EXHIBIT 6
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 23, 2000
by and among
Optika Inc.
the Founders and Investors described herein
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners, L.P.
TWP CEO Founders' Circle (AI), L.P.
TWP CEO Founders' Circle (QP), ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners Employee Fund, L.P.
TWP 2000 Co-Investment Fund, L.P.
and
RKB Capital, L.P.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 23, 2000 (this
"Agreement"), by and between Optika Inc., a Delaware corporation (the
"Company"), the holders of Founders Shares and Investors Shares listed on
the signature pages hereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners, L.P., TWP
CEO Founders' Circle (AI), L.P., TWP CEO Founders' Circle (QP), L.P.,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners Employee Fund, L.P., RKB Capital, L.P. and
TWP 2000 Co-Investment Fund, L.P., as purchasers (together, the
"Purchasers", and individually, each a "Purchaser").
WHEREAS, the Company proposes to issue and sell (i) an aggregate of
731,851 shares of Series A Convertible Preferred Stock, par value $0.001
per share (the "Preferred Stock") of the Company, the terms of which are
set forth in the Certificate of Designation in the form of Exhibit 2.2 to
the Purchase Agreement (as defined below) and (ii) warrants (the
"Warrants"; and, together with the Preferred Stock, the "Securities") to
purchase an aggregate of 307,298 shares of the Company's Common Stock, par
value $0.001 per share (the "Common Stock"), the terms of which are set
forth in the Warrant Agreement attached in the form of Exhibit 1.2(b) to
the Purchase Agreement;
WHEREAS, as an inducement to the Purchasers to enter into the Purchase
Agreement, and as a condition to the closing of the transactions
contemplated thereby, the Company agreed to provide the Purchasers with
registration rights;
WHEREAS, the Company has previously entered into that certain Amended
and Restated Registration Agreement, dated November 22, 1995, as amended by
the First Amendment thereto dated May 6, 1996 (as so amended, the "Existing
Registration Agreement") pursuant to which the Company has granted to the
holders of Founders' Shares (the "Founders") and the holders of Investors'
Shares (the "Investors") certain registration rights on the terms set forth
herein;
WHEREAS, the Company and the Founders and the Investors who are, or
may after the date hereof become, parties to the Agreement wish to effect
an amendment and restatement of their respective rights and obligations
under the Existing Registration Agreement so that, upon the effectiveness
of such amendment at the Effective Date as set forth in Section 12(m) of
this Agreement (i) the Existing Registration Agreement will terminate and
be of no further force and effect; and (ii) all of the registration rights
of the Founders and the Investors (whether or not signatories hereto) will
thereafter be governed solely by this Agreement;
NOW, THEREFORE, the parties agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Closing" shall mean the date of the closing of the issuance and
sale of Securities pursuant to the Purchase Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
"Common Stock" shall have the meaning assigned thereto in the
recitals to this Agreement and shall include any equity securities
issued with respect to the Common Stock in connection with any
recapitalization, reclassification, merger, consolidation or other
reorganization.
"Company" shall have the meaning assigned thereto in the first
paragraph of this Agreement.
"Controlling Person" shall have the meaning assigned thereto in
Section 8(a) hereof.
"Demand Exercise Notice" shall have meaning assigned thereto in
Section 2(a) hereof.
"Demand Registration" shall have meaning assigned thereto in
Section 2(a) hereof.
"Demand Registration Request" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Demand Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Effective Time" shall mean, in the case of (i) a Registration,
the time and date as of which the Commission declares the related
Registration Statement effective or as of which the related
Registration Statement otherwise becomes effective; and (iii) a Market
Making Registration, the time and date as of which the Commission
declares the Market Making Registration Statement effective or as of
which time the Market Making Registration otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Shares, as
applicable, that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Sections 5(a)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Existing Registration Agreement" shall have the same meaning set
forth in the recitals hereto.
"Founders" shall have the meaning assigned thereto in the
recitals hereto.
"Founders' Shares" shall mean at any time (i) the shares of
Common Stock owned by each of the persons listed as a "Founder" on
Schedule A hereto; (ii) with respect to shares of Common Stock
previously held by a Founder, a transferee of such Founder who
consents to be bound by this Agreement; (iii) any shares of Common
Stock then outstanding that were issued upon exercise of the options
held by such Founder; (iv) any shares of Common Stock then issuable
upon exercise of the options held by such Founder; (v) any shares of
Common Stock then outstanding which were issued as, or were issued
directly or indirectly upon the conversion or exercise of other
securities issued as, a dividend or other distribution with respect to
or in replacement of other Founders' shares and (vi) any shares of
Common Stock then issuable directly or indirectly upon the conversion
or exercise of other securities which were issued as a dividend or
other distribution with respect to or in replacement of other
Founders' Shares; provided, that Founders' Shares shall not include
any shares the sale of which has been registered pursuant to the
Securities Act or sold to the public pursuant to Rule 144 promulgated
by the Commission under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of Founders' Shares
whenever such Person holds a security exercisable for or convertible
into such Founders' Shares, whether or not such exercise or conversion
has actually been effected.
The term "holder" shall mean each of the Purchasers and other
Persons who acquire Registrable Shares from time to time (including
any successors or assigns), in each case for so long as such Person
owns any Registrable Shares.
"Indemnified Person" shall have the meaning assigned thereto in
Sections 8(a) and 8(b).
"Initiating Holders" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Investors" shall have the meaning assigned thereto in the
recitals hereto.
"Investors' Shares" shall mean, at any time (i) the shares of
Common Stock owned by each of the persons listed as an "Investor" on
Schedule B hereto; (ii) shares of Common Stock acquired by an Investor
from a Founder; (iii) any shares of Common Stock then outstanding
which were issued as, or were issued directly or indirectly upon the
conversion or exercise of other securities issued as, a dividend or
other distribution with respect to or in replacement of other
Investors' Shares; and (iv) any shares of Common Stock then issuable
directly or indirectly upon the conversion or exercise of other
securities which were issued as a dividend or other distribution with
respect to or in replacement of other Investors' Shares; provided,
that Investors' Shares shall not include any shares the sale of which
has been registered pursuant to the Securities Act or sold to the
public pursuant to Rule 144 promulgated by the Commission under the
Securities Act. For purposes of this Agreement, a person will be
deemed to be a Holder of Investors' Shares whenever such Person holds
a security exercisable for or convertible into such Investors' Shares
whether or not such exercise or conversion has actually been effected.
"Majority Electing Holders" means, the holders of a majority in
the number of shares of Common Stock elected to be included under such
Registration Statement by the Electing Holders.
"Market Making Period" shall have the meaning assigned thereto in
Section 4(a) hereof.
"Market Making Prospectus" shall mean the prospectus included in
the Market Making Registration Statement relating to offers and sales
of Market Making Securities by TWP in secondary transactions.
"Market Making Registration" shall mean the registration of
Market Making Securities in connection with offers and sales thereof
by TWP in secondary transactions.
"Market Making Registration Statement" shall mean a shelf
registration statement on Form S-3 or other short form registration
statement (which may be the Registration Statement if permitted by the
rules and regulations of the Commission) pursuant to Rule 415 under
the Securities Act or any similar rule that may be adopted by the
Commission providing for the registration of, and the sale on a
continuous or delayed basis in secondary transactions by TWP of, the
Market Making Securities.
"Market Making Request Date" shall have the meaning assigned
thereto in Section 5(a) hereof.
"Market Making Securities" shall mean any of the Common Stock
issued by the Company.
"NASD" shall have the meaning assigned thereto in Section
5(a)(xvii) hereof.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire customary in form
and substance for such a Registration.
"Person" shall mean a corporation, association, partnership,
limited liability company, trust, organization, business, individual,
government or political subdivision thereof or governmental agency or
any other entity.
"Piggyback Registration" shall have the meaning assigned thereto
in Section 3(a) hereof.
