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Exhibit 10.11
REGISTRATION RIGHTS AGREEMENT
dated as of May 12, 1997, among MOBIUS
MANAGEMENT SYSTEMS, INC., a Delaware
corporation (the "Corporation"), the
INVESTORS (as herein defined) and the
FOUNDERS (as herein defined).
The Investors own shares of Series A Preferred Stock (as hereinafter
defined) that are convertible into Common Stock, $.01 par value per share (the
"Common Stock"), of the Corporation. The Founders own shares of Common Stock.
The parties hereto deem it to be in their respective best interests to set forth
the rights of the Investors and the Founders in connection with public offerings
and sales of such shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Corporation and the Investors hereby
agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Founders" shall mean Xxxxxxxx Xxxxx and Xxxxxx X. Xxxxxxxx.
"Investors" shall mean Oak Investment Partners VI, Limited Partnership,
Oak VI Affiliates Fund, Limited Partnership, NEA Ventures 1997, NEA President's
Fund L.P., New Enterprise Associates VII L.P., New Venture Partners III L.P. and
Xxxxx Ventures III, L.P., and shall include any successor to, or permitted
assignee or transferee of, any of the Investors who or which agree in writing to
be treated as an Investor and to be bound by the terms and comply with all
applicable provisions hereof.
"Other Shares" shall mean at any time those shares of Common Stock which
do not constitute Primary Shares or Registrable Shares.
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"Primary Shares" shall mean at any time the authorized but unissued shares
of Common Stock or shares of Common Stock held by the Corporation in its
treasury.
"Purchase Agreement" shall mean the Stock Purchase Agreement dated as of
the date hereof, among the Corporation, the Investors and the Founders.
"Registrable Shares" shall mean the shares of Common Stock held by the
Investors and the Founders which constitute Restricted Shares.
"Registration Date" shall mean the date upon which the registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"Restricted Shares" shall mean the shares of Series A Preferred Stock
purchased by the Investors under the Purchase Agreement and the shares of Common
Stock owned by the Founders on the date hereof, and any shares of Common Stock
or other securities received in respect thereof, in any case, which have not
theretofore been sold to the public pursuant to a registration statement under
the Securities Act or pursuant to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Series A Preferred Stock" shall mean the Series A Convertible Preferred
Stock, $.01 par value, of the Corporation.
"Transfer" shall include any disposition of any Restricted Shares or of
any interest therein which would constitute a sale thereof within the meaning of
the Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
SECTION 2. Required Registration. At any time after the earlier of (a) the
Registration Date and (b) (i) November 12, 1999, with respect to a request for a
registration under the Securities Act of Registrable Securities for sale at an
offering
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price per share of not less than $586.66 or (ii) in all other cases, May 12,
2002, if the Corporation shall be requested by the holders of at least 51%
percent of the Restricted Shares then held by the Investors (based on Common
Stock equivalents) to effect the registration under the Securities Act of
Registrable Shares, then the Corporation shall, within 10 days of such request,
deliver a written notice of such proposed registration to all holders of
outstanding Registrable Shares and shall offer to include in such proposed
registration any Registrable Shares requested to be included in such proposed
registration by the holders of Registrable Shares who or which shall respond in
writing to the Corporation's notice within 15 days after delivery thereof. The
Corporation shall promptly thereafter use its best efforts to effect such
registration under the Securities Act of the Registrable Shares which the
Corporation has been so requested to register; provided, however, that the
Corporation shall not be obligated to effect any registration under the
Securities Act except in accordance with the following provisions:
(a) the Corporation shall not be obligated to use its best efforts
to file and cause to become effective (i) more than one registration
statement initiated pursuant to this Section 2 pursuant to which the
Registrable Shares requested to be included therein have been effectively
sold thereunder; provided, however, that any registration proceeding begun
pursuant to this Section 2 which is subsequently withdrawn at the request
of the holders of a majority of the Registrable Shares requested to be
registered shall constitute such registration statement which the holders
of Registrable Shares have the right to cause the Corporation to effect
pursuant to this Section 2; provided further, however, that such withdrawn
registration shall not be so counted if such withdrawal is based upon
material adverse information relating to the Corporation or its condition,
business, or prospects that was not known by the holders of Registrable
Shares at the time of their request or if the Investors shall have
reimbursed the Corporation for all out-of-pocket expenses incurred in
connection with such withdrawn registration statement, or (ii) any
registration statement during any period in which any other registration
statement (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto) pursuant to which Primary
