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EXHIBIT 10.1
FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Agreement is made and entered into as of this 5th day of
March, 1996, among SCC COMMUNICATIONS CORP., a Delaware corporation (the
"Company"), and certain undersigned holders (the "Holders") of the Company's
Series A Convertible Preferred Stock, Series B Convertible Preferred Stock,
Series C Convertible Preferred Stock, Series D Convertible Preferred Stock,
Series E Convertible Preferred Stock and Series F Convertible Preferred Stock.
RECITALS
A. Certain of the Holders and the Company are parties to
the Third Amended and Restated Registration Rights Agreement dated April 27,
1994 (the "Existing Registration Agreement").
B. Certain of the Holders and the Company are parties to
a certain Series F Convertible Preferred Stock Purchase Agreement of even date
herewith and as it may be amended from time to time (the "Purchase Agreement"),
whereby such Holders were issued shares of the Company's Series F Convertible
Preferred Stock.
C. It is a condition to the willingness of such Holders
to enter into the Purchase Agreement that the Company and the Holders amend and
restate the Existing Registration Agreement.
D. The Holders are willing to have all of their rights
with respect to registration of their Registrable Securities (as defined below)
under the Securities Act of 1933 governed by this Fourth Amended and Restated
Registration Rights Agreement, and hereby agree to the amendment and
restatement of the Existing Registration Agreement.
COVENANTS
NOW THEREFORE, in consideration of the above recitals and the
mutual promises contained herein, the parties hereto agree as follows:
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1. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(a) Certain Definitions. As used in this Section 1, the
following terms shall have the following respective meanings:
"Blue Sky laws" shall mean the securities regulation
laws of any political subdivision of the United States.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
"Holder" shall mean any holder of Registrable
Securities. For purposes of Section 1(g) entitled "Indemnification," "Holder"
includes each of the Holder's officers, directors, general partners, limited
and general partners of such general partners, and each person controlling the
Holder.
"Initiating Holders" shall mean, unless otherwise
provided, the holders of at least a majority of the aggregate of all the
outstanding Registrable Securities requesting a registration under Section
1(d) below.
The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"Registrable Securities" means (i) any shares of the
Company's Common Stock, $.001 par value (the "Common Stock") issued or issuable
upon conversion of Series A Convertible Preferred Stock, Series B Convertible
Preferred Stock, Series C Convertible Preferred Stock, Series D Convertible
Preferred Stock, Series E Convertible Preferred Stock and Series F Convertible
Preferred Stock; and (ii) any other securities issued with respect to any of
the above securities by way of dividends, stock-splits, recapitalization,
merger, consolidation or other reorganization. Registrable Securities do not
include any of the above securities which have been registered pursuant to a
registration statement under the Act and sold pursuant thereto or which may be
sold pursuant to Rule 144(k).
"Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, by way of
illustration only and without limitation, all registration, qualification and
filing fees, printing expenses, fees and disbursements of counsel for the
Company, underwriting expenses not included in Selling Expenses, the expense of
any audits or financial statement reviews incident to or required by any such
registration (including the expense of any cold comfort letters), and Blue Sky
fees and expenses (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
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"Securities Act" shall mean the Securities Act of
1933, as amended.
"Selling Expenses" shall mean the underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities.
(b) Limitations on Disposition. The Holder of each
certificate representing Registrable Securities, by accepting those
securities, agrees to comply in all respects with the following provisions:
(1) Prior to any proposed disposition of any
Registrable Securities (other than under circumstances described in Sections
1(c) and 1(d) below), the Holder of those Registrable Securities shall give
written notice to the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition; provided, however, that the Holder need
not provide such notice with respect to Registrable Securities for which the
Company has previously issued unlegended certificates.
(2) Except with respect to transactions not
involving a change in beneficial ownership or transactions involving the
distribution without consideration of Registrable Securities by any of the
Holders to any of its partners, retired partners, or any estate of its partners
or retired partners, or transfer by gift, will or intestate succession by any
partner to his spouse or lineal descendants or ancestors, or to any
stockholder, affiliate or affiliated venture capital partnership, such notice
shall, if reasonably requested by the Company, also be accompanied by a written
opinion of legal counsel (who shall be reasonably satisfactory to the Company
and its counsel) stating that the proposed disposition of the Registrable
Securities may be effected without registration under the Act and without blue
sky qualification. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(3) Having satisfied Subsection 1(b)(2) above,
the Holder of such Registrable Securities shall be entitled to transfer the
Registrable Securities in accordance with the terms of the notice delivered by
the Holder to the Company.
