Exhibit 10.23
STRATEGIC PARTNER
REGISTRATION RIGHTS AGREEMENT dated as
of February 7, 2000, between OPUS360
CORPORATION, a Delaware corporation (the
"Corporation"). and LUCENT TECHNOLOGIES
INC., a Delaware corporation ("Lucent").
Lucent owns or has the right to purchase or otherwise acquire shares
of the Corporation's Common Stock (as defined below). The Corporation and Lucent
deem it to be in their respective best interests to enter into this Agreement to
set forth the rights of Lucent in connection with public offerings and sales of
the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. Definitions.
As used herein, the following terms shall have the following
respective meanings:
"Additional Registrable Shares" means, at any time with respect to
any Additional Securityholder, the Registrable Shares held by such Additional
Securityholder (but only if such Additional Securityholder is entitled (but not
pursuant to this Agreement) to the registration of such Registrable Shares by
the Corporation under the Securities Act for sale to the public).
"Additional Securityholder" means any holder of Restricted
Securities who or which is entitled (but not pursuant to this Agreement) to the
registration of such Restricted Securities by the Corporation under the
Securities Act for sale to the public.
"Agreement" means this Strategic Partner Registration Rights
Agreement.
"Business Day" means any day, other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Common Stock" means the Common Stock, par value $.001 per share, of
the Corporation (and such other class of common stock of the Corporation, or any
successor thereto, into which the Common Stock may be converted or reclassified,
and all references herein to the Common Stock shall mean such other class of
common stock, if applicable).
"Conversion Shares" means the Series A Conversion Shares and the
Series B Conversion Shares.
"Corporation" has the meaning assigned to such term in the caption
to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
SEC promulgated thereunder, all as the same may from time to time be in effect.
"Governmental Entity" means any government or political sub-division
or department thereof, any governmental or regulatory body, commission, board,
bureau, agency or instrumentality, or any court or arbitrator or alternative
dispute resolution body, in each case whether federal, state, local or foreign.
"Initial Common Shares" means the Registrable Shares that are (i)
shares of Common Stock issued or issuable to Xxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx XxXxxx, Xxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx or USWeb/CKS Corporation, or (ii) shares
of Common Stock issued on or with respect to the shares of Common Stock referred
to in clause (i) above.
"Initial Warrants" means (i) the warrants dated May 19, 1999 and
August 17, 1999 issued by the Corporation to Silicon Valley Bank to purchase
shares of Common Stock, (ii) the warrants dated December 24, 1998 issued by the
Corporation to each of Xxxxxx Xxxxxxx, G&R Partnership, LP, Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxx and Xxxxx Xxxxxxxxxx to purchase shares of Common Stock, and (iii)
the warrants dated September 3, 1999 and January 15, 2000 issued by the
Corporation to Xxxxxxxxx & Co., LLC
"Law" means any foreign, federal, state or local law, statute,
treaty, rule, directive, regulation, ordinances and similar provisions having
the force or effect of law or any Order.
"Lucent" has the meaning assigned to such term in the caption to
this Agreement.
"Lucent Securityholders" means, collectively, (i) Lucent, (ii) any
other Persons listed on Schedule I from time to time, and (iii) any purchaser,
assignee or other transferee of Restricted Securities held by any of the
foregoing in a purchase, assignment or other transfer permitted under Section 19
and in which such purchaser, assignee or other transferee has complied in full
with the joinder requirements set forth in Section 19. Upon the addition of each
new Lucent Securityholder as a party to this Agreement, the Corporation shall
amend Schedule I solely to reflect the name and address of such new Lucent
Securityholder, and the Corporation shall distribute to the Lucent
Securityholders such amended Schedule I.
"Majority of the Lucent Securityholders" means those Lucent
Securityholders who or which hold in the aggregate in excess of 50% of all of
the Registrable Shares.
"Material Transaction" shall mean any material transaction in which
the Corporation or any of its Subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction or event that would require
disclosure pursuant to the Exchange Act if the Corporation were a reporting
company thereunder, and with respect to which the Board of Directors of the
Corporation reasonably has determined in good faith that compliance with this
Agreement may reasonably be expected to either materially interfere with the
Corporation's or such Subsidiary's ability to consummate such transaction in a
timely fashion or require the Corporation to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed,
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"Orders" means any enforceable judgments, writs, decrees,
declarations, injunctions, orders, stipulations, compliance agreement or
settlement agreements issued or imposed by, or entered into with, a Governmental
Entity.
"Other Shares" means, at any time, those shares of Common Stock
which do not constitute Primary Shares, Registrable Shares or Additional
Registrable Shares.
"Person" shall be construed as broadly as possible and shall include
an individual, a corporation, a company, an association, a joint stock company,
a partnership (including a limited liability partnership), a limited liability
company, a joint venture, a trust or an unincorporated organization and a
Governmental Entity.
"Primary Shares" means, at any time, the authorized but unissued
shares of Common Stock or Common Stock held by the Corporation in its treasury.
"Prospectus" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Public Offering" means a public offering of Common Stock pursuant
to a registration statement declared effective under the Securities Act, except
that a Public Offering shall not include an offering of securities to be issued
as consideration in connection with a business acquisition or an offering of
securities issuable pursuant to an employee benefit plan.
"Registering Lucent Securityholders" means, with respect to any
registration of Registrable Shares, those Lucent Securityholders who or which
hold the Registrable Shares included in such registration.
