EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
the 13th day of November 2000, by and among SynchronOSS Technologies, Inc., a
Delaware corporation (the "COMPANY"), and the persons identified as "Investors"
on Schedule A attached hereto.
BACKGROUND
WHEREAS, the Investors are parties to a Series A Preferred Stock
Purchase Agreement (the "PURCHASE AGREEMENT"), dated the date hereof, pursuant
to which they are acquiring shares of the Company's Series A Preferred Stock;
and
WHEREAS, certain of the parties' obligations under the Purchase
Agreement are conditioned upon the execution and delivery by the Investors and
the Company of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Agreement, and intending to be legally bound, the parties
agree as follows:
SECTION 1. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; REGISTRATION RIGHTS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below:
(a) "AFFILIATE" means, with respect to any specified person, (i)
any other person that owns (directly or indirectly), individually or as part of
a group (as determined pursuant to Rule 13d-5 under the Exchange Act) greater
than fifty percent (50%) of the voting stock or other capital interest of such
specified person, (ii) any other person of whom greater than fifty percent (50%)
of the voting stock or other capital interest is owned by (directly or
indirectly), individually or as part of a group (as determined pursuant to Rule
13d-5 under the Exchange Act) by such person, and (iii) any other person
controlling, controlled by or under common control with such person.
(b) "CLOSING" shall mean the date of the initial sale of shares
of the Series A Preferred Stock pursuant to the Purchase Agreement.
(c) "COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(d) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar successor federal statute, and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
(e) "HOLDER" shall mean an Investor who holds Registrable
Securities and any holder of Registrable Securities to whom the registration
rights conferred by this Agreement have been transferred in compliance with
Section 1.11 hereof.
(f) "INITIATING HOLDERS" shall mean any Holder or Holders of
Registrable Securities who in the aggregate hold(s) not less than fifty percent
(50%) in interest of the outstanding Registrable Securities.
(g) "INVESTOR" shall mean each person named on Schedule A hereto.
(h) "REGISTRABLE SECURITIES" shall mean (i) shares of Common
Stock issued or issuable pursuant to the conversion of the Series A Preferred,
(ii) any additional shares of Common Stock acquired by the Investors and (iii)
any Common Stock issued as a dividend or other distribution with respect to or
in exchange for or in replacement of the shares referenced in (i) or (ii) above;
provided, however, that Registrable Securities shall not include any shares of
Common Stock that have previously been registered or that have been sold to the
public either pursuant to a registration statement or an exemption from
registration under the Securities Act (including Rule 144), that have been sold
in a private transaction in which the transferor's rights under this Agreement
are not assigned or that may then be sold by an Investor pursuant to Rule
144(k).
(i) The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
(j) "REGISTRATION EXPENSES" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification, and printing expenses, filing fees,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, expenses of any regular or special audits incident to or required
by any such registration and reasonable fees and disbursements of a single
special counsel for the Holders, but shall not include Selling Expenses and the
compensation of regular employees of the Company, which shall be paid in any
event by the Company.
(k) "RULE 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(l) "RULE 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(m) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(n) "SELLING EXPENSES" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the sale of
Registrable Securities.
(o) "SERIES A PREFERRED" shall mean the Company's Series A
Preferred Stock, $0.0001 par value per share.
1.2 REQUESTED REGISTRATION.
(a) If the Company shall receive from Holders holding in the
aggregate more than fifty percent (50%) of the then-outstanding shares of
Registrable Securities at any time or times not earlier than eighteen (18)
months after the Closing, a written request that the Company effect any
registration in which the anticipated aggregate offering price to the public
would exceed Ten Million Dollars ($10,000,000)), the Company will:
(i) promptly give written notice of the proposed
registration to all other Holders; and
(ii) subject to Section 1.2(b) use its best efforts to
effect such registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky or other state
securities laws, and appropriate compliance with the Securities Act) as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after such written notice from the Company is mailed or
delivered.
The Company shall not be obligated to effect, or to take any action to
effect, any such registration pursuant to this Section 1.2:
(A) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) after the Company has initiated two (2) such
registrations pursuant to Section 1.2(a) (counting for these purposes only
registrations which have been declared or ordered effective and registrations
which have been withdrawn by the Holders as to which the Holders have not
elected to bear all the Registration Expenses relating to such registration
except as provided below);
(C) during the period starting with the date thirty
(30) days prior to the Company's good faith estimate of the filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
Company-initiated registration; provided that the Company is actively employing
in good faith all reasonable efforts to cause such registration statement to
become effective; or
(D) if the Initiating Holders propose to dispose of
shares of Registrable Securities which may be immediately registered on Form S-3
pursuant to a request made under Section 1.4 hereof.
