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EXHIBIT 4.02
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of October __, 1998 (the "EFFECTIVE DATE") by and between
XxxxxxXxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), and the entities
listed on Exhibit A hereto (collectively, the "STOCKHOLDERS" and each
individually a "STOCKHOLDER").
R E C I T A L S
WHEREAS, the Company and the Stockholders have entered into that
certain Merger Agreement (the "MERGER AGREEMENT") dated as of the date hereof,
which provides, among other things, that Xxxxxxxxxxx.Xxx, LLC (the "LLC") shall
merge with and into the Company (the "MERGER") with the Company being the entity
surviving the Merger;
WHEREAS, immediately prior to the Merger, the Stockholders were the
sole members of the LLC;
WHEREAS, the Stockholders each received 4,500,000 shares of the Common
Stock of the Company, par value $0.01 per share (the "MERGER SHARES"), in
exchange for their membership interests in the LLC;
WHEREAS, as a condition to the Stockholders agreeing to enter into the
Merger Agreement, the Company has agreed to grant the Stockholders certain
registration rights with respect to the Merger Shares and other securities of
the Company which they may hold in the future;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and the Stockholders
hereby, intending to be legally bound by the terms hereof, agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Agreement:
(a) Form S-3. The term "FORM S-3" means such form
under the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(b) Holder. The term "HOLDER" means any person owning
of record Registrable Securities that have not been sold to the public or
pursuant to Rule 144 ("RULE 144") promulgated under the Securities Act of 1933,
as amended (the "1933 ACT") or any assignee of
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record of such Registrable Securities to whom rights under this Agreement have
been duly assigned in accordance with this Agreement.
(c) Prospectus. The term "PROSPECTUS" shall mean
the prospectus included in any registration statement filed pursuant to the
provisions hereof (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the 1933
Act), as amended or supplemented by any prospectus supplement (including,
without limitation, any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
registration statement), and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(d) Registrable Securities. The term "REGISTRABLE
SECURITIES" means: (1) all of the Merger Shares, (2) any securities of the
Company subsequently acquired by a Stockholder or any entity which controls, is
controlled by, or is under common control with a Stockholder, and (3) any
securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement thereof excluding in all cases,
however, (i) any Registrable Securities sold by a person in a transaction in
which rights under this Section 1 are not assigned in accordance with this
Agreement, or (ii) any Registrable Securities sold in a public offering pursuant
to a registration statement filed with the SEC or sold pursuant to Rule 144
except to the extent reacquired by a Stockholder or an entity which controls, is
controlled by or is under common control with a Stockholder as provided in
clause (2) above.
(e) Registrable Securities Then Outstanding. The
number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the
number of Registrable Securities that are common stock of the Company and are
issued and outstanding at such time plus with respect to any Registrable
Securities issued and outstanding at such time that are not common stock of the
Company, the number of shares of common stock of the Company into which such
Registrable Securities are then or will be convertible or otherwise exchangeable
or exerciseable.
(f) Registration. The terms "REGISTER,"
"REGISTERED," and "REGISTRATION" refer to a registration effected by preparing
and filing a registration statement in compliance with the 1933 Act, and the
declaration or ordering of effectiveness of such registration statement.
(g) SEC. The term "SEC" or "COMMISSION" means the
U.S. Securities and Exchange Commission.
1.2 Demand Registration.
(a) Request by Stockholder. If the Company shall
receive at any time after 180 days following the effective date of the
registration statement for the Company's initial public offering, a written
request from either Stockholder (the "INITIATING HOLDER") that the Company file
a registration statement under the 1933 Act covering the registration of
Registrable
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Securities with a reasonably anticipated aggregate price to the public of at
least three million dollars ($3,000,000) pursuant to this Section 1.2, then the
Company shall effect, as soon as practicable, and in any event use its best
efforts to effect within 60 days of such request, the registration under the
1933 Act of all Registrable Securities which the Initiating Holder requests to
be registered and included in such registration, subject only to the limitations
of this Section 1.2.