"Piggyback Registration Statement" shall have the meaning
assigned thereto in Section 3(a) hereof.
"Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of February 9, 2000, between the Company and the
Purchasers.
"Purchasers" shall have the meaning assigned thereto in recitals
to this Agreement.
"Registrable Shares" shall mean, at any time, (A) the Founders'
Shares, (B) the Investors' Shares and (C) the shares of Common Stock
into or for which the Securities are than convertible or exchangeable,
as the case may be; provided, however, that any such shares of Common
Stock referred to in clauses (A) through (C) above shall cease to be
Registrable Shares when (i) in the circumstances contemplated by
Section 2 (other than Section 2(f)) or Section 3, a Demand
Registration Statement or a Piggyback Registration Statement
registering such shares of Common Stock under the Securities Act has
been declared or becomes effective and such shares of Common Stock
shall have been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective
Registration Statement; or (ii) the Founders' Shares, the Investors'
Shares or the shares of Common Stock underlying the Founders Shares,
the Investors Shares and the Securities is sold pursuant to Rule 144
or Rule 144A under circumstances in which any legend borne by such
Common Stock relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Company or
pursuant to the Warrant Agreement.
"Registration Expenses" shall have the meaning assigned thereto
in Section 6 hereof.
"Requisite Holders" means Requisite Investor Holders or Requisite
Purchaser Holders as the context may require.
"Requisite Investor Holders" means the holders of Investors'
Shares representing at least 70% of the total number of Investors'
Shares then outstanding.
"Requisite Purchaser Holders" means the holders of Securities
representing or covering on conversion or exercise, in the aggregate,
25% or more of the total number of shares of Common Stock issuable on
conversion or exercise of the Securities at the Closing.
"Registration" shall have the meaning assigned thereto in Section
3(a) hereof.
"Registration Statements" shall have the meaning assigned thereto
in Section 3(a) hereof.
"Rule 144," "Rule 144A", "Rule 405" and "Rule 415" shall mean, in
each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time.
"Secondary Offer Registration Statement" shall mean (i) any
Registration Statement required to be filed by the Company pursuant to
Section 2 or 3 hereof, and/or (ii) the Market Making Registration
Statement required to be filed by the Company pursuant to Section 4
hereof, in each case, as applicable. As used herein, references to a
Secondary Offer Registration Statement in the singular shall, if
applicable, be deemed to be in the plural.
"Securities" shall have the meaning assigned thereto in the
recitals to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"TWP" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC and its
affiliates.
"Underwriters' Representative" shall mean the managing
underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters' Representative by
the co-managers.
"Warrants" shall have the meaning assigned thereto in the
recitals to this Agreement.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
Section 2. Demand Registration of the Registrable Shares under the
Securities Act.
(a) If either the Requisite Investors Holders or the Requisite
Purchaser Holders shall at any time make a written request (a "Demand
Registration Request") to the Company in compliance with this Section 2,
the Company shall cause to be filed with the Commission a registration
statement (a "Demand Registration Statement") under the Securities Act
covering all or any part of the Registrable Shares (a "Demand
Registration"), as such holders (the "Initiating Holders") shall request in
writing.
(i) Any request made pursuant to this Section 2(a) by Requisite
Purchaser Holders shall be addressed to the attention of the Secretary of
the Company, and shall specify the number of Registrable Shares to be
registered (which shall result in gross proceeds of not less than
$10,000,000, assuming no reduction in the number of Registrable Shares that
may be included in such Demand Registration pursuant to Section 2(e));
provided, however, that the holders of the Registrable Shares (other than
Founders' Shares or Investors' Shares) may request registration of any
amount of such Registrable Shares where such holders request registration
of all of the remaining such Registrable Shares, the intended method of
distribution thereof and that the request is for a Demand Registration
pursuant to this Section 2(a).
(ii) Any request made pursuant to this Section 2(a) by the
Requisite Investor Holders shall be addressed to the Company, and shall
specify the number of Restricted Shares to be registered (which shall
result in gross proceeds of not less than (x) $750,000 if the Registration
is required to be effected on Form S-1 or any similarly long-form
registration statement under the Securities Act (a "Long-Form
Registration") or (y) $250,000 if the Registration may be effected on Form
S-2 or S-3 or any similar short-form registration statement under the
Securities Act (a "Short-Form Registration").
(iii) As promptly as practicable, but no later than ten days
after receipt of a Demand Registration Request, the Company shall give
written notice (the "Demand Exercise Notice") of such Demand Registration
Request to all holders of Registrable Shares. Following a request for a
Demand Registration, the Company shall include in a Demand Registration (x)
the Registrable Shares of the Initiating Holders and (y) the Registrable
Shares of any other holders of Registrable Shares who shall have made a
written request to the Company for inclusion in such registration (which
request shall specify the maximum number of Registrable Shares intended to
be disposed of by such holder) within 30 days after the receipt of the
Demand Exercise Notice. The Company shall, as expeditiously as possible,
use its best efforts to effect such registration under the Securities Act
(including, without limitation, by means of a shelf registration pursuant
to Rule 415 under the Securities Act if so requested and if the Company is
then eligible to use such registration) of the Registrable Shares which the
Company has been so requested to register, for distribution in accordance
with such intended method of distribution by the holders electing to
include Registrable Shares therein.
(b) Following receipt of a request for a Demand Registration, the
Company shall:
(i) file the Demand Registration Statement with the Commission as
promptly as reasonably practicable, and, subject to Section 2(a),
shall use all reasonable efforts to have the Demand Registration
Statement declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need
to prepare current financial statements, conduct due diligence and
complete other actions that are reasonably necessary to effect a
registered public offering; and
(ii) use all reasonable efforts to keep the relevant registration
statement continuously effective, for up to 180 days or until such
earlier date as of which all the Registrable Shares under the Demand
Registration Statement shall have been disposed of in the manner
described in the Registration Statement, or such longer period as in
the judgment of counsel for the underwriters a prospectus is required
by law to be delivered in connection with sales of Registrable Shares
by an underwriter or dealer in accordance with the plan of
distribution included in such Demand Registration Statement ;
provided, however, that such obligation to maintain the continuous
effectiveness of the registration statement shall not apply if such
registration statement is on Form S-1 or an equivalent form which does
not permit incorporation by reference.
(c) (i) The Company shall not be obligated to effect more than three
Demand Registrations by Requisite Purchaser Holders pursuant to Section
2(a) which are Long-Form Registration; provided that the Company shall be
obligated to effect an unlimited number of Demand Registrations by the
Requisite Purchaser Holders pursuant to Section 2(c) which are Short-Form
Registrations. For purposes of the preceding sentence, a Demand
Registration shall not be deemed to have been effected (i) unless a Demand
Registration Statement with respect thereto has become effective, (ii) if
after such Demand Registration Statement has become effective, such Demand
Registration Statement or the related offer, sale or distribution of
Registrable Shares thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the holder
of the Registrable Shares and such interference is not thereafter
eliminated or (iii) if the conditions to closing specified in any
underwriting agreement entered into in connection with such registration
are not satisfied or waived, other than by reason of a failure on the part
of the holder of the Registrable Shares. If the Company shall have complied
with its obligations under this Agreement, a right to demand a registration
pursuant to this Section 2 shall be deemed to have been satisfied upon the
earlier of (x) the date as of which all of the Registrable Shares included
therein shall have been distributed pursuant to the Registration Statement,
and (y) the date as of which such Demand Registration shall have been
continuously effective for a 180-day period or other period specified in
Section 2(b)(ii) following the effectiveness of such Demand Registration
Statement, provided no stop order or similar order, or proceedings for such
an order, is thereafter entered or initiated.
