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EXHIBIT 10.8.1
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FIFTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
among
XXXXXXX.XXX, INC.
and
THE STOCKHOLDERS NAMED HEREIN
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Dated August 4, 1999
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TABLE OF CONTENTS
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1. Definitions..............................................................................................2
2. General; Securities Subject to this Agreement............................................................7
(a) Grant of Rights.................................................................................7
(b) Registrable Securities..........................................................................8
(c) Holders of Registrable Securities...............................................................8
3. Demand Registration......................................................................................8
(a) Request for Demand Registration.................................................................8
(b) Limitations on Demand Registrations.............................................................9
(c) Effective Demand Registration..................................................................10
(d) Expenses.......................................................................................10
(e) Underwriting Procedures........................................................................10
(f) Selection of Underwriters......................................................................11
4. Incidental or "Piggy-Back" Registration.................................................................11
(a) Request for Incidental Registration............................................................11
(b) Expenses.......................................................................................12
(c) Right to Terminate Registration................................................................12
(d) Initial Incidental Registration................................................................12
(e) Expenses Relating to Initial Incidental Registration...........................................13
(f) Right to Terminate Initial Incidental Registration.............................................13
5. Form S-3 Registration...................................................................................13
(a) Request for a Form S-3 Registration............................................................13
(b) Form S-3 Underwriting Procedures...............................................................13
(c) Limitations on Form S-3 Registrations..........................................................14
(d) Expenses.......................................................................................15
(e) No Demand Registration.........................................................................15
6. Termination.............................................................................................15
7. Holdback Agreements.....................................................................................15
(a) Restrictions on Public Sale by Designated Holders other than the Series E Stockholders.........15
(b) Restrictions on Sales by Series E Stockholders.................................................16
(c) Restrictions on Public Sale by the Company.....................................................16
8. Registration Procedures.................................................................................17
(a) Obligations of the Company.....................................................................17
(b) Seller Information.............................................................................20
(c) Notice to Discontinue..........................................................................20
(d) Registration Expenses..........................................................................20
9. Indemnification; Contribution...........................................................................21
(a) Indemnification by the Company.................................................................21
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(b) Indemnification by Designated Holders..........................................................21
(c) Conduct of Indemnification Proceedings.........................................................21
(d) Contribution...................................................................................22
10. Rule 144................................................................................................23
11. Miscellaneous...........................................................................................23
(a) Recapitalizations, Exchanges, etc..............................................................23
(b) No Inconsistent Agreements.....................................................................23
(c) Remedies.......................................................................................24
(d) Amendments and Waivers.........................................................................24
(e) Notices........................................................................................24
(f) Successors and Assigns; Third Party Beneficiaries..............................................27
(g) Counterparts...................................................................................28
(h) Headings.......................................................................................28
(i) Governing Law..................................................................................28
(j) Severability...................................................................................28
(k) Entire Agreement...............................................................................28
(l) Further Assurances.............................................................................29
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FIFTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS FIFTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
"Agreement"), is made and entered into this 4th day of August 1999, among
Xxxxxxx.xxx, Inc. (formerly "Advantix, Inc."), a Delaware corporation (the
"Company"), and the parties set forth on Schedule I annexed hereto.
RECITALS
WHEREAS, pursuant to an Amended and Restated Investor Rights Agreement
(the "Amended Agreement"), dated May 26, 1998, among the Company, General
Atlantic Partners 46, L.P., a Delaware limited partnership ("GAP LP"), GAP
Coinvestment Partners, L.P., a New York limited partnership ("GAP
Coinvestment"), and the persons set forth on Schedule A thereto (the "Existing
Stockholders"), the Company granted GAP LP, GAP Coinvestment and the Existing
Stockholders certain registration rights and other rights;
WHEREAS, in connection with the sale and issuance of its Series D
Preferred Stock to the Existing Stockholders and General Atlantic Partners 54,
L.P., a Delaware limited partnership ("GAP 54"), GAP Coinvestment Partners II,
L.P. , a Delaware limited partnership ("GAP Coinvestment II"), Bayview
Investors, Ltd. ("Bayview") and certain New Stockholders (as hereinafter defined
and, together with GAP 54, GAP Coinvestment II and Bayview, the "Purchasers"),
the Company entered into a Second Amended and Restated Investor Rights Agreement
(the "Second Agreement"), dated March 19, 1999, with the Purchasers and the
other parties to the Amended Agreement which superseded and replaced the Amended
Agreement, and pursuant to which the Company granted the parties thereto certain
registration rights with respect to the Registrable Securities (as hereinafter
defined);
WHEREAS, The Provident Bank ("Provident") was made a party to the
Second Agreement to provide it with certain registration rights previously set
forth in Section 7 of that certain Warrant Agreement, dated September 26, 1997;
WHEREAS, in connection with the merger of TicketsLive Corporation, a
New York Corporation, with and into Advantix Acquisition II Corp., a Delaware
corporation and a wholly-owned subsidiary of the Company, pursuant to an
Agreement and Plan of Merger and Reorganization, dated March 18, 1999, by and
among the Company, Advantix Acquisition II Corp., TicketsLive Corporation, CMGI
@ Ventures II, LLC ("CMGI"), Liberty Ventures I, L.P. ("Liberty"), Intel
Corporation ("Intel"), Xxxxx X. Xxxxx ("KGoetz"), Xxxxxx X. Xxxxxxxxx
("Hellstedt"), Xxx X. Xxxxx ("LGoetz"), Xxxxxxxxxxx X. Xxxxx ("Xxxxx"), and Xxx
Xxxxxx ("Pinsky") (CMGI, Liberty, Intel, KGoetz, Hellstedt, LGoetz, Xxxxx and
Xxxxxx are collectively referred to as the "Merger Stockholders"), the Merger
Stockholders entered into a Third Amended and Restated Investor Rights Agreement
(the "Third Agreement") with the Company and the other parties to the Second
Agreement, dated April 10, 1999, which superseded and replaced the Second
Agreement, and pursuant to which the Company granted the parties thereto certain
registration rights with respect to the Registrable Securities (as hereinafter
defined);
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WHEREAS, in connection with the merger of Advantix Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of the Company, with and into
Xxxxxxx.xxx California, Inc. (formerly "Xxxxxxx.xxx, Inc."), a Delaware
corporation ("TCI"), pursuant to an Agreement and Plan of Merger and
Reorganization, dated January 26, 1999, by and among the Company, Advantix
Acquisition Corp., TCI and certain stockholders of TCI, the TCI Stockholders (as
hereinafter defined) entered into a Fourth Amended and Restated Investor Rights
Agreement (the "Fourth Agreement") with the Company and the other parties to the
Third Agreement, dated May 17, 1999, which superseded and replaced the Third
Agreement, and pursuant to which the Company granted the parties thereto certain
registration rights with respect to the Registrable Securities (as hereinafter
defined);
WHEREAS, as a condition to the purchase of shares of the Company's
Series E Preferred Stock, Excite, Inc., a Delaware corporation and a subsidiary
of At Home Corporation ("Excite@Home"), and Xxx Interactive Media, Inc., a
Delaware corporation ("Cox"), have required that the Company grant each of them
certain registration rights with respect to the Registrable Securities (as
hereinafter defined);
WHEREAS, pursuant to Section 11(d) of the Fourth Agreement, the parties
to the Fourth Agreement desire to amend and restate the Fourth Agreement to
bring the Series E Stockholders within the terms of the Fourth Agreement, as so
amended and restated;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, the Fourth Agreement is hereby amended and restated
to read in its entirety as follows:
1. Definitions. As used in this agreement the following terms have the
meanings indicated:
"Affiliate" shall mean, with respect to any specified Person, any other
Person who is an "affiliate" as defined in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act of such specified Person and, with respect to
any specified Person that is a limited liability company, any member of such
limited liability company. The following shall be deemed to be Affiliates of GAP
LP and GAP 54: (a) GAP LLC, the members of GAP LLC, the limited partners of GAP
LP and the limited partners of GAP 54; (b) any Affiliate of GAP LLC, the members
of GAP LLC, the limited partners of GAP LP and the limited partners of GAP 54;
and (c) any limited liability company or partnership a majority of whose members
or partners, as the case may be, are members, former members, consultants or key
employees of GAP LLC. GAP LP, GAP 54, GAP Coinvestment and GAP Coinvestment II
shall be deemed to be Affiliates of one another. Each of the Attractor Entities
and their respective members shall be deemed to be Affiliates of one another.