(4) Each certificate evidencing the Registrable
Securities shall (unless otherwise permitted by the provisions of this
Agreement) be stamped or otherwise imprinted with a legend substantially in the
following form in addition to any legend required under applicable state
securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH STOCK MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED, UNLESS THERE IS AN
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EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR ITS
SUCCESSOR RULE UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE SECURITIES WHO IS REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
The Company shall remove such restrictive legend upon the request of any Holder
if (i) the Company has received an opinion of counsel who is reasonably
acceptable to it and its counsel to the effect that registration of any and all
future transfers is not required, (ii) an appropriate registration statement
with respect to such Registrable Securities has been filed by the Company with
the Commission and been declared effective by the Commission, or (iii) such
transfer may be made in compliance with the requirements of Rule 144 or its
successor. In these events, the Company shall cause new certificates without
the above legend to be issued promptly to the Holder in exchange for
outstanding legended certificates.
(c) Company Registration.
(1) Notice and Piggyback Rights. If at any time
the Company shall decide to register any of its securities, the Company shall:
A. promptly give to each Holder written
notice of the registration (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under the
applicable Blue Sky laws); and
B. include in such registration (and
any related Blue Sky qualification or other compliance reasonably requested by
Holders in order to sell such securities), and in any underwriting involved,
all the Registrable Securities specified in a written request, made within 30
days after receipt of such written notice from the Company, by any Holder or
Holders, except as set forth in Subsection 1(c)(2) below.
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The provisions of this subsection do not apply to any of the
following: (i) a registration on any registration form which would not permit
secondary sales by a Holder, (ii) a registration which relates solely to
employee benefit plans, or (iii) a registration which relates solely to a
Commission Rule 145 transaction.
(2) Underwriting; Limits. If the registration of
which the Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Subsection 1(c)(1). All Holders proposing to
distribute their Registrable Securities through such underwriting shall enter
into an underwriting agreement in customary form with the underwriters selected
by the Company. Notwithstanding any other provision of this Section (c), if
the underwriter determines that marketing factors require a limitation of the
amount of securities to be registered, the Company shall include in such
registration, prior to the inclusion of any other securities which are not
Registrable Securities (except those held by the Company), the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold, pro rata among the respective Holders on the basis of
the amount of Registrable Securities requested to be registered by each Holder.
In any event, all limitations on the number of Registrable Securities to be
included in the applicable underwriting shall be pro rata with respect to the
number of Registrable Securities requested to be registered as between Holders
as of the date of the notice provided pursuant to Subsection 1(c)(1)(A). If
any Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter within
five (5) days after receipt of such notice, and any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from
registration.
(d) Registration at the Request of the Holders.
(1) Two Requests; Mechanics. At any time after
the effective date of the Company's initial public offering, Initiating Holders
may, upon delivery of written notice to the Company specifying this Section
1(d), require the Company to use its best efforts to prepare and file a
registration statement and other qualifications or compliances with respect to
all or part of the Registrable Securities; provided, however, that for the
second request for registration under this Section 1(d)(1), Initiating Holders
shall mean the holders of at least 30% of the Registrable Securities.
In the event of such a request, the Company shall:
A. Promptly give written notice of the
proposed registration, qualification, or compliance to all other Holders.
B. Use its diligent best efforts to
file as soon as practicable, but in any event within ninety (90) days after
receipt of the request or requests of the Initiating Holders, all such
registrations, qualifications, and compliances as may be so requested and as
would facilitate the sale and distribution of all or such portion of the
Holders' Registrable Securities as are specified in their request.
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C. Include in such registrations,
qualifications, and compliances the Registrable Securities of any Holders who
ask in writing, within thirty (30) days after receipt of notice under
Subsection 1(d)(1)(A), to join in such request.