(ii) (x) The holders of Investors' Shares may request two
Long-Form Demand Registrations pursuant to paragraph 2(a) for which the
Company will pay all Registration Expenses. A registration will not count
as a Long-Form Demand Registration under this paragraph (x) until it has
become effective and will not count as a Long-Form Demand Registration
under this paragraph (i) unless the Holders of Investors' Shares initially
requesting such registration are able to register and sell at least 50% of
the Registrable Shares requested to be included in such registration;
provided that in any event the Company will pay all Registration Expenses
in connection with any such registration initiated as a Long-Form Demand
Registration.
(y) In addition to the rights provided by paragraph (x) of
this Section 2(c), if the number of prior Long-Form Demand Registrations
pursuant to such paragraph (x) equals two, the holders of Investors' Shares
shall be entitled to request pursuant to paragraph 2(a) an unlimited number
of additional Long-Form Demand Registrations provided that the holders of
securities to be registered thereunder agree to pay their pro rata share
(as determined in accordance with the number of shares requested to be
registered in such registration) of all associated Registration Expenses in
connection with such registration, whether or not such registration becomes
effective. Notwithstanding the terms of the preceding sentence, if the
failure of a registration initiated pursuant to this paragraph (y) to
become effective is the result of a breach by the Company of any of its
obligations under this Agreement, the Company shall pay all Registration
Expenses in connection with such registration.
(z) In addition to the Long-Form Demand Registrations that
may be requested pursuant to Section 2(a), the holders of Investors' Shares
will be entitled to request pursuant to paragraph 2(a) an unlimited number
of Short-Form Demand Registrations. The Corporation will pay all
Registration Expenses incurred in connection with such registration if the
aggregate offering value of all Registrable Shares requested to be
registered in such registration pursuant to Section 2(a) is reasonably
expected to equal at least $750,000, whether or not such registration
becomes effective. If the aggregate offering value of all Registrable
Shares requested to be registered in such registration pursuant to Section
2(a) is not reasonably expected to equal at least $750,000, the holders of
securities to be registered thereunder shall pay their pro rata share (as
determined in accordance with the percentage of shares requested to be
registered in such registration) of all associated Registration Expenses in
connection with such registration, whether or not such registration becomes
effective. Notwithstanding the terms of the preceding sentence, if the
failure of such registration to become effective is the result of a breach
by the Company of any of its obligations under this Agreement, the Company
shall pay all Registration Expenses in connection with such registration.
(d) In connection with any Demand Registration, the Majority Electing
Holders shall have the right to select the underwriter or underwriters and
manager or managers to administer such offering; provided, however, that
each Person so selected shall be acceptable to the Company in its
reasonable judgment.
(e) If the Underwriters' Representative in connection with any
underwritten offering described in this Section 2 shall have informed the
Company that in its opinion the total number of shares of Common Stock that
the holders of the Registrable Shares, and any other Persons desiring to
participate in such registration, intend to include in such offering is
such as to materially and adversely affect the success and pricing of such
offering, then the Company shall include in such Demand Registration (a)
first, all Registrable Shares requested to be included in such registration
by the Electing Holders of Registrable Shares; provided that if the number
of shares of Common Stock so elected to be included in such registration by
all Electing Holders of Registrable Shares exceeds the number recommended
by the Underwriters' Representative, then the number of Registrable Shares
to be so included in such registration will be reduced pro rata in
accordance with the number of shares requested to be included by each
Electing Holder, to such number recommended by the Underwriters'
Representative; provided, further, that on no more than two occasions if
the Initiating Holders are holders of Purchasers' Shares and on no more
than two occasions if the Initiating Holders are holders of Investors'
Shares, the Initiating Holders may specify that (x) if such Initiating
Holders are holders of Registrable Shares (other than Investors' Shares or
Founders' Shares) (all such non-excluded Registrable Shares, the
"Purchasers' Shares"), such reduction will be effected first by reducing
the number of Investors' Shares pro rata in accordance with the number of
Investors' Shares to be included therein until the number of Investors'
Shares to be so included are reduced to zero and then by reducing the
number of Purchasers' Shares pro rata in accordance with the number of
Purchasers' Shares to be included therein, and (y) if such Initiating
Holders are holders of Investors' Shares, such reduction will be effected
first by reducing the number of Purchasers' Shares pro rata in accordance
with the number of Purchasers' Shares to be included therein until the
number of Purchasers' Shares to be so included is reduced to zero and then
by reducing the number of Investors' Shares pro rata in accordance with the
number of Investors' Shares to be included therein; and (b) second, if all
Registrable Shares so elected to be included by the Electing Holders are so
included, such additional number of shares of Common Stock that the Company
or any other Persons entitled to participate in such registration desire to
include in such registration and that the Underwriters' Representative has
informed the Company may be included in such registration without adversely
affecting the success and pricing of the offering of all Registrable Shares
so requested to be included therein; provided that the number of shares of
Common Stock to be offered for the account of all such other Persons
participating in such registration shall be reduced or limited to the
extent necessary so that the total number of shares of Common Stock
requested to be included in such offering does not exceed the maximum
number of shares of Common Stock recommended by such Underwriters'
Representative.
(f) Notwithstanding anything herein to the contrary, the Company
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 2 if (i) the Board of
Directors determines in the exercise of its reasonable judgment that
effecting such Demand Registration at such time would require disclosure of
a material fact that the Board determines in good faith would have a
material adverse effect on any proposal or plan by the Company or any of
its subsidiaries to engage in a significant transaction, then, in which
case the Company may defer such Demand Registration for a single period not
to exceed 90 days once every 12 months and (ii) in any particular
jurisdiction in which the Company would be required to execute a general
consent to service of process in effecting such registration, qualification
or compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
Section 3. Piggyback Registration.
(a) If at any time the Company proposes to register (including for
this purpose a registration effected by the Company for the account of the
Company or shareholders of the Company other than the holders of the
Registrable Shares, whether or not pursuant to the Existing Registration
Agreement) shares of Common Stock or securities convertible or exercisable
into shares of Common Stock under the Securities Act in connection with the
public offering solely for cash on Form ▇-▇, ▇-▇ or S-3 (or any replacement
or successor forms), as soon as practicable (but in no event less than 10
business days prior to the date of filing any related Registration
Statement), the Company shall promptly give the holders of the Registrable
Shares written notice of such registration (a "Piggyback Registration,"
and, collectively with a Demand Registration, a "Registration"). Upon the
written request of the holders of the Registrable Shares given within 10
days following the date of such notice, the Company shall use all
reasonable efforts to cause to be included in such registration statement
(a "Piggyback Registration Statement," and, collectively with the Demand
Registration Statement, the "Registration Statements"), and use all
reasonable efforts to cause to be registered under the Securities Act all
the Registrable Shares that the holders of the Registrable Shares shall
have requested to be registered. The Company shall have the absolute right
to withdraw or cease to prepare or file any Piggyback Registration
Statement for any offering referred to in this Section 3 without any
obligation or liability to the holder of the Registrable Shares; provided,
that the Company shall promptly notify the holders of the Registrable
Shares in writing of any such action.
