Exhibit 10.8
SECOND RESTATED REGISTRATION RIGHTS AGREEMENT
Agreement dated as of the 26th day of February, 1999 by and among
Lionbridge Technologies Holdings, Inc., a Delaware corporation (the "COMPANY"),
each of the other parties listed on the signature pages hereto (the "PRIOR
INVESTORS"), Capital Resource Lenders III, L.P. ("CRL") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Venture Capital Fund II Annex, L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Investors Annex,
L.P. (collectively, "▇▇▇▇▇▇ ▇▇▇▇▇▇▇").
WHEREAS, Lionbridge Technologies, Inc. ("LTI"), the Company and the
Prior Investors entered into a Restated Registration Rights Agreement dated as
of February 9, 1998 (the "PRIOR REGISTRATION RIGHTS AGREEMENT") in connection
with the issuance of equity interests in the Company to the Prior Investors in
exchange for all of the shares of capital stock in LTI and Lionbridge
Technologies Holdings B.V. ("LTHBV") then held by such Prior Investors;
WHEREAS, The Company and CRL are entering into a First Amended and
Restated Senior Subordinated Note and Warrant Purchase Agreement, dated as of
February 26, 1999, (the "CRL NOTE AND WARRANT PURCHASE AGREEMENT") pursuant to
which CRL will purchase from the Company a First Amended and Restated Senior
Subordinated Note and warrants to purchase up to 2,051,818 shares of Common
Stock (as defined below) of the Company; and
WHEREAS, LTHBV and CRL are entering into a Senior Subordinated Note
Purchase Agreement, dated as of February 26, 1999, (the "CRL/LTHBV Note Purchase
Agreement") pursuant to which CRL will purchase from LTHBV a Senior Subordinated
Note; and
WHEREAS, LTHI and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will enter into a Senior Subordinated
Note and Warrant Purchase Agreement (the "▇▇▇▇▇▇ ▇▇▇▇▇▇▇ NOTE AND WARRANT
PURCHASE AGREEMENT") pursuant to which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will purchase from LTHI a
Senior Subordinated Note and warrants to purchase shares of Common Stock (as
defined below) of LTHI; and
WHEREAS, Lionbridge Technologies Holdings B.V. ("LTHBV") and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ are entering into a Senior Subordinated Note Purchase Agreement (the
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇/LTHBV NOTE PURCHASE AGREEMENT") pursuant to which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
will purchase from LTHBV a Senior Subordinated Note; and
WHEREAS, LTI, the Company, and the Prior Investors desire to terminate
the Prior Registration Rights Agreement and enter into a Second Restated
Registration Rights Agreement with the Company, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in order
to induce CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to enter into the CRL Note and Warrant Purchase
Agreement, the CRL/LTHBV Note Purchase Agreement, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note and
Warrant Purchase Agreement and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/LTHBV Note Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, and intending to be bound hereby, the parties hereby agree as
follows:
1. DEFINITIONS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"AFFILIATE" means, with respect to any Prior Investor, CRL or ▇▇▇▇▇▇
▇▇▇▇▇▇▇, any Person directly or indirectly controlling, controlled by, or under
common control with such Person.
"COMMISSION" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act (as defined
below).
"COMMON STOCK" means the common stock, $.01 par value per share, of
the Company.
"COMMON STOCKHOLDERS" means the holders of Common Stock issued and
outstanding on the date hereof and any persons or entities to whom the rights
granted under this Agreement are transferred by any Common Stockholders, their
successors or assigns pursuant to this Agreement.
"COMPANY" means Lionbridge Technologies Holdings, Inc.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization.
"PREFERRED STOCKHOLDERS" means the Prior Investors and any persons
or entities to whom the rights granted under this Agreement are transferred by
any Prior Investors, their successors or assigns pursuant to Section 2 hereof.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"REGISTRATION EXPENSES" means the expenses described in Section 2.5.
"REGISTRABLE COMMON SHARES" means the shares of Common Stock of the
Company issued and outstanding on the date hereof, any other shares of Common
Stock of the Company issued in respect of the Registrable Common Shares (because
of stock splits, stock dividends, reclassifications, recapitalizations, or
similar events), and any shares of Common Stock issued upon the exercise of
stock options granted pursuant to option agreements that
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expressly provide that the option recipient shall be entitled to demand
registration rights with respect to the shares of Common Stock issuable upon
exercise of such options.