In the event that a withdrawal of a registration by the Holders is
based upon material adverse information relating to the Company that is
different from the information known to the Initiating Holders requesting
registration at the time of their request for registration under this Section
1.2 and the holders of a majority of the Registrable Securities held by the
Initiating Holders with respect to such registration elect not to proceed with
such registration, such registration shall not be treated as a counted
registration for purposes of this Section 1.2 hereof.
(b) Subject to the foregoing clauses (A) through (D) of Section
1.2(a)(ii), the Company shall use commercially reasonable best efforts to effect
such a registration of the Registrable Securities so requested as soon as
practicable but in any event within one hundred twenty (120) days after receipt
of the request or requests of the Initiating Holders; provided, however, that if
(i) in the good faith judgment of the Board of Directors of the Company, such
registration would be materially detrimental to the Company and the Board of
Directors of the Company concludes, as a result, that it is essential to defer t
he filing of such registration statement at such time, and (ii) the Company
shall furnish to such Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company for such registration
statement to be filed in the near future and that it is, therefore, essential to
defer the filing of such registration statement, then the Company shall have the
right to defer such filing, upon furnishing such certificate, for a period of
not more than one hundred twenty (120) days after receipt of the request of the
Initiating Holders; provided further, that the Company shall not defer its
obligation in this manner more than once in any rolling twelve (12) month
period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Sections 1.2(d) and 1.12
hereof, include other securities of the Company, with respect to which
registration rights have been granted and may include securities of the Company
being sold for the account of the Company.
(c) The right of any Holder to registration pursuant to Section
1.2(a) shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder with respect to such participation and
inclusion) to the extent provided herein. Except as otherwise provided herein, a
Holder may elect to include in such underwriting all or a part of the
Registrable Securities he holds.
(d) If the Company shall request inclusion in any registration
pursuant to Section 1.2 of securities being sold for its own account, or if
other persons shall request inclusion in any registration pursuant to Section
1.2, then the Company shall provide the Initiating Holders with written notice
of such participation and the Initiating Holders shall, on behalf of all
Holders, offer to include such securities in the underwriting and may condition
such offer on their acceptance of the further applicable provisions of this
Section 1. The Company shall (together with all Holders and other persons
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders, to which the Company has reasonably consented. Notwithstanding any
other provision of this Section 1.2, if the underwriter advises the Company that
marketing factors require a
limitation of the number of securities to be underwritten (including Registrable
Securities), then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the
securities of the Company held by individuals or entities other than the selling
Holders shall be excluded from such underwriting to the extent so required by
such limitation. If, after the exclusion of such shares and securities being
sold for the Company's own account, further reductions are still required, the
number of shares that may be included in the underwriting shall be allocated to
t he selling Holders on a pro rata basis based on the number of Registrable
Securities held by all such Holders. If a person who has requested inclusion in
such registration as provided above does not agree to the terms of any such
underwriting, such person shall be excluded therefrom by written notice from the
Company, the underwriter or the Initiating Holders. The securities so excluded
shall also be withdrawn from registration.
1.3 COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its
securities either for its own account or the account of a security holder or
holders exercising their respective demand registration rights (other than
pursuant to Sections 1.2 or 1.4 hereof), other than a registration relating
solely to employee benefit plans, or a registration relating to a corporate
reorganization or other transaction under Rule 145, or a registration on any
registration form that does not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) use its best efforts to include in such registration
(and any related qualification under blue sky laws or other compliance), except
as set forth in Section 1.3(b) below, and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
by any Holder and received by the Company within twenty (20) days after the
written notice from the Company described in clause (i) above is mailed or
delivered by the Company. Such written request may specify all or a part of a
Holder's Registrable Securities.
