Exhibit 4.2
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Fourth Amended and Restated Registration Rights Agreement (this
"Agreement") is made as of this 29th day of March, 2007 by and among Virtusa
Corporation, a Delaware corporation (together with any successor thereto, the
"Company"), the Investors and the Stockholders (each as defined below).
WHEREAS, this Agreement amends and restates in its entirety that
certain Third Amended and Restated Registration Rights Agreement, dated February
5, 2004, among the Company and the parties identified therein (the "Original
Agreement");
WHEREAS, certain Investors have previously acquired shares of the
Company's Series A Convertible Participating Preferred Stock, par value $.01 per
share ("Series A Preferred Stock"), Series B Convertible Participating Preferred
Stock, par value $.01 per share ("Series B Preferred Stock"), Series C
Participating Preferred Stock, par value $.01 per share ("Series C Preferred
Stock") and Series D Participating Preferred Stock, par value $.01 per share
("Series D Preferred Stock").
WHEREAS, the Company and BT Americas Inc. (together with its
Affiliates, "BT") are simultaneously entering into a certain Stock Purchase
Agreement, dated as of the date hereof (the "Common Stock Purchase Agreement"),
pursuant to which BT has agreed to purchase shares of Common Stock, $.01 par
value per share (the "Common Stock"), from the Company in accordance with the
terms and conditions contained therein; and
WHEREAS, the execution of this Agreement is a condition precedent to
the purchase by BT of the Common Stock under the Common Stock Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliates" of any Person means a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned Person. A Person shall be deemed to
control another Person if such first Person possesses directly or indirectly the
power to direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, by contract
or otherwise. In addition, for any Person that is a venture capital fund, the
term "Affiliate" shall also mean other venture capital funds with the same
management company.
"Commission" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act and the Exchange Act.
"Common Stock" shall mean (i) Common Stock and (ii) any other
securities into which or for which any of the securities described in clause (i)
above may be converted or exchanged pursuant to a plan of recapitalization,
reorganization, merger, sale of assets or otherwise.
"Conversion Shares" shall mean shares of Common Stock issued or
issuable upon conversion of the Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"Focus" means Focus Ventures II, L.P., V Investors II QP, L.P., FV
Investors II A, L.P., and their Affiliates.
"Globespan" means JAFCO America Technology Fund III, L.P., JAFCO
America Technology Cayman Fund III, L.P., JAFCO USIT Fund III, L.P. and JAFCO
America Technology Affiliates Fund III, L.P. and their Affiliates.
The "Investors" shall mean the investors listed under the heading
"Investors" on the signature pages hereto (including BT).
"Person" shall mean an individual, a corporation, a partnership, a
joint venture, a trust, an unincorporated organization, a limited liability
company, a government and any agency or political subdivision thereof.
"Preferred Stock" shall mean the Series A Preferred Stock, the Series
B Preferred Stock, the Series C Preferred Stock and the Series D Preferred
Stock.
"Registrable Securities" shall mean (i) any shares of Common Stock now
held, or hereafter acquired, by the Investors or Stockholders, (ii) the
Conversion Shares, and (iii) any other Common Stock issued and issuable with
respect to any such shares described in clauses (i) and (ii) above by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization (it being
understood that for purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to then
acquire or obtain from the Company any Registrable Securities, whether or not
such acquisition has actually been effected); provided, however, that
notwithstanding anything to the contrary contained herein, "Registrable
Securities" shall not at any time include any securities (i) registered and sold
pursuant to the Securities Act or (ii) which may be sold to the public pursuant
to Rule 144 promulgated under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Sigma" means Sigma Partners V, L.P., Sigma Associates V, L.P., and
Sigma Investors V, L.P. and their Affiliates.
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"Stockholders" shall mean the stockholders listed under the heading
"Stockholders" on the signature pages hereto.