Each of the idealab! Entities shall be deemed to be Affiliates of one another.
Each of the Xxxxx Entities shall be deemed to be Affiliates of one another. SCT
and any entity in which IMG Chase/Sports Capital LLC (or its successor) is the
managing member or general partner and shall be deemed to be Affiliates of one
another. XX0Xxxxx.xxx L.L.C., a Delaware limited liability company, shall be
deemed to be an Affiliate of Xxx.
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"Amended Agreement" has the meaning set forth in the recitals to this
Agreement.
"Approved Underwriter" has the meaning set forth in Section 3(f) of
this Agreement.
"Attractor Entities" means (a) Attractor Institutional LP, a Delaware
limited partnership, (b) Attractor LP, a Delaware limited partnership, (c)
Attractor Ventures LLC, a Delaware limited liability company, and (d) any
successor to any of the entities listed in (a)-(c). For the purposes of the
definition of Registrable Securities, the term Attractor Entities shall include
and refer to the Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation.
"Business Day" means any other day other than a Saturday, Sunday or
other day on which commercial banks in the State of California are authorized or
required by law or executive order to close.
"Xxxxxxx" shall mean Xxxxx X. Xxxxxxx.
"CMGI" has the meaning set forth in the recitals to this Agreement.
"Common Stock" means the Common Stock, par value $.0001 per share, of
the Company or any other equity securities of the Company into which such
securities are converted, reclassified, reconstituted or exchanged.
"Company" has the meaning set forth in the recitals to this Agreement.
"Company Underwriter" has the meaning set forth in Section 4(a) of this
Agreement.
"Cox" has the meaning set forth in the recitals to this Agreement.
"Demand Registration" has the meaning set forth in Section 3(a) of this
Agreement.
"Designated Holder" means each of the Existing Stockholders, the
General Atlantic Stockholders, the New Stockholders, the Merger Stockholders,
the TCI Stockholders and the Series E Stockholders and any transferee of any of
them to whom Registrable Securities have been transferred in accordance with the
provisions of the Stockholders Agreement and Section 11(f) of this Agreement,
other than a transferee to whom Registrable Securities have been transferred
pursuant to a Registration Statement under the Securities Act or Rule 144 or
Regulation S under the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Excite@Home" has the meaning set forth in the recitals in the to this
Agreement.
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"Existing Stockholders" has the meaning set forth in the recitals to
this Agreement.
"First Agreement" has the meaning set forth in the recitals in the to
this Agreement.
"Fourth Agreement" has the meaning set forth in the recitals to this
Agreement.
"GAP Coinvestment" has the meaning set forth in the recitals to this
Agreement.
"GAP Coinvestment II" has the meaning set forth in the recitals to this
Agreement.
"GAP 54" has the meaning set forth in the recitals to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP LP and GAP 54, and any
successor to such entity.
"GAP LP" has the meaning set forth in the recitals to this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 54, GAP Coinvestment
GAP Coinvestment II and any Permitted Transferee (as defined in the Stockholders
Agreement) of any of them to which Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"Hellstedt" has the meaning set forth in the recitals to this
Agreement.
"Holders' Counsel" has the meaning set forth in Section 8(a)(i) of this
Agreement.
"idealab! Entities" means idealab! Capital Partners I-A LP, a Delaware
limited partnership, idealab! Capital Partners I-B LP, a Delaware limited
partnership, and any successor entity to either of them.
"Incidental Registration" has the meaning set forth in Section 4(a) of
this Agreement.
"Indemnified Party" has the meaning set forth in Section 9(c) of this
Agreement.
"Indemnifying Party" has the meaning set forth in Section 9(c) of this
Agreement.
"Initial Company Underwriter" has the meaning set forth in Section 4(d)
of this Agreement.
"Initial Incidental Registration" has the meaning set forth in Section
4(d) of this Agreement.
"Initial Public Offering" means an underwritten initial public offering
pursuant to an effective Registration Statement filed under the Securities Act.
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"Initial Requested Shares" has the meaning set forth in Section 4(d) of
this Agreement.
"Initiating Holders" has the meaning set forth in Section 3(a) of this
Agreement.
"Inspector" has the meaning set forth in Section 8(a)(viii) of this
Agreement..
"Intel" has the meaning set forth in the recitals to this Agreement.
"IPO Effectiveness Date" means the date upon which the Company
consummates its Initial Public Offering.
"KGoetz" has the meaning set forth in the recitals to this Agreement.
"LGoetz" has the meaning set forth in the recitals to this Agreement.
"Liberty" has the meaning set forth in the recitals to this Agreement.
"Merger Stockholders" has the meaning set forth in the recitals to this
Agreement.
"Xxxxx Entities" means (a) Xxxxx Global Investments, Ltd., a Bahamas
corporation, (b) Remington Investments Strategies, L.P., a Delaware limited
partnership, (c) Multi-Strategies Fund, L.P., a Delaware limited partnership,
(d) Multi-Strategies Fund Ltd., a Bahamas corporation, and (e) any successor to
any of the entities listed in (a)-(d).
"NASD" has the meaning set forth in Section 8(a)(xiv) of this
Agreement.
"New Stockholders" means each of the TCI Stockholders and Other New
Stockholders and any Permitted Transferee (as defined in the Stockholders
Agreement) of any of them to whom Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"Other New Stockholders" means each of Xxxxxxx International, LLC, a
Delaware limited liability company, and SCT and any successor entity to either
of them.
"Permitted Transfer" and "Permitted Transferee" shall have the
respective meanings set forth in the Stockholders Agreement.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"Pinsky" has the meaning set forth in the recitals to this Agreement.
"Preferred Stock" means the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock and
the Series E Preferred Stock.
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"Provident" has the meaning set forth in the recitals to this
Agreement.
"Purchasers" has the meaning set forth in the recitals to this
Agreement.
"Records" has the meaning set forth in Section 8(a)(viii) of this
Agreement.
"Registrable Securities" means each of the following: (a) any and all
shares of Common Stock owned by the Designated Holders or issued or issuable
upon conversion of shares of Preferred Stock, including, without limitation, any
shares of Common Stock issued or issuable upon conversion of any shares of
preferred stock of the Company acquired by any of the Designated Holders after
the date hereof, (b) any other shares of Common Stock acquired or owned by any
of the Designated Holders prior to the IPO Effectiveness Date (including Common
Stock issued to any Designated Holder upon conversion of convertible securities
of the Company or upon exercise of warrants or options granted by the Company to
such Designated Holder), or acquired or owned by any of the Designated Holders
(other than an Attractor Entity) after the IPO Effectiveness Date if such
Designated Holder is an Affiliate of the Company and (c) any shares of Common
Stock or voting common stock issued or issuable to any of the Designated Holders
with respect to shares of Common Stock or Preferred Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise and
shares of Common Stock or voting common stock issuable upon conversion, exercise
or exchange thereof. The foregoing notwithstanding, any shares of Common Stock
acquired by any Attractor Entity on the IPO Effectiveness Date shall be deemed
not to be Registrable Securities.
"Registration Expenses" has the meaning set forth in Section 8(d) of
this Agreement.
"Registration Statement" means a Registration Statement filed pursuant
to the Securities Act.
"S-3 Initiating Holders" has the meaning set forth in Section 5(a) of
this Agreement.
"S-3 Registration" has the meaning set forth in Section 5(a) of this
Agreement.
"SCT" means Sports Capital Tickets LLC, a limited liability company,
and any successor entity thereto.
"SEC" means the Securities and Exchange Commission.
