Exhibit 10.1
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Agreement made this 4th day of March, 2006, by and among (i) Optium
Corporation, a Delaware corporation (the "COMPANY") and (ii) those persons whose
names are set forth under the heading "Investors" on the signature pages hereto.
WHEREAS, the Company and certain of the Investors entered into an Amended
Registration Rights Agreement dated May 23, 2001 as amended on July 12, 2001,
July 31, 2003 and May 12, 2004 (the "EXISTING REGISTRATION RIGHTS AGREEMENT");
WHEREAS, certain of the Investors are, on the date hereof, acquiring up to
24,475,897 shares of Series D-1 Senior Convertible Preferred Stock, par value
$0.0001 per share, of the Company (the "SERIES D-1 PREFERRED STOCK" and,
together with the Series A Convertible Preferred Stock, par value $0.0001 per
share of the Company (the "SERIES A PREFERRED STOCK"), Series B Convertible
Preferred Stock, par value $0.0001 per share, of the Company (the "SERIES B
PREFERRED STOCK"), Series C Senior Convertible Preferred Stock, par value
$0.0001 per share, of the Company (the "SERIES C PREFERRED STOCK") and Series D
Senior Convertible Preferred Stock, par value $0.0001 per share of the Company
(the "SERIES D PREFERRED STOCK"), the "PREFERRED STOCK") pursuant to that
certain Stock Exchange Agreement by and between the Company, the Investors and
the other parties thereto dated March 4, 2006 (the "STOCK EXCHANGE AGREEMENT");
WHEREAS, the Company has agreed to grant to the Investors party to the
Stock Exchange Agreement, as an inducement to such Investors to enter into the
Stock Exchange Agreement, the rights granted to such Investors as set forth in
this Agreement;
WHEREAS, the Investors party to the Stock Exchange Agreement have agreed
to be bound to, as an inducement to the Company to enter into the Stock Exchange
Agreement, the obligations of such Investors as set forth in this Agreement; and
WHEREAS, the Company and certain of the Investors are parties to the
Existing Registration Rights Agreement, represent the requisite Investors
necessary to amend and restate the Existing Registration Rights Agreement
pursuant to Section 14(d) of the Existing Registration Rights Agreement and
desire to amend and restate the Existing Registration Rights Agreement in its
entirety as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"CHARTER" shall mean the Fifth Amended and Restated Certificate of
Incorporation as filed with the Delaware Secretary of State.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"CONVERSION SHARES" shall mean shares of Common Stock issued or issuable
upon conversion of the Preferred Shares, and any shares of capital stock
received in respect thereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"KPLJ SHARES" shall mean up to 2,000,000 shares of Common Stock issued or
issuable to Kalkhoven Xxxxxx Xxxxx and Xxxxxxx Ventures, LLC ("KPLJ") by the
Company.
"PREFERRED SHARES" shall mean the shares of Preferred Stock subject to
this Agreement.
"PREFERRED STOCK" shall mean, collectively, the Series A Preferred Stock,
the Series B Preferred Stock, the Series C Preferred Stock, the Series D
Preferred Stock and the Series D-1 Preferred Stock.
"PRINCIPALS" shall mean Xxxxxxx Xx, Xxxxxxx XxXxxXx and Xxxx Xx.
"REGISTRATION EXPENSES" shall mean the expenses so described in SECTION 8.
"REGISTRABLE STOCK" shall mean (1) the Conversion Shares, excluding
Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act, (2) for purposes of SECTIONS 2,
3, 4 and 5 hereof, up to 9,600,000 shares of Common Stock held by the Principals
(the "PRINCIPALS' SHARES"), but excluding shares of Common Stock which have been
(a) registered under the Securities Act pursuant to an effective registration
statement filed thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under the
Securities Act, (3) any shares of Common Stock, and any shares of Common Stock
issued or issuable upon the conversion or exercise of any other securities,
acquired by the Investors pursuant to the right of first refusal as set forth in
Section 2 of the Second Amended and Restated Stockholders Agreement dated as of
the date hereof and (4) the KPLJ Shares.
"SECURITIES ACT" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"SECURITIES LAWS" shall mean the Securities Act and all applicable state
securities laws, rules and regulations in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described in SECTION 8.
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2. RESTRICTIVE LEGEND. Each certificate representing Preferred Shares,
Conversion Shares or Registrable Stock shall, except as otherwise provided in
this SECTION 2 or in SECTION 3, be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS, OR THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS."
A certificate shall not bear such legend if, in the opinion of counsel
reasonably satisfactory to the Company, the securities being sold thereby may be
publicly sold without registration under the Securities Act.
