EXHIBIT 4.4
$100,000,000
ASK JEEVES, INC.
ZERO COUPON CONVERTIBLE SUBORDINATED NOTES DUE JUNE 1, 2008
REGISTRATION RIGHTS AGREEMENT
June 4, 2003
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Ask Jeeves, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Credit Suisse First Boston LLC (the "INITIAL PURCHASER"), upon
the terms set forth in a purchase agreement of even date herewith (the "PURCHASE
AGREEMENT"), $100,000,000 aggregate principal amount (plus up to an additional
$15,000,000 principal amount) of its Zero Coupon Convertible Subordinated Notes
due 2008 (the "INITIAL SECURITIES"). The Initial Securities will be convertible
into shares of common stock, par value $0.001 per share, of the Company (the
"UNDERLYING SHARES") at the conversion price set forth in the Offering Circular
dated May 29, 2003 (the "OFFERING CIRCULAR"). The Initial Securities will be
issued pursuant to an Indenture, dated as of June 4, 2003 (the "INDENTURE"),
between the Company and The Bank of New York, as trustee (the "TRUSTEE"). As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company agrees with the Initial Purchaser, for the benefit of (i) the Initial
Purchaser and (ii) the holders of the Initial Securities and the Underlying
Shares (collectively, the "SECURITIES,") from time to time until such time as
such Securities are no longer Registrable Securities (as defined below) (each of
the forgoing a "HOLDER" and collectively the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare
and, as promptly as practicable (but in no event more than 90 days after the
latest date of the original issuance of the Initial Securities file with the
Securities and Exchange Commission (the "COMMISSION") and thereafter use
commercially reasonable efforts to cause to be declared effective as soon as
practicable (but in no event later than 180 days after latest date of the
original issuance of the Initial Securities a registration statement on an
appropriate form (the "SHELF REGISTRATION STATEMENT") relating to the offer and
sale of the Registrable Securities (as defined herein) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act of 1933,
as amended (the "SECURITIES ACT") (hereinafter, the "SHELF REGISTRATION");
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder is an Electing Holder (as defined in Section 2(l)).
"REGISTRABLE SECURITIES" means each Security until (i) the date on which such
Security has been effectively registered under the Securities Act and sold in
accordance with the Shelf Registration Statement, (ii) the date on which such
Security is sold pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act or (iii) ceases to be
outstanding.
(b) The Company shall use commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein, as the same may be amended and
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supplemented from time to time (the "PROSPECTUS"), to be lawfully delivered by
the Electing Holders of the relevant Securities, for a period of two years (or
for such longer period if extended pursuant to Section 2(h) below) from the date
of its filing or such shorter period that will terminate when the Securities
cease to be Registrable Securities (such period being called the "SHELF
REGISTRATION PERIOD"). The Company shall be deemed not to have used its
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities not being able to offer and sell such
Registrable Securities during that period, unless such action is (i) required by
applicable law, (ii) taken by the Company in good faith and contemplated by
Section 2(b)(vi) below, and the Company thereafter complies with the
requirements of Section 2(h).
(c) Notwithstanding any other provision of this Agreement to the
contrary, at all times during the Shelf Registration Period, except during any
Deferral Period (defined below), the Company shall cause the Shelf Registration
Statement, as of the effective date of the Shelf Registration Statement and as
of the effective date of any post-effective amendment thereto, and the
Prospectus (including any supplements thereto), as of the date it is filed with
the Commission, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
Prospectus and, in the event that the Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering of the Initial
Securities) is participating in the Shelf Registration Statement, shall use its
commercially reasonable efforts to reflect in each such document, when so filed
with the Commission, such comments as the Initial Purchaser reasonably may
propose; and (ii) subject to paragraph (l) of this Section 2 (A) and prior to
the effectiveness of the Shelf Registration Statement, include the names of
Electing Holders who propose to sell Registrable Securities pursuant to the
Shelf Registration Statement as selling securityholders in the Shelf
Registration Statement and (B) after the effectiveness of the Shelf Registration
Statement and during the Shelf Registration Period, if an Electing Holder has
not been named as a selling securityholder in the Shelf Registration Statement,
file any necessary post-effective amendments or supplements to the Shelf
Registration Statement in order to name such Electing Holders as selling
securityholders, provided that the Company shall be obligated to file such
post-effective amendment or supplement only once in each of the quarterly
periods commencing May 15, August 15, November 15 and February 15 of each year
during the Shelf Registration Period.
