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EXHIBIT 4.14
REGISTRATION RIGHTS AGREEMENT, dated September 17, 1998 (this
"Agreement"), among OptiMark Technologies, Inc., a Delaware corporation (the
"Company"), and The Nasdaq Stock Market, Inc. ("Nasdaq").
This Agreement is being executed and delivered in connection with the
execution and delivery by the Company and Nasdaq of a Warrant Agreement (the
"Warrant Agreement") and a Nasdaq-OptiMark Agreement, both dated on or about
September 1, 1998. In order to induce Nasdaq to execute and deliver the
Nasdaq-OptiMark Agreement and the Warrant Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company has agreed to grant registration rights with respect
to the Registrable Securities (as hereinafter defined) as set forth in this
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, in addition to other
capitalized terms defined elsewhere herein, the following terms shall have the
meanings indicated:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Affiliate" of a named Person shall mean any Person who is an "affiliate"
of the named Person, as defined in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
"Common Stock" means the common stock, par value $.01 per share, of the
Company or any other equity securities of the Company into which such securities
are converted, reclassified, reconstituted or exchanged.
"Company" has the meaning assigned to such term in the recital to this
Agreement.
"Damages" has the meaning assigned to such term in Section 6(a) below.
"Designated Holder" means Nasdaq and any transferee of Nasdaq to whom
Registrable Securities have been transferred in accordance with the Warrant
Agreement, other than a transferee to whom such securities have been transferred
pursuant to a Registration Statement or Rule 144 or Regulation S under the Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Holders' Counsel" has the meaning assigned such term in Section 5(a)(i)
below.
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"Indemnified Party" has the meaning assigned such term in Section 6(c)
below.
"Indemnifying Party" has the meaning assigned such term in Section 6(c)
below.
"Inspector" has the meaning assigned such term in Section 5(a)(viii)
below.
"IPO Effectiveness Date" means the date upon which the Company commences
an initial offer for sale of shares of Common Stock pursuant to an effective
Registration Statement.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Rights Holders" means (i) the holders of the Company's Series A
Stock and any Common Stock issued upon conversion of the Series A Stock, (ii)
the holders of the Series B Stock and any Common Stock issued upon conversion of
the Series B Stock, (iii) the holder(s) of the VSC Warrant and any Common Stock
issued upon exercise of the VSC Warrant, and (iv) any other Persons holding
registration rights with respect to Common Stock whose registration rights have
not expressly been made junior to the registration rights of the Designated
Holders hereunder.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Purchaser(s)" has the meaning assigned to such term in the recital to
this Agreement.
"Records" has the meaning assigned such term in Section 5(a)(viii) below.
"Registrable Securities" means each of the following: (a) any and all
shares of Common Stock owned by the Designated Holders and issued or issuable
upon exercise of Warrant Certificates (if any) issued pursuant to the Warrant
Agreement, (b) any other shares of Common Stock acquired or owned by any of the
Designated Holders prior to the IPO Effectiveness Date, and (c) any shares of
Common Stock issued or issuable to any of the Designated Holders with respect to
shares of Common Stock by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise, and shares of Common Stock issuable upon
conversion, exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in Section 5(d) below.
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"Registration Statement" means a Registration Statement filed by the
Company pursuant to the Act.
"SEC" means the Securities and Exchange Commission or any successor
agency then having jurisdiction to enforce the Act.
"Series A Stock" means the Company's Series A Convertible Participating
Preferred Stock.
"Series B Stock' means the Company's Series B Convertible Participating
Preferred Stock.
"Underwriter" has the meaning assigned such term in Section 3(a) below.
"VSC Warrant" means the Common Stock Purchase Warrant dated April 23,
1998 pursuant to which Virginia Surety Company, Inc. has the right to purchase
up to 500,000 shares of Common Stock at an exercise price of $10.00 per share,
subject to potential adjustment.
2. General; Securities Subject to this Agreement.
x. Xxxxx of Rights. The Company hereby grants registration
rights to Nasdaq and any other Designated Holders upon the terms and conditions
set forth in this Agreement.
b. Registrable Securities. For purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective by the SEC, and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) the entire amount of
such Registrable Securities proposed to be sold in a single sale are or, in the
opinion of counsel satisfactory to the Company and the Designated Holder, each
in their reasonable judgment, may be distributed to the public without any
limitation as to volume pursuant to Rule 144 (or any successor provision then in
effect) under the Act, or (iii) such Registrable Securities are sold,
distributed or proposed to be sold or distributed by a Person not entitled to
the registration rights granted by this Agreement.
c. Holders of Registrable Securities. A Person is deemed to be
a holder of Registrable Securities whenever such Person owns of record
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company may act upon the basis of the instructions,
notice or election received from the record owner of such Registrable
Securities.