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
1.3(a)(i). In such event, the right of any Holder to registration pursuant to
this Section 1.3 shall be conditioned upon such Holder's participat ion in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other holders of securities of the Company with registration rights to
participate therein distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this Section 1.3, if the
managing underwriter for the offering shall advise the Company in writing that
the total amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities to
be sold other than by the Company that marketing
factors allow, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
managing underwriter believes marketing factors allow (the securities so
included to be reduced as follows: (i) all securities which are not Registrable
Securities shall be excluded from the offering to the extent limitation on the
number of shares included in the underwriting is required, and (ii) if further
limitation on the number of shares to be included in the underwriting is
required, then the number of shares that may be included in the underwriting
held by selling Holders shall be reduced pro rata based on the total number of
Registrable Securities held by such Holders; provided, however, in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below twenty-five percent (25%) of the total amount of securities
included in such offering, unless such offering is the initial public offering
of the Company's securities in which case the selling Holders may be excluded
entirely if the managing underwriter makes the determination described above and
no securities other than those of the Company are included.
If any person does not agree to the terms of any such underwriting or
otherwise fails to comply with the provisions of this Agreement, he shall be
excluded therefrom by written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
1.4 REGISTRATION ON FORM S-3.
(a) After it s initial public offering, the Company shall use it
s best efforts to qualify for registration on Form S-3 under the Securities Act
or any comparable or successor form or forms. After the Company has qualified
for the use of Form S-3, in addition to the rights contained in the foregoing
provisions of this Section 1, Holders of the Registrable Securities shall have
the right to request registrations on Form S-3 (such requests shall be in
writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended methods of disposition of such shares by such
Holder or Holders); provided, however, that the Company shall not be obligated
to effect any such registration: (i) if the Holders, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) on Form S-3 at an aggregate price to the public of less than One
Million Dollars ($1,000,000); (ii) in the event that the Company shall furnish
the certification described in paragraph 1.2(b) (but subject to the limitations
set forth therein); (iii) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance;
or (iv) if the Company has previously effected two registrations on Form S-3 for
the Holders during the twelve (12) month period preceding such request.
(b) If a request complying with the requirements of Section
1.4(a) hereof is delivered to the Company, the provisions of Sections 1.2(a)(i)
and (ii) and Section 1.2(b) hereof shall apply to such registration. If the
registration is for an underwritten offering, the provisions of Sections 1.2(c)
and 1.2(d) hereof shall in addition apply to such registration.
1.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 1.2, 1.3 and 1.4 hereof shall be borne by the Company. All Selling
Expenses relating to securities so registered
shall be borne by the holders of such securities pro rata on the basis of the
number of shares of securities so registered on their behalf.
1.6 REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to Section 1.2 or 1.4, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will use its best efforts to:
(a) subject to Section 1.13 below, keep such registration
effective for a period of one hundred twenty (120) days or until the Holder or
Holders have completed the distribution described in the registration statement
relating thereto, whichever first occurs; provided, however, that (i) such one
hundred twenty (120) day period shall be extended for a period of time equal to
the period the Holder refrains from selling any securities included in such
registration at the request of an underwriter of Common Stock (or other
securities) of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such one hundred twenty (120) day period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold, provided that Rule 415, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment that (I) includes any prospectus required by
Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
(d) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the occurrence 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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers 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 or incomplete in the
light of the circumstances then existing;
(e) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or market on which similar
securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month after the effective date of the Registration
Statement, which earnings statement shall conform materially with the provisions
of Section 11(a) of the Securities Act;
(h) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 1.2 hereof, the Company will
enter into an underwriting agreement in usual and customary form reasonably
necessary to effect the offer and sale of Common Stock, provided such
underwriting agreement contains customary underwriting provisions and provided
further that if the underwriter so requests the underwriting agreement will
contain customary contribution provisions; and
(i) furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to the underwriters in an underwritten
public offering addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated as of
such date from the independent certified public accountants of the Company, in
form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering addressed to the
underwriters, if any, and if permitted by applicable accounting standards, to
the Holders requesting registration of Registrable Securities.
1.7 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of such Holder's
officers, directors, managers, members, partners, legal counsel, and accountants
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act with respect to which registration, qualification, or compliance
has been effected pursuant to this Section 1, and each underwriter, if any, and
each person who controls within the meaning of Section 15 of the Securities Act
any underwriter, against all claims, losses, damages, and liabilities (joint or
several)(or actions, proceedings or settlements in respect thereof) arising out
of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation (or
alleged violation) by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, qualification, or compliance, and will reimburse
each such Holder, each of its officers, directors, partners, legal counsel, and
accountants and each person controlling such Holder, each such underwriter, and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred (and as incurred) in connection with investigat ing
and defending or settling any such claim, loss, damage, liability, or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability, or expense arises out of or is based on
the Company's reliance upon and in conformity with any untrue statement or
omission set forth in written information furnished to the Company by such
Holder or underwriter and stated to be specifically for use therein, unless such
Holder (or underwriter as the case may be) timely provided to the Company
additional information to correct the previously inaccurate or incomplete
information. It is agreed that the indemnity agreement contained in this Section
1.7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without the consent
of the Company (which consent has not been unreasonably withheld or delayed).