(b) The Company shall give written notice to the Initial Purchaser and
the Holders (which notice pursuant to clauses (iii)-(vi) hereof shall be
accompanied by a Deferral Notice (as defined below)):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission;
(ii) when the Shelf Registration Statement or any post
effective amendment thereto has become effective;
(iii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus, to
the extent that the Company determines in good faith that the Shelf
Registration Statement or Prospectus contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
misleading without the changes requested by the Commission;
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
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(v) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of
the Securities for sale in any state of the United States or the
District of Columbia; and
(vi) if the Company determines in good faith to suspend
the use of the Shelf Registration Statement or Prospectus because of
the existence or occurrence of any corporate development with respect
to the Company or the happening of any event that, in the good faith
judgment of the Company requires the Company to make changes in the
Shelf Registration Statement or the Prospectus in order that the Shelf
Registration Statement or the Prospectus does not contain an untrue
statement of a material fact nor omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which
they were made) not misleading.
The requirement that the Company give written notice of the events in
clauses (i) and (ii) above may be satisfied by issuance of press releases
through Dow Xxxxx & Company, Inc. or Business Wire (or their successors in
interest or any other nationally recognized wire service).
If the Company suspends the use of the Prospectus pursuant to any of
clause (iii)-(vi) above, it shall give notice to the Electing Holders that the
availability of the Shelf Registration Statement is suspended (a "DEFERRAL
NOTICE") and each Electing Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration Statement or deliver the Prospectus included
therein to purchasers from the date of receipt of any Deferral Notice until such
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in Section 2(h), or until it is advised in writing by the Company that the
Prospectus may be used, and copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus are made available by the Company (such as by public Xxxxx filing
with the Commission). The Company need not specify the nature of the event
giving rise to the Deferral Notice. Each Holder agrees not to disclose to any
third party the fact that a Deferral Notice was issued or the substance of any
communications between the Company and any Holder related thereto, provided that
the Company requests such non-disclosure. The Company will use its commercially
reasonable efforts to ensure that the use of the Prospectus may be resumed as
promptly as practicable. Notwithstanding anything to the contrary in the
immediately preceding sentence, the periods during which the availability of the
Shelf Registration Statement and the Prospectus is suspended (each a "DEFERRAL
PERIOD") shall not exceed 45 days in the aggregate in any 90-day period and
shall not exceed 120 days in the aggregate in any twelve-month period.
Notwithstanding such time limits, subsequent to the Company's issuance of a
Deferral Notice no Holder may resume sales under the Shelf Registration
Statement or delivery any related Prospectus until such Deferral Notice has been
revoked by the Company.
(c) The Company shall make every commercially reasonable effort to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Electing Holder, without charge,
at least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and all
exhibits thereto (including those, if any, incorporated by reference), if the
Holder so requests in writing.
(e) The Company shall, during the Shelf Registration Period, deliver
to each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary prospectus) as such person may reasonably request.
The Company consents, subject to the provisions and restrictions of this
Agreement, to the use of the Prospectus at any time during the Shelf
Registration Period (except during a Deferral Period) by each of the selling
Holders in connection with the offering and sale of the Registrable Securities.