Shares are to be or were sold has been filed and not withdrawn or has been
declared effective within the prior 90 days;
(b) the Corporation may delay the filing or effectiveness of any
registration statement for a
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period of up to 120 days after the date of a request for registration
pursuant to this Section 2 if:
(i) at the time of such request the Corporation is engaged, or
has fixed plans to engage within 90 days of the time of such
request, in a firm commitment underwritten public offering of
Primary Shares in which the holders of Restricted Shares may include
Registrable Shares pursuant to Section 3, or
(ii) the Corporation shall furnish to the Investors requesting
such registration a certificate signed by the President of the
Corporation stating that, in the good faith, reasonable judgment of
the Board of Directors of the Corporation, (x) it would be
materially detrimental to the Corporation and its stockholders for
such registration statement to be filed and therefore necessary to
defer the filing of such registration statement or (y) material
adverse information relating to the Corporation or its condition,
business or prospects that is not generally known to the holders of
Registrable Shares necessitates the deferment of the filing of such
registration statement; and
(c) with respect to any registration pursuant to this Section 2, the
Corporation may include in such registration any Primary Shares or Other
Shares; provided, however, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares, Primary Shares
and Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of the
Registrable Shares proposed to be included in such registration, then the
number of Registrable Shares, Primary Shares and/or Other Shares proposed
to be included in such registration statement shall be included in the
following order:
(i) first, the Registrable Shares requested to be included in
such registration by the Investors (or, if necessary, such
Registrable Shares pro rata among the Investors, based upon the
number of Restricted Shares (based upon Common Stock equivalents)
owned by each such Investor at the time of such registration);
(ii) second, the Registrable Shares requested to be included
in such registration by the Founders (or, if necessary, such
Registrable
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Shares pro rata among the Founders (based upon the number of
Restricted Shares owned by each such Founder at the time of such
registration);
(iii) third, the Primary Shares; and
(iv) fourth, the Other Shares.
SECTION 3. Piggyback Registration. If the Corporation at any time proposes
for any reason to register Primary Shares or Other Shares under the Securities
Act (other than on Form S-4 or Form S-8 promulgated under the Securities Act or
any successor forms thereto), it shall promptly give written notice to the
holders of Restricted Shares of its intention so to register the Primary Shares
or Other Shares and, upon the written request, given within 15 days after
delivery of any such notice by the Corporation, of the holders of Restricted
Shares to include in such registration Registrable Shares (which request shall
specify the number of Registrable Shares proposed to be included in such
registration), the Corporation shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration.
Notwithstanding the foregoing, if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares or Other Shares
proposed to be included in such registration would interfere with the successful
marketing (including pricing) of Primary Shares or Other Shares proposed to be
registered by the Corporation, then the number of Primary Shares, Registrable
Shares and Other Shares proposed to be included in such registration shall be
included in the following order:
(i) first, the Primary Shares; and
(ii) second, the Registrable Shares held by the Investors and the
Founders requested to be included in such registration and the Other
Shares set forth in the notice delivered by the Corporation pursuant to
this Section 3, based upon the total number of Registrable Shares
requested to be included in the registration and such Other Shares.
(iii) third, the Other Shares.
SECTION 4. Registrations on Form S-3. Anything contained in Section 2 to
the contrary notwithstanding, at such time as the Corporation shall have
qualified for the use of Form S-3 promulgated under the Securities Act or any
successor form thereto, the holders of Restricted Shares shall have the right to
request in writing an unlimited number of registrations on Form
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S-3, or such successor form, of Registrable Shares held by them (the Corporation
to bear the costs of such registrations), which request or requests shall (i)
specify the number of Registrable Shares intended to be sold or disposed of,
(ii) state the intended method of disposition of such Registrable Shares and
(iii) relate to Registrable Shares having an anticipated aggregate offering
price of at least $2,000,000; provided, however, that the Corporation shall not
be required to effect more than one such registration in any 12-month period. A
requested registration on Form S-3, or any such successor form, in compliance
with this Section 4 shall not count as a registration statement initiated
pursuant to Section 2 but shall otherwise be treated as a registration initiated
pursuant to Section 2 and shall, except as otherwise expressly provided in this
Section 4, be subject to Section 2.