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify the Company, each of
its directors, officers, partners, legal counsel, and accountants and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, each other such Holder, and each of
their officers, directors, managers, members, partners, legal counsel and
accountants and each person controlling such Holder or other stockholder,
against all claims, losses, damages and liabilities (joint or several) (or
actions, proceedings or settlements in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, (including any related registration statement, notification, or
the like) incident to any such registration, qualification, or compliance, or
based on any 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 such Holders, other stockholders,
directors, officers, managers, members, partners, legal counsel, and
accountants, persons, underwriters, or control persons for any legal or any
other expenses reasonably incurred (as incurred) in connection with
investigating and defending or settling any such claim, loss, damage, liability,
or action, in each case to the extent but only to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular, or other
document in reliance upon and in conformit y with written information furnished
to the Company by such Holder and stated to be specifically for use therein
provided, however, that the obligations of such Holder hereunder shall not apply
to amounts paid in settlement of any such claims, losses, damages, or
liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld or delayed); and
provided that in no event shall any indemnity under this Section 1.7 exceed the
net proceeds from the offering received by such Holder.
(c) Each party entitled to indemnification under this Section 1.7
(the "Indemnified Party") shall give written notice to the party required t o
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of such
claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld or delayed), and the
Indemnified Party may participate in such defense at such party's expense,
except that such participation by an Indemnified Party shall be at the expense
of the Indemnifying Party if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests, as reasonably determined by either party,
between such Indemnified Party and any other party represented by such counsel
in such proceeding; provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1, to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect t o such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or expense
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 t hat resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided that in no event shall any contribution obligation
hereunder exceed the net proceeds from the offering received by such Holder. The
relative fault of the Indemnifying Part y 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 to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in
connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
1.8 INFORMATION BY HOLDER. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Section 1.
1.9 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of at least a majority of the then-outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company giving such holder or prospective holder any
registration rights; provided that the Company may, without the consent of the
Holders, grant "piggy back" registration rights to equipment lessors or other
persons in similar commercial situations with the Company provided that any such
granted rights by their terms are expressly subordinated in all respects to any
registration right granted hereunder.
1.10 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission that may permit the sale of
the Registrable Securities to the public without registration, the Company
agrees to:
(a) make and keep public information regarding the Company
available as those terms are understood and defined in Rule 144, at all times
from and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) 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 at any time after it has become subject to such reporting
requirements; and
(c) so long as a Holder owns any Registrable Securities, furnish
to the Holder forthwith upon written request as to the Company's compliance with
the reporting requirements of Rule 144 (at any time from and after ninety (90)
days following the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed and
information as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
1.11 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register securities granted to a Holder by the Company
under this Section 1 may be transferred or assigned by a Holder only to a
transferee or assignee who acquires not less than fifteen percent (15%) of such
Holder's Registrable Securities (as presently constituted and subject to
subsequent adjustments for stock splits, stock dividends, reverse stock splits,
and the like); provided that, in either case (i) the Company is given written
notice at the time of or within
thirty (30) days after transfer or assignment, stating the name and address of
the transferee or assignee and identifying the securities with respect to which
such registration rights are being transferred or assigned, and (ii) the
transferee or assignee of such rights assumes in writing the obligations of such
Holder under this Agreement. Notwithstanding the foregoing, the transfer of
regist rat ion rights to an Affiliate or a partner, retired partner, manager,
member, former member, family member of a Holder or a trust for the benefit of
any such person, shall be without restriction, provided that such transferee
assumes in writing the obligations of such Holder under this Agreement.