(b) If the Piggyback Registration Statement relates to an underwritten
offering of Common Stock or securities convertible or exercisable into
shares of Common Stock for the account of the Company and if the
Underwriters' Representative of such underwritten offering shall inform the
Company that in its opinion the inclusion in such underwritten distribution
of all or a specified number of such Registrable Shares or of any other
shares of Common Stock requested to be included therein would materially
and adversely effect the success and pricing of such offering or of such
distribution then the Company shall include in such Piggyback Registration
(a) first, all shares of Common Stock requested to be included in such
registration for the account of the Company, (b) second, all Registrable
Shares requested to be included therein by holders of Founders Shares, and
(c) third, all Registrable Securities requested to be included therein by
the holders of Purchasers' Shares and Investors' Shares, provided that if
the number of Registrable Shares otherwise includable under clause (b) or
(c) above is to be reduced, such number shall be reduced by reducing the
number of Registrable Shares otherwise includable pro rata in accordance
with the number of Registrable Shares requested to be included by the
Holders of Founders' Shares (in the case of clause (b)), and by the holders
of Purchasers' Shares and Investors' Shares (in the case clause (c)). If
the Piggyback Registration Statement relates to an underwritten offering of
Common Stock or securities convertible or exercisable into Common Stock
otherwise than for the account of the Company and if the Underwriters'
Representative of such underwritten offering shall inform the Company that
in its opinion the inclusion in such underwritten distribution of all or a
specified number of such shares of Common Stock to be included therein
would materially and adversely affect the success and pricing of such
offering or of such distribution then the Company shall include in such
Piggyback Registration (a) first, all shares of Common Stock requested to
be included in such registration for the account of the persons (other than
holders of Purchasers' Shares or Investors' Shares) who requested such
registration, (b) second, all Registrable Shares requested to be included
in such Registration by the holders of Purchasers' Shares and Investors'
Shares pro rata in accordance with the number of Registrable Shares
requested be included therein and (c) third, all shares of Common Stock
requested to be included therein for the account of the Company.
The Company may decline to file a Piggyback Registration Statement
referred to in this Section 3(b) after giving notice to the holders of the
Registrable Shares, or withdraw such a Piggyback Registration Statement
after filing, or otherwise abandon any such proposed underwritten offering;
provided that the Company shall promptly notify the holders of the
Registrable Shares in writing of any such action.
(c) The Electing Holders with respect to any Registration may not
participate in any underwritten offering under Sections 2(a) or 3(a) hereof
unless it completes and executes all customary questionnaires (including a
Notice and Questionnaire as contemplated by Section 5(a)(ii)), powers of
attorney, custody agreements, underwriting agreements and other customary
documents required under the terms of such underwriting arrangements (if
any). In connection with any underwritten offering under Sections 2(a) or
3(a), each of the Electing Holders and the Company shall be a party to the
underwriting agreement with the underwriters and may be required to make
certain customary representations and warranties (in the case of the
Electing Holders as to the Registrable Shares being sold by the Electing
Holder in such underwritten offering and the plan of distribution thereof)
and provide certain customary indemnifications for the benefit of the
underwriters.
(d) The holders of the Registrable Shares shall be entitled to have
their Registrable Shares included in an unlimited number of Piggyback
Registrations pursuant to this Section 3.
(e) Notwithstanding the foregoing the Company shall not be obligated
to take any action pursuant to this Section 3 in any particular
jurisdiction in which the Company would be required to execute a general
consent to service of process in effecting such registration, qualification
or compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
Section 4. Registration of Registrable Shares under a Market Making
Shelf Registration Statement.
The Company agrees with TWP that if TWP and the Company mutually agree
that TWP or an affiliate should act as a market-maker with respect to
Market Making Securities,:
(a) If requested in writing by TWP, at any time that the Purchasers
determine that TWP is or may be deemed to be an affiliate (as defined under
Rule 405) of the Company, the Company shall prepare the Market Making
Prospectus and Market Making Registration Statement in a form approved by
TWP and file such Market Making Prospectus and Market Making Registration
Statement pursuant to the Securities Act not later 60 days after the date
of such request (the "Market Making Request Date"), to make no further
amendment or any supplement to the Market Making Registration Statement or
the Market Making Prospectus during the Market Making Period (as defined
below) which shall be disapproved by TWP promptly after reasonable notice
thereof, to use all reasonable efforts to cause the Market Making
Registration Statement to become effective under the Securities Act 115
days after the Market Making Request Date, to advise TWP, promptly after
the Company receives notice thereof, of the time when the Market Making
Registration Statement, or any amendment thereto, has been filed or becomes
effective during the Market Making Period, or any supplement to the Market
Making Prospectus or any amended Market Making Prospectus has been filed
during such period, and to furnish TWP with copies thereof; to advise TWP,
promptly after the Company receives notice thereof during the Market Making
Period, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any preliminary Market Making
Prospectus or Market Making Prospectus, of the suspension of the
qualification of the Market Making Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Market Making Registration Statement or Market Making
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
preliminary Market Making Prospectus or Market Making Prospectus or
suspending any such qualification during the Market Making Period, to use
promptly its reasonable efforts to obtain the withdrawal of such order (the
period beginning on such date as the Purchasers determine that TWP is or
may be deemed to be an affiliate of the Company and continuing for as long
as may be required under applicable law, in the reasonable judgment of TWP
after consultation with the Company, in order to offer and sell Market
Making Securities as contemplated by the Market Making Prospectus, is
herein called the "Market Making Period");
(b) Promptly from time to time to take such action as TWP may
reasonably request to qualify the Market Making Securities for offering and
sale during the Market Making Period under the securities laws of such
jurisdictions as TWP may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
during such period, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish TWP with copies of the Market Making Prospectus in such
quantities as TWP may from time to time reasonably request during the
Market Making Period, and, if at any time during such period any event
shall have occurred as a result of which the Market Making Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Market Making Prospectus is to be delivered during such
period, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Market Making Prospectus or
to amend the Market Making Registration Statement in order to comply with
the Securities Act, to file under the Exchange Act any document
incorporated by reference in such Market Making Prospectus in order to
comply with the Securities Act or the Exchange Act, to notify TWP
immediately and upon its request to file such document and to prepare and
furnish without charge to TWP as many copies as it may from time to time
during such period reasonably request of an amended Market Making
Prospectus or a supplement to the Market Making Prospectus which will
correct such statement or omission or effect such compliance;
(d) During the Market Making Period, to furnish to TWP copies of all
reports or other communications (financial or other) furnished to
shareholders generally, and to deliver to TWP (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as TWP may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission); and
(e) To use its reasonable efforts to furnish or cause to be furnished
to TWP upon its request at reasonable intervals, when the Market Making
Registration Statement or the Market Making Prospectus shall be amended or
supplemented during the Market Making Period, written opinions of counsel
for the Company, a letter from the independent accountants who have
certified the financial statements included in the Market Making
Registration Statement as then amended and certificates of officers of the
Company, in each case in form and substance reasonably satisfactory to TWP,
all to the effect specified in subsection (xvi) of Section 5(a) hereof (as
modified to relate to the Market Making Registration Statement and the
Market Making Prospectus as then amended or supplemented).
Notwithstanding the foregoing provisions, if at any time the Company
determines in the exercise of its reasonable judgment that it is in
possession of material, non-public information that it would not be
required to disclose publicly in the absence of a registration of Market
Making Securities under the Securities Act, the Company may, upon 15
business days' prior written notice to TWP, cease to comply with any of its
obligations under this Section 4, whereupon TWP shall cease using the
Market Making Prospectus or any amendment or supplement thereto until it
receives notice from the Company that it may resume using such document.
Section 5. Registration Procedures.