D. The Company may be required to
prepare, file, and keep effective a registration statement under this Section
1(d) on no more than two (2) occasions.
(2) Exceptions. The Company shall not be
obligated to effect any registration, qualification, or compliance requested by
a Holder with respect to a proposed distribution of Registrable Securities by a
Holder under this Section 1(d):
A. if the Company has not previously
effected an initial public offering; or
B. in any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance; or
C. within six (6) months following the
effective date of any public offering to the general public of the Company's
securities for its own account, or
D. the Company has effected two (2)
such registrations pursuant to this Section 1(d) and such registrations have
been declared and ordered effective.
If the Company shall furnish to such Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors it would be seriously detrimental to the Company and
its shareholders for a registration statement to be filed in the near future,
then the Company's obligation to use its best efforts to file a registration
statement under this Section 1(d) shall be deferred for a period during which
such filing of a registration statement would be seriously detrimental,
provided that this period will not exceed ninety (90) days, and provided
further that the Company shall not defer its obligations in this manner more
than once in any twelve-month period.
(3) Underwriting. If the Initiating Holders
intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 1(d).
A. The Company shall include such
information in the written notice referred to in Subsection 1(d)(1)(A).
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B. The Initiating Holders shall
negotiate with an underwriter selected by the Initiating Holders and reasonably
approved by the Company, with regard to the underwriting of the requested
registration. But if a majority in interest of the Initiating Holders have not
agreed with the underwriter as to the terms and conditions of the underwriting
within ten (10) days following commencement of such negotiations, a majority in
interest of the Initiating Holders may select another underwriter of their
choice.
C. The right of any Holder to include
his Registrable Securities in a registration pursuant to Section 1(d) shall be
conditioned upon the Holder's participation in such underwriting, on the terms
and conditions of such underwriting and upon the inclusion of the Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder).
D. The Company shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for the underwriting by a majority in interest of the
Initiating Holders.
E. Notwithstanding any other provision
of this Section 1(d), if the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, the Initiating Holders shall so advise all holders of
Registrable Securities. The Company shall then include in such registration,
prior to the inclusion of any other securities which are not Registrable
Securities, the number of shares of Registrable Securities that the underwriter
believes may be included in the registration in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held at that
time by such Holders.
F. If any Holder of Registrable
Securities disapproves of the terms of the underwriting, he may elect to
withdraw from the underwriting by written notice to the Company, the
underwriter and the Initiating Holders within five (5) days of notice to such
Holder of the terms of the underwriting. Any Registrable Securities which are
excluded from the underwriting by reason of the underwriter's marketing
limitation or withdrawn from the underwriting shall be withdrawn from the
registration.
(4) Form S-3. The Company shall use its best
efforts to qualify for registration on Form S-3 (including any equivalent
successor form) after one (1) year from the effective date of its first
registration statement filed with the Commission.
A. After the Company has qualified for
the use of Form S-3, Holders of Registrable Securities shall have the right to
request an unlimited number of registrations on Form S-3, provided that the
Registrable Securities requested to be so registered shall represent
Registrable Securities having an anticipated market value of no less than
$500,000. Such request shall be in writing and shall state the number of
shares of Registrable Securities to be disposed of and the intended method of
disposition of shares by such Holders.
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The Company shall not be required to effect a registration pursuant to this
paragraph within 90 days of the effective date of any registration referred to
in Section 1(c) and Subsection 1(d)(1) or of the last registration effected
pursuant to this Subsection 1(d)(4).
B. The Company shall give written
notice to all Holders of Registrable Securities of the receipt of a request for
registration pursuant to this Subsection 1(d)(4) and shall provide a reasonable
opportunity for other Holders to participate in the registration. If the
registration is for an underwritten offering, the terms of Subsection 1(d)(3)
shall apply to all participants in such offering.
C. The Company will use its best
efforts to effect promptly the registration and qualification for sale of all
shares of Registrable Securities on Form S-3 to the extent requested by the
Holders for purposes of disposition.
(e) Expenses of Registration.