1.12 TERMINATION OF REGISTRATION RIGHTS. The rights to request
registration of any Company securities pursuant to Sections 1.2, 1.3 and 1.4
shall terminate as to any Holder upon the earlier of: (a) when all of a Holder's
Registrable Securities may be sold during a single three (3) month period under
Rule 144; and (b) when a Holder's Registrable Securities may be transferred
under Rule 144(k) unless such Holder later becomes an affiliate of the Company
(as defined in Rule 144) in which case such Holder's rights to request
registration shall be revived until such Holder's rights otherwise terminate
under this Section 1.12.
1.13 "MARKET STAND-OFF" AGREEMENT. In connection with the initial
public offering of the Company's securities and if requested by the Company and
an underwriter of Common Stock (or other securities) of the Company, the
Investor shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Company held by such Investor (other than those
included in the registration) during the one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that all officers and directors of the
Company, all other persons with registration rights (whether or not pursuant to
this Agreement) and holders of at least 1% of the Company's equity securities
are bound by and have entered into similar agreements.
The obligations described in this Section 1.13 shall not apply to a
registration relating solely to employee benefit plans on Form S-3 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of such one
hundred eighty (180) day period.
SECTION 2. MISCELLANEOUS.
2.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Delaware without regard to conflicts of laws
principles.
2.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, permitted assigns, heirs, executors and administrators of
the parties hereto.
2.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement, the Purchase
Agreement and the other agreements contemplated hereby and thereby constitute
the full and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof, and any previous agreement among the
parties relative to the specific subject matter
hereof is superseded by this Agreement. Neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated, except by a written
instrument signed by the Company and the Holders of at least a majority of the
Registrable Securities then outstanding, and any such amendment, waiver,
discharge or termination shall be binding on all holders of any Registrable
Securities and each future holder of all such Registrable Securities.
2.4 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by facsimile or delivered by a
nationally recognized overnight courier addressed (a) if to a Holder as
indicated on the Schedule A hereto, or at such other address as such Holder or
permitted assignee shall have furnished to the Company in writing, or (b) if to
the Company, at the address or facsimile number indicated for the Company on the
signature page hereof. All such notices and other written communications shall
be effective on the date of mailing, the time of confirmed facsimile
transmission or the date of delivery to a representative of a nationally
recognized overnight courier, as the case may be.
2.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default therefore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement or any
waiver on the part of any Holder of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any Holder, shall be cumulative and
not alternative.
2.6 RIGHTS; SEVERABILITY. Unless otherwise expressly provided herein,
a Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holders. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
2.7 INFORMATION CONFIDENTIAL. Each party acknowledges that the
information received by them pursuant hereto may be confidential and for its use
only, and it will not use such confidential information in violation of the
Securities Act or Exchange Act or reproduce, disclose or disseminate such
information to any other person (other than its employees or agents having a
need to know the contents of such information, and its attorneys), except in
connection with the exercise of rights under this Agreement, unless the Company
has made such information available to the public generally or such party is
required to disclose such information by a governmental body.
2.8 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
2.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.10 FURTHER ASSURANCES. The parties agree, from time to time and
without further consideration, to execute and deliver such further documents and
take such further actions as reasonably may be required to implement and
effectuate the transactions contemplated in this Agreement.
2.11 NO THIRD-PARTY BENEFICIARIES. Other than as provided for herein,
this Agreement is intended to inure to the benefit of the parties hereto only,
and no other person shall have any rights, express or implied, by reason of this
Agreement.
2.12 ADDITIONAL INVESTORS. Notwithstanding anything to the contrary
herein, if the Company shall issue additional shares of its Series A Preferred
Stock as contemplated by Section 1.1(d) of the Purchase Agreement, any purchaser
of such shares may become a party to this Agreement by executing and delivering
an additional counterpart signature page to this Agreement and no further action
shall be required of any Investor already party hereto at such time.
[signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
SYNCHRONOSS TECHNOLOGIES, INC.
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and
Chief Executive Office
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (___) - ____________
SCHEDULE A
SERIES A PREFERRED STOCKHOLDERS
ABS Ventures SYN L.L.C.
c/o ABS Ventures
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇,
Esq. Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ABS Investors L.L.C.
c/o ABS Ventures
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
RVG III, L.P.
c/o Rosewood Venture Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
RVG IV, L.P.
c/o Rosewood Venture Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
VLG SynchronOSS Investors
c/o Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Green Mountain Ventures, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ________________
G & H Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, JTWROS
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ________________
Moses Venture Partners
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ________________
Merrimack Partners LLC
[Address]
fax: ________________
North Shore LLC
[Address]
fax: ________________