(b) Underwriting. If the Initiating Holder intends
to distribute the Registrable Securities covered by its request by means of an
underwriting, then it shall so advise the Company as a part of its request made
pursuant to this Section 1.2. The Initiating Holder shall (a) select the
managing underwriter to administer such offering after consultation with the
Company and subject to the approval of the Company, which approval shall not be
unreasonably withheld, and (b) enter into an underwriting agreement in customary
form with such managing underwriter. Notwithstanding any other provision of this
Section 1.2, if the underwriter(s) advise(s) the Company in writing that
marketing factors require a limitation of the number of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto the Company
will so advise the Initiating Holder, and the number of securities that may be
included in the underwriting shall be reduced as required by the underwriter(s)
and allocated first, to the Initiating Holder, second, to the Company, third,
among all other holders of Registrable Securities and fourth, among all other
holders of securities of the Company.
(c) Maximum Number of Demand Registrations. The
Company is obligated to effect only two (2) such registrations for each
Stockholder pursuant to this Section 1.2. Only registrations in which a
Stockholder is the Initiating Holder shall count against such limit with respect
to such Stockholder. The Company shall not be deemed to have effected a
registration pursuant to this Section 1.2 unless a registration statement in
respect thereof shall have been declared effective by the SEC and remains
effective for 120 days or such earlier time until all Registrable Securities
registered under such Registration Statement have been sold (or withdrawn from
such registration at the request of the Initiating Holder).
(d) Deferral; Jurisdictional Requirements.
Notwithstanding the foregoing, if the Company shall furnish to the Initiating
Holder a certificate signed by the President or Chief Executive Officer of the
Company stating that it would be seriously detrimental to the Company and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company
shall have the right to defer such filing for a period of not more than 120 days
after receipt of the request of the Initiating Holder or such earlier time as
such a certificate could no longer be given in good faith; provided, however,
that the Company may not utilize this right more than once in any twelve (12)
month period.
(e) Withdrawn Request. The Initiating Holder may
withdraw a request for registration under this Section 1.2 at any time prior to
the effective date of the Registration Statement related to such registration,
provided that if such Stockholder elects to remain liable for all expenses
incurred in conjunction therewith then such withdrawn registration statement
shall not count toward the maximum number of registrations provided for in
section
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1.2(c). Notwithstanding the foregoing provisions of this Section 1.2(e),
if such withdrawal is the result of a material adverse change in the business,
assets, properties, condition (financial or otherwise), results of operations or
prospects of the Company that was unknown to such Stockholder at the time the
request for registration was made and the withdrawal of such request is made
with reasonable promptness upon learning of such material adverse change, then
such request for registration that is so withdrawn shall not count toward the
maximum number of registrations provided for in Section 1.2(c) and such Holder
shall not be liable for the expenses incurred in connection with such withdrawn
registration statement.
1.3 Piggyback Registrations.
(a) The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the 1933 Act for purposes of effecting a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements on Form S-8 or S-4 or relating
solely to any employee benefit plan or an acquisition of any entity or business)
and will afford Holders, subject to the terms and conditions set forth herein,
an opportunity to include in such registration statement all or any part of the
Registrable Securities then held by Holders. Holders shall, within twenty (20)
days after receipt of the above-described notice from the Company, so notify the
Company in writing, and in such notice shall inform the Company of the number of
Registrable Securities a Holder wishes to include in such registration
statement. If a Holder decides not to include all of its Registrable Securities
in any registration statement filed by the Company, the Holder shall
nevertheless continue to have the right to include any Registrable Securities
not included in such registration statement in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(b) Underwriting. If a registration statement with
respect to which the Company gives notice under this Section 1.3 pertains to an
underwritten offering, then the Company shall so advise Holders. In such event,
the right of Holders to have the Registrable Securities included in a
registration pursuant to this Section 1.3 shall be conditioned upon Holders'
participation in such underwriting and the inclusion of the Registrable
Securities in the underwriting to the extent provided herein. Each Holder
proposing to sell Registrable Securities in such offering shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of
securities to be underwritten, then the managing underwriter(s) may exclude
securities (including Registrable Securities) from the registration and the
underwriting, and the number of securities that may be included in the
registration and the underwriting shall be allocated, first, to the Company,
second, between the Holders, on a pro-rata basis based on the number of
Registrable Securities held by each such Holder and third to any other holders
of the Company's securities, provided that if the registration is a registration
pursuant to Section 1.2, the "cut-back" provisions described in the last
sentence of Section 1.2(b) shall apply. If a Holder disapproves of the terms of
any such
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underwriting, a Holder may elect to withdraw therefrom by written notice to the
Company and the managing underwriter(s), delivered at least ten (10) business
days prior to the effective date of the registration statement or if notified of
the terms thereafter, promptly after such notification. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
1.4 Form S-3 Registration. In case the Company shall receive from
either Stockholder a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Stockholder
or its affiliates, then the Company will:
(a) Registration. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Stockholder's or its affiliates' Registrable Securities as are
specified in such request, provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 1.4:
(1) if Form S-3 is not available for such
offering by the Stockholder;
(2) if the Stockholder, together with the
holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than one million dollars
($1,000,000); or
(3) if the Company shall furnish to the
Stockholder a certificate signed by the President or Chief Executive Officer of
the Company stating that it would be seriously detrimental to the Company and
its stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement no more than once during any twelve month period for a
period of not more than one hundred twenty (120) days after receipt of the
request of the Stockholder under this Section 1.4 or such earlier time as such a
certificate could no longer be given in good faith. (b) Not Demand Registration.