SECTION 5. Holdback Agreement. If the Corporation at any time shall
register shares of Common Stock under the Securities Act (including any
registration pursuant to Sections 2, 3 or 4) for sale to the public, the
Investors and the Founders shall not sell publicly, make any short sale of,
grant any option for the purchase of or otherwise dispose publicly of, any
Restricted Shares (other than those shares of Common Stock included in such
registration pursuant to Sections 2, 3 or 4) without the prior written consent
of the Corporation for a period designated by the Corporation in writing to the
holders of Registrable Shares, which period shall not begin more than 10 days
prior to the effectiveness of the registration statement pursuant to which such
public offering shall be made and shall not last more than 180 days after the
effective date of such registration statement; provided, however, that the
Corporation enters into identical agreements with each officer and director of
the Corporation.
SECTION 6. Preparation and Filing. If and whenever the Corporation is
under an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Corporation
shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement that
registers such Registrable Shares to become and remain effective for a
period of 90 days or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating to
such a registration statement or prospectus, to one counsel selected by
the Investors holding Registrable Shares
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included in such registration statement (the "Investors' Counsel") and to
the Founders' counsel, if other than counsel for the Corporation (the
"Founders' Counsel"), copies of all such documents proposed to be filed
(it being understood that such five-business-day period need not apply to
successive drafts of the same document proposed to be filed so long as
such successive drafts are supplied to the Investors' Counsel and the
Founders' Counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
(c) 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 lesser of (i) 90 days and (ii) until all of
such Registrable Shares have been disposed of, and to comply with the
provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing the Investors' Counsel and the Founders'
Counsel promptly (i) of the receipt by the Corporation of any notification
with respect to any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement
thereto or any request by the Commission for the amending or supplementing
thereof or for additional information with respect thereto, (ii) of the
receipt by the Corporation of any notification with respect to the
issuance by the Commission of any stop order suspending the effectiveness
of such registration statement or prospectus or any amendment or
supplement thereto or the initiation or threatening of any proceeding for
that purpose and (iii) of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions
as the Investors and the Founders reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of Registrable Shares to consummate the disposition in
such jurisdictions of such Registrable Shares; provided, however, that the
Corporation will not be required to qualify generally to do business,
subject itself to general taxation or consent to general
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service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (e);
(f) furnish to the holders of Registrable Shares included in such
registration statement such number of copies of a summary prospectus or
other prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents (such as
a term sheet) as such holders of Registrable Shares may reasonably request
in order to facilitate the public sale or other disposition of such
Registrable Shares;
(g) notify the holders of Registrable Shares on a timely basis at
any time when a prospectus relating to such Registrable Shares is required
to be delivered under the Securities Act within the appropriate period
mentioned in subparagraph (a) of this Section 6, of the happening of any
event as a result of which the prospectus included 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 and, at the request of the holders of
Registrable Shares, prepare and furnish to the holders of Registrable
Shares a reasonable number of copies of a supplement to or amendment of
such prospectus as may be necessary so that, as thereafter delivered to
the offerees of such shares, 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;
(h) make available for inspection by the holders of Registrable
Shares included in such registration statement, any underwriter
participating in any disposition pursuant to such registration statement
and any attorney, accountant or other agent retained by the holders of
Registrable Shares or any underwriter (collectively, the "Inspectors"),
all pertinent financial and other records, pertinent corporate documents
and properties of the Corporation (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Corporation's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such holders
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of Registrable Shares in connection with such registration statement;
provided, however, that any of the Information which the Corporation
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the Inspectors
unless (i) the disclosure of such Information is necessary to avoid or
correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or (iii) such Information has
been made generally available to the public; and provided further,
however, that the holders of Registrable Shares agree that they will, upon
learning that disclosure of such Information is sought in a court of
competent jurisdiction, give notice to the Corporation and allow the
Corporation, at the Corporation's expense, to undertake appropriate action
to prevent disclosure of the Information deemed confidential;
(i) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by
cold comfort letters;
(j) use its best efforts to obtain from its counsel an opinion or
opinions in customary form;
(k) provide a transfer agent and registrar (which may be the same
entity and which may be the Corporation) for such Registrable Shares;
(l) issue to any underwriter to which the holders of Registrable
Shares may sell shares in such offering certificates evidencing such
Registrable Shares;
(m) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock
is not listed on a national securities exchange, use its best efforts to
qualify such Registrable Shares for inclusion on the Nasdaq National
Market System or the Nasdaq SmallCap Market or such other national
securities exchange as the holders of a majority of the Registrable Shares
held by the Investors shall request;
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders,
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as soon as reasonably practicable, earnings statements (which need not be
audited) covering a period of 12 months beginning within three months
after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities
Act; and
(o) use its best efforts to take all other steps reasonably
necessary to effect the registration of such Registrable Shares
contemplated hereby.