"REGISTRABLE SHARES" means (i) the shares of Common Stock issued or
issuable upon conversion of the shares of Series C Convertible Preferred Stock,
$.01 par value per share (the "SERIES C PREFERRED") into which the Series A
Preferred are then convertible, (ii) any other shares of Common Stock of the
Company issued in respect of the Series A Preferred (because of stock splits,
stock dividends, reclassifications, recapitalizations, or similar events), and
(iii) any shares of Common Stock issued or issuable upon exercise of the
Warrants. Wherever reference is made in this Agreement to a request or consent
of holders of a certain percentage of Registrable Shares, or to a number or
percentage of Registrable Shares held by a Stockholder (as defined below), such
reference shall include shares of Common Stock (a) issuable upon conversion of
the Series C Preferred issued; (b) issuable upon conversion of the Series A
Preferred; or (c) issuable upon exercise of the Warrants even though such
conversion or exercise has not yet been effected.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"SERIES A PREFERRED" shall mean all shares of Series A Convertible
Preferred Stock, $.01 par value per share, of the Company.
"STOCKHOLDERS" means the Common Stockholders, the Preferred
Stockholders, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"WARRANTS" shall mean the Common Stock Purchase Warrants to purchase
Common Stock issued to CRL pursuant to the CRL Note and Warrant Purchase
Agreement and to be issued to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note
and Warrant Purchase Agreement.
2. REGISTRATION RIGHTS.
2.1 SALE OR TRANSFER OF SHARES; LEGEND.
(a) The Registrable Shares and the Registrable Common Shares
shall not be sold or transferred unless either (i) they first shall have been
registered under the Securities Act, or (ii) the Company first shall have been
furnished with an opinion of legal counsel, reasonably satisfactory to the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Securities Act.
(b) Each certificate representing the Registrable Shares and the
Registrable Common Shares shall bear a legend substantially in the following
form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "ACT"), or
applicable state securities laws
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and may not be transferred or otherwise disposed of unless and until
such shares are registered under the Act and such laws or (1)
registration under applicable state securities laws is not required
and (2) an opinion of counsel satisfactory to the Company is
furnished to the Company to the effect that registration under the
Act is not required."
The foregoing legend shall be removed from the certificates
representing any Registrable Shares and the Registrable Common Shares at the
request of the holder thereof at such time as they become registered under the
Securities Act or eligible for resale pursuant to Rule 144(k) under the
Securities Act.
2.2 REQUIRED REGISTRATIONS.
(a) If, at any time after the date two (2) years after the purchase
of the Series A Preferred (but in no event within six (6) months after the
effective date of any prior Company registration statement), within 90 days
following receipt by the Company of written notice from a Preferred Stockholder,
Preferred Stockholders, CRL, or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ holding (or intending to convert
Series A Preferred or Warrants into) not less than forty percent (40%) of the
then outstanding Registrable Shares, which written notice requests the Company
to register at least twenty percent (20%) of the shares of Common Stock issued
or issuable upon conversion of the Series C Preferred (issued or issuable upon
conversion of the Series A Preferred) or upon exercise of the Warrants, or any
lesser percentage, so long as the anticipated aggregate offering price for such
shares exceeds $5,000,000, the Company shall use its best efforts to effect the
registration of such Registrable Shares on Form S-1 or Form S-2 (or any
successor forms) or other appropriate Registration Statement designated by such
Preferred Stockholder, Preferred Stockholders, CRL or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Preferred Stockholder, Preferred Stockholders, CRL or ▇▇▇▇▇▇
▇▇▇▇▇▇▇ may request the Company, in writing, to effect the registration on Form
S-3 (or such successor form), of the Registrable Shares of such Preferred
Stockholder, Preferred Stockholders, CRL or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ having an aggregate
offering price of at least $1,000,000 (based on the then current public market
price). Thereupon, the Company shall, as expeditiously as possible, use its best
efforts to effect the registration on Form S-3, or such successor form, of all
Registrable Shares which the Company has been requested to register.