Form S-3 registrations shall not be deemed to be demand registrations as
described in Section 1.2 above.
(c) Notwithstanding anything to the contrary herein,
the Company is obligated to effect only two (2) registrations on Form S-3 per
year and each Stockholder may request only one (1) such registration per year
pursuant to this Section 1.4.
(d) Withdrawn Request. The Stockholder requesting a
registration pursuant to this Section 1.4 may withdraw a request for
registration under this Section 1.4 at any time prior to the effective date of
the Registration Statement related to such registration, provided that if such
Holder elects to remain liable for all expenses incurred in conjunction
therewith then such withdrawn registration statement shall not count toward the
maximum number of
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registrations provided for in Section 1.4(c). Notwithstanding the foregoing
provisions of this Section 1.4(d), if such withdrawal is the result of a
material adverse change in the business, assets, properties, condition
(financial or otherwise), results of operations or prospects of the Company that
was unknown to such Holder at the time the request for registration was made and
the withdrawal of such request is made with reasonable promptness upon learning
of such material adverse change, then such a request for registration that is so
withdrawn shall not count toward the maximum number of registrations provided
for in Section 1.4(c) and such Holder shall not be liable for the expenses
incurred in connection with such withdrawn registration statement.
1.5 Obligations of the Company. Whenever required to effect
the registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities, use its best efforts to
cause such registration statement to become effective as soon as practicable and
with respect to registrations effected pursuant to Sections 1.2, 1.3 and 1.4
keep such registrations effective for up to one hundred twenty (120) days,
excluding any lock-up period, or such shorter period of time as is agreed to in
writing by the Company and each applicable Holder.
(b) For such period of time as shall be required in
connection with the transactions contemplated thereby and permitted by
applicable rules, regulations and administrative practice of the SEC (but not
for more than 120 days from the effective date thereof), file such
post-effective amendments and supplements to such registration statement as
shall be necessary so that neither such registration statement nor any related
prospectus shall contain any material misstatement or omission relative to the
Company or any of its assets or liabilities or its businesses of affairs and
will otherwise comply with all applicable federal, state and foreign securities
laws.
(c) Furnish to the Holder such number of copies of a
Prospectus, including a preliminary Prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as it may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by it that are included in such registration.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions unless already subject
thereto.
(e) If requested by the underwriters for any
underwritten offering by a Holder pursuant to any registration requested under
Section 1.2 or 1.4, the Company shall enter into an underwriting agreement with
such underwriters for such offering, such agreement to be satisfactory in form
and substance to such Stockholder and to contain such representations and
warranties by the Company and such other terms and provisions (including,
without limitation,
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provisions for indemnification of such underwriters by the Company) as are
customarily contained in such underwriting agreements. The Stockholder shall be
a party to such underwriting agreement and may, at its option, require that any
or all of the representations and warranties by, and the agreements on the part
of, the Company to and for the benefit of such underwriters be made to and for
the benefit of such Stockholder 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 Stockholder.