2. PIGGYBACK REGISTRATIONS. If at any time or times after the date hereof
the Company shall seek to register any shares of its Common Stock under the
Securities Act for sale to the public for its own account or on the account of
others (except with respect to registration statements on Form X-0, X-0 or
another form not available for registering the Registrable Securities for sale
to the public but including any registrations initiated pursuant to Section 3
hereof), the Company will promptly give written notice thereof to all holders of
Registrable Securities (the "Holders"). If within twenty (20) days after their
receipt of such notice one or more Holders request the inclusion of some or all
of the Registrable Securities owned by them in such registration, the Company
will use commercially reasonable efforts to include such Registrable Securities
in such registration. In the case of the registration of shares of capital stock
by the Company in connection with any underwritten public offering, if the
underwriter(s) determines that marketing factors require a limitation on the
number of Registrable Securities to be offered, subject to the following
sentence, the Company shall not be required to register Registrable Securities
of the Holders in excess of the amount, if any, of shares of the capital stock
which the principal underwriter of such underwritten offering shall reasonably
and in good faith agree to include in such offering in addition to any amount to
be registered for the account of the Company.
If any limitation of the number of shares of Registrable Securities to
be registered by the Holders is required in the good faith judgment of the
managing underwriter of such public offering pursuant to this Section 2, in
connection with an initial public offering, the number of shares to be excluded
shall be determined in the following sequence: (i) first, securities held by any
Persons not having any such contractual, incidental "piggy back" registration
rights, (ii) second, securities held by any Persons (other than the Holders)
having such contractual, incidental "piggy back" rights pursuant to an agreement
which is not this Agreement, (iii) third, Registrable Securities sought to be
included by the Holders who are Stockholders as determined on a pro rata basis
(based upon the respective holdings of securities by such Holders) and (iv)
fourth, Registrable Securities sought to be included by the Holders who are
Investors as determined on a pro rata basis (based upon the respective holdings
of securities by such Holders). If any limitation of the number of shares of
Registrable Securities to be registered by the Holders is required pursuant to
this Section 2, in a registration that is not an initial public offering, the
number of shares to be excluded shall be determined in the following sequence:
(i) first, securities held by any Persons not having any such contractual,
incidental "piggy back" registration rights, (ii) second, securities held by any
Persons (other than the Holders) having such contractual, incidental "piggy
back" rights pursuant to an agreement which is not this Agreement, and (iii)
third, Registrable Securities sought to be included by the Holders as determined
on a pro rata basis (based upon the respective holdings of securities by such
Holders); provided, that, if such registration was initiated pursuant to Section
3 hereof and the Holders initiating such registration have the number of
Registrable Securities they sought to have registered cut back hereunder, such
registration shall not be deemed a demand registration under Section 3 by such
Holders. No such reduction shall reduce the amount of securities of the selling
Investors included in the registration below twenty-five percent (25%) of the
total amount of securities included in such registration, unless such offering
is the Company's initial public offering and such registration does not include
shares of any other selling stockholders, in which
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event any or all of the Registrable Securities of the Investors may be excluded
in accordance with the provisions of this Section 2.
3. REQUIRED REGISTRATIONS.
(A) SERIES A DEMAND REGISTRATION. At any time after the date that is
six (6) months after the initial public offering of Common Stock by the Company
pursuant to an effective registration statement under the Securities Act (an
"Initial Public Offering'), on not more than one (1) occasion, Investors holding
at least fifty percent (50%) of the Registrable Securities issued or issuable
upon conversion of the Series A Preferred Stock may request that the Company
register under the Securities Act all or a portion of the Registrable Securities
held by such requesting Investors so long as the public offering is anticipated
to have an aggregate gross offering price to the public of at least $15,000,000;
provided, however, that the provisions of this Section 3(a) shall not be
available to the Investors if such Registrable Securities may be immediately
registered on Form S-3 pursuant to a request made pursuant to the provisions of
Section 3(f) below. A registration will not count as a requested registration
under this Section 3(a) until the registration statement relating to such
registration has been declared effective by the Commission at the request of the
requesting Investors.