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Preferred Shares, Conversion Shares or Registrable Stock (other than under the
circumstances described in SECTIONS 4, 5 or 6), the holder thereof shall give
written notice to the Company of its intention to effect such transfer. Each
such notice shall describe the manner of the proposed transfer and, if requested
by the Company, shall be accompanied by an opinion of counsel reasonably
satisfactory to the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon the holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; PROVIDED, HOWEVER, that no such opinion of counsel shall be
required for a transfer to one or more partners of the transferor (in the case
of a transferor that is a partnership), to one or more members of the transferor
(in the case of a transferor that is a limited liability company) or to an
affiliated corporation (in the case of a transferor that is a corporation);
PROVIDED, FURTHER, HOWEVER, that any transferee other than a partner or
affiliate of the transferor shall execute and deliver to the Company a
representation letter in form reasonably satisfactory to the Company's counsel
to the effect that the transferee is acquiring Registrable Stock for its own
account, for investment purposes and without any view to distribution thereof.
Each certificate for Preferred Shares or Conversion Shares transferred as above
provided shall bear the legend set forth in SECTION 2, except that such
certificate shall not bear such legend if (i) such legend may be removed in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Laws. The restrictions provided for in this SECTION 3 shall not apply
to securities which are not required to bear the legend prescribed by SECTION 2
in accordance with the provisions of that Section.
4. REQUIRED REGISTRATION.
(a) On or after the earlier of (i) May 23, 2006 or (ii) 180 days
after such time as the Company becomes subject to the reporting requirements
under the Exchange Act, either (x) the holders of shares of Registrable Stock
(excluding the Principals' Shares) constituting at least
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a majority in interest of the total shares of Registrable Stock issued or
issuable upon conversion of the issued shares of Series A Preferred Stock or (y)
the holders of shares of Registrable Stock (excluding the Principals' Shares)
constituting at least thirty-five percent (35%) of the total shares of
Registrable Stock issued or issuable upon conversion of the issued shares of
Series B Preferred Stock may request the Company to register under the
Securities Act all or any portion of the shares of Registrable Stock held by
such requesting holder or holders for sale in the manner specified in such
notice (subject to the limitations set forth in subsection 4(d) hereof),
PROVIDED, that the aggregate price to the public of such offering would exceed
$5,000,000. For purposes of this SECTION 4 and SECTIONS 5, 6, 13(a) and 13(d),
the term "Registrable Stock" shall be deemed to include the number of shares of
Registrable Stock which would be issuable to a holder of Preferred Shares upon
conversion of all shares of Preferred Stock held by such holder at such time;
PROVIDED, HOWEVER, that the only securities which the Company shall be required
to register pursuant hereto shall be shares of Common Stock; PROVIDED, FURTHER,
HOWEVER, that, in any underwritten public offering contemplated by this SECTION
4 or SECTIONS 5 and 6, the holders of Preferred Shares shall be entitled to sell
such Preferred Shares to the underwriters for conversion and sale of the shares
of Common Stock issued upon conversion thereof. Notwithstanding anything to the
contrary contained herein, no request may be made under this SECTION 4 within
180 days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering in which the
holders of Registrable Stock shall have been entitled to join pursuant to
SECTIONS 5 or 6.
(b) Following receipt of any notice under this SECTION 4, the Company
shall immediately notify all holders of Registrable Stock (including the
Principals) and Preferred Shares from whom notice has not been received and such
holders shall then be entitled within thirty (30) days thereafter to request the
Company to include in the requested registration all or any portion of their
shares of Registrable Stock. The Company shall use its best efforts to register
under the Securities Act, for public sale in accordance with the method of
disposition described in paragraph (a) above, the number of shares of
Registrable Stock specified in such notice (and in all notices received by the
Company from other holders within thirty (30) days after the giving of such
notice by the Company). The Company shall be obligated to register Registrable
Stock pursuant to SECTION 4(a)(x) on two occasions only and pursuant to SECTION
4(a)(y) on two occasions only; PROVIDED, HOWEVER, that such obligation shall be
deemed satisfied only when a registration statement covering at least eighty
five percent (85%) of the offered shares of Registrable Stock specified in
notices received as aforesaid for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective or
if such registration statement has been withdrawn prior to the consummation of
the offering at the request of the Investors (other than as a result of a
material adverse change in the business or financial condition of the Company)
and, if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto.
(c) The Company (or at the option of the Company, the holders of
Common Stock) shall be entitled to include in any registration statement
referred to in this SECTION 4, for sale in accordance with the method of
disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account or such other holders, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Registrable Stock to be sold subject to
the limitations set forth in SUBSECTION 4(d) hereof).
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Except for registration statements on Form X-0, X-0 or any successor thereto,
the Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of other
stockholders, from the date of receipt of a notice from requesting holders
pursuant to this SECTION 4 until the completion of the period of distribution of
the registration contemplated thereby.
(d) If in the opinion of the managing underwriter the inclusion of
all of the Registrable Stock requested to be registered under this Section would
adversely affect the marketing of such shares, (i) the shares to be sold by the
Company or other holders of Common Stock (including any Registrable Stock held
by the Principals) shall first be excluded, and (ii) the shares of Registrable
Stock to be sold shall be excluded or reduced, as applicable, in such manner
that the shares to be sold shall be allocated among the selling holders pro rata
based on their ownership of Registrable Stock.