(f) Prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Electing Holders and their counsel in connection
with the registration or qualification of the Registrable Securities for offer
and sale under the securities or "blue sky" laws of such states of the United
States as any Electing Holder reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Shelf Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
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(g) The Company shall, to the extent contemplated by the Indenture,
cooperate with the Electing Holders to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be sold
pursuant to any Shelf Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the Electing Holders may
request a reasonable period of time prior to sales of the Registrable Securities
pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (iii)
through (vi) of Section 2(b) above during the Shelf Registration Period, the
Company shall, if necessary, promptly prepare and file a post-effective
amendment to the Shelf Registration Statement or an amendment or supplement to
the Prospectus and any other required document so that, as thereafter delivered
to Holders or purchasers of the Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
issues a Deferral Notice to the Initial Purchaser and the Electing Holders in
accordance with paragraphs (iii) through (vi) of Section 2(b) above to suspend
the use of the Prospectus until the requisite changes to the Prospectus have
been made, the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(b) above shall be extended by the number of days from
and including the date of the receipt by the Initial Purchaser and the Electing
Holders of the Deferral Notice to and including the date when the Initial
Purchasers and the Electing Holders shall have received such amended or
supplemented Prospectus pursuant to this Section 2(h); provided that such
extended period of effectiveness shall remain subject to earlier termination as
provided in Section 1(b).
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Initial Securities and
the Underlying Shares issuable upon conversion of the Initial Securities
registered under the Shelf Registration Statement, and, if required, provide the
Trustee with printed certificates for the Initial Securities, in a form eligible
for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, (the "TRUST INDENTURE ACT") in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) Each Holder shall furnish to the Company such information
regarding the Holder and the distribution of the Registrable Securities as is
requested by the form of notice and questionnaire attached as Annex A to the
Offering Circular and such additional information as the Company may from time
to time reasonably require in connection with the Shelf Registration Statement
(each Holder properly providing such information, an "ELECTING HOLDER"), and the
Company may exclude from such registration the Registrable Securities of any
Holder that fails to furnish such information to the Company on or prior to the
fifth Business Day before (1) the effectiveness of the Registration Statement
(provided, however, that Holders shall be permitted no less than 30 calendar
days from the date of the Offering Circular to return a completed and signed
Questionnaire to the Company) or (2) after the initial effectiveness of the
Shelf Registration Statement, the date of filing the post-effective amendment or
supplement to the Shelf Registration Statement contemplated by Section 2(a). Any
Holder of Registrable Securities that fails to return a completed and signed
Questionnaire within the time periods provided in the prior sentence will not be
entitled (i) to be named as a selling securityholder in the Shelf Registration
Statement (or amendment or supplement thereto) as of the date the Shelf
Registration Statement (or amendment or supplement thereto) is declared
effective or (ii) unless and until such Holder is added to the Shelf
Registration Statement as a selling securityholder, to use the Prospectus for
offers or resales of Registrable Securities.
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(m) The Company shall enter into such customary agreements (including,
an underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 7 hereof) and take all such other
appropriate actions, if any, as any Electing Holder shall reasonably request in
order to facilitate the disposition of the Registrable Securities pursuant to
the Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection
during normal business hours by the Electing Holders, any underwriter
participating in any disposition pursuant to the Shelf Registration Statement
and any attorney, accountant or other agent retained by the Electing Holders or
any such underwriter, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and (ii)
cause the Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Electing Holders or
any such underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchaser by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 3
hereof.
(o) In connection with an underwritten offering pursuant to Section 7
hereof, the Company, if requested by the underwriter, shall cause (i) its
counsel to deliver an opinion relating to the Securities in customary form
addressed to each Holder participating in the underwritten offering and the
managing underwriter(s) covering matters customarily covered in opinions
requested in primary underwritten offerings of equity and convertible debt
securities; (ii) its authorized officers to execute and deliver all customary
documents and certificates and updates thereof reasonably requested by any
underwriters of the Registrable Securities and (iii) its independent public
accountants to provide to the Holders participating in the underwritten offering
of the applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72, in each of paragraph (ii) and (iii), dated the
effective date of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be.