(B) SERIES B DEMAND REGISTRATION. At any time after the date that is
six (6) months after an Initial Public Offering, on not more than one (1)
occasion, Investors holding at least twenty-five percent (25%) of the
Registrable Securities issued or issuable upon conversion of the Series B
Preferred Stock may request that the Company register under the Securities Act
all or a portion of the Registrable Securities held by such requesting Investors
so long as the public offering is anticipated to have an aggregate gross
offering price to the public of at least $15,000,000; provided, however, that
the provisions of this Section 3(b) shall not be available to the Investors if
such Registrable Securities may be immediately registered on Form S-3 pursuant
to a request made pursuant to the provisions of Section 3(g) below. A
registration will not count as a requested registration under this Section 3(b)
until the registration statement relating to such registration has been declared
effective by the Commission at the request of the requesting Investors.
(C) SERIES C DEMAND REGISTRATION. At any time after the date that is
six (6) months after an Initial Public Offering, on not more than one (1)
occasion, Investors holding at least twenty-five percent (25%) of the
Registrable Securities issued or issuable upon conversion of the Series C
Preferred Stock may request that the Company register under the Securities Act
all or a portion of the Registrable Securities held by such requesting Investors
so long as the public offering is anticipated to have an aggregate gross
offering price to the public of at least $15,000,000; provided, however, that
the provisions of this Section 3(c) shall not be available to the Investors if
such Registrable Securities may be immediately registered on Form S-3 pursuant
to a request made pursuant to the provisions of Section 3(h) below. A
registration will not count as a requested registration under this Section 3(c)
until the registration statement relating to such registration has been declared
effective by the Commission at the request of the requesting Investors.
(D) SERIES D DEMAND REGISTRATION. At any time after the date that is
six (6) months after an Initial Public Offering, on not more than one (1)
occasion, Investors holding at
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least twenty-five percent (25%) of the Registrable Securities issued or issuable
upon conversion of the Series D Preferred Stock may request that the Company
register under the Securities Act all or a portion of the Registrable Securities
held by such requesting Investors so long as the public offering is anticipated
to have an aggregate gross offering price to the public of at least $15,000,000;
provided, however, that the provisions of this Section 3(d) shall not be
available to the Investors if such Registrable Securities may be immediately
registered on Form S-3 pursuant to a request made pursuant to the provisions of
Section 3(i) below. A registration will not count as a requested registration
under this Section 3(d) until the registration statement relating to such
registration has been declared effective by the Commission at the request of the
requesting Investors.
(E) BT DEMAND REGISTRATION. At any time after the date that is six (6)
months after an Initial Public Offering, on not more than one (1) occasion, BT
may request that the Company register under the Securities Act all or a portion
of the Registrable Securities held by BT so long as the public offering is
anticipated to have an aggregate gross offering price to the public of at least
$15,000,000; provided, however, that the provisions of this Section 3(e) shall
not be available to BT if such Registrable Securities may be immediately
registered on Form S-3 pursuant to a request made pursuant to the provisions of
Section 3(j) below. A registration will not count as a requested registration
under this Section 3(e) until the registration statement relating to such
registration has been declared effective by the Commission at the request of BT.
(F) SERIES A FORM S-3. After an Initial Public Offering, the Company
shall use commercially reasonable efforts to qualify and remain qualified to
register securities on Form S-3 (or any successor form) under the Securities
Act. So long as the Company is qualified to register securities on Form S-3 (or
any successor form), on not more than two (2) occasions during any given twelve
(12) month period, Investors holding at least twenty-five percent (25%) of the
Registrable Securities issued or issuable upon conversion of the Series A
Preferred Stock shall have the right to request registration on Form S-3 (or any
successor form) for the Registrable Securities held by such requesting Investors
so long as the public offering is anticipated to have a gross aggregate offering
price to the public of at least $5,000,000. Such requests shall be in writing
and shall state the number of shares of Registrable Securities to be registered
and the intended method of disposition of such shares by such requesting
Investors.
(G) SERIES B FORM S-3. After an Initial Public Offering, the Company
shall use commercially reasonable efforts to qualify and remain qualified to
register securities on Form S-3 (or any successor form) under the Securities
Act. So long as the Company is qualified to register securities on Form S-3 (or
any successor form), on not more than two (2) occasions during any given twelve
(12) month period, Investors holding at least twenty-five percent (25%) of the
Registrable Securities issued or issuable upon conversion of the Series B
Preferred Stock shall have the right to request registration on Form S-3 (or any
successor form) for the Registrable Securities held by such requesting Investors
so long as the public offering is anticipated to have a gross aggregate offering
price to the public of at least $5,000,000. Such requests shall be in writing
and shall state the number of shares of Registrable Securities to be registered
and the intended method of disposition of such shares by such requesting
Investors.