(c) The Preferred Stockholders, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have
the right to require the Company to effect two demand registrations on Form S-1
or Form S-2 and an unlimited number of registrations on Form S-3 (or any
successor forms) pursuant to this Section 2.2; however, a registration on Form
S-1 or Form S-2 will not count for this purpose unless it becomes effective and
holders are able to sell at least 50% of the Registrable Shares sought to be
included in such registration. The Company shall not, however, register any
additional shares of stock of the Company at the same time as a demand
registration without the prior written consent of the holders of a majority of
the Registrable Shares to be included in the demand registration.
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(d) If at the time of any request to register Registrable Shares
pursuant to this Section 2.2, the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Preferred Stockholders, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may include
Registrable Shares pursuant to Section 2.3 or is engaged in any other activity
which, in the good faith determination of the Company's Board of Directors,
would be adversely affected by the requested registration to the material
detriment of the Company, then the Company may at its option direct that such
request be delayed for a period not in excess of six (6) months from the
effective date of such offering or the date of commencement of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period.
2.3 INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration Statement,
prior to such filing it shall give written notice to all Stockholders of its
intention to do so, and upon the written request of a Stockholder or
Stockholders given within 30 days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares or Registrable Common Shares), the Company shall cause all Registrable
Shares and Registrable Common Shares which the Company has been requested to
register to be registered under the Securities Act to the extent necessary to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder(s).
(b) In connection with any offering under this Section 2.3
involving an underwriting, the Company shall not be required to include any
Registrable Shares or Registrable Common Shares in such underwriting unless the
holders thereof accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it, and then only in such quantity as
will not, in the opinion of the underwriters, jeopardize the success of the
offering by the Company. If in the opinion of the managing underwriter the
registration of all, or part of, the Registrable Shares and Registrable Common
Shares which the Stockholders have requested to be included would materially and
adversely affect such public offering, then the Company shall be required to
include in the underwriting only that number of Registrable Shares and
Registrable Common Shares, if any, which the managing underwriter believes may
be sold without causing such adverse effect. In the event of such a reduction in
the number of shares to be included in the underwriting, all Stockholders of
Registrable Shares and Registrable Common Shares who have requested registration
shall participate in the underwriting pro rata based upon their total ownership
of Registrable Shares and Registrable Common Shares (or in any other proportion
as agreed upon by such Stockholders) and if any such Stockholders would thus be
entitled to include more shares than such Stockholders requested to be
registered, the excess shall be allocated among such other requesting holders
pro rata based on their ownership of Registrable Shares and Registrable Common
Shares. No other securities requested to be included in a registration for the
account of anyone other than the Company or the Stockholders shall be included
in a registration unless all Registrable Shares and Registrable Common Shares
requested to be included in such registration are also included.
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(c) Holders of not less than fifty-one percent (51%) of the
Registrable Common Shares may waive the rights contained in this Section 2.3 on
behalf of all holders of Registrable Common Shares.
2.4 REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares and the Registrable Common Shares
under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect
to such Registrable Shares and Registrable Common Shares and use its best
efforts to cause that Registration Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 90 days from
the effective date;
(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including the
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares and the Registrable Common Shares owned by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares and the Registrable Common Shares covered by
the Registration Statement under the securities or Blue Sky laws of such states
as the selling Stockholder shall reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the selling
Stockholder to consummate the public sale or other disposition of the
Registrable Shares and the Registrable Common Shares owned by the selling
Stockholder in such jurisdictions; PROVIDED, HOWEVER, that the Company shall not
be required in connection with this paragraph (d) to qualify as a foreign
corporation in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
selling Stockholders and after having done so the prospectus has been or is
required to be amended to comply with the requirements of the Securities Act, or
the Commission has issued a stop order or other suspension of effectiveness of a
registration statement, the Company shall promptly notify the selling
Stockholders and, if requested, the selling Stockholders shall immediately cease
making offers of Registrable Shares and Registrable Common Shares and shall
return all prospectuses to the Company. The Company shall promptly provide the
selling Stockholders with revised prospectuses and, following receipt of the
revised prospectuses, the selling Stockholder shall be free to resume making
offers of the Registrable Shares and the Registrable Common Shares.