(p) In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" (as defined in Rule 2720(b)(1) within the meaning of
the Conduct Rules (the "RULES") of the National Association of Securities
Dealers, Inc. ("NASD")) of the Company or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the Rules) and such broker dealer shall
underwrite, participate as a member of an underwriting syndicate or selling
group or assist in the distribution of any Registrable Securities, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Shelf Registration Statement relating to
such Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules.
(q) The Company shall use its commercially reasonable efforts to take
all other steps necessary to effect the registration of the Registrable
Securities covered by a Shelf Registration Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Shelf Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
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(iii) all expenses of printing (including printing
certificates for the Securities to be issued and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection with
listing the Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company. Selling
Holders will bear their individual selling expenses, including commissions and
discounts and transfer taxes.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchaser and the Holders
covered by any such Shelf Registration Statement, for the reasonable fees and
disbursements of not more than one counsel, as may be designated by the Holders
of a majority in principal amount of the Securities covered by such Shelf
Registration Statement (provided that Holders of Underlying Shares issued upon
the conversion of the Initial Securities shall be deemed to be Holders of the
aggregate principal amount of Initial Securities from which such Underlying
Shares were converted) to act as counsel for the Holders in connection
therewith.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder, and such
controlling persons are referred to collectively as the "INDEMNIFIED PARTIES")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, 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 shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration in reliance upon and in conformity
with written information in the Questionnaire submitted by or on behalf of such
Holder or otherwise pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a prospectus relating to such Securities was required to be
delivered by such Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the final prospectus if the Company had previously furnished copies thereof
to such Holder ; provided further, however, that this indemnity agreement will
be in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
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with respect to the indemnification of the Holders of the Securities if
requested by Holders participating in an underwritten offering pursuant to
Section 7 hereof.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information in the Questionnaire submitted by or on
behalf of such Holder or otherwise pertaining to such Holder and furnished to
the Company by or on behalf of such Holder specifically for inclusion therein;
and, subject to the limitation set forth immediately preceding this clause,
shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its controlling
persons.
(c) Promptly after receipt by an indemnified party under this Section
4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under subsection (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, 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 of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) 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.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
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Notwithstanding any other provision of this Section 4(d), the Holders shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities
(provided that for the purposes of this Section 5 holders of Underlying Shares
issued upon conversion of Initial Securities shall not be deemed holders of
Underlying Shares, but shall be deemed to be holders of the aggregate principal
amount of Initial Securities from which such Underlying Shares were converted)
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below being herein called a "Registration
Default"):
(i) the Shelf Registration Statement has not been filed
with the Commission by the 90th day after the latest date of the
original issuance of the Initial Securities;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission by the 180th day after the latest
date of the original issuance of the Initial Securities;
(iii) the Company fails to amend or supplement the Shelf
Registration Statement in order to add Electing Holders as selling
securityholders within the time periods set forth in Section 2(a); or
(iv) the Shelf Registration Statement is declared
effective by the Commission but during the Shelf Registration Period
(A) the Shelf Registration Statement or the Prospectus ceases to be
effective or usable in connection with resales of the Securities during
the Shelf Registration Period and (B)(x) if applicable, the Company
does not terminate the Deferral Period described in Section 2(b) above
by the 45th day or the 120th day, as the case may be or (y) in all
other cases, subject to Section 5(b), the Company does not have the
Shelf Registration Statement and related Prospectus effective and
usable within five business days after it ceased to be effective or
usable by a post-effective amendment or a report filed pursuant to the
Exchange Act, except in each case as the result of filing a
post-effective amendment solely to add additional selling
securityholders.
Each of the foregoing will constitute a Registration Default whatever
the reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a result
of any action or inaction by the Commission.