(1) Registration Expenses. All Registration
Expenses incurred in connection with registration, filing, qualification, and
compliance under Section 1(c) and 1(d)(4) and both registrations under Section
1(d)(1) shall be borne by the Company provided that Holders of securities being
registered pursuant to Section 1(c) agree that they will pay (on a pro rata
basis among those Holders selling Registrable Securities in a particular state)
all Blue Sky fees associated with the registration of Registrable Securities in
those states in which the Company is not otherwise registering or qualifying
shares of its stock for sale in such registration.
(2) Selling Expenses. All Selling Expenses
incurred in connection with these transactions shall be borne by the Holders of
the securities so registered pro rata on the basis of the amount of Common
Stock so registered.
(3) Legal Expenses. Each Holder shall bear its
own expenses, if any, for the fees and disbursements of counsel to such Holder
incurred in connection with these transactions, except that the Company will
pay for one special counsel to Selling Holders in connection with one
registration effected under Section 1(d)(1).
(4) Ineffective Requested Registration. The
Company shall not be required to pay any Registration Expenses if the
registration statement does not become effective as a result of the withdrawal
of a request for registration by the Initiating Holders pursuant to Subsection
1(d)(1), which withdrawal was not caused by the Company's failure to comply
with applicable registration requirements and regulations, or by the Company's
failure to disclose to Initiating Holders information about the existence of a
Material Adverse Event (as that term is defined in the Purchase Agreement). In
such case, the Initiating Holders shall bear such Registration Expenses pro
rata on the basis of the number of shares of each Initiating Holder included in
the registration request, and such registration shall not be counted as a
registration pursuant to Subsection 1(d)(1), or the Initiating Holders will not
bear such expenses and such registration shall be counted as a registration
pursuant to Subsection 1(d)(1).
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(f) Registration Procedures. In the case of each
registration, qualification, or compliance effected by the Company pursuant to
this Agreement, the Company shall keep each Holder advised in writing as to the
initiating of each registration, qualification, and compliance and as to the
completion thereof. At its expense the Company shall:
(1) Keep such registration statement effective
until the Holders have completed the distribution described in the registration
statement but for not more than one hundred twenty (120) days (or, if the
registration is underwritten, ninety (90) days).
(2) Furnish such number of prospectuses
(including preliminary prospectuses) and other documents incident to the
registration as a Holder from time to time may reasonably request.
(3) At the time when any registration statement
becomes effective, and at the time when any post-effective amendment becomes
effective, furnish to the Holders registering securities, an opinion of counsel
satisfactory to the Holders to the effect that:
A. To the best of Counsel's knowledge,
no stop order suspending the effectiveness of the registration statement has
been issued, and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act.
B. The registration statement and the
prospectus, and each amendment or supplement to the Registration Statement, as
of their respective effective or issue dates, comply as to form in all material
respects with the requirements of the Securities Act and the rules and
regulations of the Commission.
C. Counsel has no reason to believe
that the registration statement, the prospectus, or any amendment or supplement
thereto, contained any untrue statement of material fact or omitted to state a
material fact necessary to make the statements in the documents not misleading.
D. The descriptions in the registration
statement, the prospectus and any amendment or supplement, of statutes, legal
and government proceedings, and contracts and other documents are accurate and
fairly present the information required to be shown, and include all required
statutes, proceedings, contracts, and documents.
(4) Notify each Holder of Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of which
the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and at the request of any such Holder, the Company will
prepare a supplement or
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amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading.
(5) Cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed on the NASD
automated quotation system.
(6) Provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement.
(7) Obtain a cold comfort letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters as the Holders
may reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement).
(g) Indemnification.
(1) Company's Obligation to Indemnify.
A. Generally. With respect to any
registration, qualification, or compliance which has been effected pursuant to
this Agreement, the Company shall indemnify each Holder, its officers,
directors, and partners and each person controlling such Holder, each legal
counsel, and each underwriter, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue or alleged untrue statement of, or omission or alleged omission of a
material fact contained in, or required to be stated in, any registration
statement, including any preliminary or final prospectus, offering circular or
other document incident to any such registration, qualification, or
compliance. The Company shall further indemnify them against any violation or
alleged violation by the Company of any rule or regulation promulgated under
the Securities Act or any applicable state securities law in connection with
any such registration, qualification, or compliance.