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3. Piggy-Back Registration.
a. Piggy-Back Rights. At any time after the IPO Effectiveness
Date, if either (I) the Company proposes to file a Registration Statement with
respect to an offering by the Company of Common Stock for its own account (other
than a Registration Statement on Form S-4 or S-8 or any successors thereto) (a
"Company Registration"), or (II) the Company is required to file a Registration
Statement upon demand by and for the account of any "Initiating Holders", as
defined and provided in Section 3 of the Registration Rights Agreement dated
August 27, 1996, as amended, among the Company and the holders of its Series A
Stock (a "Demand Registration"), then the Company shall give written notice of
such proposed filing to each of the Designated Holders at least thirty (30) days
before the anticipated filing date. Such notice shall describe the proposed
registration and distribution and offer such Designated Holders the opportunity
to register such number of Registrable Securities as each such holder may
request. The Company shall, and shall use reasonable efforts to cause the
managing underwriter(s) of a proposed underwritten offering (the "Underwriter")
to, permit the Designated Holders of Registrable Securities who have requested
in writing to participate in the registration for such offering to include such
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company or the Initiating Holders included therein. In
connection with any offering under this Section 3(a) involving an underwriting,
the Company shall not be required to include any Registrable Securities in such
underwriting unless the holders thereof accept the terms of the underwriting as
agreed upon by the Underwriter, and then only in such quantity as will not, in
the opinion of the Underwriter, jeopardize the success of the offering by the
Company. If in the written opinion of the Underwriter the registration of all or
part of the Registrable Securities which the Designated Holders have requested
to be included would materially adversely affect such public offering, then the
Company shall include in the underwriting, to the extent of the amount that the
Company Underwriter believes may be sold without causing such adverse effect,
(A) in connection with a Company Registration, first, all of the securities to
be offered for the account of the Company; and second, as a group, (i) the
Registrable Securities requested by Designated Holders to be sold in the
offering, and (ii) the Common Stock requested by Other Rights Holders to be sold
in the offering, pro rata based upon the number of shares of Registrable
Securities/Common Stock owned by such Persons; or (B) in connection with a
Demand Registration, first, as a group, (i) the Registrable Securities requested
by Designated Holders to be sold in the offering, and (ii) the Common Stock
requested by Other Rights Holders to be sold in the offering, pro rata based
upon the number of shares of Registrable Securities/Common Stock owned by such
Persons; and second, all of the securities to be offered for the account of the
Company.
b. Expenses. The Company shall bear all Registration Expenses
(other than underwriting discounts and commissions) in connection with any
registration pursuant to this Section 3; provided, however, that each Designated
Holder participating in such registration shall bear the costs of its own legal
counsel, if any.
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4. Holdback Agreements.
a. Restrictions on Public Sale by Designated Holders. Each
Designated Holder agrees not to effect any public sale or distribution of any
Registrable Securities or of any securities convertible into or exchangeable or
exercisable for such Registrable Securities, including a sale pursuant to Rule
144 under the Act, during the 180-day period beginning on the effective date of
any Registration Statement (except as part of such registration), if and to the
extent requested by the Company in the case of a non-underwritten public
offering or if and to the extent requested by the Underwriter in the case of an
underwritten public offering.
b. Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its Common Stock,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any successor
thereto), during the period beginning on the effective date of any Registration
Statement in which the Designated Holders are participating and ending on the
earlier of (i) the date on which all Registrable Securities registered on such
Registration Statement are sold and (ii) three (3) months after the effective
date of such Registration Statement.