(H) SERIES C FORM S-3. After an Initial Public Offering, the Company
shall
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use commercially reasonable efforts to qualify and remain qualified to register
securities on Form S-3 (or any successor form) under the Securities Act. So long
as the Company is qualified to register securities on Form S-3 (or any successor
form), on not more than two (2) occasions during any given twelve (12) month
period, Investors holding at least twenty-five percent (25%) of the Registrable
Securities issued or issuable upon conversion of the Series C Preferred Stock
shall have the right to request registration on Form S-3 (or any successor form)
for the Registrable Securities held by such requesting Investors so long as the
public offering is anticipated to have a gross aggregate offering price to the
public of at least $5,000,000. Such requests shall be in writing and shall state
the number of shares of Registrable Securities to be registered and the intended
method of disposition of such shares by such requesting Investors.
(I) SERIES D FORM S-3. After an Initial Public Offering, the Company
shall use commercially reasonable efforts to qualify and remain qualified to
register securities on Form S-3 (or any successor form) under the Securities
Act. So long as the Company is qualified to register securities on Form S-3 (or
any successor form), on not more than two (2) occasions during any given twelve
(12) month period, Investors holding at least twenty-five percent (25%) of the
Registrable Securities issued or issuable upon conversion of the Series D
Preferred Stock shall have the right to request registration on Form S-3 (or any
successor form) for the Registrable Securities held by such requesting Investors
so long as the public offering is anticipated to have a gross aggregate offering
price to the public of at least $5,000,000. Such requests shall be in writing
and shall state the number of shares of Registrable Securities to be registered
and the intended method of disposition of such shares by such requesting
Investors.
(J) BT FORM S-3. After an Initial Public Offering, the Company shall
use commercially reasonable efforts to qualify and remain qualified to register
securities on Form S-3 (or any successor form) under the Securities Act. So long
as the Company is qualified to register securities on Form S-3 (or any successor
form), on not more than two (2) occasions during any given twelve (12) month
period, if BT holds at least twenty-five percent (25%) of the Registrable
Securities purchased by BT pursuant to the Common Stock Purchase Agreement, BT
shall have the right to request registration on Form S-3 (or any successor form)
for all or a portion of the Registrable Securities held by BT so long as the
public offering is anticipated to have a gross aggregate offering price to the
public of at least $5,000,000. Such requests shall be in writing and shall state
the number of shares of Registrable Securities to be registered and the intended
method of disposition of such shares by BT.
(K) REGISTRATION REQUIREMENTS. Following a request pursuant to Section
3(a), (b), (c), (d), (e), (f), (g), (h), (i) or (j) above, the Company will
promptly notify all of the other Holders of Registrable Securities and such
Holders of Registrable Securities shall then have 20 days to notify the Company
of their desire to participate in the registration. Thereupon, the Company will
use commercially reasonable efforts to include such Registrable Securities in
the registration in accordance with the terms of this Section 3. If the request
for registration contemplates an underwritten public offering, the Company shall
state such in the written notice and in such event the right of any Person to
participate in such registration shall be conditioned upon their participation
in such underwritten public offering and the inclusion of their securities in
the underwritten public offering to the extent provided herein.