"Registrable Shares" means, at any time with respect to any Lucent
Securityholder or Additional Securityholder, the shares of Common Stock held by
such Lucent Securityholder or Additional Securityholder that constitute
Restricted Securities. For purposes of this definition, a Lucent Securityholder
or Additional Securityholder shall be deemed to be the holder of shares of
Common Stock whenever such Lucent Securityholder or Additional Securityholder
has the right acquire, directly or indirectly, such Common Stock upon the
conversion or exercise of Restricted Securities (but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Registration Date" means the date upon which the registration
statement pursuant to which the Corporation shall have initially registered
shares of Common Stock under the Securities Act for sale to the public shall
have been declared effective.
"Registration Statement" means any registration statement of the
Corporation which covers any of the Registrable Shares, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the
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Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Restricted Securities" means, at any time, with respect to any
Person, the shares of Common Stock, the shares of Series A Preferred Stock, the
shares of Series B Preferred Stock, the Initial Warrants and any other
securities which by their terms are directly or indirectly exercisable or
exchangeable for or convertible into any of the foregoing securities, and any
securities received on or with respect to any of the foregoing securities, in
each case which are held by such Person. As to particular securities
constituting Restricted Securities, such securities shall cease to be
Restricted Securities when (A) they have been registered under the Securities
Act, the Registration Statement in connection therewith has been declared
effective and such Restricted Securities have been disposed of pursuant to and
in the manner described in such effective Registration Statement, (B) they are
eligible to be sold or distributed by the holder thereof pursuant to Rule 144
within any consecutive three-month period (including, without Limitation, Rule
144(k)) without volume limitations, (C) they have been otherwise transferred and
new certificates or other evidences of ownership for them not bearing a
restrictive legend and not subject to any stop transfer order or other
restriction on transfer shall have been delivered by the Corporation or the
issuer of other securities issued in exchange for the Restricted Securities, or
(D) they have ceased to be outstanding.
"SEC" means the United States Securities and Exchange Commission.
"securities" means, with respect to any Person, such Person's
"securities," as defined in Section 2(l) of the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the SEC
promulgated thereunder, all as the same may from time to time be in effect.
"Series A Conversion Shares" means the Registrable Shares that are
(i) shares of Common Stock issued or issuable upon the conversion of Series A
Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in clause (i) above or (iii) shares of Common
Stock issued on or with respect to the Series A Preferred Stock.
"Series A Preferred Stock" means the Corporation's Series A
Convertible Preferred Stock, par value $.001 per share.
"Series B Conversion Shares" means the Registrable Shares that are
(i) shares of Common Stock issued or issuable upon the conversion of Series B
Preferred Stock, (ii) shares of Common Stock issued on or with respect to the
shares of Common Stock referred to in clause (i) above or (iii) shares of Common
Stock issued on or with respect to the Series B Preferred Stock.
"Series B Preferred Stock" means the Corporation's Series B
Convertible Preferred Stock, par value $.001 per share.
"Shares" means the Registrable Shares, the Additional Registrable
Shares, the SP Registrable Shares, the Initial Common Shares, the Conversion
Shares and the Warrant Shares.
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"SP Registrable Shares" means (i) any Additional Registrable Shares
issued by the Corporation to any Strategic Partner (other than Lucent) in
connection with such Strategic Partner's entry into a strategic arrangement with
the Corporation for the provision by either party to the other party of goods,
services, technology, expertise or other value and (ii) any other Additional
Registrable Shares issued on or with respect to the Additional Registrable
Shares referred to in clause (i) above.
"Stockholders' Agreement" means the Stockholders' Agreement dated as
of December 24, 1998, among the Company, Lucent and the other parties thereto,
as amended, supplemented, modified and in effect from time to time.
"Strategic Partner" means a Person who or which, at the time in
question, has entered into, or is simultaneously entering into or has agreed to
enter into, a strategic arrangement with the Corporation for the provision by
either party to the other party of goods, services, technology, expertise or
other value.
"Subsidiary" means, as to any Person, any other Person of which more
than 50% of the shares of the voting stock or other voting interests are owned
or controlled, or the ability to select or elect 50% or more of the directors or
similar managers is held, directly or indirectly, by such first Person or one or
more of its Subsidiaries.
"Warrant Shares" means the Registrable Shares that are (i) shares of
Common Stock issued or issuable upon the exercise of the Initial Warrants, (ii)
shares of Common Stock issued on or with respect to the shares of Common Stock
referred to in clause (i) above or (iii) shares of Common Stock issued on or
with respect to the Initial Warrants.
2. Form S-3 Registrations.
(a) If, at any time after the Registration Date the Corporation
shall be qualified for the use of Form S-3 promulgated under the Securities Act
(or any successor form thereto) for the sale to the public of Registrable Shares
held by the Lucent Securityholders, a Majority of the Lucent Securityholders
shall notify the Corporation in writing that such Lucent Securityholders desire
to sell Registrable Shares, with an anticipated aggregate gross offering price
(before underwriting discounts and commissions) of at least $3,000,000, in the
public securities market and request that the Corporation effect the
registration on Form S-3 (or any successor form thereto) of such Registrable
Shares, the Corporation shall:
(i) promptly give written notice of the proposed registration to all
other Lucent Securityholders, who or which shall have the right, subject
to the applicable terms of this Agreement, to include in such registration
Registrable Shares held by them (exercisable by delivering to the
Corporation a written notice specifying the number of Registrable Shares
requested to be included within 30 days after receipt of such notice of
such registration from the Corporation); and
(ii) file and then use its best efforts to have the registration on
Form S-3 (or any successor form thereto) of the Registrable Shares which
the Corporation has been so requested to register declared effective.
