOFTBANK HOLDINGS, INC.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: 617/928-9301
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: 212/558-3588
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.