If the Company files a registration statement pursuant to Sections 2,
3 or 4, the following provisions shall apply:
(a) In connection with the Company's obligations with respect to
any Registration or any Market Making Registration, as applicable, the
Company shall use its best efforts to cause the applicable Secondary Offer
Registration Statement to permit the disposition (x) of Registrable Shares
by the holders thereof in the case of a Registration, and , of Market
Making Securities by TWP, in each case in accordance with the intended
method or methods of disposition thereof provided for in the applicable
Secondary Offer Registration Statement. In connection therewith, the
Company shall, as soon as reasonably possible (or as otherwise specified):
(i) (A) prepare and file with the Commission, as soon as
practicable, but in any case within the time periods specified in
Sections 2, 3 or 4, as applicable, a Secondary Offer Registration
Statement on any form which may be utilized by the Company, which
shall (x) register all the Registrable Shares, in the case of a
Registration Statement, and all of the Market Making Securities, in
the case of a Market Making Registration, and in each case to be
included therein for resale (if applicable) by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the holders of the applicable Registrable Shares or TWP
in the case of a Market Making Registration and (y) be, in the case of
a Market Making Registration, in a form approved by TWP, and (B) use
its commercially reasonable efforts to cause such Secondary Offer
Registration Statement to become effective as soon as practicable
after such filing, but in any case within the time periods specified
in Sections 2, 3 or 4 hereof, as applicable;
(ii) not less than 30 calendar days prior to the Effective Time
of any applicable Registration Statement, mail the Notice and
Questionnaire to the holders of the applicable Registrable Shares; no
holder shall be entitled to be named as a selling securityholder in
any Registration Statement as of the Effective Time thereof, and no
holder shall be entitled to use the prospectus forming a part thereof
for resales of Registrable Shares at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided,
however, holders of Registrable Shares shall have at least 28 calendar
days from the date on which the Notice and Questionnaire is first
mailed to such holders to return a completed and signed Notice and
Questionnaire to the Company;
(iii) as soon as practicable (A) prepare and file with the
Commission such amendments and supplements to the Secondary Offer
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Secondary
Offer Registration Statement for the period specified in Sections 2, 3
or 4 hereof, as applicable, and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Secondary Offer Registration Statement,
and, in the case of an amendment to or supplement of the Market Making
Registration Statement, in a form approved by TWP and (B) furnish to
the Electing Holders, in the case of any Registration, and TWP, in the
case of a Market Making Registration, copies of any such supplement or
amendment simultaneously with or prior to its being used or filed with
the Commission;
(iv) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Shares or Market
Making Securities, as applicable, covered by such Secondary Offer
Registration Statement in accordance with the intended methods of
disposition provided for therein by the Electing Holders, in the case
of any Registration, or TWP, in the case of a Market Making
Registration;
(v) provide (A) with respect to any Registration, the Electing
Holders and not more than one counsel for all the Electing Holders;
(B) with respect to a Market Making Registration, TWP and its counsel;
and (C) in either case, the underwriters (which term, for purposes of
this Agreement shall include a Person deemed to be an underwriter
within the meaning of Section 2(11) of the Securities Act), if any,
thereof, the sales or placement agent, if any, therefor, and counsel
for such underwriters or agent, the opportunity to participate in the
preparation of such Secondary Offer Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vi) for a reasonable period prior to the filing of such
Secondary Offer Registration Statement, and throughout the applicable
periods specified in Sections 2, 3 or 4 hereof, as applicable, make
available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the Persons
referred to in Section 5(a)(v) who shall certify to the Company that
they have a current intention to sell the Registrable Shares pursuant
to any Registration, or Market Making Securities pursuant to the
Market Making Registration, as applicable, such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section 5(a)(v), to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided; however, that each such party shall be required to maintain
in confidence and not to disclose to any other Person any information
or records reasonably designated by the Company as being confidential
until such time as, (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such Person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter or otherwise pursuant to the request of any governmental agency
(only after such Person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is
required to be set forth in such Secondary Offer Registration
Statement or the prospectus included therein or in an amendment to
such Secondary Offer Registration Statement or an amendment or
supplement to such prospectus in order that such Secondary Offer
Registration Statement, prospectus, amendment or supplement, as the
case may be, complies with applicable requirements of the federal
securities laws and the rules and regulations of the Commission and
does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(vii) promptly notify each of the Electing Holders or TWP, as
applicable, any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Secondary
Offer Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Secondary Offer Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of the receipt of written comments from the Commission
and from the blue sky or securities commissioner or regulator of any
state with respect thereto or any request by the Commission for
amendments or supplements to such Secondary Offer Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Secondary Offer Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if
at any time during which such Secondary Offer Registration Statement
is effective the representations and warranties of the Company
contemplated by Section 5(a)(xv) or Section 7 cease to be true and
correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Registrable Shares or the Market Making Securities, as
applicable, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any time
when a prospectus is required to be delivered under the Securities
Act, such Secondary Offer Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment, or any
document incorporated by reference in any of the foregoing, does not
conform in all material respects to the applicable requirements of the
Securities Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(viii) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such Secondary
Offer Registration Statement or any post-effective amendment thereto
at the earliest practicable date;
(ix) if requested by any managing underwriter or underwriters,
any placement or sales agent, any Electing Holder or TWP, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or
underwriters, such agent, such Electing Holder or TWP specify should
be included therein relating to the terms of the sale of such
Registrable Shares, or Market Making Securities, as applicable,
including information with respect to the number of Registrable Shares
or other Market Making Securities being sold by TWP, such Electing
Holder, TWP, or agent or underwriter, the offering price of such
Registrable Shares or the Market Making Securities, as applicable, and
any discount, commission or other compensation payable in respect
thereof and the purchase price being paid therefor by such
underwriters, and with respect to any other terms of the offering of
the Registrable Shares, or Market Making Securities, as applicable, to
be sold by such Electing Holder, TWP, or agent or to such
underwriters, as applicable; and to make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(x) furnish to each Electing Holder, TWP, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 5(a)(v) a conformed copy of
such Secondary Offer Registration Statement, each such amendment and
supplement thereto (in each case, including all exhibits thereto (in
the case of an Electing Holder of Registrable Shares, upon request)
and documents incorporated by reference therein) and such number of
copies of such Secondary Offer Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such Electing Holder, TWP, or
agent or underwriter, as the case may be) and of the prospectus
included in such Secondary Offer Registration Statement (including
each preliminary prospectus and any summary prospectus), in conformity
in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
thereunder, and such other documents, as TWP, such Electing Holder,
TWP, agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the Registrable
Shares owned by such Electing Holder or the Market Making Securities
owned by TWP, to satisfy the prospectus delivery requirements of the
Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any
amendment or supplement thereto by each such Electing Holder, TWP and
any such agent and underwriter, in each case in the form most recently
provided to such party by the Company, in connection with the offering
and sale of the Registrable Shares or the Market Making Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xi) use commercially reasonable efforts to (A) register or
qualify the Registrable Shares, or the Market Making Securities as
applicable, to be included in such Secondary Offer Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder, TWP and each placement or sales
agent, if any, therefor and each underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Market Making Registration is required to remain effective
under Section 4 or the applicable Registration Statement is required
to remain effective under Sections 2 or 3 above, as applicable, (C)
make reasonably available its employees and personnel (including
senior executive officers of the Company) and otherwise provide
reasonable assistance to the underwriters (taking into account the
requirements of the marketing process) in the marketing of Registrable
Shares in any underwritten offering, including participation in any
road show related thereto, and (D) take any and all other actions as
may be reasonable necessary or advisable to enable each such Electing
Holder and TWP, as applicable, such agent, if any, and such
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Shares, or the Market Making
Securities, as applicable;
(xii) use commercially reasonable efforts to obtain the consent
or approval of each governmental agency or authority, whether federal,
state or local, which may be required of the Company or otherwise to
effect any Registration or the Market Making Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders or TWP to offer, or to consummate the disposition
of, the Registrable Shares or the Market Making Securities, as
applicable;
(xiii) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold,
which certificates shall be printed, lithographed or engraved, or
otherwise produced, and which shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Registrable
Shares to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to
any sale of the Registrable Shares;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other
actions in connection therewith as, in the case of a Registration, the
Requisite Holders, or, in the case of a Market Making Registration,
TWP shall request in order to expedite, or facilitate the disposition
of such Registrable Shares or the Market Making Securities, as
applicable;
(xv) whether or not an agreement of the type referred to in
Section 5(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such Secondary Offer Registration
Statement is an underwritten offering or is made through a placement
or sales agent or any other entity, (A) make such representations and
warranties to the Electing Holders, TWP and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with an
offering of common stock pursuant to any appropriate agreement or a
registration statement filed on the form applicable to the
Registration or the Market Making Registration, as applicable; (B)
obtain an opinion of counsel to the Company in customary form and
covering such matters, of the type customarily covered by such an
opinion, as the managing underwriters, if any, and in the case of a
any Registration, as the Electing Holders or, in the case of a Market
Making Registration, as TWP may reasonably request, addressed to such
Electing Holders, TWP and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such Secondary Offer Registration Statement (and if such
Secondary Offer Registration Statement contemplates an underwritten
offering of a part or all of the Registrable Shares or the Market
Making Securities, as applicable, dated the date of the closing under
the underwriting agreement relating thereto) and the date of filing of
an amendment or supplement to such Secondary Offer Registration
Statement or any other document that is incorporated in such Secondary
Offer Registration Statement by reference and includes financial data
with respect to a fiscal quarter or year, as the case may be (it being
agreed that the matters to be covered by such opinion shall include