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(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Corporation shall not be obligated to effect pursuant to
Section 2(a) any registration under the Securities Act except in accordance with
the following provisions:
(i) The Corporation shall not be obligated to use its best efforts
to file and cause to become effective (A) more than one Registration
Statement requested pursuant to Section 2(a) or (B) any Registration
Statement during any period in which any other registration statement
(other than on Form S-4 or Form S-8 promulgated under the Securities Act
or any successor forms thereto) pursuant to which Primary Shares are to be
or were sold has been filed and not withdrawn or has been declared
effective within the prior 90 days.
(ii) The Corporation may delay the filing or effectiveness of any
Registration Statement for a period of up to 90 days after the date of a
request for registration pursuant to Section 2(a) if at the time of such
request the Corporation (A) is engaged, or has fixed plans to engage
within 90 days of the time of such request, in a firm commitment,
underwritten public offering of Primary Shares in which the holders of
Registrable Shares may include Registrable Shares pursuant to Section 3 or
(B) is engaged in a Material Transaction.
(iii) In connection with any registration of Registrable Shares
pursuant to Section 2(a), the Corporation shall give notice of such
registration to the holders of all Additional Registrable Shares and Other
Shares which are entitled to registration rights and the Corporation may
include in such registration any Primary Shares, Additional Registrable
Shares or Other Shares; provided, however, that if the managing
underwriter advises the Corporation that the inclusion of all of the
Registrable Shares, Primary Shares, Additional Registrable Shares and/or
Other Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of all of such
securities, then the number of Registrable Shares, Primary Shares,
Additional Registrable Shares and/or Other Shares proposed to be included
in such registration shall be included in the following order:
(A) first, the Registrable Shares requested by the Lucent
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares pro rata among all such
Persons based upon the aggregate number of Registrable Shares and SP
Registrable Shares held by each such Person at the time of
registration);
(B) second, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all such
Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of
registration, or, in the
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absence of any applicable provisions, pro rata among all such
Additional Securityholders based upon the number of Additional
Registrable Shares constituting Initial Common Shares, Conversion
Shares or Warrant Shares held by each such Additional Securityholder
at the time of registration);
(C) third, the Primary Shares
(D) fourth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of registration, or, in the absence of any applicable
provisions, pro rata among all such Additional Securityholders based
upon the number of Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares held by each such Additional Securityholder at
the time of registration);
(E) fifth, the Registrable Shares requested by the Lucent
Securityholders to be included in such registration (or, if
necessary, such Shares pro rata among all such Persons based upon
the aggregate number of Registrable Shares held by each such Lucent
Securityholder at the time of registration); and
(F) sixth, the Other Shares.
(c) If the Majority of the Lucent Securityholders in a registration
requested pursuant to Section 2(a) intend to distribute the Registrable Shares
covered by their request by means of an underwriting, they shall so advise the
Corporation as a part of their request for registration pursuant to Section 2(a)
In such event, the Corporation shall select one or more nationally recognized
firms of investment bankers reasonably acceptable to the Majority of the Lucent
Securityholders to act as the lead managing underwriter or underwriters in
connection with such offering. The right of any Registering Lucent
Securityholder to registration pursuant to Section 2(a) shall be conditioned
upon such Registering Lucent Securityholder's participation in such underwriting
and the inclusion of such Registering Lucent Securityholder's Registrable Shares
in the underwriting (unless otherwise mutually agreed by the Corporation and
such Registering Lucent Securityholder) to the extent provided herein. The
Corporation and the Registering Lucent Securityholders proposing to distribute
their securities through such underwriting shall enter into an underwriting
agreement which is reasonable and in customary form with the underwriters of
such offering.