For purposes of this Agreement, the Corporation's best efforts shall mean the
Corporation's best efforts without the expenditure of time or funds other than
is customary for registrations of the type contemplated herein.
SECTION 7. Expenses. All expenses incurred by the Corporation in complying
with Section 6, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), fees and expenses of complying with securities and
blue sky laws, printing expenses, fees and expenses of the Corporation's counsel
and accountants and reasonable fees and expenses of the Investors' Counsel and
the Founders' Counsel (but not the Inspectors), shall be paid by the
Corporation; provided, however, that all underwriting discounts and selling
commissions applicable to the Registrable Shares or Other Shares shall not be
borne by the Corporation but shall be borne by the holders of Registrable Shares
and holders of Other Shares in proportion to the number of Registrable Shares or
Other Shares sold by each of them.
SECTION 8. Indemnification. In connection with any registration of any
Registrable Shares under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless the holders of Registrable Shares,
each underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which any of the foregoing persons 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 an
untrue statement or alleged untrue statement of a material fact contained in the
registration statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, or arise out of or are based upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
Corporation of the Securities Act or state securities or blue sky laws
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with such registration or qualification under such
state securities or blue sky laws; and shall reimburse the holders of
Registrable Shares, such underwriter, such broker or such other person acting on
behalf of the holders of Registrable Shares and each such controlling person for
any legal or other expenses reasonably incurred by any of them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Corporation shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document incident to
registration or qualification of any Registrable Shares in reliance upon and in
conformity with written information furnished to the Corporation through an
instrument duly executed by the holders of Registrable Shares or underwriter
specifically for use in the preparation thereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, the holders of Registrable Shares
shall indemnify and hold harmless and reimburse (in the same manner and to the
same extent as set forth in the preceding paragraph of this Section 8) the
Corporation, each director of the Corporation, each officer of the Corporation
who shall sign such registration statement, each underwriter, broker or other
person acting on behalf of the holders of Registrable Shares and each person who
controls any of the foregoing persons within the meaning of the Securities Act
with respect to any statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Corporation or such underwriter by the holders of
Registrable Shares specifically for use in connection with the preparation of
such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; provided, however, that the maximum amount of
liability in respect of such indemnification shall be limited, in the case of
each seller of Registrable Shares, to an amount equal to the net proceeds
actually received by such seller
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from the sale of Registrable Shares effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 8, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 8, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees and
expenses of any one counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement provided in
this Section 8.
If the indemnification provided for in this Section 8 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the
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parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
SECTION 9. Underwriting Agreement. Notwithstanding the provisions of
Sections 5, 6, 7 and 8, to the extent that the holders of Registrable Shares
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections, the
provisions contained in such underwriting or similar agreement shall control as
to the party or parties so entering into such underwriting agreement.
SECTION 10. Information by Holder. Each of the holders of Registrable
Shares proposing to sell the same pursuant to a registration to which this
Agreement relates shall furnish to the Corporation such written information
regarding the holders of Registrable Shares and the distribution proposed by
such holders of Registrable Shares as the Corporation may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
SECTION 11. Exchange Act Compliance. From the Registration Date or such
earlier date as a registration statement filed by the Corporation pursuant to
the Exchange Act relating to any class of the Corporation's securities shall
have become effective, the Corporation shall comply with all of the reporting
requirements of the Exchange Act (whether or not it shall be required to do so)
and shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Corporation shall cooperate with the holders of
Registrable Shares in supplying such information as may be reasonably necessary
for the Investors to complete and file any information reporting forms presently
or hereafter required by the Commission as a condition to the availability of
Rule 144.