2.5 ALLOCATION OF EXPENSES. The Company shall pay the Registration
Expenses for (i) the demand registration on Form S-1 or Form S-2 (or any
successor forms) and
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(ii) all demand registrations on Form S-3. If a registration on a Registration
Statement other than Form S-3 (or any successor form) requested by the
Stockholders pursuant to paragraph (a) of Section 2.2 is withdrawn at the
request of the Stockholders requesting it (other than as a result of information
concerning the business or financial condition of the Company that is made known
to the Stockholders after the date on which such registration was requested) and
if the requesting Stockholders holding a majority of the Registrable Shares and
the Registrable Common Shares requested to be included in such registration
elect not to have such registration counted as a registration requested under
paragraph (a) of Section 2.2, the requesting Stockholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares and Registrable Common Shares included in
such registration. For purposes of this Section, the term "REGISTRATION
EXPENSES" shall mean all expenses incurred by the Company in complying with this
Section 2, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel for
the Company and one counsel for the selling Stockholders, out-of-pocket expenses
of the Company and the underwriters, state Blue Sky fees and expenses, and the
expense of any special audits incident to or required by any such registration,
but excluding underwriting discounts and selling commissions and fees of more
than one counsel for the selling Stockholders. Such underwriting discounts and
selling commissions shall be borne pro rata by the selling Stockholders in
accordance with the number of their Registrable Shares and Registrable Common
Shares included in such registration.
2.6 INDEMNIFICATION. In the event of any registration of any of the
Registrable Shares and the Registrable Common Shares under the Securities Act
pursuant to this Agreement, then to the extent permitted by law the Company
shall indemnify and hold harmless the seller of such Registrable Shares and
Registrable Common Shares, each underwriter of such Registrable Shares and
Registrable Common Shares and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to
which such seller, underwriter or controlling person may become subject under
the Securities Act, the Exchange Act, state securities laws 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 any Registration Statement under
which such Registrable Shares and Registrable Common Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company shall
reimburse each such seller, underwriter and controlling person for reasonable
legal or any other expenses incurred by such seller, underwriter or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary prospectus or final prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in the
preparation thereof.
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In the event of any registration of any of the Registrable Shares and
the Registrable Common Shares under the Securities Act pursuant to this
Agreement, then to the extent permitted by law, each seller of Registrable
Shares and Registrable Common Shares, severally and not jointly, shall indemnify
and hold harmless the Company, each of its directors and officers and each
underwriter (if any) and each person, if any, who controls the Company or any
such underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company, such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state securities laws 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 a material fact contained in any Registration Statement
under which such Registrable Shares and Registrable Common Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made solely in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; and such seller shall reimburse
the Company for reasonable legal or other expenses incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action.
An underwriter shall not be entitled to indemnification pursuant to
this subsection in the event that it fails to deliver to any selling Stockholder
any preliminary or final or revised prospectus, as required by the rules and
regulations of the Commission. Finally, no indemnification shall be provided
pursuant to this subsection in the event that any error in a preliminary
prospectus of the Company is subsequently corrected in the final prospectus of
the Company for a particular offering, and such final prospectus is delivered to
all purchasers in the offering prior to the date of purchase of the securities.
Each party entitled to indemnification under this Section 2.6 (the
"INDEMNIFIED PARTY") shall give notice to the party required to 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 any such claim or any
litigation resulting therefrom; PROVIDED, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, 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 2.6. The Indemnified Party may participate in
such defense at such party's expense; PROVIDED, HOWEVER, that the Indemnifying
Party shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. 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
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Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
2.7 INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERINGS. In the
event that Registrable Shares and Registrable Common Shares are sold pursuant to
a Registration Statement in an underwritten offering, the Company and the
Stockholders whose shares are being registered agree to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by the Company and such Stockholders of the underwriters of such
offering.
2.8 INFORMATION BY HOLDER. Each holder of Registrable Shares and
Registrable Common Shares included in any registration shall furnish to the
Company such information regarding such holder and the distribution proposed by
such holder as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Section 2.