(f) Notify the Holders promptly, (i) of the time such
registration statement becomes effective or when any amendment or supplement or
prospectus forming a part of such registration statement has been filed or
becomes effective, (ii) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of a registration
statement for amendments or supplements to such registration statement or
related prospectus or for additional information, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a registration statement or the initiation or
threatening of any proceedings for that purpose (and the Company will use its
best efforts to prevent the issuance of any such stop order or to obtain its
withdrawal promptly if such stop order should be issued), (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event which makes any
statement made in a registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in the registration
statement or prospectus so that, in the case of a registration statement, it
will not contain any untrue statement of a material fact required to be stated
therein or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any 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 the light of the circumstances under which they
were made, not misleading and, at the reasonable request of a Holder, the
Company shall also promptly prepare and file with the Securities and Exchange
Commission and make available to such Holder any supplement or amendment
reasonably necessary so that neither such registration statement nor any related
prospectus shall contain any material misstatement or omission as a result of
such event (provided that the 120 day period referred to in Section 1.2, 1.3 or
1.4 shall be extended by the period from which the Company gives the notice
specified in this clause until such supplement or amendment is made available to
such Holder), and (vi) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be appropriate;
except that notice of an event or determination referred to in (v) or (vi) above
need be made only if a registration statement relating to Registrable Securities
is then in effect.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the effective date of the
Registration Statement, (i) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering and
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reasonably satisfactory to the Holder requesting registration, and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to the Holder requesting
registration.
(h) Provide for the listing of the Registrable
Securities on the stock exchange or authorization for trading on automated
quotation system on which the Registrable Securities' class of securities are
then listed or quoted; provided however, nothing contained herein shall obligate
the Company to have listed any Registrable Securities which are of a class of
securities of the Company not then listed on a stock exchange or authorized for
trading on automated quotation system.
(i) Make available for inspection by the Holder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other professional retained by the
Holder or such underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement.
1.6 Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Sections 1.2, 1.3
or 1.4 with respect to any particular Holder that such Holder shall furnish to
the Company such information regarding such Holder, the Registrable Securities
held by it, and the intended method of disposition of such securities as shall
be required to timely effect the registration of its Registrable Securities.
1.7 Expenses. All expenses incurred in connection with a
registration pursuant to Sections 1.2, 1.3 and 1.4, including without limitation
all registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders to be selected by the
selling Stockholder(s) (but excluding underwriters' discounts and commissions),
shall be borne by the Company. Each Holder participating in a registration
pursuant to Section 1 shall bear such Holder's proportionate share (based on the
total number of shares sold in such registration other than for the account of
the Company) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such offering.
1.8 Indemnification. In the event any registration statement
is filed by the Company:
(a) By the Company. To the extent permitted by law,
the Company will indemnify and hold harmless each Holder, each officer and
director of a Holder, any agent or underwriter (as defined in the 0000 Xxx) for
the Holders and each person (as defined in Section 2(2) of the 1933 Act), if
any, who controls such Holder or such underwriter within the meaning of Section
15 of the 1933 Act or the Section 20 of the Securities Exchange Act of 1934,
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as amended (the "1934 ACT") or any similar federal statute then in effect,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the 1933 Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus
contained therein or in any amendments or supplements thereto;
(ii) the omission or alleged omission to state in
such registration statement, including any preliminary
prospectus or final prospectus contained therein or in any
amendments or supplements thereto, a material fact required to
be stated therein, or necessary to make the statements therein
not misleading (in the case of any preliminary prospectus or
final prospectus, in the light of the circumstances under
which they are made); or
(iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any federal or state
securities law or any rule or regulation promulgated under the
1933 Act, the 1934 Act or any federal or state securities law
in connection with the offering covered by such registration
statement;
and the Company will reimburse each Holder, each officer or director of a
Holder, and each such agent, underwriter or controlling person for any legal or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this subsection
1.8(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage or liability
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, or by such officer,
director, agent, underwriter or controlling person of such Holder; provided,
further, however, the indemnification rights provided for in this Section 1.8(a)
with respect to a registration statement shall not apply to any Holder who is
not a Stockholder, unless such Holder has included any of its Registrable
Securities in such registration statement.
(b) By Selling Holders. To the extent permitted by
law, each selling Holder, if any, will severally and not jointly indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who controls the Company
within the meaning of the 1933 Act or the 1934 Act, as applicable, and any agent
or underwriter, against any losses, claims, damages or liabilities (joint or
several)
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to which the Company or any such director, officer, controlling person, agent or
underwriter may become subject under the 1933 Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information concerning such Holder furnished
by such Holder expressly for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action to the extent that (and only to the extent that) such
Violation occurs in reliance upon and in conformity with written information
concerning such Holder furnished by such Holder for use in connection therewith;
provided, however, that the indemnity agreement contained in this subsection
1.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Stockholders, which consent shall not be unreasonably withheld; and
provided further, that the total amounts payable in indemnity by a Holder under
this Section 1.8(b) in respect of any Violation shall not exceed the net
proceeds received by such Holder in the registered offering out of which such
Violation arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 1.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.8, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 1.8 except to the extent that the
indemnifying party is actually prejudiced by the failure to give such notice. In
addition, the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.8. The indemnification provided in this
Section 1.8 shall remain in full force and effect, regardless of any
investigation made by or on behalf of any indemnified party, and shall survive
the transfer of any Registrable Securities being registered pursuant to Section
1.2, 1.3 or 1.4.