the due incorporation and existence of the Company and its
subsidiaries; the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type referred
to in Section 5(a)(xiv) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of
the Registrable Shares or the Market Making Securities, as applicable;
the absence of material legal or governmental proceedings involving
the Company or its subsidiaries; the absence of a breach by the
Company or any of its subsidiaries of, or a default under, material
agreements binding upon the Company or any subsidiary of the Company;
the absence of governmental approvals required to be obtained by the
Company in connection with any Registration or the Market Making
Registration, as applicable, the offering and sale of the Registrable
Shares, or the Market Making Securities, as applicable, this Agreement
or any agreement of the type referred to in Section 5(a)(xiv) hereof,
except such approvals as may be required under state securities or
blue sky laws; the material compliance as to form of such Secondary
Offer Registration Statement and any documents incorporated by
reference therein with the requirements of the Securities Act and the
rules and regulations of the Commission thereunder, respectively; and,
as of the date of the opinion and of the Secondary Offer Registration
Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Secondary Offer Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in each case
other than the financial statements and other financial information
contained therein) of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances existing
at the time that such documents were filed with the Commission under
the Exchange Act)); (C) obtain a "cold comfort" letter or letters from
the independent certified public accountants of the Company addressed
to the selling Electing Holders, TWP, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i) the
effective date of such Secondary Offer Registration Statement and (ii)
the effective date of any prospectus supplement to the prospectus
included in such Secondary Offer Registration Statement or amendment
or supplement to such Secondary Offer Registration Statement or any
other document that is incorporated in such Secondary Offer
Registration Statement by reference and includes unaudited or audited
financial statements as of a date or for a period subsequent to that
of the latest such statements included in such prospectus (and, if
such Secondary Offer Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Secondary Offer Registration Statement or
post-effective amendment to such Secondary Offer Registration
Statement which includes unaudited or audited financial statements as
of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the closing
under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the type
customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may
be reasonably requested, in the case of any Registration, by the
Requisite Holders or, in the case of a Market Making Registration, by
TWP, and, in either case, the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof, dated the
effective date of such Secondary Offer Registration Statement (and if
such Secondary Offer Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Shares or
the Market Making Securities, as applicable, dated the date of the
closing under the underwriting agreement relating thereto) and the
date of filing of an amendment or supplement to such Secondary Offer
Registration Statement or any other document that is incorporated in
such Secondary Offer Registration Statement by reference and includes
financial data with respect to a fiscal quarter or year, as the case
may be, to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 7
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as
are provided in Sections 6 and 8 hereof;
(xvi) notify in writing each holder of Registrable Shares
affected thereby and TWP, of any proposal by the Company to amend or
waive any provision of this Agreement pursuant to Section 11(j) hereof
and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Shares or the Market
Making Securities, as applicable, or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Shares or the Market
Making Securities, as applicable, or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker dealer in complying with the requirements of such
Rules and By-Laws, including by (A) if such Rules or By-Laws shall so
require, engaging a "qualified independent underwriter" (as defined in
Rule 2720 (or any successor thereto)) to participate in the
preparation of the Secondary Offer Registration Statement relating to
such Registrable Shares or the Market Making Securities, as
applicable, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
Secondary Offer Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of
such Registrable Shares or the Market Making Securities, as
applicable, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 8 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information
to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Secondary Offer Registration
Statement, an income statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(b) In the event that the Company would be required to provide notice
pursuant to Section 5(a)(vii)(F) above to the Electing Holders, TWP, the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof, the Company shall as promptly as reasonably practicable
prepare and furnish to each such Person a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Shares or Market Making Securities, as
applicable, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the rules and regulations
of the Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Each
Electing Holder and TWP agrees, that upon receipt of any notice from the
Company pursuant to Section 5(a)(vii)(F) hereof, such Electing Holder and
TWP, shall forthwith discontinue the disposition of Registrable Shares or
Market Making Securities, as applicable, pursuant to the Secondary Offer
Registration Statement applicable to such Registrable Shares or Market
Making Securities, as applicable, until such Electing Holder or TWP, as
applicable, shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder or TWP
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Electing Holder's or TWP's
possession of the prospectus covering such Registrable Shares or Market
Making Securities, as applicable, at the time of receipt of such notice.
(c) In addition to the information required to be provided in a Notice
and Questionnaire by each Electing Holder as to which any Registration is
being effected or to be provided by TWP in connection with the Market
Making Registration pursuant to Section 4, the Company may require an
Electing Holder or TWP, as applicable, to furnish to the Company such
additional information regarding such Electing Holder or TWP and such
Electing Holder's or TWP's intended method of distribution of the
applicable Registrable Shares or Market Making Securities as applicable, as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with the
Securities Act. Each such Electing Holder and TWP agrees to notify the
Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder or TWP, as the
case may be, to the Company or of the occurrence of any event in either
case as a result of which any prospectus relating to such Registration or
Market Making Registration, as applicable, contains or would contain an
untrue statement of a material fact regarding such Electing Holder or TWP
or such Electing Holder's or TWP's intended method of disposition of the
Registrable Shares or Market Making Securities, as applicable, or omits to
state any material fact regarding such Electing Holder or TWP or such
Electing Holder's or TWP's intended method of disposition of the
Registrable Shares or Market Making Securities, as applicable, required to
be stated therein or necessary to make statements therein not misleading in
light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall
not contain, with respect to such Electing Holder or TWP or the disposition
of the applicable Registrable Shares or Market Making Securities, as
applicable, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
Section 6. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing
and review fees and expenses, (b) all fees and expenses in connection with
the qualification of the Registrable Shares and the Market Making
Securities, as applicable, for offering and sale under the State securities
and blue sky laws referred to in Section 5(a)(xi) hereof and determination
of their eligibility for investment under the laws of such jurisdictions as
any managing underwriters or the Electing Holders or TWP may designate,
including any fees and disbursements of counsel for the Electing Holders,
TWP or the underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to
the foregoing, the expenses of preparing the Registrable Shares or Market
Making Securities, as applicable, for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters,
selling agreements and blue sky or legal investment memoranda and all other
documents in connection with the offering, sale or delivery of Registrable
Shares or Market Making Securities, as applicable, to be disposed of
(including certificates representing the Registrable Shares or the Market
Making Securities), as applicable, (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Registrable Shares
or Market Making Securities, as applicable, and the preparation of
documents referred in clause (c) above, (e) internal expenses (including
all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (f) fees, disbursements and
expenses of counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (g) fees,
disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 5(a)(xviii) hereof, (h) fees, disbursements and
expenses of one counsel for the Electing Holders retained in connection
with any Registration, as selected by the Majority Holders and one counsel
for TWP retained in connection with a Market Making Registration, as
selected by TWP; (i) fees, expenses and disbursements of any other Persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder
of Registrable Shares, TWP or any placement or sales agent therefor or
underwriter thereof, the Company shall reimburse such Person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Shares being registered or TWP, as applicable,
shall pay agency fees and commissions and underwriting discounts and
commissions attributable to the sale of the applicable Registrable Shares,
or Common Stock and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
Section 7. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser each of the holders from time to time of Registrable Shares and
TWP that:
(a) Each registration statement covering Registrable Shares or Market
Making Securities, as applicable, and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant
to Section 5(a) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Shares or Market Making Securities, as
applicable, at the time of the closing under the underwriting agreement
relating thereto, will conform in all material respects to the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at
all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than (A) from (i)
such time as a notice has been given to the Purchasers, the holders of
Registrable Shares or TWP, as applicable, pursuant to Section 5(a)(vii)(F)
hereof until (ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 5(b) hereof, or (B) during any
suspension of offering and sale pursuant hereto, each such registration
statement, and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 5(a) hereof,
as then amended or supplemented, will conform in all material respects to
the applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Shares or TWP, as applicable, expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 7(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
Section 8. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless (i) each of the Electing Holders of Registrable Shares
included in a Registration Statement and TWP as holders of Market Making
Securities included in a Market Making Registration Statement and each
Person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Shares or Market Making
Securities, as applicable, (ii) each Person, if any, who controls (within
the meaning of Section 15 or Section 20 of the Exchange Act) any such
Person referred to in clause (i) (any of the Persons referred to in this
clause (ii) being referred to herein as a "Controlling Person") and (iii)
the respective officers, directors, partners, employees, representatives
and agents of any Person referred to in clause (i) or any such Controlling
Person (any such Person referred to in clause (i), (ii) or (iii) referred
to for purposes of this Section 8(a) and Sections 8(c) through 8(e) as an
"Indemnified Person"), against any losses, claims, damages or liabilities,
joint or several, to which or such Indemnified Person may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Secondary Offer Registration Statement, or any
preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and will reimburse each such Indemnified Person for any legal
and other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any such action or claims as
such expenses are incurred; provided, however, that the Company shall not
be liable in any such case (i) to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any such
Registration Statement, or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by any
Indemnified Person expressly for use therein or (ii) from the use or
delivery by such Indemnified Person, Controlling Person or underwriter of a
prospectus other than the most current prospectus made available to such
Holder, Controlling Person or underwriter by the Company.