(d) A requested registration under Section 2(a) may be rescinded
prior to the related Registration Statement being declared effective by the SEC
by written notice to the Corporation from the Majority of the Lucent
Securityholders; provided, however, such registration shall not count as a
Registration Statement requested pursuant to Section 2(a) for purposes of clause
(A) of Section 2(b)(i) if the Corporation shall have been reimbursed for all
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out-of-pocket expenses incurred by the Corporation in connection with such
rescinded registration
3. Piggyback Registration
(a) if the Corporation proposes for any reason to register Primary
Shares, Additional Registrable Shares or Other Shares under the Securities Act
at any time after the closing of an initial Public Offering of Common Stock
(other than on Form S-4 or Form S-8 promulgated under the Securities Act or any
successor forms thereto), it shall give written notice to the Lucent
Securityholders of its intention to so register such Primary Shares, Additional
Registrable Shares or Other Shares at least 30 days before the initial filing of
the registration statement for such Primary Shares, Additional Registrable
Shares or Other Shares and, upon the written request, given within 20 days after
delivery of any such notice by the Corporation, of any Lucent Securityholder to
include in such registration Registrable Shares (which request shall specify the
number of Registrable Shares proposed to be included in such registration and
shall state the desire of such Lucent Securityholder to sell such Registrable
Shares in the public securities markets), the Corporation shall use its best
efforts to cause all such Registrable Shares to be included in such registration
on the same terms and conditions as the Primary Shares, Additional Registrable
Shares or Other Shares otherwise being sold in such registration; provided,
however, if the managing underwriter advises the Corporation that the inclusion
of all of the Registrable Shares. Primary Shares, Additional Registrable Shares
and/or Other Shares proposed to be included in such registration would interfere
with the successful marketing (including pricing) of all of such securities,
then the number of Registrable Shares, Primary Shares, Additional Registrable
Shares and/or Other Shares proposed to be included in such registration shall be
included in the following order:
(i) If such registration is initiated by the Corporation to register
Primary Shares. Other Shares or Additional Registrable Shares not
constituting Initial Common Shares, Conversion Shares; Warrant Shares or
SP Registrable Shares, or by any holder of the foregoing:
(A) first, the Primary Shares;
(B) second, the Registrable Shares requested by the Lucent
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable Shares,
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such registration
(or, if necessary, such Shares allocated between (x) the Lucent
Securityholders and the Additional Securityholders who or which have
requested the inclusion of Registrable Shares or SP Registrable
Shares in such registration on the one hand and (y) the other
Additional Securityholders who or which have requested the inclusion
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares in such registration on the other
hand, in proportion to the aggregate number of Shares held by each
such group of Persons at the time of registration, with the aggregate
number of Shares allocated to the Additional Securityholders
described in clause (1) above further allocated among such Additional
Securityholders in accordance with the
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applicable provisions of any agreements between the Corporation and
such Additional Securityholders, as amended, supplemented or
otherwise modified from time to time and in effect at the time of
registration, or, in the absence of any applicable provisions. pro
rata among all such Additional Securityholders based upon the number
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such Additional
Securityholder at the time of registration);
(C) third, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders as amended,
supplemented or otherwise modified from time to rime and in effect
at the time of registration, or, in the absence of any applicable
provisions, pro rata among all such Additional Securityholders based
upon the number of Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares held by each such Additional Securityholder at
the tune of registration); and
(D) fourth, the Other Shares.
(iii) If such registration is initiated by Additional
Securityholders who or which request the inclusion of their Additional
Registrable Shares constituting SP Registrable Shares in such
registration:
(A) first, the Additional Registrable Shares constituting SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration and the Registrable Shares requested
by the Lucent Securityholders to be included in such registration
(or, if necessary, such Shares pro rata among all such Persons based
on the aggregate number of SP Registrable Shares and Registrable
Shares held by each such Person at the time of registration);
(B) second, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all such
Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of
registration, or, in the absence of any applicable provisions, pro
rata among all such Additional Securityholders based upon the number
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such Additional
Securityholder at the (line of registration);
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(C) third, the Primary Shares;
(D) fourth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or, if necessary, such Shares
allocated among all such Additional Securityholders in accordance
with the applicable provisions of any agreements between the
Corporation and such Additional Securityholders, as amended,
supplemented or otherwise modified from time to time and in effect
at the time of registration, or, in the absence of any applicable
provisions, pro rata among all such Additional Securityholders based
upon the number of Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares held by each such Additional Securityholder at
the time of registration); and
(E) fifth, the Other Shares.
(iii) If such registration is initiated by Additional
Securityholders who or which request the inclusion of Additional
Registrable Shares constituting Initial Common Shares, Conversion Shares
or Warrant Shares in such registration:
(A) first, the Additional Registrable Shares constituting
Initial Common Shares, Conversion Shares or Warrant Shares requested
by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares allocated among all such
Additional Securityholders in accordance with the applicable
provisions of any agreements between the Corporation and such
Additional Securityholders, as amended, supplemented or otherwise
modified from time to time and in effect at the time of
registration, or, in the absence of any applicable provisions, pro
rata among all such Additional Securityholders based upon the number
of Additional Registrable Shares constituting Initial Common Shares,
Conversion Shares or Warrant Shares held by each such Additional
Securityholder at the time of registration);
(B) second, the Registrable Shares requested by the Lucent
Securityholders to be included in such registration and the
Additional Registrable Shares constituting SP Registrable Shares
requested by the Additional Securityholders to be included in such
registration (or, if necessary, such Shares pro rata among all such
Persons based on the aggregate number of Registrable Shares and SP
Registrable Shares held by each such Person at the time of
registration);
(C) third, the Primary Shares;
(D) fourth, the Additional Registrable Shares not constituting
Initial Common Shares, Conversion Shares, Warrant Shares or SP
Registrable Shares requested by the Additional Securityholders to be
included in such registration (or. if necessary. such Shares
allocated among all such Additional Securityholders
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in accordance with the applicable provisions of any agreements
between the Corporation and such Additional Securityholders, as
amended, supplemented or otherwise modified from time to time and in
effect at the time of registration, or. in the absence of any
applicable provisions, pro rata among all such Additional
Securityholders based upon the number of Additional Registrable
Shares not constituting Initial Common Shares, Conversion Shares,
Warrant Shares or SP Registrable Shares held by each such Additional
Securityholder at the time of registration; and
(E) fifth, the Other Shares.