B. Reimbursement. The Company shall
promptly reimburse each such Holder, and each of its officers, directors,
partners, and controlling persons, each legal counsel and each such
underwriter, for any legal and any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating or defending any such
claim, loss, damage, liability, or action.
C. Limits of Obligation. The Company
shall not be liable in any such case to the extent that any claim, loss,
damage, liability, or expense arises out of any untrue statement (or alleged
untrue statement) or omission (or alleged omission) made in such registration
statement, including any preliminary or final prospectus, offering circular or
other document, is based upon written information furnished to the Company by
an instrument duly executed by such Holder or underwriter, and which is stated
to be specifically for use therein.
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D. Survival of Obligation. The
obligations of the Company under this Section 1(g) shall survive the redemption
and conversion, if any, of the Preferred Stock, the completions of the
offerings of Registrable Securities under the registration statements, and
otherwise.
(2) Holder's Obligation to Indemnify.
A. Generally. If Registrable
Securities held by any Holder are included in the securities as to which the
registration, qualification, or compliance is being effected, each such Holder
shall indemnify the Company, each of its officers and directors, each legal
counsel and independent accountant of the Company, each underwriter of the
Company's securities covered by such a registration statement, each person who
controls the Company within the meaning of the Act and each other such Holder,
each of its officers, directors and partners, each person controlling such
Holder, and each legal counsel against all claims, losses, damages, and
liabilities (or actions in respect thereof) arising out of or based on any
untrue or alleged untrue statement of, or omission or alleged omission of a
material fact contained in, or required to be stated in, any registration
statement, including any preliminary or final prospectus, offering circular, or
other document.
B. Reimbursement. Furthermore, each
such Holder shall promptly reimburse the Company, such Holders, underwriters,
legal counsel and independent accountants and all of their respective officers,
directors, partners, and controlling persons for any legal or any other
expenses reasonably incurred, as such expenses are incurred, in connection with
investigating or defending any such claim, loss, damage, liability, or action.
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C. Limits of Obligation. In any case,
(i) any Holder's obligation under this Subsection 1(g)(2) shall extend only so
far as the untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, including any
preliminary or final prospectus, offering circular, or other document in
reliance upon written information furnished to the Company by an instrument
duly executed by such Holder and which is stated to be specifically for use
therein; and (ii) any Holder's liability under this Section 1(g)(2) shall not
exceed the amount of proceeds to the Holder from the sale of its Registrable
Securities in that offering.
D. Survival of Obligation. The
obligations of the Holders under this Section 1(g) shall survive the
completions of the offerings of Registrable Securities under the registration
statements and otherwise.
(3) Indemnifying Party May Assume Defense.
A. Generally. Each party entitled to
indemnification under this Section 1(g) (the "Indemnified Party") shall give
written 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. Unless in such
Indemnified Party's reasonable judgment a conflict of interest between such
Indemnified and Indemnifying Parties may exist with respect to such claim, the
Indemnified Party shall permit the Indemnifying Party to assume the defense of
any such claim or any resulting litigation; provided, however, 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 the Indemnified Party may participate in
such defense at its own expense. Failure by the Indemnified Party to provide
such written notice shall not relieve the Indemnifying Party from its
obligation under this Section 1(g).
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B. Settlement Approval, Release
Required. 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 which does not include as
an unconditional term the giving by the claimant or plaintiff to the
Indemnified Party of a release from all liability in respect to such claim or
litigation. Furthermore, the failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement.
(4) Contribution.
A. If recovery is not available under
the foregoing indemnification provisions of this section for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution for liabilities and expenses, except
to the extent that contribution is not permitted under the Securities Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each
party from the offering of the securities (taking into account the portion of
the proceeds of the offering realized by each), the parties' relative knowledge
and access to information concerning the matter with respect to which the claim
was asserted, the party who supplied or failed to supply the information as to
which the claim is asserted, the opportunity to correct and prevent any
statement or omission, and any other equivalent considerations appropriate
under the circumstances; provided that in no event will any Holder be required
to contribute an amount in excess of the proceeds to the Holder from the sale
of its Registrable Securities included in that offering. The Company and the
Holders agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocations.