(b) Indemnification by the Holders and any Agents and Underwriters in
Connection with any Registration. The Company may require, as a condition
to including any Registrable Share in any Registration Statement and to
entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it
from each Electing Holder of such Registrable Shares and from each
underwriter named (if any) in any such underwriting agreement, severally
and not jointly, to indemnify and hold harmless (i) the Company and all
other holders of Registrable Shares, (ii) each Controlling Person of any
Person referred to in clause (i), and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Person
referred to in clause (i) or any such Controlling Person (any Person
referred to in clause (i), (ii) or (iii), referred to for purposes of this
Section 8(b) and Sections 8(c) through 8(e) as an "Indemnified Person")
against any losses, claims, damages or liabilities, joint or several, to
which such Indemnified Person may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in such Registration
Statement, or any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such Registration Statement, or any
preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein; and will reimburse the Company for any legal and
other expenses reasonably incurred by the Company in connection with
investigating or defending any such actions or claims as such expenses are
incurred; provided, however, that the liability of any Electing Holder
pursuant to this subsection (b) shall not exceed the product of the number
of Registrable Shares sold by such Electing Holder and the initial offering
price therefor as set forth in the prospectus therefor.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an Indemnified Person (as defined under each of subsections (a)
and (b) of this Section 8) of notice of the commencement of any action,
such Indemnified Person shall, if a claim in respect thereof is to be made
against an indemnifying party under such clause, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may
have to any Indemnified Person otherwise than under such subsection or to
the extent it is not prejudiced as a proximate result of such failure. In
case any such action is brought against any Indemnified Person and it shall
notify an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
Indemnified Person (who shall not, except with the consent of the
Indemnified Person, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such Indemnified Person of its
election so to assume the defense thereof, the indemnifying party shall not
be liable to such Indemnified Person under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such Indemnified Person, in connection with the defense thereof
other than reasonable costs of investigation. Notwithstanding the
foregoing, any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the
Indemnified Person unless the Indemnified Person shall have been advised by
counsel that representation of the Indemnified Person by counsel provided
by the indemnifying party would be inappropriate due to actual or potential
conflicting interests between the indemnifying party and the Indemnified
Person, including situations in which there are one or more legal defenses
available to the Indemnified Person that are different from or additional
to those available to the indemnifying party; provided, however, that the
indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar actions or proceedings
arising out of the same general allegations, be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all
Indemnified Parties, except to the extent that local counsel, in addition
to its regular counsel, is required in order to effectively defend against
such action or proceeding. No indemnifying party shall, without the written
consent of the Indemnified Person, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnified Person
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the Indemnified Person from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in this Section
8 is unavailable to or insufficient to hold harmless an Indemnified Person
under subsection (a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one hand and the Indemnified Person on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault 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 indemnifying party on
the one hand or the Indemnified Person on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Indemnified Persons were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Electing Holder shall be required to
contribute any amount in excess of the amount by which the product of
number of Registrable Shares sold by such Electing Holder and the initial
offering price therefor as set forth in the prospectus therefor exceeds the
amount of any damages which such Electing Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, and no underwriter or sales agent shall be
required to contribute any amount in excess of the amount by which the
total price at which the shares of Common Stock underwritten or placed by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter or sales agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The obligations of the Company and the Electing Holders under this
Section 9 shall be in addition to any liability which the Company and the
respective Electing Holders may otherwise have.
Section 9. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Shares
covered by the Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Majority Holders, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Shares hereby
agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell
such holder's Registrable Shares on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
Section 10. Rule 144 and Rule 144A.
The Company covenants to the holders of Registrable Shares and the
Purchasers that to the extent it shall be required to do so under the
Exchange Act, the Company shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, shall make available to each holder of Registrable Shares and
the Purchasers the information required by Rule 144A(d)(4), and shall take
such further action as any holder of Registrable Shares or the Purchasers
may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Shares or the Purchasers to sell
Common Stock without registration under the Securities Act within the
limitations of the exemptions provided by Rule 144 or Rule 144A under the
Securities Act, as such Rules may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Shares or the
Purchasers in connection with that holder's or the Purchasers' sale
pursuant to Rule 144 or Rule 144A, the Company shall deliver to such holder
or the Purchasers a written statement as to whether it has complied with
such requirements.
Section 11. Holdoff Agreement.
(a) The Company agrees not to effect any public sale or distribution
of equity securities of the Company, including any public sale pursuant to
Rule 144 under the Securities Act, or any securities convertibles into or
exchangeable or exercisable for such securities, (a "Public Sale"), during
the period commencing 30 days prior to and ending 90 days after the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registration on Form S-8 or any successor form), unless the
underwriters managing the offering otherwise agree.
(b) Each holder of Registrable Shares agrees not to effect any Public
Sale (and in the case of Investors and Purchasers, such holders agree not
to effect a distribution to their respective partners in connection with an
underwritten demand registration in which the Purchasers (in the case of
Investors) or the Investors (in the case of Purchasers) are participating
under this Agreement, provided that the party agreeing not to distribute
shall have received notice of such Registration at least 45 days prior to
the effective date thereof) during the period commencing 30 days prior to
and ending 90 days after the effective date of any underwritten
registration for the account of the Company (except as part of such
underwritten registration or pursuant to registration on Form S-8 or any
successor form) or any Demand Registration, unless, in any such case, the
underwriters managing the offering otherwise agree; provided that the
holders of Investors' Shares shall not be subject to the agreement set
forth in this subsection 11(b) until the first anniversary of the date
hereof; provided further that nothing in this subsection 11(b) shall be
deemed to restrict any distribution by the Investors or Purchasers to their
respective partners of such securities otherwise than as expressly set
forth above or to restrict the sale of such securities by the partners of
the Investors or Purchasers after any such distribution.