4. Holdback Agreement.
If the Corporation at any time shall register shares of Common Stock
under the Securities Act in an aggregate amount of at least $5,000,000
(including any registration pursuant to Section 2 or 3, but excluding any
registrations on Form S-4 or S-8) for sale to the public, no Lucent
Securityholder shall sell publicly, make any short sale of, grant any option for
the purchase of, or otherwise dispose publicly of, any capital stock of the
Corporation (other than those shares of Common Stock included in such
registration pursuant to Section 2 or 3) without the prior written consent of
the Corporation, for a period designated by the Corporation in writing to the
Lucent Securityholders, which period shall begin not more than 10 days prior to
the effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the date on
which such registration statement became effective, whether or not such Lucent
Securityholder participates in such registration. Each Lucent Securityholder
agrees that the Corporation may instruct its transfer agent to place stop
transfer notations on its records to enforce this Section 4
5. Preparation and Filing.
If and whenever the Corporation is under an obligation pursuant to
the provisions of this Agreement to use its best efforts to effect the
registration of, and keep effective a Registration Statement, for any
Registrable Shares, the Corporation shall, as expeditiously as practicable:
(a) use its best efforts to cause a Registration Statement that
registers such Registrable Shares to become and remain effective for a period of
90 days or until all of such Registrable Shares have been disposed of (if
earlier);
(b) furnish, at (east five Business Days before filing a
Registration Statement that registers such Registrable Shares, a Prospectus
relating thereto and any amendments or supplements relating to such Registration
Statement or Prospectus, to one counsel selected by the Majority of the Lucent
Securityholders (the "Lucent Securityholders' Counsel"), copies of all such
documents proposed to be filed (it being understood that such five Business Day
period need not apply tO successive drafts of the same document proposed to be
filed so long as such successive drafts are supplied to the Lucent
Securityholders' Counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
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(c) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for at least a
period of 90 days or until all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares:
(d) notify the Lucent Securityholders' Counsel promptly in writing
of (i) any comments by the SEC with respect to such Registration Statement or
Prospectus, or any request by the SEC for the amending or supplementing thereof
or for additional information with respect thereto, (ii) the issuance by the SEC
of any stop order suspending the effectiveness of such Registration Statement or
Prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceedings for that purpose (and the Corporation shall use
its best efforts to prevent the issuance thereof or, if issued, to obtain its
withdrawal) and (iii) the receipt by the Corporation of any notification with
respect to the suspension of the qualification of such Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as any
Registering Lucent Securityholder may reasonably request, to keep such
registrations or qualifications in effect for so long as such Registration
Statement covering such Registrable Shares remains in effect and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Registering Lucent Securityholder to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such Registering Lucent
Securityholder, provided, however, that the Corporation will not be required to
qualify generally to do business, to subject itself to general taxation or
consent to general service of process in any jurisdiction where it would not
otherwise be required to do so but for this Section 5(e) or to provide any
material undertaking or make any changes in its Bylaws or Certificate of
Incorporation which its Board of Directors determines to be contrary to the best
interests of the Corporation;
(f) furnish to each Registering Lucent Securityholder such number of
copies of a summary Prospectus, if any, or other Prospectus, including a
preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Registering Lucent Securityholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares held by Registering Lucent Securityholder;
(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other Governmental Entities as may be
necessary by virtue of the business and operations of the Corporation to enable
the Registering Lucent Securityholders to consummate the disposition of such
Registrable Shares;
(h) notify on a timely basis each Registering Lucent Securityholder
at any time when a Prospectus relating to such Registrable Shares is required to
be delivered under the Securities Act within the appropriate period mentioned in
Section 5(a), of the happening of any event known to the Corporation as a result
of which the Prospectus included in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to he stated therein or necessary to make the statements
therein not
12
misleading in light of the circumstances then existing and, at the request of
such Registering Lucent Securityholder, prepare and furnish to such Registering
Lucent Securityholder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the offerees of such Registrable Shares, such Prospectus shall not
include 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;
(i) subject to the execution of confidentiality agreements in form
and substance satisfactory to the Corporation, make available, upon reasonable
notice and during normal business hours, for inspection by the Registering
Lucent Securityholders any underwriter participating in any disposition pursuant
to such Registration Statement and any attorney, accountant or other agent
retained by the Registering Lucent Securityholders or underwriter (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Corporation (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Corporation's officers, directors
and employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection with
such Registration Statement (any of the Information which the Corporation
determines in good faith to be confidential, and of which determination the
Inspectors are so notified, shall not be disclosed by the Inspectors, unless (i)
the disclosure of such Information is necessary to avoid or correct a
mistatement or omission in the Registration Statement, (ii) the release of such
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or, upon the written advice of counsel, is otherwise
required by law, or (iii) such Information has been made generally available to
the public, and each Registering Lucent Securityholder agrees that it will, upon
learning that disclosure of such information is sought in a court of competent
jurisdiction, give notice to the Corporation and allow the Corporation, at the
Corporation's expense, to undertake appropriate action to prevent disclosure of
the Information deemed confidential);
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at customary
times and covering matters of the type customarily covered by cold comfort
letters;
(k) use its best efforts to obtain, from its counsel an opinion or
opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
Person and which may be the Corporation) for such Registrable Shares;
(m) issue to any underwriter to which any Registrable Lucent
Securityholder may sell such Registrable Shares in such offering, certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities exchange
on which any shares of Common Stock are listed or, if Common Stock is not listed
on a national securities exchange, use its best efforts to qualify such
Registrable Shares for inclusion on the national automated quotation system of
the National Association of Securities Dealers, Inc. (the
13
"NASD"), or such other national securities exchange as the holders of a majority
of such Registrable Shares shall reasonably request;
(o) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its securityholders, as
soon as reasonably practicable, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months after the effective
date of the Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) subject to all of the other provisions of this Agreement, use
its best efforts to take all other steps necessary to effect the registration of
such Registrable Shares contemplated hereby.
