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Exhibit 10.3
AMENDED AND RESTATED
FOUNDERS REGISTRATION RIGHTS AGREEMENT
AGREEMENT, made as of the 9th day of August, 1995, by and among GEOTEL
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company"), and those
persons listed on Schedule I as Founders (the "Founders").
WHEREAS, the Founders own shares of the Company's Common Stock, $.01 par
value per share (the "Common Stock"); and
WHEREAS, the Company and certain of the Founders have previously entered
into a Founders Registration Rights Agreement dated as of September 30, 1993 and
an Amended and Restated Founders Registration Rights Agreement dated as of July
29, 1995 (collectively, the "Prior Agreement"); and
WHEREAS, the Company and the Founders wish to enter into this Agreement
in order to amend and restate in its entirety the Prior Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act
(as defined below).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Investors" shall mean, collectively, the purchasers of the
Company's Series A Preferred Stock pursuant to that certain Stock
Purchase Agreement dated as of September 30, 1993, the purchasers of the
Company's Series B Preferred Stock pursuant to that certain Stock
Purchase Agreement dated as of July 29, 1994 and the purchasers of the
Company's Series C Preferred Stock pursuant to that certain Stock
Purchase Agreement dated as of August 9, 1995.
"Permitted Transfer" shall mean the sale, assignment or other
transfer of any shares of Common Stock held by a Founder (a) by way of
gift to any member of his family or to any trust for the benefit of any
such family member or the Founder, or (b) by will or the laws of descent
and distribution. As used herein, the word "family" shall include any
spouse, lineal ancestor or descendant, brother or sister.
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"Permitted Transferee" shall mean any person or entity who shall
have acquired and who shall hold shares of Common Stock pursuant to a
Permitted Transfer.
"Preferred Stock" shall mean, collectively, the Series A
Preferred Stock, the Series B Preferred Stock and the Series C Preferred
Stock.
"Registration Expenses" shall mean the expenses so described in
Section 8.
"Registrable Shares" shall mean all shares of Common Stock held
by a Founder from time to time (whenever and however acquired),
excluding shares of Common Stock which have been (a) registered under
the Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration statement
covering them, (b) publicly sold pursuant to Rule 144 under the
Securities Act, or (c) sold, assigned or otherwise transferred to a
person who is not a Permitted Transferee.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Selling Expenses" shall mean the expenses so described in
Section 8.
"Series A Preferred Stock" shall mean the Series A Convertible
Participating Preferred Stock, $.01 par value per share, of the Company.
"Series B Preferred Stock" shall mean the Series B Convertible
Participating Preferred Stock, $.01 par value per share, of the Company.
"Series C Preferred Stock" shall mean the Series C Convertible
Participating Preferred Stock, $.01 par value per share, of the Company.
2. Incidental Registration. If the Company at any time proposes to
register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other security holders or both
(except with respect to registration statements on Form ▇-▇, ▇▇▇▇ ▇-▇, their
respective successor forms, or another form not available for registering the
Registrable Shares for sale to the public), each such time it will give written
notice to all holders of outstanding Registrable Shares of its intention so to
do. Upon the written request of any such holder, received by the Company within
20 days after the giving of any such notice by the Company, to register any of
its Registrable Shares (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Registrable Shares as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company all to the extent requisite to permit the sale or
other disposition by the holder (in accordance
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with its written request) of such Registrable Shares so registered. In the event
that any registration pursuant to this Section 2 shall be, in whole or in part,
an underwritten public offering of Common Stock, the number of shares of Common
Stock to be included in such an underwriting by the Founders may be reduced (pro
rata among the Founders based upon the number of shares of Common Stock owned by
the Founders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein.
In addition, if the underwriter advises the Company that marketing
considerations require a limitation on the number of shares offered pursuant to
any registration statement, then the Company shall include in such registration
statement the maximum amount of such securities (including Registrable Shares)
(the "Maximum Amount") that the underwriter considers saleable in accordance
with the following order of priority: (x) first the securities the Company
proposes to register for its own account; (y) second, provided that the
aggregate number of securities to be included pursuant to clause (x) is less
than the Maximum Amount, the securities to be included in such registration
statement on behalf of the Investors until the aggregate net proceeds received
or to be received by the Investors from the conversion of their Preferred Stock
or sale to the public of any Common Stock (including proceeds to be received in
connection with the requested registration at issue) equals the sum of (i)
$3,300,000 plus a return thereon from the original issue date of the Series A
Preferred Stock through the date of such registration of 20% per annum,
compounded annually, (ii) $4,557,600 plus a return thereon from the original
issue date of the Series B Preferred Stock through the date of such registration
of 20% per annum, compounded annually, and (iii) $4,000,000 plus a return
thereon from the original issue date of the Series C Preferred Stock through the
date of such registration of 20% per annum, compounded anually, and (y) third,
provided that the aggregate number of securities to be included pursuant to
clauses (x) and (y) is less than the Maximum Amount, the remaining securities
requested to be included (including Registrable Shares), on a pro rata basis
among the holders of Registrable Shares and other securities according to the
number of Registrable Shares and other securities each such holder requested to
be included in such registration (excluding for the purposes of such allocation,
those securities already included in the registration pursuant to clause (y)).