(c) The Company agrees to use its commercially reasonable efforts to
cause any underwriters managing an offering referred to in the Existing
Registration Agreement or otherwise to release the holders of Registrable
Shares from any resale restrictions managed by such underwriters with
respect to such offerings no later than and on terms no less favorable to
the holders of Registrable Shares than imposed on other holders of shares
of Common Stock who are so released from such resale restrictions.
Section 12. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Shares, Common Stock or any
other securities which would be inconsistent with the terms contained in
this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers, the holders from time to
time of the Registrable Shares and TWP may be irreparably harmed by any
such failure, and accordingly agree that the Purchasers, such holders and
TWP, in addition to any other remedy to which they may be entitled at law
or in equity, shall be entitled to compel specific performance of the
respective obligations of the Company under this Agreement in accordance
with the terms and conditions of this Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices and communications provided for hereunder
shall be in writing and sent (i) by telecopy if the sender on the same day
sends a confirming copy of such notice by a recognized overnight delivery
service (charges prepaid); or (ii) by registered or certified mail with
return receipt requested (postage prepaid); or (iii) by a recognized
overnight delivery service (with charges prepaid). Any such notice must be
sent:
If to the Purchasers:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners, L.P.,
TWP CEO Founders' Circle (AI), L.P.,
TWP CEO Founders' Circle (QP), L.P.,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners Employee Fund, L.P.,
TWP 2000 Co-Investment Fund, L.P.
c/o Thomas ▇▇▇▇▇▇ Capital Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
RKB Capital, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with copies to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to the Company:
Optika Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
with copies to:
E* Law Group
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
and to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to any Investor or Founder:
At the address specified for such
Investor or Founder in the Existing
Registration Agreement.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and the holders from time to time of the
Registrable Shares and the respective successors and assigns of the parties
hereto and such holders. In the event that any transferee of any holder of
Registrable Shares shall acquire Registrable Shares, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Shares shall be
held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Shares such transferee shall be entitled to
receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Agreement. If
the Company shall so request, any such successor, assign or transferee
shall agree in writing to acquire and hold the Registrable Shares subject
to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of the Purchasers or any holder of Registrable Shares, any director,
officer or partner of the Purchasers or such holder, any agent or
underwriter or any director, officer or partner thereof, or any Controlling
Person of any of the foregoing, and shall survive delivery of and payment
for the Securities pursuant to the Purchase Agreement and the transfer and
registration of Common Stock by such holder or the Purchasers.
(f) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
(g) Waiver of Jury Trial. THE ISSUER HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE SECURITIES OR EXCHANGE NOTES.
(h) Submission to Jurisdiction. If any action, proceeding or
litigation shall be brought by the Purchasers or any holder of the
Registrable Shares in order to enforce any right or remedy under this
agreement or any of the Shares, the Company hereby consents and will
submit, and will cause each of its subsidiaries to submit, to the
jurisdiction of any state or federal court of competent jurisdiction
sitting within the area comprising the Southern District of New York on the
date of this Agreement. The Company hereby irrevocably waives any
objection, including, but not limited to, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action, proceeding or litigation
in such jurisdiction.
(i) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(j) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understanding between the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed
by the Company and the holders of at least, in the case of an amendment
that could reasonably be viewed as adversely affecting the rights of the
holders of (A) Purchasers' Shares, then a majority in number of Purchasers'
Shares and (B) Investors' Shares, then 70% of the Investors' Shares and (C)
Founders' Shares, then a majority of Founders' Shares; provided, however,
that any such amendment or waiver affecting solely provisions of this
Agreement relating to the Market Making Registration may be effected by a
written instrument duly executed solely by the Company and TWP. Each holder
of any Registrable Shares at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section 11(j),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Shares or is delivered to such holder.
(k) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Shares and the addresses of the Purchasers shall be made
available for inspection and copying on any business day to the Purchasers
or any holder of Registrable Shares for proper purposes only (which shall
include any purpose related to the rights of the holders of Registrable
Shares under the Securities and this Agreement) at the offices of the
Company at the address thereof set forth in Section 11(c) above.
(l) Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all,
of the parties hereto.
(m) Effective Date. This Agreement shall become effective as between
the Company, the Founders and the Investors upon the execution of the
Agreement as of such date (the "Effective Date") on which the Agreement
(which has already been executed by the Company) shall have been executed
by Investors who hold at least 70% of the Investors' Shares and Founders
who hold at least a majority of the Founders' Shares, whereupon this
Agreement shall be binding upon all Investors and Founders, whether or not
they have executed this Agreement. Notwithstanding anything to the
contrary, regardless of whether or when the Effective Date shall occur,
this Agreement shall be a valid and binding agreement of the Company and
the Purchasers (and any subsequent of holder Registrable Shares which are
not Founders' Shares or Investors' Shares), and until the Effective Date
shall occur, this Agreement shall be deemed to exclude all rights and
obligations of the holders of Founders' Shares and Investors' Shares. As of
the Effective Date, with respect to Frontenac VI Limited Partnership and
JMI Equity Fund L.P. (the "Funds"), that certain Letter Agreement, dated as
of February 8, 2000, by and among the Company, the Funds and the Purchasers
shall terminate.
(n) Future Registration Rights. Except for the registration rights
granted hereunder, the Company will not grant registration rights as to any
equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the written
consent of the holders of at least (A) a majority in number of Purchasers'
Shares and (B) 70% of the Investors' Shares unless (i) any such
registration rights that may be initiated at the demand of the holders of
such rights (each such holder a "New Investor") shall include in such
demand Registrable Shares requested to be included by holders of
Purchasers' Shares and Investors' Shares pro rata in accordance with the
number of shares requested to be included therein by each of the holders of
Purchasers' Shares and Investors' Shares and each of the New Investors, so
long as the holders of a majority of the Purchasers' Shares and 70% of the
Investors' Shares agree to include on a pro rata basis any shares requested
to be included by such New Investor in any Demand Registration of
Registrable Shares initiated by either holders of Purchasers' Shares or
Investors' Shares under Section 2(a) herein (other than a Demand
Registration as to which the holders of Purchasers' Shares or Investors'
Shares, as the case may be, have made the election contemplated by clause
(x) or clause (y) of the second proviso to the first sentence of Section
2(e) not to have any Investors' Shares or Purchasers' Shares, respectively,
included therein on a pro-rata basis), (ii) in the case of any such
registration rights relating to the registration of Common Stock for the
account of the Company, the holders of Registrable Shares hereunder shall
have priority over the holders of any such registration rights and (iii)
any such registration rights granted shall not be any more favorable to the
holders of such registration rights as compared to, or otherwise be
inconsistent with, the rights granted to the holders of Purchasers' Shares
and Investors' Shares hereunder.
Agreed to and accepted as of the date first above written.
OPTIKA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO
[Company's Signature Page - Registration Rights Agreement]
PURCHASERS
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▇▇▇▇▇▇ ▇▇▇▇▇▇ CAPITAL PARTNERS, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
TWP CEO FOUNDERS' CIRCLE (AI), L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
TWP CEO FOUNDERS' CIRCLE (QP), L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇ CAPITAL PARTNERS EMPLOYEE FUND, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
TWP 2000 C0-INVESTMENT FUND, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital Partners LLC, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Group LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
[Purchasers' Signature Page - Registration Rights Agreement]
PURCHASERS
----------
RKB CAPITAL, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Partner
[Purchasers Signature Page - Registration Rights Agreement]
INVESTORS
---------
Frontenac VI Limited Partnership
By: Frontenac Company
Its: General Partner
By:
-------------------------------
Name:
Title:
JMI Equity Fund, L.P.
By: JMI Partners, L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
FOUNDERS:
---------
SCHEDULE A
SCHEDULE OF FOUNDERS
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▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
IPRS Asia (s) Pte Ltd
Intuit Development Limited
▇▇▇▇▇▇▇▇▇ Limited
SCHEDULE B
SCHEDULE OF INVESTORS
Frontenac VI Limited Partnership
JMI Equity Fund, L.P.