5. INCIDENTAL REGISTRATION. If the Company at any time (other than
pursuant to SECTION 4 or SECTION 6) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Registrable Stock for sale to the public), each such time it
will give written notice to all holders of outstanding Registrable Stock of its
intention so to do. Upon the written request of any such holder received by the
Company within thirty (30) days after the giving of any such notice by the
Company to register any of its Registrable Stock, the Company will use its best
efforts to cause the Registrable Stock as to which registration shall have been
so requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with such
written request) of such Registrable Stock so registered. In the event that any
registration pursuant to this SECTION 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of
Registrable Stock to be included in such an underwriting may be reduced (first
reducing the shares held by the Principals pro rata among the requesting
Principals based upon the number of shares of Registrable Stock held by such
requesting Principals, and then pro rata among the remaining requesting holders
based upon the number of shares of Registrable Stock held by such requesting
holders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; PROVIDED, HOWEVER, that such
number of shares of Registrable Stock shall not be reduced if any shares are to
be included in such underwriting for the account of any person other than the
Company or requesting Investors holding Registrable Stock. Notwithstanding the
foregoing provisions, the Company may withdraw any registration statement
referred to in this SECTION 5 without thereby incurring any liability to the
holders of Registrable Stock.
6. REGISTRATION ON FORM S-3; SUSPENSION.
(a) Subject to a limit in any twelve (12) month period of (w) two
requested registrations under this Agreement by the holders of shares of
Registrable Stock issued or issuable upon the conversion of the Series A
Preferred Stock, (x) one registration by holders of shares of Registrable Stock
issued or issuable upon the conversion of the Series B Preferred Stock and (y)
one registration by holders of shares of Registrable Stock issued or issuable
upon
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the conversion of the Series D Preferred Stock and (z) one registration by
holders of shares of Registrable Stock issued or issuable upon the conversion of
the Series D-1 Preferred Stock, if at any time (i) a holder or holders of
Registrable Stock then outstanding request that the Company file a registration
statement on Form S-3 or any successor thereto for a public offering of all or
any portion of the shares of Registrable Stock held by such requesting holder or
holders, the reasonably anticipated aggregate price to the public of which would
exceed $1,000,000, (ii) such holder or holders represent at least thirty-five
percent (35%) of the shares of Registrable Stock issued or issuable upon
conversion of the Series B Preferred Stock in the case of a requested
registration by holders of Registrable Stock that is subject to SECTION 6(a)(y)
above have consented to such registration, (iii) such holder or holders
represent at least thirty percent (30%) of the shares of Registrable Stock
issued or issuable upon conversion of the Series D Preferred Stock in the case
of a requested registration by holders of Registrable Stock that is subject to
SECTION 6(a)(y) above have consented to such registration (iv) such holder or
holders represent at least a majority of the Shares of Registrable Stock issued
or issuable upon conversion of the Series D-1 Preferred Stock in the case of a
requested registration by holders of Registrable Stock that is subject to
SECTION 6(a)(z) above have consented to such registration and (v) the Company is
a registrant entitled to use Form S-3 or any successor thereto to register such
shares, then the Company shall use its best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Registrable Stock specified in such notice. Whenever the Company is
required by this SECTION 6 to use its best efforts to effect the registration of
Registrable Stock, each of the procedures and requirements of SECTION 4
(including but not limited to the requirement that the Company notify all
holders of Registrable Stock from whom notice has not been received and provide
them with the opportunity to participate in the offering) shall apply to such
registration, PROVIDED, HOWEVER, that there shall be a limit of four
registrations on Form S-3 which may be requested and obtained under SECTION
6(a)(x).
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to register Registrable
Stock under the Securities Act on registration statements ("REGISTRATION
STATEMENTS") may, upon the reasonable determination of the Board of Directors
made only once during any twelve (12) month period, be suspended in the event
and during such period as unforeseen circumstances (including without limitation
(i) an underwritten primary offering by the Company (which includes no secondary
offering) if the Company is advised in writing by its underwriters that the
registration of the Registrable Stock would have a material adverse effect on
the Company's offering, or (ii) pending negotiations relating to, or
consummation of, a transaction or the occurrence of an event which would require
additional disclosure of material information by the Company in Registration
Statements or such other filings, as to which the Company has a bona fide
business purpose for preserving confidentiality or which renders the Company
unable to comply with Securities and Exchange Commission (the "SEC")
requirements) exist (such unforeseen circumstances being hereinafter referred to
as a "SUSPENSION EVENT") which would make it impractical or inadvisable for the
Company to file the Registration Statements or such other filings or to cause
such to become effective. Such suspension shall continue only for so long as
such event is continuing but in no event for a period longer than one hundred
eight (180) days at any time prior to the time the Company becomes subject to
the reporting requirements under the Exchange Act and ninety (90) days
thereafter. The Company shall notify the Investors of the existence and nature
of any Suspension Event.