2.9 RULE 144 REQUIREMENTS. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit a
Stockholder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act (at any time after
it has become subject to the reporting requirements of the Exchange Act);
(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) furnish to any holder of Registrable Shares and Registrable
Common Shares upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
90 days after the closing of the first sale of securities by the Company
pursuant to a Registration Statement), 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 of the Company as such holder may
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
2.10 SELECTION OF UNDERWRITER. In the case of any registration effected
pursuant to Section 2.2, the Company shall have the right to designate the
managing underwriter, subject to the approval of the requesting Stockholders,
which approval shall not be unreasonably withheld or delayed.
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2.11 RESTRICTIONS ON OTHER AGREEMENTS. The Company will not enter into
any agreement with any party which by its terms grants any right superior to
those of the Prior Investors, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, relating to the
registration of the Company's Common Stock without the consent of the holders of
not less than fifty-one percent (51%) of the Registrable Shares then
outstanding.
2.12 TERMINATION. The provisions of this Section 2 shall terminate on
the earlier to occur of (i) the fifth (5th) anniversary of the date of the
Company's Initial Public Offering; (ii) such time as a Prior Investor, CRL or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ remains an "affiliate" of the Company pursuant to Rule 144 and
can sell all of his remaining Registrable Shares under Rule 144 within any three
(3) month period; or (iii) such time as a Prior Investor, CRL or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ceases to be an affiliate of the Company pursuant to Rule 144 and all of the
Prior Investor's, CRL's or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ Registrable Shares may be sold
pursuant to Rule 144(k).
2.13 "STAND-OFF" AGREEMENT. Each Stockholder, if requested by the
Company and the managing underwriter of an offering by the Company of Common
Stock or other securities of the Company pursuant to a Registration Statement,
shall agree not to sell publicly or otherwise transfer or dispose of any
Registrable Shares, Registrable Common Shares or other securities of the Company
held by such Stockholder for a specified period of time (not to exceed 180 days)
following the effective date of such Registration Statement; PROVIDED, that:
(a) such agreement shall only apply to the first Registration
Statement covering Common Stock to be sold on its behalf to the public in an
underwritten offering; and
(b) all Stockholders holding not less than the number of shares of
Common Stock held by such Stockholder (including shares of Common Stock issuable
upon the conversion of Shares, or other convertible securities, or upon the
exercise of options, warrants (including the Warrants) or rights) and all
officers and directors of the Company enter into similar agreements.
3. TRANSFERS OF CERTAIN RIGHTS.
3.1 PERMITTED TRANSFER. Subject to the provisions of Section 2.1 of
this Agreement and the rights granted to each Stockholder pursuant to this
Agreement may be transferred by such Stockholder to any person or entity who (i)
acquires at least 20% of the Registrable Shares and Registrable Common Shares
held by such Stockholder and (ii) holds, as a result of such acquisition, at
least 10% of the outstanding Registrable Shares and Registrable Common Shares;
PROVIDED, HOWEVER, that the Company is given written notice by the transferee at
the time of such transfer stating the name and address of the transferee and
identifying the securities with respect to which such rights are being assigned;
and PROVIDED FURTHER, that no such transferee may further transfer such rights
to any person or entity unless such person or entity is acquiring 100% of the
aggregate number of Registrable Shares and Registrable Common Shares purchased
or otherwise acquired by such transferee at the time such transferee obtained
such rights from such Stockholder. In the event of a transfer of the rights by a
Stockholder, such Stockholder shall continue to be entitled to such rights with
respect to the Registrable Shares and
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shares still held by such Stockholder, but shall not be
entitled to transfer such rights to any person or entity unless such person or
entity is acquiring 100% of the aggregate number of Registrable Shares and
Registrable Common Shares then held by such Stockholder.
3.2 TRANSFEREES. Any transferee (other than a Stockholder who is a
party to this Agreement) to whom rights hereunder are transferred shall, as a
condition to such transfer, deliver to the Company a written instrument by which
such transferee agrees to be bound by the obligations imposed upon holders of
Registrable Shares and Registrable Common Shares under this Agreement to the
same extent as if such transferee were a party hereto.