"Second Agreement" has the meaning set forth in the recitals to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Series A Preferred Stock" means Series A Preferred Stock of the
Company, par value $.0001 per share.
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"Series A1 Preferred Stock" means Series A1 Preferred Stock of the
Company, par value $.0001 per share.
"Series B Preferred Stock" means Series B Preferred Stock of the
Company, par value $.0001 per share.
"Series C Preferred Stock" means Series C Preferred Stock of the
Company, par value $.0001 per share.
"Series D Preferred Stock" means Series D Preferred Stock of the
Company, par value $.0001 per share.
"Series E Preferred Stock" means Series E Preferred Stock of the
Company, par value $.0001 per share.
"Series E Stock Purchase Agreement" means the Series E Stock Purchase
Agreement, dated as of July 30, 1999, by and among the Company, Excite@Home and
Cox.
"Series E Stockholders" means each of Excite@Home and Cox, any
Permitted Transferee (as defined in the Stockholders Agreement) thereof, and any
Person who receives Registrable Securities from Excite@Home or Cox or any
Permitted Transferee thereof, pursuant to a Permitted Transfer (as defined in
the Stockholders Agreement) in accordance with Section 2.2 of the Stockholders
Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Stockholders Agreement" means the Fourth Amended and Restated
Stockholders Agreement, dated of even date herewith, by and among the Company
and the parities identified therein.
"TCI" has the meaning set forth in the recitals to this Agreement.
"TCI Stockholders" means (a) each of the Attractor Entities, (b) each
of the idealab! Entities, (c) each of the Xxxxx Entities, (d) X.X.X. Trust, (e)
Xxxx Xxxxx' idealab!, a California corporation, (f) Xxxxx X. Xxxxxxx
("Xxxxxxx"); (g) The Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation and (h) any
Permitted Transferee (as defined in the Stockholders Agreement) of the Persons
listed in (a)-(g) above to which Registrable Securities are transferred in
accordance with Section 2.2 of the Stockholders Agreement.
"Third Agreement" has the meaning set forth in the recitals to this
Agreement.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration
rights to the Existing Stockholders, the General Atlantic Stockholders, the New
Stockholders, the Merger Stockholders the TCI Stockholders and the Series E
Stockholders upon the terms and conditions set forth in this Agreement.
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(b) Registrable Securities. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective under the Securities Act by the SEC and such Registrable Securities
have been disposed of pursuant to such effective Registration Statement, (ii)
the entire amount of such Registrable Securities held by a Designated Holder are
eligible, in the opinion of counsel reasonably satisfactory to the Company and
the Designated Holder, each in their reasonable judgment, to be distributed to
the public pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act during any 90-day period or (iii) such Registrable
Securities are proposed to be sold or distributed by a Person not entitled to
the registration rights granted by this Agreement.
(c) Holders of Registrable Securities. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record Registrable
Securities, or holds an option to purchase, or a security convertible into or
exercisable or exchangeable for, Registrable Securities whether or not such
acquisition or conversion has actually been effected and disregarding any legal
restrictions upon the exercise of such rights. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
3. Demand Registration.
(a) Request for Demand Registration. On any date after 180 days
following the IPO Effectiveness Date, if the Company shall receive from (i) any
one or more of the General Atlantic Stockholders as a group, acting through GAP
LLC or its written designees, (ii) any one or more Existing Stockholders holding
at least a majority of the Registrable Securities then held by all Existing
Stockholders, (iii) any one or more TCI Stockholders holding at least a majority
of the Registrable Securities then held by all TCI Stockholders, or (iv) any one
or more Series E Stockholders holding at least a majority of the Registrable
Securities then held by all Series E Stockholders (in each case, the "Initiating
Holders") a written request that the Company effect any registration,
qualification or compliance with respect to the Registrable Securities (a
"Demand Registration"), the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Designated Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration, qualification or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Designated Holder or Designated Holders joining in such request as
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are specified in a written request received by the Company within twenty (20)
days after mailing of such written notice from the Company.
(b) Limitations on Demand Registrations. Notwithstanding the
foregoing, the Company shall not be obligated to take any action to effect any
such registration, qualification or compliance pursuant to this Section 3:
(i) 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;
(ii) (A) With respect to a request initiated by a General
Atlantic Stockholder after the Company has effected two (2) such registrations
for the General Atlantic Stockholders pursuant to this Section 3, each such
registration has been declared or ordered effective and the securities offered
pursuant to each such registration have been sold; (B) with respect to a request
initiated by an Existing Stockholder, after the Company has effected two (2)
such registrations for the Existing Stockholders pursuant to this Section 3,
each such registration has been declared or ordered effective and the securities
offered pursuant to each such registration have been sold; (C) with respect to a
request initiated by a TCI Stockholder, after the Company has effected one (1)
such registration for the TCI Stockholders pursuant to this Section 3, such
registration has been declared or ordered effective and the securities offered
pursuant to each such registration have been sold; and (D) with respect to a
request initiated by a Series E Stockholder, after the Company has effected two
(2) such registrations for the Series E Stockholders pursuant to this Section 3,
each such registration has been declared or ordered effective and the securities
offered pursuant to each such registration have been sold;
(iii) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of (which date the Company
shall notify the Designated Holders in writing of not less that sixty (60) days
prior thereto), and ending on the date ninety (90) days immediately following
the effective date of, any Registration Statement pertaining to an underwritten
offering securities of the Company (other than a registration of securities in a
transaction under Rule 145 (or any successor provision then in effect) under the
Securities Act or with respect to an employee stock option, stock purchase or
similar plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such Registration Statement to become effective and
that the Company's estimate of the date of filing such Registration Statement is
made in good faith;
(iv) If the Company shall furnish to the Initiating Holders a
certificate, signed by the Chief Executive Officer or Chief Financial Officer of
the Company, stating that in the good faith judgment of the Board of Directors
it would be seriously detrimental to the Company or its stockholders for a
Registration Statement to be filed in the near future, then the Company's
obligation to use its best efforts to register, qualify or comply under this
Section 3 shall be deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
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(c) Effective Demand Registration. Subject to the provisions of
Section 3(b), the Company shall use its best efforts to cause any such Demand
Registration to become and remain effective within ninety (90) days after it
receives a request under Section 3(a) hereof. A registration shall not
constitute a Demand Registration until it has become effective and remains
continuously effective for the lesser of (i) the period during which all
Registrable Securities registered in the Demand Registration are sold and (ii)
120 days; provided, however, that a registration shall not constitute a Demand
Registration if (x) after such Demand Registration has become effective, such
registration or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the Initiating Holders and such interference is not
thereafter eliminated or (y) the conditions specified in the underwriting
agreement, if any, entered into in connection with such Demand Registration are
not satisfied or waived, other than by reason of a failure by the Initiating
Holders.
(d) Expenses. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses (other than
underwriter's discounts and commissions) in connection therewith, whether or not
such Demand Registration becomes effective, provided, however, that the Company
shall not be required to pay for any expenses of any Demand Registration begun
pursuant to Section 3 if the Demand Registration request is subsequently
withdrawn at the request of the Initiating Holders who requested such Demand
Registration (in which case all of such Initiating Holders shall bear such
expenses), unless such Initiating Holders agree to forfeit their right to one
demand registration pursuant to Section 3; provided further, however, that if at
the time of such withdrawal, such Initiating Holders reasonably determine in
good faith that there is, or is pending, a material adverse change in the
condition, business, or prospects of the Company from that known to such
Initiating Holders at the time of their request and have withdrawn the request
with reasonable promptness following their determination of such material
adverse change or disclosure by the Company of such material adverse change,
then such Initiating Holders shall not be required to pay any of such expenses
and shall retain their rights pursuant to Section 3.