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(L) UNDERWRITTEN OFFERING. If a requested registration involves an
underwritten public offering and the managing underwriter of such offering
determines in good faith that the number of securities sought to be offered
should be limited due to market conditions, then the number of securities to be
included in such registration and such underwritten public offering shall be
reduced to a number deemed satisfactory by such managing underwriter, provided
that the shares to be excluded shall be determined in the following sequence:
(i) first, securities held by any Persons not having any contractual, incidental
"piggy back" registration rights to include such securities on the registration
statement, (ii) second, securities held by any other Persons (other than the
Holders) having contractual, incidental "piggy back" rights to include such
securities in the registration statement pursuant to an Agreement which is not
this agreement, (iii) third, Registrable Securities held by the Stockholders
(based upon the respective holdings of securities by such Stockholders), (iv)
fourth, Registrable Securities of Investors who did not make the original
request for registration (based upon the respective holdings of securities by
such Investors), and (v) fifth, Registrable Securities of Investors who
requested such registration (based on the respective holdings of securities by
all such Investors). With respect to a request for registration pursuant to
Section 3(a), (b), (c), (d), (e), (f), (g), (h), (i) or (j) which is for an
underwritten public offering, the managing underwriter shall be chosen by the
Company and shall be reasonably acceptable to the requesting Investors. If the
managing underwriter has not limited the number of Registrable Securities or
other securities to be underwritten, the Company may include securities for its
own account in such registration if the managing underwriter so agrees and if
the number of Registrable Securities and other securities which would otherwise
have been included in such registration and underwriting will not thereby be
limited; provided, however, that the number of shares of Registrable Securities
of the Investors to be included in such underwriting and registration shall not
be reduced unless all other securities of the Company are first entirely
excluded from the underwriting and registration.
(M) POSTPONEMENT. The Company may postpone the filing of any
registration statement required hereunder for a reasonable period of time, not
to exceed one hundred twenty (120) days in the aggregate during any twelve-month
period, if the Company furnishes to the Holders requesting registration a
certificate signed by the Chairman of the Company's Board of Directors stating
that the Board of Directors has determined reasonably and in good faith it would
not be in the best interest of the Company or its stockholders for such
registration to be effected at such time. The Company shall not be required to
cause a registration statement requested pursuant to this Section 3 to become
effective prior to one hundred eighty (180) days following the effective date of
a registration statement on Form S-1 initiated by the Company for an initial
public offering of its Common Stock; or ninety (90) days following the effective
date of any other registration statement initiated by the Company; provided,
however, that the Company shall use commercially reasonable efforts to achieve
such effectiveness promptly following such period.
4. BLACK-OUT PERIOD.
(A) Following the effectiveness of a registration statement and
filings with any state securities commissions, the Holders agree that they will
not effect any sales of the Registrable Securities pursuant to a registration
statement or any such filings at any time after they have received notice from
the Company to suspend sales (i) as a result of the occurrence or
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existence pending negotiations relating to, or consummation of, a transaction or
the occurrence of an event that would require additional disclosure of material
information by the Company in the registration statement, or (ii) so that the
Company may correct or update the registration statement or such filing pursuant
to Sections 3(a), (b), (c), (d), (e), (f), (g), (h), (i) or (j); provided that
the Company shall not delay a request for registration more than twice in any
twelve (12) month period and in each such instances for not more than ninety
(90) days. The Holders may recommence effecting sales of the Registrable Shares
pursuant to the registration statement or such filings following further written
notice to such effect from the Company, which notice shall be given by the
company not later than five (5) business days after the conclusion of any such
event.
(B) Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 4(a), such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus and, if so directed by the Company, such
Holder shall deliver to the Company all copies other than permanent file copies
then in such 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 by the number of days during the period from and including the date of
the giving of such notice to and including the date when sellers of such
Registrable Securities under such registration statement shall have received the
copies of the supplemented or amended prospectus.