3.3 AFFILIATES. Notwithstanding anything to the contrary herein, any
Stockholder may transfer rights granted to it hereunder to any Affiliate of such
Stockholder to whom Registrable Shares and Registrable Common Shares are
transferred and who delivers to the Company a written instrument in accordance
with Section 3.2 above and containing the representation that the transfer is
exempt from registration under the Securities Act. In the event of such
transfer, such Affiliate shall be deemed a Stockholder and may only again
transfer such rights to any other person or entity if such person or entity is
acquiring 100% of the aggregate number of Registrable Shares and Registrable
Common Shares purchased or otherwise acquired by such Affiliate at the time such
Affiliate obtained such rights from the Stockholder in accordance with, and
subject to, the provisions of this Section 3.
4. GENERAL.
4.1 NOTICES. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be delivered
by hand, by telecopier, by overnight mail or mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
If to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇
President & Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or at such other address as may have been furnished in writing to the Prior
Investors, CRL and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by the Company)
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
High Street Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-11-
If to a Prior Investor, CRL or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, at its address set forth
beneath its signature to this Agreement (or at such other address as may have
been furnished in writing to the Company by such Purchaser).
Notices provided in accordance with this Section 4 shall be deemed
delivered upon personal delivery, receipt by telecopy or overnight mail, or 48
hours after deposit in the mail in accordance with the above.
4.2 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
4.3 AMENDMENTS AND WAIVERS. Except as otherwise expressly set
forth in this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of the Company and the holders of not less than fifty-one percent (51%)
of the Registrable Shares and the Registrable Common Shares; PROVIDED that this
Agreement may be amended or modified with the consent of the holders of less
than all of the shares of Series A Preferred and Series C Preferred and Warrants
only in a manner which affects all shares of the Series A Preferred and Series C
Preferred and Warrants in the same manner. No waivers of or exceptions to any
term, condition or provision of this Agreement in any one or more instances
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
4.4 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.5 CAPTIONS. The captions of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
4.6 SEVERABILITY. Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the fullest
lawful extent, but if any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be ineffective only to the extent so determined and such
invalidity or unenforceability shall not affect the remainder of such provision
or the remaining provisions of this Agreement.
4.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
5. TERMINATION OF PRIOR REGISTRATION RIGHTS AGREEMENT. By their
execution of this Agreement, LTI and the Prior Investors who were parties to the
Prior Registration Rights Agreement hereby terminate the Prior Registration
Rights Agreement and the Company and the
-12-
Prior Investors who were parties to the Prior Registration Rights Agreement
hereby enter into this Restated Registration Rights Agreement.
6. SUBSEQUENT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PURCHASE. The Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
will subsequently enter into the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Note and Warrant Purchase
Agreement and LTHBV and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will subsequently enter into the ▇▇▇▇▇▇
▇▇▇▇▇▇▇/LTHBV Note Purchase Agreement at such location, date and time as may be
agreed upon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Company (the "▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CLOSING"). At
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall execute a counterpart of this
Agreement countersigned by the Company and shall become entitled to the rights
and benefits conferred hereby and shall be bound by the terms hereof as Warrant
holder (in addition to being a holder of Preferred Stock). Each original
signatory acknowledges and agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may become a party to this
Agreement as a Warrant holder pursuant to this Section 6.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Second Restated
Registration Rights Agreement to be executed by their respective officers or
representatives thereunto duly authorized, as of the date first above written.
LIONBRIDGE TECHNOLOGIES HOLDINGS, INC.
By:
--------------------------------------------------
Title:
CAPITAL RESOURCE LENDERS III, L.P.
By: Capital Resource Partners III, L.C., its General
Partner
By:
----------------------------------------------
Member
PRIOR INVESTORS:
GLOBAL PRIVATE EQUITY II LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By:
--------------------------------------
GLOBAL PRIVATE EQUITY II LIMITED -
EUROPE LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------------
GLOBAL PRIVATE EQUITY II - PGGM LIMITED
PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------------
ADVENT EURO-ITALIAN DIRECT INVESTMENT
PROGRAM LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By:
----------------------------------
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By:
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE CAPITAL
FUND II ANNEX, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners II, L.P.,
its General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital II, Inc.,
Managing General Partner
By:
---------------------------------------
Name:
Title:
c/o Morgan ▇▇▇▇▇▇▇ Venture
Partners II, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE INVESTORS ANNEX, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners II, L.P., its
General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital II, Inc.,
Managing General Partner
By:
--------------------------------------
Name:
Title:
c/o Morgan ▇▇▇▇▇▇▇ Venture
Partners II, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ FAMILY TRUST,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ TTE,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, TTE
---------------------------------------------------
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FLEET BANK, TRUSTEE FOR THE TH&T, LLP,
DEFERRED EARNINGS TRUST, F/B/O
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
High Street Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
IEA Private Investments Ltd
▇/▇ ▇▇▇▇▇ Access Ltd.