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7. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of SECTIONS 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Registrable Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to SECTION 4,
shall be on Form S-1 or S-2 (or any successor form) with respect to such
securities and use its best efforts to cause such registration statement to
become and remain effective for the period of the distribution contemplated
thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in PARAGRAPH (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) as expeditiously as possible, notify each selling holder,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed;
(d) furnish to each seller of Registrable Stock and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Stock covered by such registration statement;
(e) use its best efforts to register or qualify the Registrable Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Registrable Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
PROVIDED, HOWEVER, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(f) use its best efforts to list the Registrable Stock covered by
such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(g) immediately notify each seller of Registrable Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing or does not comply
with any requirements of the Securities Act, and promptly prepare and furnish to
such seller a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to the purchasers of such Registrable
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Stock, such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing and shall comply with the requirements of the Securities Act;
(h) if the offering is underwritten and at the request of any seller
of Registrable Stock, use its best efforts to furnish to such seller on the date
that Registrable Stock is delivered to the underwriters for sale pursuant to
such registration: (i) a copy of an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, to such effect as reasonably may be requested
by counsel for the underwriters, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to such registration as such underwriters reasonably may request;
(i) make available for inspection by each seller of Registrable
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, reasonable access to all financial and other
records, pertinent corporate documents and properties of the Company, as such
parties may reasonably request, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) cooperate with the selling holders of Registrable Stock and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Stock to be sold, such certificates to
be in such denominations and registered in such names as such holders or the
managing underwriters may request at least two business days prior to any sale
of Registrable Stock;
(k) promptly provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement; and
(l) permit any holder of Registrable Stock which holder, in the sole
and exclusive judgment, exercised in good faith, of such holder, might be deemed
to be a controlling person of the Company, to participate in good faith in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included.
For purposes of SECTION 7(a) and 7(b) and of SECTION 4(c), the period of
distribution of Registrable Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Stock in any other registration shall be deemed to extend
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until the earlier of the sale of all Registrable Stock covered thereby and one
hundred eighty (180) days after the effective date thereof.
In connection with each registration hereunder, the sellers of Registrable
Stock will furnish to the Company in writing such information requested by the
Company with respect to themselves and the proposed distribution by them as
reasonably shall be necessary in order to assure compliance with federal and
applicable state securities laws and to make the registration statement correct,
accurate and complete in all respects with respect to such sellers; PROVIDED,
HOWEVER, that this requirement shall not be deemed to limit any disclosure
obligation arising out of any seller's relationship to the Company if one of
such seller's agents or affiliates is an officer, director or control person of
the Company. In addition, the sellers shall, if requested by the Company,
execute such other agreements, which are reasonably satisfactory to them and
which shall contain such provisions as may be customary and reasonable in order
to accomplish the registration of the Registrable Stock.
In connection with each registration pursuant to SECTIONS 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature. The
Company and each seller further agree that the managing underwriter shall be an
investment banking firm of nationally recognized standing.
8. EXPENSES. All expenses incurred by the Company in complying with
SECTIONS 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees and expenses of one counsel for the selling holders of Registrable Stock in
connection with the registration of Registrable Stock, fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars, costs of any insurance which might be obtained, but excluding
any Selling Expenses, are called "REGISTRATION EXPENSES." All underwriting
discounts and selling commissions applicable to the sale of Registrable Stock
and the fees and expenses of more than one counsel for the selling holders of
Registrable Stock in connection with the registration of Registrable Stock are
called "SELLING EXPENSES."
The Company will pay all Registration Expenses in connection with each
registration statement under SECTIONS 4, 5 or 6. All Selling Expenses in
connection with each registration statement under SECTIONS 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION.
(a) In the event of a registration of any of the Registrable Stock
under the Securities Act pursuant to SECTIONS 4, 5 or 6, the Company will
indemnify and hold harmless each holder of Registrable Stock, its officers and
directors, each underwriter of such Registrable
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Stock thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such holder, officer,
director, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such Registrable Stock was registered
under the Securities Act pursuant to SECTIONS 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, (ii) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Registrable Stock under the securities laws thereof (any such
application, document or information herein called a "BLUE SKY APPLICATION"),
(iii) 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,
(iv) any violation by the Company or its agents of any rule or regulation
promulgated under the Securities Act applicable to the Company or its agents and
relating to action or inaction required of the Company in connection with such
registration, or (v) any failure to register or qualify the Registrable Stock in
any state where the Company or its agents has affirmatively undertaken or agreed
in writing that the Company (the undertaking of any underwriter chosen by the
Company being attributed to the Company) will undertake such registration or
qualification on the seller's behalf (provided that in such instance the Company
shall not be so liable if it has undertaken its best efforts to so register or
qualify the Registrable Stock) and will reimburse each such holder, and such
officer and director, each such underwriter and each such controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Registrable Stock
under the Securities Act pursuant to SECTIONS 4, 5 or 6, each seller of such
Registrable Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each other holder of
Registrable Stock, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
other seller, underwriter or, controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Stock was registered
under the Securities Act pursuant to SECTIONS 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or any Blue Sky Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such
10
officer, director, other seller, underwriter and controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that such seller will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
PROVIDED, FURTHER, HOWEVER, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the proceeds received by such seller from the sale of Registrable Stock covered
by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this SECTION 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
SECTION 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this SECTION 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) The indemnities provided in this SECTION 9 shall survive the
transfer of any Registrable Stock by such holder.
10. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as,
there is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
11
11. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The Company shall
not, without the prior written consent of (i) the holders of a majority in
interest of the outstanding shares of the Series A Preferred Stock and (ii) the
holders of at least two thirds of the outstanding shares of the Series B
Preferred Stock, enter into any agreement (other than this Agreement) with any
holder or prospective holder of any securities of the Company which grants such
holder or prospective holder rights to include securities of the Company in any
registration statement, unless (a) such rights to include securities in a
registration initiated by the Company or by the holder of the Preferred Shares
are not more favorable than the rights granted to the Principals' Shares under
SECTIONS 4, 5 and 6 of this Agreement, and (b) no rights are granted to initiate
a registration, other than registration pursuant to a registration statement on
Form S-3 (or its successor) in which holders of the Preferred Shares are
entitled to include Registrable Shares on a pro rata basis with such holders
based on the number of shares of Common Stock (on an as-converted basis) owned
by the holders of the Preferred Shares and such holders.
12. 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 Stock to the public without registration, at all times
after ninety (90) days after any registration statement covering a public
offering of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registrable Stock without
registration.
13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Charter or Bylaws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and
12
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except to the extent the indemnification
provisions herein may be deemed not enforceable.
14. LIMITATIONS OF LIABILITY AND OBLIGATIONS OF CERTAIN INVESTORS.
(a) DEUTSCHE.
(i) Deutsche Asset Management (Australia) Limited as
responsible entity of the Ericsson-Deutsche Technology Fund ("DEUTSCHE") is
bound by this Agreement only in its capacity as responsible entity of the
Ericsson-Deutsche Technology Fund (the "DEUTSCHE TRUST") and in no other
capacity. A liability arising under or in connection with this Agreement is
limited to, and can be enforced against Deutsche only to, the extent to which it
can be satisfied out of the assets of the Deutsche Trust out of which Deutsche
is actually indemnified for the liability. This limitation of Deutsche's
liability applies despite any other provision of this Agreement and extends to
all liabilities and obligations of Deutsche in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
this Agreement.
(ii) No party may xxx Deutsche in any capacity other than
as responsible entity of the Deutsche Trust, including seeking the appointment
of a receiver (except in relation to property of the Deutsche Trust), a
liquidator, an administrator, or any similar person to Deutsche or prove in any
liquidation, administration or arrangement of or affecting Deutsche (except in
relation to property of the Deutsche Trust).
(iii) The provisions of this SECTION 14 do not apply to
any obligation or liability of Deutsche to the extent that it is not satisfied
because under the deed governing the Deutsche Trust or by operation of law there
is a reduction in the extent of Deutsche's indemnification out of the assets of
the Deutsche Trust, as a result of Deutsche's fraud, negligence or breach of
trust.
(iv) No attorney, agent, receiver or receiver and manager
appointed in accordance with this Agreement has authority to act on behalf of
Deutsche in a way which exposes Deutsche to any personal liability, and no act
or omission of any such person will be considered fraud, negligence or breach of
trust of Deutsche for the purpose of SECTION 14(a)(iii) above.
(v) Notwithstanding any other provision of this
Agreement, Deutsche:
(A) is a funds management company which is part of
Deutsche Bank AG (the "DEUTSCHE GROUP");
(B) is the responsible entity and manager of a
number of managed funds and trusts and has obligations and duties in relation to
each of those managed funds and trusts that are similar to its obligations and
duties in relation to the Deutsche Trust;
(C) may, and other entities in the Deutsche Group
may, invest funds in companies or other entities that may compete with the
Company or Engana Pty Ltd; and
13
(D) cannot xxxxxx and promote the business of the
Optium or the Company where such conduct would breach its obligations to, or
adversely impact on, the shareholding of Deutsche or other entities in the
Deutsche Group in any such competing company or entity in which funds managed by
Deutsche have been invested.
(vi) Deutsche warrants that, in respect of the Deutsche
Trust, as at the date of this Agreement:
(A) it is the only responsible entity of the
Deutsche Trust;
(B) no action is proposed to remove it as
responsible entity of the Deutsche Trust;
(C) there is no default under the terms of the
constitution of the Deutsche Trust; and
(D) it has the power to enter into and perform this
Agreement; and
(E) Deutsche as responsible entity, has a right of
indemnity out of the trust assets of the Deutsche Trust for all liabilities
incurred by it under this Agreement in accordance with the terms of the trust.