(h) Information by Holder. The Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding the Holders and the distribution proposed by the Holders,
as the Company may request in writing and as shall be required in connection
with any registration, qualification, or compliance referred to in this
Agreement.
(i) Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the Commission which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees that at all times after 90 days after the
effective date of the first registration statement filed by the Company for a
public offering of its securities the Company shall:
(1) Make and keep public information available,
as those terms are understood and defined in Rule 144 under the Securities
Act.
(2) Use its best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
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(3) So long as a Holder owns any Registrable
Securities, furnish to such Holder upon request: (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act; (ii) a copy of the most recent annual or
quarterly report of the Company; and (iii) such other reports and documents so
filed by the Company as such person may reasonably request in availing itself
of any rule or regulation of the Commission allowing that person to sell any
such securities without registration.
(j) Transfer of Registration Rights. The right to cause
the Company to register Registrable Securities pursuant to this Section may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities who (1) is a partner, shareholder, affiliate,
equity holder or officer of the transferor Holder; or (2) after such assignment
or transfer, holds at least 125,000 shares of Registrable Securities (subject
to appropriate adjustment for stock splits, stock dividends, combinations and
other recapitalizations), provided the Company is, within ten (10) business
days after such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
(k) Limitations on Subsequent Registration Rights. From
and after the date hereof, the Company will not, without the prior written
consent of Holders of at least 75% of the voting power of the then outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company providing for registration rights more
favorable than those granted to the Holders hereunder or which allows such
holder or prospective holder of any securities of the Company to include such
securities in any registration filed under Sections 1(c) or 1(d) hereof, unless
under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not diminish the amount of Registrable
Securities which are included.
(l) Termination of Registration Rights. The registration
rights granted pursuant to this Section 1 shall terminate with respect to any
particular Registrable Securities upon the later to occur of: (i) ten (10)
years after the closing of the Company's initial public offering; or (ii) the
date on which all of such Registrable Securities may be resold pursuant to the
provisions of Rule 144(k) of the Commission.
(m) Lock-Up. Upon the request of the Company or any
underwriter's representative in connection with the public offering of the
Company's Common Stock pursuant to registration statements filed with, and
declared effective by, the Commission under the Securities Act, the Holders
agree not to sell or otherwise transfer any securities of the Company for a
period of 90 days following the effective date of the applicable registration
statements.
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15
2. MISCELLANEOUS
(a) Survival of Covenants; Successors and Assigns. All
covenants, agreements, representations and warranties made by the parties in
this Agreement shall survive the closing of the transactions contemplated by
this Agreement. All such covenants, agreements, representations and warranties
will inure to the benefit of, and be binding upon, any successors, assigns,
heirs, transferees, executors, and administrators of the parties hereto.
(b) Assignability of Rights. The Company may not assign
any of its rights or delegate any of its duties under this Agreement without
the written consent of Holders of 75% of the voting power of the then
outstanding Registrable Securities.
(c) Communications and Notices. Except as otherwise
provided for in this Agreement, all communications and notices provided for in
this Agreement shall be in writing and will be given by telegram, facsimile
(with delivery confirmed by the party giving notice), express courier holding
itself out as able to make delivery within one business day of receipt, hand
delivery receipted by the addressee, or by mail (postage-paid, certified mail,
return receipt requested) to such address and for such attention, as any party
may from time to time designate by notice in writing to the Company or to the
Holders, as the case may be. Notice will be effective one business day after
delivery to a telegraph company or express courier, three business days after
deposit in the U.S. Mail as provided above, or upon receipt if hand-delivered
or facsimile-delivered, as the case may be.
(d) Law Governing. This Agreement shall be governed by
the Laws of the State of Colorado in all respects, as such laws are applied to
agreements among Colorado residents entered into and to be performed entirely
within Colorado.
(e) Subsequent Instruments and Acts. The parties agree
that they will execute any further instruments and perform any acts that may
become necessary to carry out this Agreement.
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16
(f) Severability. If any term, provision, covenant, or
condition of this Agreement, or its application to any person or circumstance,
shall be held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and such term,
provision, covenant, or condition as applied to other persons or circumstances
shall remain in full force and effect.
(g) Entire Agreement; Amendments.