Each Registering Lucent Securityholder, upon the receipt of any
notice from the Corporation of any event of the kind described in Section 5(h),
shall forthwith discontinue disposition of Registrable Shares pursuant to the
Registration Statement until such Registering Lucent Securityholder's receipt of
copies of the supplemented or amended Prospectus contemplated by Section 5(h),
and, if so directed by the Corporation, such Registering Lucent Securityholder
shall deliver to the Corporation all copies, other than permanent file copies
then in such Lucent Securityholders possession, of the Prospectus covering such
Registrable Shares at the time of receipt of such notice
6. Expenses.
All expenses incurred by the Corporation in complying with Section
5, including, without limitation, all registration and filing fees (including
all expenses incident to filing with the NASD), fees and expenses of complying
with securities and blue sky laws, printing expenses, fees and expenses of the
Corporation's counsel and accountants and fees and expenses of the Lucent
Securityholders' Counsel, shall be paid by the Corporation; provided, however,
that all underwriting discounts and selling commissions applicable to the
Registrable Shares shall not be borne by the Corporation arid shall be borne by
the Registering Lucent Securityholders selling such Registrable Securities, in
proportion to the number of Registrable Shares sold by each such Registering
Lucent Securityholder.
7. Indemnification.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Corporation shall
indemnify and hold harmless each holder of such Registrable Shares, each
underwriter, banker or any other Person acting on behalf of any such holder and
each other Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing Persons 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 the Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary Prospectus or final Prospectus contained therein or otherwise filed
with the SEC. any amendment
14
or supplement thereto or any document incident to registration or qualification
of any Registrable Shares, or arise our 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 or, with respect to
any Prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
Corporation of the Securities Act or state securities or blue sky laws
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with such registration or qualification under such
state securities or blue sky laws, and the Corporation shall promptly reimburse
each such holder) underwriter, broker or other Person acting on behalf of any
such holder and each such controlling Person for any legal or other expenses
incurred by any of them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Corporation shall not be liable to any such Person to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said Registration Statement, preliminary Prospectus, amendment, supplement or
document incident to registration or qualification of any Registrable Shares in
reliance upon and in conformity with information furnished to the Corporation,
or a Person duly acting on the Corporation's behalf, through an instrument duly
executed by such Person, or a Person duly acting on such Persons behalf,
specifically for use in connection with the preparation thereof; provided
further, however, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement, allegedly untrue
statement, omission or alleged omission made in any preliminary Prospectus but
eliminated or remedied in the final Prospectus (filed pursuant to Rule 424 of
the Securities Act), such indemnity agreement shall not inure to the benefit of
any indemnified party from whom the Person asserting any loss, claim, damage,
liability or expense purchased the Registrable Shares which are the subject
thereof, if a copy of such final Prospectus had been timely made available to
such indemnified Person and such final Prospectus was not delivered to such
Person with or prior to the written confirmation of the sale of such Registrable
Shares to such Person.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 7(a)) the Corporation,
each director of the Corporation, each officer of the Corporation who signs such
Registration Statement, each other holder of Registrable Shares, Additional
Registrable Shares or Other Shares included in such Registration Statement
(provided, that the holder shall be entitled to indemnification of a similar
nature from such other holder to at least the same extent as the indemnification
given by the holder pursuant to this Section 7(b)), each underwriter, broker or
any other Person acting on behalf of any such holder and each other Person, if
any, who controls any of the foregoing Persons within the meaning of the
Securities Act with respect to any statement or omission from such Registration
Statement, any preliminary Prospectus or final Prospectus contained therein or
otherwise filed with the SEC, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such underwriter through an
instrument duly executed by such holder, or a Person duly acting on such
holder's behalf, specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus, amendment,
supplement or document; provided, however, that the maximum amount
15
of liability in respect of such indemnification shall be limited, in the case of
each holder of Registrable Shares, to an amount equal to the net proceeds
actually received by such holder from the sale of Registrable Shares effected
pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in Section 7(a) or
Section 7(b), such indemnified party will, if a claim in respect thereof is made
against an indemnifying party, give written notice to the matter of the
commencement of such action (provided that an indemnified party's failure to
give such notice in a timely manner shall only relieve the indemnification
obligations of an indemnifying party to the extent such indemnifying party is
prejudiced by such failure). In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more Legal or equitable defenses
available to such indemnified party which are in addition to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 7, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
and such indemnifying party shall reimburse such indemnified party and any
Person controlling such indemnified party for that portion of the fees and
expenses of any one lead counsel (plus appropriate special and local counsel)
retained by the indemnified party which are reasonably related to the matters
covered by the indemnity agreement provided in this Section 7. The indemnifying
party shall not be liable to indemnify any indemnified party for any settlement
of any claim or action effected without the consent of the indemnifying party.
The indemnifying party may not settle any claim or action brought against an
indemnified party unless such indemnified party is released from all and any
liability as part of such settlement.
(d) If the indemnification provided for in this Section 7 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other hand in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations; provided, however, that the maximum amount of Liability in
respect of such contribution shall be limited, in the case of each holder of
Registrable Shares, to an amount equal to the net proceeds actually received by
such holder from the sale of Registrable Shares effected pursuant to such
registration. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
16
statement or omission. The parties agree that it would not be just and equitable
if contribution pursuant hereto were determined by pro rata allocation or by any
other method or allocation which does not take account of the equitable
considerations referred to herein. No person guilty of fraudulent
misrepresentation shall be entitled to contribution from any person.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive the transfer of
securities.