5. FURTHER OBLIGATIONS OF THE COMPANY. Whenever the Company is required
hereunder to register any Registrable Securities, it agrees that it shall also
do the following:
(A) Pay all expenses of such registrations and offerings (exclusive of
underwriting discounts and commissions and fees and expenses of counsel for the
Holders) in connection with any registrations pursuant to Sections 2 or 3
hereof;
(B) Use commercially reasonable efforts to diligently prepare and file
with the Commission a registration statement and 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 until the
Holder or Holders have completed the distribution described in the registration
statement relating thereto (but for no more than 180 days) and to comply with
the provisions of the Securities Act with respect to the sale of securities
covered by such registration statement for such period;
(C) Furnish to each selling Holder such copies of each preliminary and
final prospectus and such other documents as such Holder may reasonably request
to facilitate the public offering of its Registrable Securities;
(D) Enter into any reasonable underwriting agreement required by the
proposed underwriter, if any, in such form and containing such terms as are
customary; provided, however, that each Holder shall be required to make such
representations or warranties as
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required by the managing underwriter;
(E) Use commercially reasonable efforts to register or qualify the
securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as any selling Holder may reasonably request;
provided, that, the Company shall not for any such purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified or to execute a general consent to service of process in
effecting such registration or qualification unless the Company is already
subject to service in such jurisdiction;
(F) Immediately notify each selling Holder, at any time when a
prospectus relating to his, her or its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading, and,
at the request of any such selling Holder, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(G) Cause all such Registrable Securities to be listed on each
securities exchange or quotation system on which similar securities issued by
the Company are then listed or quoted;
(H) Make available to each selling Holder, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other agent or representative retained by any such
selling Holder or underwriter (collectively, the "Inspectors"), all financial
records and pertinent corporate documents, as shall be reasonably necessary to
enable them to exercise their due diligence responsibility;
(I) Otherwise use commercially reasonable efforts to comply with the
securities laws of the United States and other applicable jurisdictions and all
applicable rules and regulations of the Commission and comparable governmental
agencies in other applicable jurisdictions and make generally available to its
holders, in each case as soon as practicable, but not later than 45 days after
the close of the period covered thereby, an earnings statement of the Company
which will satisfy the provisions of Section 11(a) of the Securities Act;
(J) Otherwise cooperate with the underwriter or underwriters, the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration of any Registrable Securities hereunder; and
(K) Use commercially reasonable efforts to furnish, on the date that
such Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, 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 underwriters in
an underwritten public offering, addressed to the underwriters, if any.
6. INDEMNIFICATION; CONTRIBUTION.
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(A) Incident to any registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will indemnify and
hold harmless each underwriter, each Holder who offers or sells any such
Registrable Securities in connection with such registration statement (including
its partners (including partners of partners and stockholders of any such
partners), and directors, officers, employees, representatives and agents of any
of them (a "Selling Holder"), and each person who controls any of them within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (a "Controlling Person"), from and against any and all losses, claims,
damages, expenses and liabilities, joint or several (including any
investigation, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted, as the same are incurred), to which they, or any of them, may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement (including any related preliminary or definitive
prospectus, or any amendment or supplement to such registration statement or
prospectus) or (ii) any omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading or (iii) any violation or alleged violation by the Company of
the Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the offering covered by such registration
statement; provided, however, that the Company will not be liable to the extent
that such loss, claim, damage, expense or liability arises from and is based on
an untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information furnished in writing to the
Company by such underwriter, Selling Holder or Controlling Person expressly for
use in such registration statement. With respect to such untrue statement or
omission or alleged untrue statement or omission in the information furnished in
writing to the Company by such Selling Holder expressly for use in such
registration statement, such Selling Holder will indemnify and hold harmless
each underwriter, the Company (including its directors, officers, employees,
representatives and agents), each other Selling Holder (including its partners
(including partners of partners and stockholders of such partners) and
directors, officers, employees, representatives and agents of any of them, and
each person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, expenses and liabilities, joint or several, to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise to the same extent provided in the immediately preceding sentence;
provided, however, that the indemnity agreement of such Selling Holder contained
in this Section 6(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 such Selling Holder, which consent shall not be unreasonably
withheld; provided further, that in no event shall any indemnity by a Selling
Holder under this Section 6(a) exceed the net proceeds from the offering
received by such Selling Holder.
(B) If the indemnification provided for in Section 6(a) above for any
reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
6, in lieu of indemnifying such indemnified party thereunder, shall
10
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, expenses or liabilities in such proportion as
is appropriate to reflect (i) the relative benefits received by the Company, the
Selling Holders and the underwriters from the offering of the Registrable
Securities and (ii) the relative fault of the Company, the Selling Holders and
the underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Holders and the underwriters shall be deemed to be in the
same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Holders and the
underwriting discount received by the underwriters, in each case as set forth in
the table on the cover page of the applicable prospectus, bear to the aggregate
public offering price of the Registrable Securities. The relative fault of the
Company, the Selling Holders and the underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Holders or the
underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission; provided, that
in no event shall any contribution by a Selling Holder hereunder exceed the net
proceeds from the offering received by such Selling Holder.