(e) Underwriting Procedures. If the Initiating Holders holding a
majority of the Registrable Securities held by all of the Initiating Holders to
which the requested Demand Registration relates so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 3(f). In connection with any Demand
Registration under this Section 3 involving an underwritten offering, none of
the Registrable Securities held by any Designated Holder making a request for
inclusion of such Registrable Securities pursuant to Section 3(a) hereof shall
be included in such underwritten offering unless such Designated Holder accepts
the terms of the underwritten offering as agreed upon by the Company, the
Initiating Holders and the Approved Underwriter and enters into an underwriting
agreement in customary form with the Approved Underwriter, and then only in such
quantity as will not, in the opinion of the Approved Underwriter, jeopardize the
success of such offering by the Initiating Holders. If the Approved Underwriter
advises the Company in writing that in its opinion marketing factors require a
limitation on the number of shares to be underwritten, then the Company shall so
advise all Designated Holders and the number of Registrable Securities to
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be included in the Demand Registration and underwriting shall be reduced, first
as to the Designated Holders (who are not Initiating Holders and who requested
to participate in such registration pursuant to Section 3(b) hereof) as a group,
if any, and second as to the Initiating Holders as a group, pro rata within each
group based on the number of Registrable Securities owned by each member of such
group at the time of the filing of the Registration Statement.
(f) Selection of Underwriters. If any Demand Registration or S-3
Registration, as the case may be, of Registrable Securities is in the form of an
underwritten offering, the Initiating Holders or S-3 Initiating Holders, as the
case may be, holding a majority of the Registrable Securities held by all such
Initiating Holders or S-3 Initiating Holders shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "Approved Underwriter"); provided, however,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
3. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the
Initial Public Offering, if the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering by the Company
for its own account (other than a Registration Statement on Form S-4 or S-8 or
any successor thereto), then the Company shall promptly give written notice of
such proposed filing to each of the Designated Holders, and such notice shall
describe the proposed registration and distribution and offer such Designated
Holders the opportunity to register the number of Registrable Securities as each
such holder may request (an "Incidental Registration"). The Company shall, and
shall use its best efforts to cause the managing underwriter or underwriters
selected by the Company for such proposed underwritten offering (the "Company
Underwriter") to permit each of the Designated Holders who have requested in
writing within twenty (20) calendar days after mailing of the notice provided
for in the preceding sentence by the Company, to participate in the Incidental
Registration to include its or his Registrable Securities in such offering on
the same terms and conditions as the securities of the Company included therein.
In connection with any Incidental Registration under this Section 4(a) involving
an underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the holders thereof
accept the terms of the underwritten offering as agreed upon between the Company
and the Company Underwriter, and then only in such quantity as will not, in the
opinion of the Company Underwriter, jeopardize the success of the offering by
the Company, and enter into an underwriting agreement in customary form with the
Company Underwriter. If the Company Underwriter determines that marketing
factors require a limitation on the number of shares that may be underwritten,
then the Company Underwriter may limit the number of securities to be included
in the registration and underwriting. The Company shall also advise all
Designated Holders who have requested to participate in the Incidental
Registration and the securities entitled to inclusion in such registration will
include, first, all of the securities to be offered for the account of the
Company; second, the Registrable Securities to be offered for the account of the
Designated Holders pursuant to this Section 4, pro rata based on the number of
Registrable Securities owned by each such Designated Holder; and third, any
other securities requested to be included in such underwritten offering.
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(b) Expenses. The Company shall bear all Registration Expenses
(other than underwriter's discounts and commissions relating to the Registrable
Securities) in connection with any Incidental Registration pursuant to this
Section 4, whether or not such Incidental Registration becomes effective.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 4 prior to the effectiveness of such registration whether or not any
Designated Holder has elected to include Registrable Securities in such
registration.
(d) Initial Incidental Registration. If the Company proposes to
file a Registration Statement under the Securities Act with respect to an
Initial Public Offering by the Company, then the Company shall promptly give
written notice of such proposed filing to KGoetz, and such notice shall describe
the proposed registration and distribution and offer KGoetz the opportunity to
register up to a maximum of one million (1,000,000) shares of Common Stock (an
"Initial Incidental Registration"). The Company shall, and shall use its best
efforts to cause the managing underwriter or underwriters selected by the
Company for such proposed underwritten offering (the "Initial Company
Underwriter") to permit KGoetz, upon request in writing within twenty (20)
calendar days after mailing of the notice provided for in the preceding sentence
by the Company, to participate in the Initial Incidental Registration to include
up to one million (1,000,000) shares of her Common Stock (the "Initial Requested
Shares") in such offering on the same terms and conditions as the securities of
the Company included therein. In connection with any Initial Incidental
Registration under this Section 4(d) involving an underwritten offering, the
Company shall not be required to include any Common Stock owned by KGoetz in
such underwritten offering unless KGoetz (i) accepts the terms of the
underwritten offering as agreed upon between the Company and the Initial Company
Underwriter, and then only in such quantity as will not, in the opinion of the
Initial Company Underwriter, jeopardize the success of the offering by the
Company, and (ii) enters into an underwriting agreement in customary form with
the Initial Company Underwriter. If the Initial Company Underwriter determines
that marketing factors require a limitation on the number of shares that may be
underwritten, then the Initial Company Underwriter may limit the number of
securities to be included in the registration and underwriting. The Company
shall also advise KGoetz and the securities entitled to inclusion in such
registration will include, first, all of the securities to be offered for the
account of the Company; second, the Common Stock to be offered for the account
of KGoetz pursuant to this Section 4; and third, any other securities requested
to be included in such underwritten offering.
(e) Expenses Relating to Initial Incidental Registration. The
Company shall bear all reasonable Registration Expenses (other than
underwriter's discounts and commissions relating to the Common Stock being
registered by KGoetz) in connection with any Initial Incidental Registration
pursuant to this Section 4, whether or not such Initial Incidental Registration
becomes effective.
(f) Right to Terminate Initial Incidental Registration. The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 4 prior to the effectiveness of such registration
whether or not KGoetz has elected to include Common Stock in such registration.
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5. Form S-3 Registration.
(a) Request for a Form S-3 Registration. At any time after the
Company is eligible to register the Registrable Securities on Form S-3 (or any
successor form thereto), (i) one or more of the General Atlantic Stockholders as
a group, acting through GAP LLC or its written designee, (ii) one or more of the
Existing Stockholders holding at least a majority of the Registrable Securities
then held by all Existing Stockholders, (iii) one or more TCI Stockholders, or
(iv) one or more Series E Stockholders (in each case, the "S-3 Initiating
Holders") may make a written request to the Company to file a Registration
Statement, on Form S-3 for a public offering of shares of Registrable Securities
the reasonably anticipated aggregate price to the public of which would exceed
$2,500,000 (or any successor form then in effect) (an "S-3 Registration"). The
Company shall promptly give written notice of a request for an S-3 Registration
to all of the Designated Holders (other than the S-3 Initiating Holders who have
requested an S-3 Registration under this Section 5(a)), which notice shall
describe the proposed registration and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request in writing to the Company, given within ten (10)
days of its receipt from the Company of such written notice. The Company shall
(i) take such steps as are necessary or appropriate to prepare for the
registration of the Registrable Securities to be registered and (ii) use its
best efforts to (x) cause such registration pursuant to this Section 5(a) to
become and remain effective as soon as practicable, and (y) include in such
offering the Registrable Securities of the Initiating Holders and the Designated
Holders who have requested in writing to participate in such registration on the
same terms and conditions as the Registrable Securities of the S-3 Initiating
Holders included therein.