5. Registration Procedures.
a. Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 of this
Agreement, the Company shall use its reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
i. use its reasonable efforts to prepare and file with the SEC
a Registration Statement on any form for which the Company then qualifies
or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Common Stock and such Registrable
Securities in accordance with the intended method of distribution
thereof, and use its reasonable efforts to cause such Registration
Statement to become effective; provided, however, that (x) before filing
a Registration Statement or prospectus or any amendments or supplements
thereto, the Company shall provide counsel selected by the Designated
Holders holding a majority of the Registrable Securities being registered
in such registration ("Holders' Counsel") and any other Inspector (as
hereinafter defined) with an adequate and appropriate opportunity to
participate in the preparation of such Registration Statement and each
prospectus included therein (and each amendment or supplement thereto) to
be filed with the SEC, which documents shall be subject to the review of
Holders' Counsel, and (y) the Company shall notify the Holders' Counsel
and each seller of Registrable
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Securities of any stop order issued or threatened by the SEC and take all
reasonable action required to prevent the entry of such stop order or to
remove it if entered;
ii. prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the lesser of (x) three (3) months and (y) such
shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold, and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
iii. as soon as reasonably possible, furnish to each seller of
Registrable Securities, prior to filing a Registration Statement, copies
of such Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the
prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents as each such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
iv. use its reasonable efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions as any seller of Registrable Securities may reasonably
request, and to continue such qualification in effect in such
jurisdiction for the lesser of (x) three (3) months and (y) such shorter
period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold, and do any and all other acts
and things which may be reasonably necessary or advisable to enable any
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, however, that the
Company shall not be required to (x) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 5(a)(iv), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
v. use its reasonable efforts to cause the Registrable
Securities covered by such Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to
enable the seller or sellers of Registrable Securities to consummate the
disposition of such Registrable Securities;
vi. upon discovery that, or upon the happening of any event as
a result of which, the prospectus included in a Registration Statement
covering
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Registrable Securities contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, (x) promptly prepare a
supplement or amendment to such prospectus and furnish to each seller of
Registrable Securities a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, after
delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made and (y) immediately prior to the
preparation of such amendment or supplement to such prospectus, notify
each seller of Registrable Securities of the anticipated preparation
thereof;
vii. enter into and perform customary agreements (including an
underwriting agreement in customary form with the Underwriter, if any)
and take such other actions as are prudent and reasonably required in
order to expedite or facilitate the disposition of such Registrable
Securities;
viii. make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition
pursuant to such Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any
managing underwriter (each, an "Inspector" and collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and
the independent public accountants of the Company, to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement. Records that the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (x) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (z) the information in such Records
was known to the Inspectors on a non-confidential basis prior to its
disclosure by the Company or has been made generally available to the
public. Each seller of Registrable Securities agrees that it shall, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company,
at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
ix. if such sale is pursuant to an underwritten offering, use
its reasonable efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of
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the type customarily covered by "cold comfort" letters as Holders'
Counsel or the Underwriter reasonably request;
x. use its reasonable efforts to furnish, at the request of
any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or,
if such securities are not being sold through underwriters, on the date
the Registration Statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering
such legal matters with respect to the registration in respect of which
such opinion is being given as such seller may reasonably request and are
customarily included in such opinions;
xi. otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than
fifteen (15) months after the effective date of the Registration
Statement, an earnings statement covering a period of twelve (12) months
beginning after the effective date of the Registration Statement, in a
manner which satisfies the provisions of Section 11(a) of the Act and
Rule 158 thereunder;
xii. cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed, provided that the applicable listing requirements are
satisfied;
xiii. cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD; and
xiv. use reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated
hereby.
b. Seller Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
c. Notice to Discontinue. Each Designated Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 5(a)(vi), such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Designated Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5(a)(vi) and, if so directed by the Company, such Designated Holder
shall
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deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Designated Holder's possession, of the
prospectus covering such Registrable Securities which is current at the time of
receipt of such notice. If the Company shall give any such notice, the Company
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation,
the period referred to in Section 5(a)(ii)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5(a)(vi) to and including the date when the Designated Holder shall have
received the copies of the supplemented or amended prospectus contemplated by
and meeting the requirements of Section 5(a)(vi).
d. Registration Expenses. The Company shall pay all expenses
(other than as set forth in Section 3(b)) arising from or incident to the
performance of, or compliance with, this Agreement, including, without
limitation, (i) SEC, stock exchange and NASD registration and filing fees, (ii)
all fees and expenses incurred in complying with securities or "blue sky" laws
(including reasonable fees, charges and disbursements of counsel in connection
with "blue sky" qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising
from any special audits incident to or required by any registration or
qualification) and (v) any liability insurance or other premiums for insurance
obtained in connection with any registration pursuant to the terms of this
Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in this Section 5(d) are referred to
herein as "Registration Expenses".