(C) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 6 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 6 will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified parties
or any officer, director, employee, agent or controlling person of the
indemnified parties. No indemnifying party, in the defense of any such claim or
litigation, shall enter into a consent of entry of any judgment or enter into a
settlement without the consent of the indemnified party, which consent will not
be unreasonably withheld.
7. RULE 144 AND RULE 144A REQUIREMENT. In the event that the Company
becomes subject to Section 13 or Section 15(d) of the Exchange Act, the Company
shall use commercially reasonable efforts to take all action as may be required
as a condition to the availability of Rule 144 or Rule 144A under the Securities
Act (or any successor or similar exemptive rules hereafter in effect). The
Company shall furnish to any Holder, within 15 days of a written request, a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirement of Rule 144 or Rule 144A or such
successor rules.
8. TRANSFERABILITY OF REGISTRATION RIGHTS. The registration rights set
forth in this Agreement are transferable to any transferee of Registrable
Securities who receives an aggregate of at least 100,000 shares of Registrable
Securities. Each subsequent holder of Registrable Securities must consent in
writing to be bound by the terms and conditions of this Agreement in order to
acquire the rights granted pursuant to this Agreement.
9. RIGHTS WHICH MAY BE GRANTED TO SUBSEQUENT INVESTORS. Other than
transferees of Registrable Securities under Section 8 hereof, the Company shall
not, without the prior written consent of Investors holding a majority of the
outstanding Registrable Securities
11
held by all Investors, grant any other registration rights to any third parties
which are pari passu or senior to the rights of the Holders hereunder.
10. MISCELLANEOUS.
(A) AMENDMENTS. For the purposes of this Agreement and all agreements
executed pursuant hereto, no course of dealing between or among any of the
parties hereto and no delay on the part of any party hereto in exercising any
rights hereunder or thereunder shall operate as a waiver of the rights hereof
and thereof. This Agreement may not be amended or modified or any provision
hereof waived without the joint written consent of the Company and the holders
of not less than a majority of the outstanding Registrable Securities; provided
that any amendment to this Agreement which does not affect a party in the same
fashion as the other parties hereto shall require the consent of such affected
party.
(B) NOTICES AND DEMANDS. Any notice or demand which, by any provision
of this Agreement or any agreement, document or instrument executed pursuant
hereto or thereto, except as otherwise provided therein, is required to be given
shall be deemed to have been sufficiently given or served and received for all
purposes when delivered by hand, telecopy, telex or other method of facsimile or
five (5) days after being sent by certified or registered mail, postage and
charges prepaid, return receipt requested, or two (2) days after being sent by
overnight delivery providing receipt of delivery, to the following addresses:
(I) If to the Company, Virtusa Corporation 0000, Xxxx Xxxx Xxxxx,
Xxxxxxxxxxx, XX 00000 or at such other address designated by the Company to the
Investors in writing, with a copy to Xxxx X. Xxxx III, P.C., Xxxxxxx Procter
LLP, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
(II) If to the Investors, at the mailing addresses as shown on
the signature pages hereto, or at such other address designated by an Investor
to the Company in writing, and, (i) if to Sigma or Focus, with a copy to Xxxx X.
Xxxxxxx, Esq., Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx,
Xxxx Xxxx, XX 00000-0000, and (ii) if to Globespan, with a copy to Xxxxxxx X.
Xxxxxxx, Xx., Esq., Xxxxxxx Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000; and (iii) if to BT, with a copy to Xxxx X. Xxxxxxx, Esq., Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(III) If to the Stockholders, at the mailing addresses as shown
on Exhibit A hereto.