SECTION 12. No Conflict of Rights. The Corporation represents and warrants
to the holders of Registrable Shares that the Corporation has not granted any
registration rights prior to the date hereof. The Corporation shall not, after
the date hereof, grant any registration rights which conflict with or impair the
registration rights granted hereby.
SECTION 13. Termination. This Agreement shall terminate and be of no
further force or effect when there shall not be any Restricted Shares; provided,
however, that the rights of a holder of Registrable Shares hereunder shall
terminate at such time as such holder shall have the unrestricted right, in the
unqualified opinion of counsel for the Corporation, to sell
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all of such Registrable Shares without restriction pursuant to Rule 144(k)
promulgated under the Securities Act.
SECTION 14. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the Corporation, the holders of Registrable Shares and, subject
to Section 15, the respective successors and assigns of the Corporation and
holders of Registrable Shares.
SECTION 15. Assignment. Each holder of Registrable Shares may assign its
rights hereunder to any permitted purchaser or permitted transferee of
Restricted Shares (including with respect to any applicable transfer or sale
restrictions set forth in the Stockholders' Agreement, dated as of the date
hereof, among the Corporation and the other parties thereto (the "Stockholders'
Agreement")); provided, however, that such purchaser or transferee shall, as a
condition to the effectiveness of such assignment, be required to execute a
counterpart to this Agreement agreeing to be treated as the seller or transferor
hereunder whereupon such purchaser or transferee shall have the benefits of, and
shall be subject to the restrictions contained in, this Agreement.
SECTION 16. Entire Agreement. This Agreement, the Stockholders' Agreement
and the Stock Purchase Agreement dated as of the date hereof, among the
Corporation and the other parties thereto, and the other writings referred to
therein or delivered pursuant thereto, contain the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
SECTION 17. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation or the Founders, to it or them at:
Mobius Management Systems, Inc.
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Board of Directors or such Founders, as the case may be;
with a copy to:
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Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(iii) if to the Investors, to their respective addresses set forth on
Schedule I hereto, with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of dispatch by nationally-recognized overnight
courier, on the next business day following such dispatch and (c) in the case of
mailing, on the third business day after the posting thereof.
SECTION 18. Modifications; Amendments; Waivers. The terms and provisions
of this Agreement may not be modified or amended, nor may any provision be
waived, except pursuant to a writing signed by the Corporation and the Investors
holding at least a 51% (by voting power) of the Restricted Shares at the time
outstanding; provided, however, that any modification, amendment or waiver that
adversely affects the rights of the Founders hereunder shall require the written
agreement of the Founders.
SECTION 19. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 20. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
MOBIUS MANAGEMENT SYSTEMS, INC.
By:________________________________
Name: Xxxxxxxx Xxxxx
Title: Chief Executive Officer
OAK INVESTMENT PARTNERS VI,
LIMITED PARTNERSHIP
By: OAK ASSOCIATES VI, L.L.C.,
AS GENERAL PARTNER
By:________________________________
A Managing Member
OAK VI AFFILIATES FUND, LIMITED
PARTNERSHIP
By: OAK VI AFFILIATES, L.L.C.,
ITS GENERAL PARTNER
By:________________________________
A Managing Member
NEA VENTURES 1997
By:________________________________
Xxxxx Xxxxxx
Vice President
NEA PRESIDENT'S FUND L.P.
By New President's Partners L.P.
___________________________________
Name:
Title:
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NEW ENTERPRISE ASSOCIATES VII L.P.
By New Enterprise Partners VII L.P.
By:________________________________
Name:
Title:
NEW VENTURE PARTNERS III L.P.
By:________________________________
General Partner
XXXXX VENTURES III, L.P.
By:________________________________
General Partner
___________________________________
Xxxxxxxx Xxxxx
___________________________________
Xxxxxx X. Xxxxxxxx
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SCHEDULE I
INVESTORS
Name and Address of Investor
OAK INVESTMENT PARTNERS VI,
LIMITED PARTNERSHIP
One Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
OAK VI AFFILIATES FUND,
LIMITED PARTNERSHIP
Xxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
NEA VENTURES 1997
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
NEA PRESIDENT'S FUND L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
NEW ENTERPRISE ASSOCIATES VII L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
NEW VENTURE PARTNERS III L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
XXXXX VENTURES III, L.P.
Xxxxxxxx 0, Xxxxx 000
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Xx.