6. Indemnification; Contribution.
a. Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, members,
employees, advisors and agents and each Person who controls (within the meaning
of the Act or the Exchange Act) such Designated Holder from and against any and
all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation (generally, "Damages"), arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any
Registration Statement, prospectus or preliminary prospectus or notification or
offering circular (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or arising out of or based upon
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,
except insofar as the same are caused by or contained in any information
concerning such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use therein. The Company shall also provide
customary indemnities to any Underwriters, their officers, directors and
employees and each Person who controls such Underwriters (within the meaning of
the Act and
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the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Designated Holders.
b. Indemnification by Designated Holders. In connection with
any Registration Statement in which a Designated Holder is participating
pursuant to Section 3 hereof, each such Designated Holder shall furnish to the
Company in writing such information with respect to such Designated Holder as
the Company may reasonably request or as may be required by law for use in
connection with any such Registration Statement or prospectus, and each
Designated Holder agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, any Underwriter, and their respective directors,
officers, employees and each Person who controls the Company or such underwriter
(within the meaning of the Act and the Exchange Act) to the same extent as the
foregoing indemnity from the Company to the Designated Holders, but only with
respect to any such information with respect to such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use therein.
c. Procedures. Any Person entitled to indemnification
hereunder (the "Indemnified Party") agrees to give prompt written notice to the
indemnifying party (the "Indemnifying Party") after the receipt by the
Indemnified Party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the
Indemnified Party intends to claim indemnification or contribution pursuant to
this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder. If notice of commencement
of any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
satisfactory to such Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the Indemnified Party unless
(i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party
fails to assume the defense of such action with counsel satisfactory to the
Indemnified Party in its reasonable judgment or (iii) the named parties to any
such action (including any impleaded parties) have been advised by such counsel
that either (x) representation of such Indemnified Party and the Indemnifying
Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to
it which are different from or additional to and in conflict with those
available to the Indemnifying Party and in such event, the Indemnifying Party
shall pay the fees and expenses of counsel to the Indemnified Party only to the
extent that such separate counsel is necessary under such applicable standards
of professional conduct in the case of the foregoing clause (x) or to the extent
necessary to avoid any conflict in the case of the foregoing clause (y). In
either of such cases, the Indemnifying Party shall not have the right to assume
the defense of such action
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on behalf of such Indemnified Party. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent shall not
be unreasonably withheld.
d. Contribution. If the indemnification provided for in this
Section 6 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Damages referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount of Damages paid or payable by such Indemnified Party in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such Damages,
as well as any other relevant equitable considerations. The relative faults of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this paragraph.
e. Limitations. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to indemnification or contribution from any Person. Notwithstanding
anything to the contrary provided above, the total amount of Damages subject to
indemnification or contribution by any Designated Holder under this Section 6
shall not exceed the net proceeds received by such Designated Holder in the
offering to which the registration statement or prospectus relates.
7. Rule 144. From and after the IPO Effectiveness Date, the Company
covenants that it shall file all reports required to be filed by it under the
Exchange Act and that it shall take such further action as each Designated
Holder may reasonably request (including providing any information necessary to
comply with Rules 144 and 144A under the Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Act within the limitation of the exemptions
provided by (a) Rule 144 under the Act, as such rules may be amended from time
to time, or (b) any similar rules or regulations hereafter adopted by the SEC.
The Company shall, upon request, deliver to any Designated Holder a written
statement as to whether the Company has complied with such requirements.
8. Miscellaneous.
a. Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to (i)
the shares
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of Common Stock and (ii) to any and all equity securities of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in conversion of, in
exchange for or in substitution of, the Common Stock, and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this Agreement as a condition of any such
transaction.
b. No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
c. Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
d. Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company and (ii)
Designated Holders owning at least 75% of the Registrable Securities. Any such
written consent shall be binding upon the Company and all of the Designated
Holders.
e. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested, courier
service, overnight mail or personal delivery as follows:
i. if to the Company:
OptiMark Technologies, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
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with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxx, P.C.
One Civic Center Plaza
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
ii. if to Nasdaq or any other Designated Holder:
As provided in the Warrant Agreement
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by courier
or overnight mail, if delivered by commercial courier service or overnight mail;
and five (5) Business Days after being deposited in the mail, postage prepaid,
if mailed.
f. Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. No Person other than the parties hereto
and their successors and permitted assigns is intended to be a beneficiary of
any of the rights granted hereunder.
g. Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
h. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
i. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
j. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
14
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
k. Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, and in the Warrant Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
l. Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed, or have caused
to be executed, this Agreement on the date first written above.
OPTIMARK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Chief Executive Officer
THE NASDAQ STOCK MARKET, INC.
By: /s/ J. Xxxxxxx Xxxxxxxx
Chief Operating Officer