(1) This Agreement and the other documents and
agreements delivered pursuant hereto constitute the full and entire agreement
and understanding among the parties with regard to the subjects hereof and
thereof.
(2) This Agreement may not be amended orally.
Amendment to this Agreement, or of any supplement, and of the rights and
obligations of the Company and of the Holders, may be made with the consent of
the Company and the affirmative vote or written consent of the holders of not
less than 75% of the voting power of the Registrable Securities then
outstanding; provided that (i) no such amendment shall alter the provisions of
this Agreement so as to reduce the percentage of Registrable Securities which
is required to consent to any such amendment, without the vote or consent of
the Holders of all of the then outstanding Registrable Securities and (ii) no
such amendment shall adversely affect the rights of some, but not all, holders
of Registrable Securities.
(h) Delays, Omissions, and Waivers. No delay or omission
to exercise any right, power or remedy (with the exception of a delay by an
Indemnified Party in providing notice to the Indemnifying Party pursuant to
Section 1(g)(3) hereof) accruing to the Company or any Holder, upon any breach
or default of any party hereto under this Agreement, will impair any such
right, power or remedy of the Company or such Holder nor will it be construed
to be a waiver of any such breach or default, or an acquiescence therein, nor
will any similar breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring; nor will any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind
or character on the part of the Company or any Holder of any breach or default
under this Agreement or any waiver on the part of the Company or any Holder of
any provisions or conditions of this Agreement, must be in writing and will be
effective only to the extent specifically set forth in such writing. No waiver
by the Holders of any provision of this Agreement will be effective without a
written consent signed by Holders of at least 75% of the voting power of the
then outstanding Registrable Securities.
(i) Authorization. Each of the undersigned
representatives of the parties warrants and represents that he is duly
authorized to execute this Agreement on behalf of the respective party for
which he signs, that the organization on whose behalf he signs is currently in
good standing in the jurisdiction where organized.
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17
(j) Gender. Throughout this Agreement, as the context
may require, the masculine gender includes the feminine and neuter, and the
neuter gender includes the masculine and feminine.
(k) Headings. The headings of the Sections and
Subsections of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part of this Agreement.
(l) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(m) Remedies. No remedy herein conferred upon the
parties hereto is intended to be exclusive of any other remedy herein or
provided by law, but each shall be cumulative and shall be in addition to every
other remedy set forth in this Agreement or existing at law, in equity, or by
statute. The parties specifically acknowledge that under certain circumstances
the parties may be entitled to specific performance and/or injunctive relief
where without such remedies the damage to the injured parties may be
irreparable and money damages inadequate. Moreover, in any suit between or
among the parties hereto for such breach of the provisions hereof, the
prevailing party in such suit shall be entitled to receive from the breaching
party, reasonable attorneys' fees and disbursements incurred in the prosecution
of such suit.
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18
Registration Agreement Signature Page
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the day and year first written
above.
THE COMPANY: SCC COMMUNICATIONS CORP.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxxxx, President
THE HOLDERS: THE HILL PARTNERSHIP III,
A LIMITED PARTNERSHIP
By: Xxxx, Xxxxxx Ventures,
Its General Partner
By: /s/ XXXX XXXX
----------------------------------------
General Partner
AMERITECH DEVELOPMENT CORP.
By: /s/ XXXXXX XXXXXX
----------------------------------------
Its: VICE PRESIDENT, VENTURE CAPITALIST
----------------------------------------
BOSTON CAPITAL VENTURES LIMITED
PARTNERSHIP
By: BC&V Limited Partnership,
Its General Partner
By: Boston Capital Partners,
Its General Partner
By: /s/
----------------------------------------
General Partner
19
Registration Agreement Signature Page
BOSTON CAPITAL VENTURES II LIMITED
PARTNERSHIP
By: Boston Capital Partners II
Its General Partner
By: /s/
----------------------------------------
General Partner
BUSINESS DEVELOPMENT PARTNERS, L.P.
By: BD Partners, Its General Partner
By: /s/
----------------------------------------
General Partner
BOSTON CAPITAL VENTURES III LIMITED
PARTNERSHIP
By: Boston Capital Partners III
Its General Partner
By: /s/
----------------------------------------
General Partner