(b) Form S-3 Underwriting Procedures. If the S-3 Initiating
Holders holding a majority of the Registrable Securities held by all of the S-3
Initiating Holders to which the requested S-3 Registration relates so elect, the
Company shall use its reasonable efforts to cause such S-3 Registration pursuant
to this Section 5 to be in the form of a firm commitment underwritten offering
and the managing underwriter or underwriters selected for such offering shall be
the Approved Underwriter selected in accordance with Section 3(f). In connection
with any S-3 Registration under Section 5(a) involving an underwritten offering,
the Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Designated Holders thereof accept the terms of
the underwriting as agreed upon between the Company, the Approved Underwriter
and the S-3 Initiating Holders and enter into an underwriting agreement in
customary form with the Approved Underwriter, and then only in such quantity as
will not, in the opinion of such underwriter, jeopardize the success of such
offering by the S-3 Initiating Holders. If the Approved Underwriter determines
that marketing factors require a limitation on the number of shares that may be
underwritten, then the Approved Underwriter may limit the number of securities
to be included in the registration and underwriting. The Company shall so advise
all Designated Holders who have requested to participate in the S-3 Registration
and the securities entitled to inclusion in such registration will include,
first, all of the Registrable Securities to be offered for the account of the
S-3 Initiating Holders; second, the Registrable Securities to be offered for the
account of the other Designated Holders who requested inclusion of their
Registrable Securities pursuant to Section 5(a), pro rata based on the number of
Registrable Securities owned by such Designated Holders, and third, any other
securities requested to be included in such underwritten offering.
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(c) Limitations on Form S-3 Registrations. Notwithstanding the
foregoing, the Company shall not be obligated to take any action to effect any
such registration, qualification or compliance pursuant to this Section 5:
(i) 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 Securities Act;
(ii) If within a twelve (12) month period preceding the date
of such request, the Company has effected two (2) such registrations on Form S-3
pursuant to this Section 5, each such registration has been declared or ordered
effective;
(iii) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of (which date the Company
shall notify the S-3 Initiating Holders in writing of not less than sixty (60)
days prior thereto), and ending on the date ninety (90) days immediately
following the effective date of, any Registration Statement pertaining to an
underwritten offering of securities of the Company (other than a registration of
securities in a transaction under Rule 145 (or any successor provision then in
effect) under the Securities Act or with respect to an employee stock option,
stock purchase or similar plan), provided that the Company is actively employing
in good faith all reasonable efforts to cause such Registration Statement to
become effective and that the Company's estimate of the date of filing such
Registration Statement is made in good faith;
(iv) If the Company shall furnish to the Designated Holders a
certificate, signed by the Chief Executive Officer or Chief Financial Officer of
the Company, stating that in good faith judgment of the Board of Directors it
would be seriously detrimental to the Company or its stockholders for a
Registration Statement to be filed in the near future, then the Company's
obligation to use its best efforts to register, qualify or comply under this
Section 5 shall be deferred for a period not to exceed ninety (90) days from the
date of receipt of written request from the S-3 Initiating Holders;
(v) If Form S-3 is not available for such offering by the S-3
Initiating Holders.
(d) Expenses. In connection with any registration pursuant to
this Section 5, the Company shall pay all Registration Expenses (other than
underwriter's discounts and commissions), whether or not such registration
becomes effective.
(e) No Demand Registration. No registration requested by any S-3
Initiating Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
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6. Termination. This Agreement shall terminate and be of no further
force or effect on such time as there shall no longer be any Registrable
Securities outstanding. This Agreement shall also terminate as to any party that
no longer holds Registrable Securities. The foregoing notwithstanding, Sections
7, 9, 10 and 11(c) shall survive the termination of this Agreement
7. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders other than
the Series E Stockholders. If and to the extent requested by the Company, the
Initiating Holders or the S-3 Initiating Holders, as the case may be, in the
case of a non-underwritten public offering or if and to the extent requested by
the Approved Underwriter or the Company Underwriter, as the case may be, in the
case of an underwritten public offering, each Designated Holder of Registrable
Securities, other than a Series E Stockholder, agrees not to effect any sale,
short sale, loan, grant any option for the purchase of, or otherwise dispose of
any Registrable Securities or of any securities convertible into or exchangeable
or exercisable for such Registrable Securities, including a sale pursuant to
Rule 144 under the Securities Act, during (i) with respect to an Initial Public
Offering, the 180-day period or such shorter period agreed upon by such
Designated Holder and the requesting party or (ii) in any other case, the 90-day
period or such shorter period agreed upon by such Designated Holder and the
requesting party, beginning on the effective date of such Registration Statement
(except as part of such registration). The Company may impose stop-transfer
instructions with respect to such securities subject to the foregoing
restriction until the end of such period. The provisions of this Section 7(a)
shall terminate eighteen (18) months from the IPO Effectiveness Date with
respect to each Designated Holder who is not an Affiliate of the Company at that
time; provided, however, that in the event that following the IPO Effectiveness
Date (A) one or more Designated Holders has properly exercised its registration
rights pursuant to the Section 3, Section 4 or Section 5 of this Agreement in
connection with an underwritten public offering and (B) the Approved Underwriter
or the Company Underwriter, as the case may be, has determined that marketing
factors require that less than 50% of the Registrable Securities requested to be
included in such offering by such Designated Holders may be so included and has
so advised such Designated Holders in writing, the provisions of this Section
7(a) shall terminate as of the date the underwriters so advise the Designated
Holders.
(b) Restrictions on Sales by Series E Stockholders.
(i) If and to the extent requested by the Approved
Underwriter or the Company Underwriter, as the case may be, in the case of an
underwritten public offering, each Series E Stockholder, agrees not to effect
any sale, short sale, loan, grant any option for the purchase of, or otherwise
dispose of (other than in connection with a transfer to a Permitted Transferee
that agrees to be bound by and subject to the terms and conditions of this
Agreement) any Registrable Securities or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Securities Act, during (i) with respect to an
Initial Public Offering, the 180-day period or such shorter period agreed upon
by such Designated Holder and the requesting party or (ii) with respect to any
other underwritten public offering, the 90-day period or such shorter period
agreed upon by such Series E Stockholder and the requesting party, beginning on
the effective date of such
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Registration Statement (except as part of such registration). The Company may
impose stop-transfer instructions with respect to such securities subject to the
foregoing restriction until the end of such period. The provisions of this
Section 7(b)(i) shall terminate eighteen (18) months from the IPO Effectiveness
Date with respect to each Series E Stockholder.
(ii) Each Series E Stockholder agrees that it shall not
transfer (other than in connection with a transfer to a Permitted Transferee
that agrees to be bound by and subject to the terms and conditions of this
Agreement), (A) during the one-year period following its purchase of Series E
Preferred Stock from the Company, more than 10% of the Registrable Securities
purchased by it under the Series E Stock Purchase Agreement and (B) thereafter
during the two-year period following the first anniversary of its purchase of
Series E Preferred Stock from the Company, more than 50% of the Registrable
Securities purchased by it under the Series E Stock Purchase Agreement in any
subsequent, consecutive 12-month period. In addition, each Series E Stockholder
agrees that it shall not transfer any Registrable Securities or any right, title
or interest therein to any of USA Networks, Ticketmaster Holdings, Ticketmaster,
Inc., Ticketmaster-CitySearch, and SFX Entertainment; provided, however, that
such restriction shall terminate in the event that any of the foregoing entities
acquires substantially all of Company's assets or more than 50% of the
outstanding capital stock of the Company.
(c) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its securities,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any successor
thereto), during the period beginning on the effective date of any Registration
Statement in which the Designated Holders of Registrable Securities are
participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) 120 days
after the effective date of such Registration Statement (except as part of such
registration).
8. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the SEC a Registration Statement on
any form for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of such
Registrable Securities in accordance with the intended method of distribution
thereof, and use its best efforts to cause such Registration Statement to become
effective; provided, however, that (x) before filing a Registration Statement or
prospectus or any amendments or supplements thereto, if counsel for the Company
does not make itself available to serve as counsel to the Designated Holders,
then the Company shall provide one counsel selected by the Designated Holders
holding a majority of the Registrable Securities being registered in such
registration ("Holders' Counsel") and any other Inspector with an adequate and
appropriate opportunity to participate in the preparation of
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such Registration Statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the SEC, which documents shall
be subject to the review of Holders' Counsel, and (y) the Company shall notify
the Holders' Counsel, if any, and each seller of Registrable Securities of any
stop order issued or threatened by the SEC and take all reasonable action
required to prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
the lesser of (x) 120 days and (y) such shorter period which will terminate when
all Registrable Securities covered by such Registration Statement have been
sold, and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) as soon as reasonably possible, furnish to each seller
of Registrable Securities, prior to filing a Registration Statement, copies of
such Registration Statement as is proposed to be filed, and thereafter such
number of copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus included
in such Registration Statement (including each preliminary prospectus) and such
other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable Securities under
such other securities or "blue sky" laws of such jurisdictions as any seller of
Registrable Securities may request, and to continue such qualification in effect
in such jurisdiction for as long as permissible pursuant to the laws of such
jurisdiction, or for as long as any such seller requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all other
acts and things which may be reasonably necessary or advisable to enable any
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, however, that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 8(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) cause the Registrable Securities covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers of
Registrable Securities to consummate the disposition of such Registrable
Securities;
(vi) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and the
Company shall
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promptly prepare and file with the SEC or any other applicable government agency
a supplement or amendment to such prospectus and furnish to each seller a
reasonable number of copies of such supplement to or amendment of such
prospectus as may be necessary so that, after delivery to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(vii) enter into and perform customary agreements (including
an underwriting agreement in customary form with the Approved Underwriter or
Company Underwriter, if any, selected as provided in Section 3, Section 4 or
Section 5, as the case may be) and take such other actions as are prudent and
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition of such Registrable Securities pursuant to a Registration Statement,
Holders' Counsel, if any, and any attorney, accountant or other agent retained
by any such seller or any managing underwriter (each, an "Inspector" and
collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and its
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(x) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (z) the information in such Records was known to the
Inspectors on a non-confidential basis prior to its disclosure by the Company or
has been made generally available to the public. Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten offering,
use its best efforts to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters or as the managing
underwriter reasonably requests;
(x) use its best efforts to furnish, at the request of any
seller of Registrable Securities on the date such securities are delivered to
the underwriters for sale pursuant to such registration or, if such securities
are not being sold through underwriters, on the date the Registration Statement
with respect to such securities becomes effective, an opinion, dated such date,
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such request,
covering such legal
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matters with respect to the registration in respect of which such opinion is
being given as such seller may reasonably request and are customarily included
in such opinions;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable but no later than fifteen (15) months
after the effective date of the Registration Statement, an earnings statement
covering a period of twelve (12) months beginning after the effective date of
the Registration Statement, in a manner which satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed;
(xiii) keep Holders' Counsel, if any, advised in writing as
to the initiation and progress of any registration under Section 3, Section 4 or
Section 5 hereunder;
(xiv) cooperate with each seller of Registrable Securities
and each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. (the
"NASD"); and
(xv) take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) Seller Information. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 8(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 8(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall be required to give any such notice, the Company shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement (including, without limitation, the period referred
to in Section 8(a)(ii)) by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 8(a)(vi) to
and including the date when the sellers of such Registrable Securities under
such Registration Statement shall have received the copies of the supplemented
or amended prospectus contemplated by and meeting the requirements of Section
8(a)(vi).
(d) Registration Expenses. The Company shall pay all expenses
arising from or incident to the performance of, or compliance with, this
Agreement, including,
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without limitation, (i) SEC, stock exchange and NASD registration and filing
fees, (ii) all fees and expenses incurred in complying with securities or "blue
sky" laws (including reasonable fees, charges and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Securities), (iii)
all printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of the Company's independent public
accountants and any other legal or accounting fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising
from any "cold comfort" letters or any special audits incident to or required by
any registration or qualification) and, in the case of a Demand Registration,
subject to the provisions of Section 3(d), any reasonable charges and expenses
incurred by the Initiating Holders, including the reasonable fees of Holders'
counsel, if any, and (v) any liability insurance or other premiums for insurance
obtained in connection with any Demand Registration or piggy-back registration
thereon, Incidental Registration or S-3 Registration pursuant to the terms of
this Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in this Section 8(d) are referred to
herein as "Registration Expenses."
9. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection with any
Registration Statement in which a Designated Holder is participating pursuant to
Section 3, Section 4 or Section 5 hereof, each such Designated Holder shall
furnish to the Company in writing such information with respect to such
Designated Holder as the Company may reasonably request or as may be required by
law for use in connection with any such Registration Statement or prospectus and
each Designated Holder agrees to indemnify and hold harmless, to the fullest
extent permitted by law, the Company, each other Designated Holder selling
Registrable Securities pursuant to such Registration Statement, any underwriter
retained by the Company and their respective directors, officers, employees and
each Person who controls the Company, such other Designated Holder(s) or such
underwriter (within the meaning of the Securities Act and the Exchange Act) to
the same extent as the foregoing indemnity from the
20
24
Company to the Designated Holders, but only with respect to any such information
with respect to such Designated Holder furnished in writing to the Company by
such Designated Holder expressly for use therein; provided, however, that the
total amount to be indemnified by such Designated Holder pursuant to this
Section 9(b) shall be limited to the net proceeds received by such Designated
Holder in the offering to which the Registration Statement or prospectus relates
unless the obligations of such Designated Holder hereunder arise out of or are
based upon willful misconduct of such Designated Holder.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder unless the failure to give
such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be entitled
to participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and satisfactory to such Indemnified
Party. The Indemnified Party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall be
paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay
the same, (ii) the Indemnifying Party fails to assume the defense of such action
with counsel satisfactory to the Indemnified Party in its reasonable judgment or
(iii) in the reasonable opinion of the counsel to the Indemnified Party either
(x) representation of such Indemnified Party and the Indemnifying Party by the
same counsel would be inappropriate under applicable standards of professional
conduct or (y) there may be one or more legal defenses available to the
Indemnified Party which are different from or additional to those available to
the Indemnifying Party. In any of such cases, the Indemnifying Party shall not
have the right to assume the defense of such action on behalf of such
Indemnified Party. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the consent of such
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which such Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability for claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 9 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults
21
25
of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Sections 9(a), 9(b)
and 9(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; provided that the
total amount to be indemnified by a Designated Holder shall be limited to the
net proceeds received by such Designated Holder in the offering unless the
obligations of such Designated Holder hereunder arise out of or are based upon
willful misconduct of such Designated Holder.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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) Notwithstanding the foregoing provisions of this Section 9,
to the extent that the provisions relating to indemnification and contribution
in an underwriting agreement entered into by the Company in connection with an
underwritten public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
10. Rule 144. The Company covenants that it shall (a) file any reports
required to be filed by it under the Exchange Act and (b) take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rules 144
and 144A under the Securities Act), all to the extent required from time to time
to enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144 and 144A under the Securities Act, as such rule may be
amended from time to time, or (ii) any similar rules or regulations hereafter
adopted by the SEC. The Company shall, upon the request of any Designated Holder
of Registrable Securities, deliver to such Designated Holder a written statement
as to whether it has complied with such requirements.
11. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to (i)
the shares of Common Stock, (ii) any and all shares of voting common stock of
the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends,
22
26
splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof. The Company shall cause any successor or assign (whether
by sale, merger or otherwise) to enter into a new registration rights agreement
with the Designated Holders on terms substantially the same as this Agreement as
a condition of any such transaction.
(b) No Inconsistent Agreements. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, which rights have
not been terminated, other than the rights granted to the Designated Holders
herein. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Designated
Holders in this Agreement or grant any additional registration rights which are
prior in right to or inconsistent with the rights granted in this Agreement to
any Person or with respect to any securities that are not Registrable
Securities.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may be given, only
if consented to in writing by (i) the Company, (ii) the Existing Stockholders
holding Registrable Securities representing (after giving effect to any
adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the Existing Stockholders, (iii) the General Atlantic
Stockholders holding Registrable Securities representing (after giving effect to
any adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the General Atlantic Stockholders, (iv) the TCI
Stockholders holding Registrable Securities representing (after giving effect to
any adjustments) at least a majority of the aggregate number of Registrable
Securities owned by all of the TCI Stockholders; provided, however, that no
amendment or waiver shall be binding upon a TCI Stockholder that, together with
all Affiliates of such TCI Stockholder, beneficially owns more than 4% of the
Registrable Securities owned by all of the TCI Stockholders unless such TCI
Stockholder has consented in writing to such amendment or waiver, (v) the Other
New Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Other New Stockholders, (vi) the
Merger Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Merger Stockholders and (vii) the
Series E Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the Series E Stockholders; provided,
however, that if such amendment, modification, supplement or waiver adversely
affects the rights of any Series E Stockholder without similarly affecting the
rights of all Series E Stockholders, then such amendment, modification,
supplement or waiver shall not be binding on such Series E Stockholder without
the written consent of such
23
27
Series E Stockholder. Any such written consent shall be binding upon the Company
and all of the Designated Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company:
Xxxxxxx.xxx, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention:
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx L.L.P.