8. Underwriting Agreement.
Notwithstanding the provisions of Sections 5 through 7, to the
extent that the Lucent Securityholders shall enter into an underwriting or
similar agreement, which agreement contains provisions covering one or more
issues addressed in such Sections, the provisions contained in such Sections
addressing such issue or issues shall be of no force or effect with respect to
such registration, but this provision shall not apply to the Corporation if the
Corporation is not a party to the underwriting or similar agreement.
9. Suspension.
Anything contained in this Agreement to the contrary
notwithstanding, the Corporation may (but not more than once with respect to
each Registration Statement), by notice in writing to each holder of Registrable
Shares to which a Prospectus relates, require such holder to suspend, for up to
90 days (the "Suspension Period"), the use of any Prospectus included in a
Registration Statement filed under Section 2 or 3 if a Material Transaction
exists that would require an amendment to such Registration Statement or
supplement to such Prospectus (including any such amendment or supplement made
through incorporation by reference to a report filed under Section 13 of the
Exchange Act). The period during which such Prospectus must remain effective
shall be extended by a period equal to the Suspension Period. The Corporation
may (but shall not be obligated to) withdraw the effectiveness of any
Registration Statement subject to this provision.
10. Information by Holder.
Each holder of Registrable Shares to be included in any such
registration shall furnish to the Corporation and the managing underwriter such
written information regarding such holder and the distribution proposed by such
holder as the Corporation or the managing underwriter may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
11. Exchange Act Compliance.
From the Registration Date or such earlier date as a registration
statement filed by the Corporation pursuant to the Exchange Act relating to any
class of the Corporation's securities shall have become effective, the
Corporation shall comply with all of the reporting requirements of the Exchange
Act applicable to it (whether or not it shall be required to do so, but
specifically excluding Section 14 of the Exchange Act if not then applicable to
the Corporation) and shall comply with all other public information reporting
requirements of the SEC which are conditions
17
to the availability of Rule 144 for the sale of the Common Stock The Corporation
shall cooperate with the Lucent Securityholders in supplying such information as
may be necessary for the Lucent Securityholders to complete and file any
information reporting forms presently or hereafter required by the SEC as a
condition to the availability of Rule 144.
12. Legends on Certificates.
(a) Each certificate issued after the date hereof that represents
Restricted Securities shall (unless otherwise permitted by the provisions of
this Section 12) be stamped or otherwise imprinted with a legend in
substantially the following form (in addition to any other legend required by
law or applicable agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED."
"THE TRANSFER, SALE OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE CONDITIONS
SPECIFIED IN A STRATEGIC PARTNER REGISTRATION RIGHTS AGREEMENT DATED
AS OF FEBRUARY 7, 2000, BETWEEN OPUS36O CORPORATION, A DELAWARE
CORPORATION (THE "ISSUER"), AND LUCENT TECHNOLOGIES INC., AS THE
SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED AND IN
EFFECT FROM TIME TO TIME. A COPY OF SUCH AGREEMENT IS ON FILE AND
MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER."
The Corporation agrees to remove the legend set forth in this
Section 12(a) from a certificate representing securities issued by the
Corporation if such securities are sold pursuant to an effective registration
statement under the Securities Act or there is delivered to the Corporation an
opinion of counsel selected by the holder of such certificate (who may be an
employee of such holder) in form and substance reasonably satisfactory to the
Corporation that the securities represented thereby need no longer be subject to
restrictions on resale under the Securities Act.
(b) Each Lucent Securityholder consents to the Corporation making a
notation on its records and giving instructions to any transfer agent of such
Lucent Securityholder's Restricted Securities in order to implement the
restrictions on transfer established in this Section 12.
18
13. Mergers, Etc.
The Corporation shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which the Corporation shall not be
the surviving corporation unless the surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Corporation under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to include the
shares of common stock if any, that holders of Registrable Shares would be
entitled to receive in exchange for Common Stock under any such merger,
consolidation or reorganization; provided, however, that, to the extent holders
of Registrable Shares receive securities that are by their terms convertible
into shares of common stock of the issuer thereof, then only such shares of
common stock as are issued or issuable upon conversion of said convertible
securities shall be included within the definition of "Registrable Shares."
14. Nominees for Beneficial Owners.
If Registrable Shares are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
holder of such Registrable Shares for purposes of any request or other action by
any holder or holders of Registrable Shares pursuant to this Agreement (or any
determination of any number of percentage of shares constituting Registrable
Shares held by any holder or holders of Registrable Shares contemplated by this
Agreement); provided, however, that the Corporation shall have received
assurances reasonably satisfactory to it of such beneficial ownership.
15. No Conflict of Rights; Future Rights.
The Corporation shall not, after the date hereof, grant any
registration rights which conflict with the registration rights granted to the
Lucent Securityholders hereby. If at any time following the date hereof, the
Corporation shall grant to any Strategic Partner rights to cause, or participate
in, a registration statement of the Corporation (but excluding any registration
on Form S-4 or S-8 to be filed with the SEC that includes Restricted Securities
of such Strategic Partner and such rights are superior (after taking into
account the mitigating effect of any commitments or obligations required of such
holders in connection with the Corporation's grant of such rights) to the
registration rights granted to the Lucent Securityholders hereby (as reasonably
determined in good faith by the Board by way of resolution), this Agreement
shall immediately be deemed amended to include rights in favor of the Lucent
Securityholders substantially identical to such superior rights granted to such
Strategic Partner: provided, however, any rights granted by the Corporation on
or after the date hereof to one or more Strategic Partners to cause registration
statements of the type described above to be filed with the SEC on one or more
occasions shall not constitute superior rights
16. Termination.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Registrable Shares or Additional Registrable
Shares outstanding, provided, however, that Section 6 and Section 7 shall
survive the termination of this Agreement.