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of the Company and Holders are subject to the
limitation that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes
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effective or in the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "FINAL PROSPECTUS"), such indemnity agreements shall not inure to
the benefit of a selling Holder (or any officer or director of a selling Holder
or any such agent, underwriter or controlling Person of a Holder) if a copy of
the Final Prospectus was timely furnished to the indemnified party, and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the 1933 Act; provided, however,
that this subparagraph (d) shall not apply with respect to any underwritten
offering.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the 1933 Act in any case in
which either (i) any Holder exercising rights under this Agreement (and/or any
officer, director, agent, underwriter or controlling person who may be
indemnified under Section 1.8(a)) makes a claim for indemnification pursuant to
this Section 1.8 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 1.8 provides for indemnification in such case, or (ii) contribution
under the 1933 Act may be required on the part of any such selling Holder
(and/or any officer, director, underwriter or controlling person who may be
indemnified under Section 1.8(b)) in circumstances for which indemnification is
provided under this Section 1.8; then, and in each such case, the Company and
such Holder (and/or such other person) will contribute to the aggregate losses,
claims, damages and expenses or liabilities to which they may be subject (after
contribution from others) in proportion to their relative fault. The relative
fault of the Company and a Holder shall be determined by reference to, among
other things, whether the untrue or alleged omission of a material fact relates
to information supplied by the Company or by such Holder and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 1.8(e)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
two immediately preceding sentences; provided however, that in no event, except
in instances of fraud by a Holder in which there is no limitation, (i) shall
such Holder be responsible for more than the portion represented by the
percentage that the public offering price of the Registrable Securities of such
Holder offered by and sold under the registration statement bears to the public
offering price of all securities offered by and sold under such registration
statement and (ii) shall such Holder be required to contribute any amount in
excess of the public offering price of all such securities offered and sold by
such Holder pursuant to such registration statement; and in any event, no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. The obligations of the Company and
Holders under this Section 1.8 shall survive the completion of any offering of
Registrable Securities in a registration statement or otherwise.
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1.9 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 Securities to the public without
registration, for so long as Holders own any Registrable Securities, the Company
agrees to:
(a) Make and keep adequate, current public
information available, as required by and defined in Rule 144, at all times;
(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 1934 Act;
(c) So long as a Holder owns any Registrable
Security, furnish to the Holder forthwith upon request a written statement by
the Company as to its compliance with the reporting requirements of said Rule
144, a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a stockholder of the Company to sell any such securities without registration;
and
(d) Take such further action as a Holder may
reasonably request.
1.10 Termination of the Company's Obligations. The Company
shall have no obligations to register Registrable Securities (i) if all
Registrable Securities have been registered and sold pursuant to registrations
effected pursuant to this Agreement, or (ii) at such time as all outstanding
Registrable Securities may be sold within a three month period under Rule 144,
as it may be amended from time to time, including but not limited to amendments
that reduce that period of time that securities must be held before such
securities may be sold pursuant to such rule.