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(ii) if to any of the General Atlantic Stockholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
24
28
(iii) if to a TCI Stockholder,
at its address as it
appears on the record
books of the Company with
a copy to:
Xxxxx Xxxx LLP Xxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxx
00000-0000 and a copy to:
Buchalter, Nemer, Fields & Younger
A Professional Corporation
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
(iv) if to CMGI:
CMGI @ Ventures II, LLC
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxxx
Xxxxxx X. Xxxxxxxx III
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(v) If to Liberty:
Liberty Ventures I, L.P.
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Vice President
25
29
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
(vi) If to Intel:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: M & A Portfolio Manager (RN6-46)
(vii) if to a Merger Stockholder, at its address as it
appears on the record books of the Company:
with a copy to:
Xxxxxxx, Xxxxxxxx & Kotel
A Professional Corporation
Tower Forty-Nine
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
(viii) if to any other Designated Holder, at its address as
it appears on the record books of the Company.
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by courier
or overnight mail, if delivered by commercial courier service or overnight mail;
five (5) Business Days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is mechanically acknowledged, if telecopied.
(f) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto. The Demand Registration rights
and the S-3 Registration rights of the General Atlantic Stockholders, the
Existing Stockholders and the TCI Stockholders contained in Section 3 and
Section 5 hereof and the other rights of each of the General Atlantic
Stockholders, the Existing Stockholders and the TCI Stockholders with respect
thereto shall be, with respect to any Registrable Security, (i) automatically
transferred (A) in the case of such rights of the General Atlantic Stockholders,
among the General Atlantic Stockholders, (B) in the case of such rights of the
Existing Stockholders, among the Existing Stockholders and (C) in the
26
30
case of such rights of the TCI Stockholders, among the TCI Stockholders; and
(ii) in all other cases, transferred only with the consent of the Company. The
incidental or "piggy-back" registration rights of the Designated Holders
contained in Sections 3(a) and 4 hereof and the other rights of each of the
Designated Holders with respect thereto shall be, with respect to any
Registrable Security, automatically transferred by such Designated Holder to any
Person who is the transferee of such Registrable Security, provided that such
transferee holds at least $2.5 million of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations), and (a) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement; and (c) such assignment shall be effective only if immediately
following such transfer such securities will continue to be restricted
securities under the Securities Act. For the purposes of determining the number
of Registrable Securities held by a transferee or assignee, the holders of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices or
taking actions under this Agreement. All of the obligations of the Company
hereunder shall survive any such transfer. No Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of any of the rights granted hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(j) Severability.If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the Designated Holders shall be enforceable to
the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained
27
31
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and in the Stockholders Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter, including, without limitation, the
Fourth Agreement. This Agreement shall become effective as to each Series E
Stockholder upon the execution hereof by such Series E Stockholder, and shall
become effective as to each other party hereto when the requisite parties set
forth in Section 11(d) of the Fourth Agreement have executed this Agreement.
(l) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
32
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
XXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: EVP & Chief Financial Officer
GENERAL ATLANTIC PARTNERS 46, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 54, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: A Managing Member
33
THE PROVIDENT BANK
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
R4 HOLDINGS L.L.C.
By:
--------------------------------------------
Name:
Title:
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxxxx
XXXXXXXX-XXXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: General Partner
VENTANA EXPRESS, L.L.C.
By: /s/
--------------------------------------------
Name:
Title:
34
HILL INTERNATIONAL, INC.
By:
--------------------------------------------
Name:
Title:
PLAYHOUSE SQUARE FOUNDATION
By: /s/ Art X. Xxxxx
--------------------------------------------
Name: Art X. Xxxxx
Title: President
THE SHAREHOLDERS' REPRESENTATIVE, as
representative of certain former shareholders of
Bay Area Seating Serving, Inc.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Shareholders' Representative
INDUSTRIFORSIKRING, A.S.
By: /s/ Per Arne Myklehost
--------------------------------------------
Name: Per Arne Myklehost
Title: Managing Director
/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
XXXXXXXXX INVESTMENTS LTD.
By:
--------------------------------------------
Name:
Title:
35
HERITAGE FINANCE & TRUST COMPANY
By: /s/ Xxxxxx Xxxx
--------------------------------------------
Name: Xxxxxx Xxxx
Title: President XX
XXXXXXX CAPITAL GROUP LLC, As Agent and
Attorney-in-Fact for the ZCG Investors listed on
Schedule II attached hereto
By: /s/ A. Z. Xxxxxxx
--------------------------------------------
Name: A.Z. Xxxxxxx
Title:
ATTRACTOR INSTITUTIONAL LP
By: Attractor Ventures LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx, MM
Title: Attractor Ventures LLC, GP
Attractor Institutional LP
ATTRACTOR VENTURES, LLC
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx, MM
Title: Attractor Ventures LLC
THE XXXX X. AND XXXXXXXXX X. XXXXXXXXX
FOUNDATION
By:
--------------------------------------------
Name:
Title:
36
ATTRACTOR LP
By: Attractor Ventures LLC, its General Partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx, MM
Title: Attractor Ventures LLC, GP
Attractor LP
COTSAKOS REVOCABLE TRUST U/A/D 9/3/87
By:
--------------------------------------------
Name:
Title:
XXXXXXX X. XXXXXXXX REVOCABLE TRUST
U/A DTD 2/16/99
By:
--------------------------------------------
Name:
Title:
IDEALAB! CAPITAL PARTNERS I-A LP
By: idealab! Capital Management I, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
IDEALAB! CAPITAL PARTNERS I-B LP
By: idealab! Capital Management I, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
37
XXXXX GLOBAL INVESTMENTS, LTD.
By: Xxxxx Capital Management, Inc.,
its Trading Advisor
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director of Operations
REMINGTON INVESTMENTS STRATEGIES, L.P.
By: Xxxxx Capital Advisors, L.L.C.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director of Operations
MULTI-STRATEGIES FUND, L.P.
By: Xxxxx Capital Management, Inc.,
its Trading Advisor
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director of Operations
MUTLI-STRATEGIES FUND LTD.
By: Xxxxx Capital Advisors, L.L.C.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Director of Operations
X.X.X. TRUST
By: /s/ G. Breslava
--------------------------------------------
Name: G. Breslava
Title: Trustee
38
SPORTS CAPITAL TICKETS, LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Partner
XXXXXXX INTERNATIONAL, LLC
By: /s/ Xxxxx-Xx Xxx
--------------------------------------------
Name: Xxxxx-Xx Xxx
Title: Vice President
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
XX (1999), LLC
By: /s/ Xxxxx X. Xxxxx Long
--------------------------------------------
Name: Xxxxx X. Xxxxx Long
Title: Manager
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxxxxxx X. Xxxxx
INTEL CORPORATION
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Treasurer
39
CMG @ VENTURES II, LLC
By: ________________, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
LIBERTY VENTURES I, L.P.
By: Liberty Ventures Inc., its General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title Vice President
IDEALAB! HOLDINGS, LLC
(formerly Xxxx Xxxxx' Idealab)
By: /s/ Xxxxxxx by proxy Xxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx by proxy Xxxx Xxxxx
Title:
EXCITE, INC.
By /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
XXX INTERACTIVE MEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx Xx.
Title: Vice President
40
SCHEDULE I
GENERAL ATLANTIC STOCKHOLDERS
-----------------------------
General Atlantic Partners 46, L.P.