17. Successors and Assigns.
19
This Agreement shall bind and inure to the benefit of the
Corporation and the Lucent Securityholders and, subject to Section 18, the
respective successors and assigns of the Corporation arid the Lucent
Securityholders.
18. Assignment.
Subject to the applicable limitations of the Stockholders'
Agreement, each Lucent Securityholder may sell, assign or otherwise transfer
its rights hereunder to any purchaser, assignee or other transferee of the
Registrable Shares of such Lucent Securityholder; provided, however, that any
such purchaser, assignee or other transferee, if not already a party to this
Agreement, shall, as a condition to the effectiveness of such sale, assignment
or other transfer, be required to execute a written joinder to this Agreement
agreeing to be treated as a Lucent Securityholder under this Agreement and to be
bound by and comply with all of the applicable terms and provisions hereof,
whereupon such purchaser, assignee or transferee shall have the benefits of, and
shall be subject to the restrictions contained in, this Agreement as if such
purchaser or transferee was originally a Lucent Securityholder and had
originally been a party hereto.
19. Notices.
All notices, requests, demands, claims, consents or other
communications that are given or made hereunder to any party hereto shall be in
writing and shall be given or made by physical delivery, U.S. mail (registered
or certified mail, postage prepaid, return receipt requested) or overnight
courier or by transmission by facsimile to such party at its, his or her address
(or facsimile number) set forth below, or such other address (or facsimile
number) as shall have been specified by like notice by such party:
20
(i) If to the Corporation, to
Opus360 Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx XxXxxx, Chief Financial Officer
Telephone: (212) 301 -2218
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to any Lucent Securityholder, to such Lucent
Securityholder at the address set forth on Schedule I
immediately below the name of such
Lucent Securityholder.
Each such notice, demand or other communication hereunder shall be
effective upon receipt in the case of physical delivery or overnight courier,
upon confirmation of receipt by or on behalf of the addressee in the case of
transmission by facsimile if received prior to 5:00 p.m. New York City time.
and, if received after 5:00 p.m., on the date after such confirmation, and three
(3) days after deposit in the U.S. mails in the case of mailing.
20. Entire Agreement.
This Agreement and the other writings referred to herein or
delivered pursuant hereto contain the sole and entire agreement among the
Corporation and the Lucent Securityholders with respect to the subject matter
hereof and thereof and shall supersede all prior or contemporaneous arrangements
or understandings with respect hereto or thereto.
21. Amendment.
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision be waived, except pursuant to a writing signed by
(1) the Corporation, and (ii) a Majority of the Lucent Securityholders:
provided, however, that no such written consent shall he required for the
amendment of Schedule I solely to reflect the name and address of any new Lucent
Securityholder who has become a party to this Agreement in accordance with the
terms and conditions hereof. No waiver by any party hereto of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence. Each holder of any Restricted Securities outstanding at or after the
time of any modification or amendment of or waiver of any provisions of this
Agreement, shall be bound by
21
any consent authorized by this Section 21, whether or not such Restricted
Securities shall have been marked to indicate such consent.
22. Severability.
It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible under
the Laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing. if such provision could he more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction it shall,
as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
23. Counterparts; Facsimile Signatures.
This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. This Agreement and
each other agreement or instrument entered into in connection herewith or
contemplated hereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine, shall be treated in all manner
and respects as an original agreement or instrument and shall be considered to
have the same binding legal effect as if it were the original signed version
thereof delivered in person. At the request of any party hereto or to any such
agreement or instrument, each other party hereto or thereto shall reexecute
original forms thereof and deliver them to all other parties.
24. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE Of NEW
YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
25. Interpretation; Construction.
The headings contained in this Agreement and in the table of
contents to this Agreement are for convenience of reference only and shall not
govern or affect in any way the meaning or interpretation of any of the terms or
provisions of this Agreement. Except when the context requires otherwise, any
reference in this Agreement to any Section, clause or Schedule shall be to the
Sections and clauses of, and Schedules to, this Agreement. The words "include,"
"includes" and "including" are deemed to be followed by the phrase "without
limitation." Any reference to the masculine, feminine or neuter gender shall
include such other genders and any reference to the singular or plural shall
include the other, in each case unless the context otherwise requires. Schedule
I annexed hereto are hereby incorporated in and made a part of this Agreement as
if set forth in full herein. Where specific language is used to clarify by
example a
22
general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
26. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ITS, HIS OR HER
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE
SUJBECT MATTER HEREOF.
27. Attorney's Fees.
If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover such reasonable attorneys fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it or they
may be entitled, as may be ordered in connection with such proceeding.
* * * * *
23
IN WITNESS WHEREOF, the parties hereto have duly executed this
Strategic Partner Registration Rights Agreement as of the date first written
above.
OPUS360 CORPORATION
By:_____________________________________
Name:
Title:
LUCENT TECHNOLOGIES INC.
By:_____________________________________
Name:
Title:
SCHEDULE I
Lucent Securityholders
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Vice President, Corporate Strategy & Development
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Managing Corporate Counsel, M&A
Tel: (000) 000-0000
Fax: (000) 000-0000
26