1.11 "Market Stand-Off" Agreement. Each Holder hereby agrees
that it shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities then owned by such Holder (other than to donees or
affiliates of the Holder who agree to be similarly bound) for up to (1) one
hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Securities Act with respect to the
initial public offering of securities of the Company (the "IPO"), and (2) ninety
(90) days following the first underwritten public offering of securities of the
Company following the IPO; provided, however, that all executive officers and
directors of the Company then holding securities of the Company enter into
similar agreements. In order to enforce the foregoing covenant, the Company
shall have the right to place restrictive legends on the certificates
representing the shares subject to this Section and to impose stop transfer
instructions with respect to the Registrable Securities and such other shares of
stock of each Holder (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
1.12. Review. Each Stockholder shall have the right to require
the insertion in any registration statement filed by the Company of language, in
form and substance satisfactory
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to the Stockholder, to the effect that the holding by the Stockholder of any
Registrable Securities is not to be construed as a recommendation by the
Stockholder of the investment quality of the securities of the Company and that
such holding does not imply that the Stockholder will assist in meeting any
future financial requirements of the Company. The Company covenants that it will
not file any registration statement under the Securities Act unless it shall
first have given notice thereof to the Stockholders. The Company further
covenants that the Stockholders shall have the right prior to filing with the
SEC, to receive copies of such registration statement and any amendment thereof
or supplement thereto and any prospectus forming a part thereof in a timely
fashion to enable them to participate in the preparation of such registration
statement, amendment, supplement or prospectus and to request the insertion
therein of material furnished in timely fashion (not to exceed ten business days
from the date of receipt of such material) in writing to the Company, which in a
Stockholder's judgment should be included therein. Notwithstanding the foregoing
provisions of this Section 1.12, the rights of a Stockholder under this Section
1.12 shall not apply if the Registrable Securities held by such Stockholder and
its affiliates are equal to or less than five percent (5%) of the total Common
Stock of the Company then outstanding.
2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary, the registration rights of a Holder under Section 1 hereof may be
assigned only to (a) an affiliate of a Holder, (b) a party who acquires from a
Holder at least fifteen percent (15%) of the shares of Common Stock that
constituted the original number of Registrable Securities (as such number may be
adjusted to reflect subdivisions, combinations and stock dividends of the
Company's Common Stock and similar events) or (c) any party who acquires
ownership or control of a Holder through a merger, consolidation, sale of assets
or similar business combination (such party is referred to as a "ASSIGNEE");
provided, however that (w) no party may be assigned any of the foregoing rights
(other than pursuant to clause (c)) until the Company is given written notice by
the assigning party at the time of such assignment stating the name and address
of the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; (x) any such Assignee shall receive such
assigned rights subject to all the terms and conditions of this Agreement,
including without limitation the provisions of this Section 2, and (y) upon an
assignment or assignments pursuant to clause (b) hereof, the rights held by each
Holder under this Agreement other than the Stockholders or their permitted
assignees under clauses (a) or (c) above, may only be exercised by persons or
entities holding a majority of the Registrable Securities not held by the
Stockholders or their permitted assignees under clauses (a) or (c) above.
3. GENERAL PROVISIONS.
3.1 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the U.S. mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
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(a) if to the Company, at:
XxxxxxXxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: J. Xxxxx Xxxxxxxx
Facsimile: 415/392-1972
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: 650/494-1417
(b) If to a Stockholder, at such Stockholder's respective
address as set forth on Exhibit A hereto.
(c) If to any other Holder, at such Holder's respective
address as set forth in the Company's share register.
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or five days
after when deposited in the mail in the manner set forth above.
3.2 Entire Agreement. This Agreement constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
3.3 Amendment of Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company, and any Stockholder (and /or any of their
permitted successors or assigns pursuant to clauses (a) or (c) of Section 2.1)
affected by such amendment or waiver. In the event the rights of a Holder who
becomes a Holder pursuant to the provisions of clause (b) under Section 2.1
hereunder are sought to be waived, then the Holders of a majority of the
Registrable Securities owned by such Holders may waive such rights on behalf of
all of such other Holders.
3.4 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the laws of the State of Delaware,
excluding that body of law relating to conflict of laws.
3.5 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this
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Agreement and the balance of this Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
3.6 Third Parties. Except as expressly provided in Section
1.8, nothing in this Agreement, express or implied, is intended to confer upon
any person, other than the parties hereto and their successors and assigns, any
rights or remedies under or by reason of this Agreement.
3.7 Successors And Assigns. Subject to the provisions of
Section 2.1, the provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
3.8 Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
3.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
XXXXXXXXXXX.XXX, INC. HOLDERS
CBS BROADCASTING INC.
By: By:
---------------------------- -------------------------------------
Name: Name:
-------------------------- -----------------------------------
Title: Title:
------------------------- ----------------------------------
DATA BROADCASTING CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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EXHIBIT A
STOCKHOLDERS
CBS BROADCASTING INC.
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
ATTENTION: XXXXXXX XXXXXXXX
XXXXX X. XXXXXXXX
FACSIMILE: 212/975-9191
212/597-4031
DATA BROADCASTING CORPORATION
0000 XXXXX XXXX XXX
XXXXXXX, XX 00000
ATTENTION: XXXX XXXXXXXXX
FACSIMILE: 510/266-6018
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