(b) TVP.
(i) TVP No. 3 Fund Nominees Pty Limited as trustee of
the TVP Xx. 0 Xxxx ("XXX") enters into this Agreement only in its capacity as
trustee of the TVP Xx. 0 Xxxx (xxx "XXX XXXX") and in no other capacity. A
liability arising under or in connection with this Agreement is limited to and
can be enforced against TVP in its capacity as trustee of the TVP No. 3 Fund
only to the extent that it can be satisfied out of the property of the TVP No. 3
Fund out of which TVP is actually indemnified for the liability. This limitation
of TVP's liability applies despite any other provision of this Agreement and
extends to all liabilities and obligations of TVP in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
this Agreement.
(ii) The parties hereto other than TVP may not xxx TVP in
any capacity other than as trustee of the TVP No. 3 Fund or seek the appointment
of a receiver (except in relation to property of the TVP No. 3 Fund), a
liquidator, an administrator, or any similar person to TVP or prove in any
liquidation, administration or arrangement of or affecting TVP (except in
relation to property of the TVP No. 3 Fund).
(iii) The provisions of this clause 14 do not apply to any
obligation or liability of TVP to the extent that it is not satisfied because
under the trust deed of the TVP No. 3 Fund or by operation of law there is a
reduction in or limitation on the extent of TVP's indemnification out of the
assets of the TVP No. 3 Fund, as a result of TVP's fraud, negligence or breach
of trust.
(iv) TVP warrants that, in respect of the TVP No. 3 Fund,
as at the date
14
of this Agreement:
(A) it is the only trustee of the TVP No. 3 Fund;
(B) no action is proposed to remove it as trustee
of the TVP No. 3 Fund;
(C) there is no default under the terms of the
constitution of TVP No. 3 Fund;
(D) it has the power to enter into and perform this
Agreement; and
(E) TVP as trustee, has a right of indemnity out of
the trust assets of the TVP No. 3 Fund for all liabilities incurred by it under
this Agreement in accordance with the terms of the trust.
(c) STARFISH.
(i) Despite any other provision of this Agreement,
Starfish Technology Fund 1, LP (an incorporated limited partnership under the
Partnership Xxx 0000 (Vic)) ("STARFISH") is not liable to pay or satisfy, and no
other party is entitled to enforce against Starfish any loss, cost, expense or
damages suffered or incurred by or amounts owing to the other party which result
from a breach or non performance of an obligation, representation or warranty
(whether express, implied by law or otherwise) of Starfish under or in
connection with this Agreement or any other Ancillary Agreements (as such term
is defined in the Stock Exchange Agreement) (including in relation to any
conduct, omission or transaction in relation to this Agreement or any other
Ancillary Agreements) except to the extent that Starfish is able to realise
assets of Starfish (other than assets by way of amounts owed by a general
partner of Starfish or a general partner of that general partner of Starfish or
rights of Starfish against a general partner of or a general partner of that
general partner) to satisfy any liability for the loss, cost, expense or damages
as well as satisfy all other actual or contingent debts and obligations of
Starfish.
(ii) If, as a result of the operation of clause SECTION
14(c)(i) or otherwise, any other party does not recover all loss, cost, expense
or damages suffered or incurred and amounts owing to the other party as a result
of a breach or non performance of any obligation, representation or warranty of
Starfish under or in connection with this Agreement or any other Ancillary
Agreements (whether express or implied by applicable law or otherwise), the
other party has no recourse to Starfish in respect of the shortfall and may not
seek to recover the shortfall by applying to have Starfish wound up.
(iii) No attorney or agent appointed in accordance with
this Agreement or any other Ancillary Agreements has the authority to act on
behalf of Starfish in a way which exposes Starfish to any liability in excess of
any amount for which Starfish may be liable under Section 14(c)(i) and (ii).
(iv) Each party hereto acknowledges and agrees that each
general partner of
15
Starfish, each general partner of a general partner of Starfish, each limited
partner of Starfish, each limited partner of a general partner of Starfish and
each of their respective officers, employees, advisers, associates, Affiliates
(as such term is defined in the Stock Exchange Agreement) and related bodies
corporate:
(A) is not liable under this Agreement or any other
Ancillary Agreements or in respect of any matter arising in connection with this
Agreement or any other Ancillary Agreements to any person except to the extent
that liability cannot be excluded by statute or regulation; and
(B) is not the proper party to any claim or other
legal proceedings under this Agreement or any other Ancillary Agreements or in
respect of any matter arising in connection with this Agreement or any other
Ancillary Agreements.
15. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation transferees of any Preferred Shares or Registrable Stock), whether so
expressed or not; PROVIDED, HOWEVER, that registration rights conferred herein
on the holders of Preferred Shares, Common Stock or Registrable Stock shall only
inure to the benefit of a transferee of Preferred Shares, Common Stock or
Registrable Stock if (i) there is transferred to such transferee at least
300,000 shares of such stock (as appropriately adjusted for any stock split,
dividend, subdivision or combination) issued prior to November 22, 2000 or
originally issued pursuant to the Series A Preferred Stock Purchase Agreement or
the Series B Preferred Stock Purchase Agreement or (ii) such transferee is a
Qualified Transferee (as such term is defined in that certain Second Amended and
Restated Stockholders Agreement, dated as of the date hereof, by and among the
Company, and the other parties thereto (the "STOCKHOLDERS AGREEMENT")) and
(iii), that such transferee executes a writing agreeing to be bound by the
provisions of this Agreement and the Stockholders Agreement (to the extent the
same remains in effect).
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or telexed, in the case of
non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of such
party set forth in the Stockholders Agreement with a copy to the Company's
counsel Xxxx X. Xxxx, Esq., Xxxxxxx Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, XX
00000;
if to any subsequent holder of Preferred Shares or Registrable
Stock, to it at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a holder of Preferred
Shares or Registrable Stock) or to the holders of Preferred Shares or
Registrable Stock (in the case of the Company) in accordance with the provisions
of this paragraph.
(c) This Agreement shall be governed by, construed and enforced in
accordance
16
with the internal laws of the Commonwealth of Massachusetts without giving
effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the Commonwealth of
Massachusetts.
(d) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the prior written consent of (i) the holders of a
majority in interest of the outstanding shares of the Series A Preferred Stock,
(ii) the holders of at least two thirds of the outstanding shares of the Series
B Preferred Stock, and (iii) the holders of at least two-thirds of the
outstanding shares of Series C Preferred Stock. Notwithstanding the foregoing,
no amendment approved in accordance herewith shall be effective if and to the
extent that such amendment grants to any one or more Investors any rights more
favorable than any rights granted to all other Investors or otherwise treats any
one or more Investors differently than all other Investors. In the event that
any provision of this Agreement is amended by less than unanimous consent of the
parties to this Agreement, a notice and copy of such amendment will be sent
promptly to the parties subject to this Agreement who did not execute such
amendment. To the extent that an amendment or waiver shall impose additional
liabilities or obligations on an Investor beyond that already imposed on such
Investor hereunder prior to such amendment or waiver, then such amendment or
waiver will not be applied to or be enforceable against such Investor without
the prior written consent of such Investor.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Any person who, after the date hereof, acquires
Preferred Shares shall become a party to this Agreement as a "INVESTOR" and a
holder of "Registrable Stock" for all purposes hereunder, all upon execution by
such person and the Company of a counterpart of this Agreement.
(f) The obligations of the Company to register shares of Registrable
Stock under Sections 4, 5 or 6 shall terminate five years after the completion
of its first underwritten firm commitment public offering pursuant to an
effective registration under the Securities Act covering the offering or sale by
the Company of its Common Stock.
(g) If requested in writing by the underwriters for any underwritten
public offering of securities of the Company, each holder of Registrable Stock
who is a party to this Agreement shall agree not to sell publicly any shares of
Registrable Stock or any other shares of Common Stock (other than shares of
Registrable Stock or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period of not more
than (i) one hundred eighty (180) days following the effective date of the
registration statement relating to such an offering that is the Company's
initial underwritten public offering or (ii) ninety (90) days following the
effective date of the registration statement relating to any other such
offering; PROVIDED, HOWEVER, that all persons entitled to registration rights
with respect to shares of Common Stock who are not parties to this Agreement and
all executive officers and directors of the Company shall also have agreed not
to sell publicly their Common Stock under the circumstances and pursuant to the
terms set forth in this SECTION 15(g); and further provided, that any such
lock-up agreement shall provide that if the managing underwriter releases any
shares from the lock-up with respect to such offering prior to the scheduled
expiration date, the
17
managing underwriter shall release a PRO RATA portion of the Registrable Stock
from such lock-up.
(h) The Company shall not grant to any third party any registration
rights comparable to or more favorable than any of those contained herein, so
long as any of the registration rights under this Agreement remains in effect.
(i) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(j) The Existing Registration Rights Agreement is of no further force
and effect with respect to any party thereto and is superseded and replaced in
its entirety by this Agreement. This Section 14(j) shall constitute a written
consent pursuant to Section 14(d) of the Existing Registration Rights Agreement
by the Requisite Holders with respect the foregoing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
COMPANY:
OPTIUM, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: President
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
TL Ventures V Interfund L.P.
By: TL Ventures V LLC, its general partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
TL Ventures V L.P.