Additional Interest shall accrue on (A) in the case of paragraph (iii)
above, the Initial Securities held by the Holders affected by the relevant
Registration Default and (B) in all other cases, all of the Initial Securities,
from and including the date on which any such Registration Default shall occur
to but excluding the date on which all such Registration Defaults have been
cured, at a rate per annum (the "ADDITIONAL INTEREST RATE") of (a) 0.25% of the
principal amount of the Initial Securities to and including the 90th day
following the occurrence of such Registration Default and (b) 0.50% of the
principal amount of the Initial Securities from and after the 91st day following
the occurrence of such Registration Default. In no event shall interest accrue
at a rate per annum exceeding 0.50%.
(b) A Registration Default referred to in Section 5(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the Prospectus if such Registration Default has
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occurred solely as a result of (A) the filing or the need to file a
post-effective amendment to the Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the Prospectus, (B) the filing or the need to file a
post-effective amendment to incorporate modifications to the Shelf Registration
Statement in connection with comments from the Commission relating to such Shelf
Registration Statement or any documents required to be incorporated therein or
(C) other material events with respect to the Company that would need to be
described in such Shelf Registration Statement and Prospectus, and in each of
(A), (B) and (C) the Company is proceeding promptly and in good faith to amend
or supplement the Shelf Registration Statement and Prospectus and to file and
have declared effective such Shelf Registration Statement; provided, however,
that if in any such case the use of the Shelf Registration Statement is
suspended under this paragraph (b) for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day following such 45 day period until such Registration Default is cured;
provided, further however, that if the Shelf Registration Statement is suspended
for more than 45 days in the aggregate in any 90-day period or more than 120
days in the aggregate in any twelve-month period under this Section 5(b) or
pursuant to a Deferral Period, Additional Interest shall be payable by the
Company in accordance with Section 5(a) from the 46th day or the 121st day, as
applicable, until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect to
the Initial Securities, or if there are no such regular payment dates, June 1
and December 1. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the applicable Initial Securities, further multiplied by a fraction, the
numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
6. Rules 144 and 144A. The Company shall use commercially reasonable
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time during the Shelf
Registration Period the Company is not required to file such reports, it will,
upon the written request of any Holder, make publicly available other
information so long as necessary to permit sales of their securities pursuant to
Rules 144 and 144A. The Company covenants during the Shelf Registration Period
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchaser upon request. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations. Any Electing Holder who desires to do
so may request to sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that the Electing Holders of (i) at least $40
million aggregate principal amount of the Initial Securities (or if the Initial
Securities have been converted into the Underlying Shares, the amount of Initial
Securities that such Electing Holder would have held had such Electing Holder
not converted shall be included in such offering) shall be included in such
underwritten offering and (ii) the Company shall have agreed to such
underwritten offering. If any of the Registrable Securities covered by the Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
("MANAGING UNDERWRITERS") will be selected by the holders of a majority in
aggregate principal amount of such Registrable Securities to be included in such
offering (provided that holders of Underlying Shares issued upon conversion of
the Initial Securities shall not be deemed holders of Underlying Shares, but
shall be deemed to be holders of the aggregate principal amount of Initial
Securities from which such Underlying Shares were converted) provided that such
Managing Underwriters shall be reasonably acceptable to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Registrable Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
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8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 1 hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with the rights
granted to the holders of the Company's securities under any agreement in effect
on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents
(provided that holders of Underlying Shares issued upon conversion of Initial
Securities shall not be deemed holders of Underlying Shares, but shall be deemed
to be holders of the aggregate principal amount of Initial Securities from which
such Underlying Shares were converted). Without the consent of the Holder of
each Initial Security that is a Registrable Security, however, no modification
may change the provisions relating to the payment of Additional Interest.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Shearman & Sterling
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
(3) if to the Company, at its address as follows:
0000 Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
with a copy to:
O'Melveny & Xxxxxx LLP
Xxxxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the State of New
York.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
ASK JEEVES, INC.
by /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
by /s/ Xxxxxxxx XxXxxxx
----------------------------
Name: Xxxxxxxx XxXxxxx
Title: Director
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