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 2 without thereby incurring
any liability to the holders of Registrable Shares (other than as provided in
Section 5).
3. Registration Procedures. If and whenever the Company is required
by the provisions of Section 2 to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and
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remain effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(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
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Shares
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Shares and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Shares covered by such registration statement;
(d) use its best efforts to register or qualify the Registrable
Shares covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Registrable Shares or, in the case
of an underwritten public offering, the managing underwriter reasonably shall
request; provided, however, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to list the Registrable Shares covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed; and
(f) immediately notify each seller of Registrable Shares and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
For purposes of Section 3(a) and 3(b), the period of distribution of
Registrable Shares in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Shares
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Shares covered thereby and 90 days after the effective
date thereof.
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In connection with each registration hereunder, the sellers of
Registrable Shares will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 2 covering an
underwritten public offering, the Company and each selling holder of Registrable
Shares agree to enter into a written agreement with the managing underwriter
selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an arrangement
between such underwriter and companies of the Company's size and investment
stature.
5. Expenses. All expenses incurred by the Company in complying with
Section 2, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky" laws, fees of
the National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and fees and disbursements of
one counsel for the sellers of Registrable Shares, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting discounts and
selling commissions applicable to the sale of Registrable Shares are called
"Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Section 3. All Selling Expenses in connection with
each registration statement under Section 2 shall be borne by the participating
sellers in proportion to the number of Registrable Shares sold by each, or by
such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
6. Indemnification and Contribution. (a) In the event of a
registration of any of the Registrable Shares under the Securities Act pursuant
to Section 2, the Company will indemnify and hold harmless each seller of
Registrable Shares thereunder, each underwriter of such Registrable Shares
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (x) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Shares were registered under the
Securities Act pursuant to Section 2, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or (y)
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (z) arise out or are based upon any
violation or alleged violation by the Company of the Securities Act or the
Exchange Act or any state securities laws or any
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regulation promulgated under any of them, and will reimburse each such seller,
each such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any Registrable Shares
under the Securities Act pursuant to Section 2, each seller of such Registrable
Shares thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement under which such Registrable Shares were
registered under the Securities Act pursuant to Section 2, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; and provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
such seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
proceeds received by such seller from the sale of Registrable Shares covered by
such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any
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liability which it may have to such indemnified party other than under this
Section 6 and shall only relieve it from any liability which it may have to such
indemnified party under this Section 6 if and to the extent the indemnifying
party is prejudiced by such omission. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 6 for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Registrable Shares exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 6 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 6 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 6; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Shares offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the public offering price
of all Registrable Shares offered by it pursuant to such registration statement;
and (B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
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7. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Shares to the public without registration, at all
times after 90 days after any registration statement covering a public offering
of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Shares forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registrable Shares without
registration.
8. Representations and Warranties of the Company. The Company
represents and warrants to the Founders as follows:
(a) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
9. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto (including without
limitation transferees of any Registrable Shares), whether so expressed or not;
provided, however, that registration rights conferred
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herein on the Founders shall only inure to the benefit of the Founders and their
respective Permitted Transferees.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or telecopied or sent by other
facsimile method addressed as follows:
if to the Company or any other party hereto, at the address of
such party set forth on Schedule I hereto or the most recent address as
is shown on the stock records of the Company;
if to any subsequent holder of Registrable Shares, to it at such
address as may have been furnished to the Company in writing by such
holder; or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of a holder
of Registrable Shares) or to the holders of Registrable Shares (in the
case of the Company) in accordance with the provisions of this
paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(d) This Agreement amends and restates in its entirety the Prior
Agreement and supersedes the Prior Agreement. This Agreement may not be amended
or modified, and no provision hereof may be waived, without the written consent
of the Company and the holders of at least a majority of the outstanding
Registrable Shares. The Founders and the Company acknowledge that the Investors
are third party beneficiaries to the provisions set forth in the second
paragraph of Section 2 and, therefore, no amendment or waiver of the provisions
of such paragraph shall be valid without the consent of those Investors who hold
a majority of the shares of Preferred Stock (together with the shares of Common
Stock issued upon conversion thereof).
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Registrable Shares who is a party to this Agreement shall agree not to sell
publicly any Registrable Shares or any other shares of Common Stock (other than
Registrable Shares or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period of not more
than 90 days following the effective date of the registration statement relating
to such offering; provided, however, that all persons entitled to registration
rights with respect to shares of Common Stock who are not parties to this
Agreement, all other persons selling shares of Common Stock in such offering and
all executive officers and directors of the Company shall
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also have agreed not to sell publicly their Common Stock under the circumstances
and pursuant to the terms set forth in this Section 9(f).
(g) Notwithstanding the provisions of Section 3(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed 90 days in any 12-month period if there exists at the time
material non-public information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed.
(h) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
* * * * * *
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
COMPANY:
GEOTEL COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
FOUNDERS:
/s/ G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
Schedule I
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Founders
Name and Address
----------------
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Company
Geotel Communications Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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