By: TL Ventures V Management L.P., its
general partner
By: TL Ventures V LLC, its Manager
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Battery Investment Partners VI, L.P.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
Battery Ventures VI, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
CIV, LLC
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Kalkhoven Xxxxxx Xxxxx & Xxxxxxx Ventures,
LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
TPG Ventures, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
HOLDERS:
/s/ Xxxx Xx
---------------------------------------------
Xxxx Xx
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
HOLDERS AND INVESTORS:
Xxxx X. Xxxxxxxx, Xx. Irrevocable Trust Dtd
12/10/99
By: /s/ Xxxxxx Xxxxxx Xxxxxxxx and Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxxxx and Xxxxx Xxxxxx
Title: Co-Trustees
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
HOLDERS AND INVESTORS:
/s/ Xxxx Xxxxxxxx, Xx.
----------------------------------------------
Xxxx Xxxxxxxx, Xx.
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
HOLDERS AND INVESTORS:
Xxxxx Xxxxxx Irrevocable Trust 2001
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
HOLDERS AND INVESTORS:
------------------------------------------
Xxxxx Xxxxxx
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for an on behalf of DEUTSCHE ASSET
MANAGEMENT (AUSTRALIA) LIMITED ACN
076 098 596 in its capacity as trustee and manager
AS RESPONSIBLE ENTITY OF THE
ERICSSON-DEUTSCHE TECHNOLOGY FUND
by its duly authorized attorneys in the presence of
Signature of Attorney: /s/ Xxxxxxx Xxxxxxx
--------------------
Name of Attorney: Xxxxxxx Xxxxxxx
Signature of Witness: /s/ Fiona Holyoke
-------------------
Name of Witness: Fiona Holyoke
Signature of Attorney: /s/ Xxxx Panlino
-------------------
Name of Attorney: Xxxx Panlino
Signature of Witness: /s/ Fiona Holyoke
-------------------
Name of Witness: Fiona Holyoke
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended
and Restated Registration Rights Agreement as a sealed instrument as of the day
and year first above written.
INVESTORS:
EXECUTED BY INTEL CAPITAL
CORPORATION IN ACCORDANCE WITH ITS
CONSTITUENT DOCUMENTS AND THE
LAWS IN FORCE IN ITS PLACE OF
INCORPORATION.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Authorised Signatory
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
EXECUTED BY RIKEI CORPORATION IN
ACCORDANCE WITH ITS CONSTITUENT
DOCUMENTS AND THE LAWS IN FORCE IN
ITS PLACE OF INCORPORATION.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Title: President and CEO
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
TVP NO 3 FUND NOMINEES PTY LIMITED AS
TRUSTEE OF THE TVP NO 3 FUND
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Title: Authorised Attorney
By: [illegible]
---------------------------------------
Witnessed:
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
SIGNED BY STARFISH VENTURES LTD. AS AGENT
AND ATTORNEY FOR STARFISH TECHNOLOGY
FUND 1, LP (AN INCORPORATED LIMITED
PARTNERSHIP UNDER THE PARTNERSHIP
ACT 1958 (VIC))
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Director
Xxxxxxx Xxxxxxxx
--------------------------------------
Name of Director (print)
/s/ Xxxx Xxxxxxx Xxxxx
---------------------------------------
Xxxx Xxxxxxx Xxxxx
---------------------------------------
Name of Director (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for Xxxxx Xxxxx by and on behalf of
his duly authorised attorney Xxxxxx Xxxxxxx
in the presence of:
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxx
/s/ A.E. Cochineas
-----------------------------------------
Witness
A.E. Cochineas
-----------------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxx Xxxxxx by
his duly authorised attorney Xxxxxx Xxxxxxx
in the presence of:
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxx Xxxxxx
/s/ A.E. Cochineas
-----------------------------------------
Witness
A.E. Cochineas
-----------------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxxxxx Xxxxxx
by his duly appointed attorney Xxxxxx Xxxxxxx
in the presence of:
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxx
/s/ A.E. Cochineas
-----------------------------------------
Witness
A.E. Cochineas
-----------------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxxxxxx Xxxxxxx
by his duly authorised attorney Xxxxxx Xxxxxxx
in the presence of:
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx
/s/ A.E. Cochineas
-----------------------------------------
Witness
A.E. Cochineas
-----------------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxxx Xxxxxxx by
her duly authorised attorney Xxxxxx Xxxxxxx:
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxx Xxxxxxx
/s/
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Witness
-----------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxxxxx Xxxxxxx
by his duly appointed attorney Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
/s/ C.T. Xxxxx
------------------------------------------
Witness
C.T. Xxxxx
-----------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
Signed for and on behalf of Xxx Xxxxxxx by
his duly authorised attorney Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxx Xxxxxxx
/s/ C.T. Xxxxx
------------------------------------------
Witness
C.T. Xxxxx
-----------------------------------
Name of Witness (print)
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, the undersigned have executed this Second Amended and
Restated Registration Rights Agreement as a sealed instrument as of the day and
year first above written.
INVESTORS:
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
Signature Page to Registration Rights Agreement