Attn: Mr. ▇▇▇▇ Pu
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ MANCHESTER TRUST DATED
9/22/94
By:
------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇ STREAM TRUST DATED
4/21/95
By:
------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
AS TO SECTION 5 ONLY OF THIS
AGREEMENT:
LIONBRIDGE TECHNOLOGIES, INC.
By:
--------------------------
Title:
SECOND RESTATED
REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SIGNATURE PAGE
The undersigned hereby executes the Second Restated Registration Rights
Agreement (the "AGREEMENT") by and among Lionbridge Technologies Holdings, Inc.
(the "COMPANY") and certain other parties which executed the same, and hereby
agrees to all of the provisions of the Agreement and hereby authorizes this
signature page to be attached, together with signature pages of the original
signatories, to a counterpart of the Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE CAPITAL
FUND II ANNEX, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners II, L.P.
its General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital II, Inc.,
Managing General Partner
By:
-------------------------------------
Name:
Title:
c/o Morgan ▇▇▇▇▇▇▇ Venture
Partners II, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VENTURE INVESTORS
ANNEX, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Partners II, L.P., its
General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital II, Inc.
Managing General Partner
By:
-------------------------------------
Name:
Title:
c/o Morgan ▇▇▇▇▇▇▇ Venture
Partners II, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ACCEPTED AND AGREED:
LIONBRIDGE TECHNOLOGIES
HOLDINGS, INC.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
SECOND RESTATED REGISTRATION RIGHTS AGREEMENT
CRP INVESTMENT PARTNERS III, LLC
WHEREAS, pursuant to that certain Participation Agreement (the
"Participation Agreement") dated as of February 27, 1999, by and between Capital
Resource Lenders III, L.P. ("CRL") and CRP Investment Partners III, LLC
("CRIP"), CRL has (i) sold to CRIP a participation interest in the obligations
of Lionbridge Technologies Holdings, Inc. (the "Company") to CRL under the First
Amended and Restated Senior Subordinated Note Purchase Agreement, dated as of
February 26, 1999, between CRL and the Company and (ii) assigned to CRIP the
right to purchase 5,271 shares (the "Warrants") of common stock of the Company
pursuant to Section 14 of that certain Common Stock Purchase Warrant purchased
by CRL from the Company on February 26, 1999;
WHEREAS, CRL, the Company, and various other third parties entered into
a Second Restated Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of February 26, 1999, pursuant to which CRL obtained
certain rights and assumed certain obligations with regard to the Warrants;
WHEREAS, pursuant to Section 3.3 of the Registration Rights Agreement,
CRIP hereby represents that the transfer of the Warrants is exempt from
registration or any other filing under the Securities Act of 1933, as amended;
WHEREAS, CRIP is an Affiliate (as defined in the Registration Rights
Agreement) of CRL, and therefore the transfer to CRIP of the Warrants is a
permitted transfer pursuant to Section 3.3 of the Registration Rights Agreement;
NOW, THEREFORE, the undersigned hereby (i) executes the Registration
Rights Agreement, (ii) agrees to be bound by all of the terms and conditions of
the Registration Rights Agreement, (iii) agrees to be included in the definition
of "Stockholders" (as such term is defined in the Registration Rights Agreement)
for all purposes of the Registration Rights Agreement, (iv) agrees that the
Warrants shall be included in the definition of "Warrants" in the Registration
Rights Agreement; and (v) hereby authorizes this signature page to be attached,
together with signature pages of the original signatories, to a counterpart of
the Registration Rights Agreement.
CRP INVESTMENT PARTNERS III, LLC
By:
------------------------------------
Member
ACCEPTED AND AGREED:
LIONBRIDGE TECHNOLOGIES
HOLDINGS, INC.
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Treasurer