(C) REMEDIES; SEVERABILITY. It is specifically understood and agreed
that any breach of the provisions of this Agreement by any person subject hereto
will result in irreparable injury to the other parties hereto, that the remedy
at law alone will be an inadequate remedy for such breach, and that, in addition
to any other remedies which they may have, such other parties may enforce their
respective rights by actions for specific performance (to the extent permitted
by law). Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be deemed prohibited or invalid
under such applicable law, such provision shall be
12
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
(D) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
(E) EFFECT OF HEADING. The Section headings herein are for convenience
only and shall not affect the construction hereof.
(F) GOVERNING LAW. This Agreement shall be deemed a contract made
under the laws of the State of Delaware and together with the rights and
obligations of the parties hereunder, shall be construed under and governed by
the laws of the State of Delaware, without giving effect to its conflicts of
laws principles.
(G) JURISDICTION; WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO
THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE
AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, IN ACCORDANCE WITH, AND TO THE ADDRESSES SET FORTH ON THE
SIGNATURE PAGE HERETO, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH
MAILING. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING, WHETHER AT LAW OR EQUITY, BROUGHT BY ANY OF THEM
IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(H) INTEGRATION. This Agreement, including the exhibits, documents and
instruments referred to herein or therein, constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. The Company and the
parties hereto that are parties to the Original Agreement hereby agree that this
Agreement replaces and supersedes the Original Agreement in its entirety and
that the Original Agreement is hereafter null and void.
[SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, the parties have executed this Fourth Amended and Restated
Registration Rights Agreement as of the date first above written.
COMPANY:
VIRTUSA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Chairman and Chief Executive Officer
Address:
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
INVESTORS:
SIGMA PARTNERS V, L.P.
By: Sigma Management V, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Address:
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGMA ASSOCIATES V, L.P.
By: Sigma Management V, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Address:
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGMA INVESTORS V, L.P.
By: Sigma Management V, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Address:
0000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
JAFCO AMERICA TECHNOLOGY FUND III, L.P.
JAFCO AMERICA TECHNOLOGY CAYMAN FUND III, L.P.
JAFCO USIT FUND III, L.P.
JAFCO AMERICA TECHNOLOGY AFFILIATES
FUND III, L.P.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
By: Xxxxxx X. Xxxxxxxx
Title: Managing Member
JAV Management Associates III, L.L.C.
Its General Partner
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
XXXXXXX RIVER PARTNERSHIP XI, LP
By: Xxxxxxx River XI GP LP
Its General Partner
By: Xxxxxxx River XI GP, LLC
Its General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------
Authorized Manager
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
XXXXXXX RIVER FRIENDS XI-A, LP
By: Xxxxxxx River XI GP, LLC
Its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Authorized Manager
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
XXXXXXX RIVER FRIENDS XI-B, LP
By: Xxxxxxx River XI GP, LLC
Its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Authorized Manager
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
THE STORAGENETWORKS LIQUIDATING TRUST
By:
-------------------------------------------
Name:
Title:
BT AMERICAS INC.
By: /s/ Xxxxxxx Venderame
-------------------------------------------
Name: Xxxxxxx Venderame
Title: Secretary & Chief Counsel
BBCP 104 LLC
By: Back Bay Venture 104 Nominee Trust
By:
-------------------------------------------
Name:
Title:
-----------------------------------------------
Xxx Xxxxxxxx
-----------------------------------------------
Xxxx Xxxxxx
-----------------------------------------------
Romani XxXxxxx
-----------------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxx
MWE INVESTORS
By:
-------------------------------------------
Name:
Title:
-----------------------------------------------
Xxxx Xxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxxxxx
-----------------------------------------------
Xxxxxx Xxxxxxx
WASHINGTON MALL PARTNERS
By:
-------------------------------------------
Name:
Title:
-----------------------------------------------
Xxxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
FOCUS VENTURES II, L.P.
By: /s/ Xxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: General Partner
Address:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
FOCUS VENTURES II QP, L.P.
By: /s/ Xxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: General Partner
Address:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
FOCUS VENTURES II A, L.P.
By: /s/ Xxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: General Partner
Address:
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------
Xxxxxxx Xxxxxxxx
Xxxxxx Trust 2006 GRAT
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Trustee
TNR Partnership
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
MANAGEMENT STOCKHOLDERS:
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/o Virtusa Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