GAP Coinvestment Partners, L.P.
General Atlantic Partners 54, L.P.
GAP Coinvestment Partners II, L.P.
TCI STOCKHOLDERS
----------------
Attractor Institutional LP
Attractor LP
Attractor Ventures, LLC
idealab! Capital Partners I-A LP
idealab! Capital Partners I-B XX
Xxxxx Global Investments, Ltd.
Remington Investments Strategies, L.P.
Multi-Strategies Fund, L,P.
Multi-Strategies Fund Ltd.
X.X.X. Trust
Xxxx Xxxxx' idealab!
Xxxxx X. Xxxxxxx
The Xxxx X. and Xxxxxxxxx X. XxxXxxxxx Foundation
OTHER NEW STOCKHOLDERS
----------------------
Sports Capital Tickets, LLC
41
Xxxxxxx International, LLC
MERGER STOCKHOLDERS
-------------------
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxx X. Xxxxx
Xxxxxxxxxxx X. Xxxxx
Xxxxxx & Xxxxxx
CMGI @ Ventures II, LLC
Liberty Ventures I, L.P.
Intel Corporation
SERIES E STOCKHOLDERS
---------------------
Excite, Inc.
Xxx Interactive Media, Inc.
42
EXISTING STOCKHOLDERS
---------------------
COMMON HOLDERS
--------------
All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx 0
Xxxxxx, Xxxxxx, R.O.C.
Xxxxx X. Xxxxxxx
International Capital Partners, Inc.
IPCC Investments, Inc.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Hill International, Inc.
Playhouse Square Foundation
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
PS Holdings, Ltd.
Peti #24, Tingkat 24
Bangunan MAS
Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
R4 Holdings, L.L.C.
Xxxxxxxx X. Xxxxxxxx
Ventana Express, L.L.C.
SERIES A HOLDERS
----------------
Xxxxxx X. Kczor, Jr.
00000 Xxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
PS Holdings, Ltd.
Peti #24, Tingkat 24
Bangunan MAS
Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx East Road
Section 4
Taipei, Taiwan, R.O.C.
43
Xxxxx Xx
c/o All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx East Road
Section 4
Taipei, Taiwan, R.O.C.
Lu Xx Xxx
c/o All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx East Road
Section 4
Taipei, Taiwan, R.O.C.
Xxxxx Xxxx
c/o All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx East Road
Section 4
Taipei, Taiwan, R.O.C.
Xxxxxx I-Mon Wu
c/o All Asia Company Ltd.
Suite 705
148 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx 0
Xxxxxx, Xxxxxx, R.O.C.
Xxxxxx X. Rufts and Xxxxx X. Xxxxx
Trustees U/A, dated September 18,
1987
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx, husband and wife, as
community property
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx 0, XX-0000
Xxxxxx, Xxxxxxxxxxx
Industriforiskring A.S.
X.X. Xxx 000, XX00000
Xxxxxxxx, Xxxxxxx
First Investment Partner A/S
Xxxxxxxxxxx 00
0000 Xxxxxxxxx X, Xxxxxxx
IPCC Investments Inc.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
44
Hammer Investments A/S
X.X. Xxx 0000
Xxxx X-0000
Xxxx, Xxxxxx
Heritage Finance & Trust Company
Cours Des Bastions 12
P.O. Box 3341
1211 Xxxxxx 0, Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Medical Venture Management A/S
Oslo, Norway
Xxxxxxxxx Investments Limited
c/o Fidux Trust Company Ltd.
0 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Jackson, Tufts, Xxxx & Black
Profit Sharing Program FBO
Xxxx X. Xxxxxx, Xx.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Plenen A.S.
Pareliusuenen SA, N-U77
Oslo, Norway
Taksiah Xxxx Xxxxxx
Peti #24, Tingkat 24
Bangunan MAS
Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx
x/x XXXXXX X/X
Xxxxxxxxxxxx 00, 0000
Xxxx, Xxxxxx
Altimex Trading Co.
Xxxx Center
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxxxx Xxxxx, Xx. and Xxxxxx Xxxxx,
as community property
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fairlane Ventures Ltd.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
45
SERIES B HOLDERS
----------------
Industriforsikring A.S.
x/x Xxxxx Xxxxx
X.X. Xxxxxxxxxxx, X-0000
Xxxx, Xxxxxx
Attn: Xxxxx Xxxxxxxxx,
Vice President
Altimex Trading Co.
Xxxx Center
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Banque SCS Alliance
c/o Brown Brothers and Xxxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Cantrade Banca Privata Lugana XX
Xxxxx Xx. Xxxxxxxxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Attn: Giogio Bemasconi,
Vice President
Xxxxx Xxxx Siks Xxxxx
Suite 750
148 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx 0
Xxxxxx, Xxxxxx, R.O.C.
Attn: Xxxxxxxx X.X. Xxxx,
Director
Heritage Finance & Trust Co.
Cours Des Bastions 12
P.O. Box 3341
1211 Xxxxxx 0, Xxxxxxxxxxx
Attn: Xxxx-Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx & Pama Ltd.
Shinwa Building, 5th Floor
0-0-00 Xxxxxxxxx, Xxxxxx-Xx
Xxxxx 000 Xxxxx
Attn: Yuriko Mi, Secretary
IPCC Investments, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
46
PS Holdings, Ltd.
Peti #24, Tingkat 24
Bangunan MAS
Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Attn: Ms. Taksiah Xxxx Xxxxxx,
Senior Manager - Investment
Sagres Group, Ltd.
TS Fiduciaria XX
Xxxx Xxxxxxxxxx 0, X.X. Xxx 0000
0000 Xxxxxx, Xxxxxxxxxxx
Attn: Domenico Searfo
Technology Gateway Partners, LP
0000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxxx
First Investment Partners a/S
Xxxxxxxxxxx 00
0000 Xxxxxxxxx K, A/S
Reg. No. 66.433 Denmark
Attn: Xxxx Xxxx Host, President
Fordbridge International, Ltd.
Suite 750
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx 0, Xxxxxx, Xxxxxx, X.X.X.
Attn: Xxxxxxxx X.X. Xxxx,
Director
Xx Xx-Xxx
Suite 750
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx 0, Xxxxxx, Xxxxxx, X.X.X.
Attn: Xxxxxxxx P.L. Feng,
Director
Pesona Kaya SDN, BHD
Pesona Kaya, SDN, BHD
12th Floor, Wisma Merdeka
Xxxxx Xxx Xxxxx, 00000 Xxxx
Xxxxxxxx, X.X. Xxx 000000, 00000
Xxxx Xxxxxxxx, Xxxxx,
East Malaysia
Attn: Xxxxx Xxx Sang
Xxxxxx Xxxxxxxx
x/x XXXXXX X/X
Xxxxxxxxxxxx 00, 0000
Xxxx, Xxxxxx
Attn: Xxxxxx Xxxxxxxx, Director
Camco BVI Ltd.
47
Rich Products Corporation
Banque SCA Alliance
Min Xxx Xxxx
Baloo A/S
Zeiseger Capital Group,
LLC, as Agent and
Attorney-in-Fact for the
Series B Investors listed
on Schedule II attached
hereto
WARRANTHOLDERS
--------------
The Provident Bank
Ventana Express, L.L.C.
Shareholders'
Representative as defined
in that certain Stock
Purchase Agreement, dated
September 18, 1997, among
Bay Area Seating Services,
Inc. ("BASS"), certain
former shareholders of BASS
and the Company
CONVERTIBLE NOTE HOLDERS
------------------------
Hill International, Inc.
48
SCHEDULE I
SCHEDULE OF SERIES B PREFERRED STOCK INVESTORS
STATE OF NO. OF
NAME RECORD HOLDER DOMICILE SHARES
---- ------------- -------- ------
Alza Corporation Retirement Plan Xxxx & Co. CA 100,000
Xxxxxx X. Xxxxxx Employee Investment Plan Xxxx & Co. MA 520,000
City of Milford Pension & Retirement Plan City of Milford Pension & Retirement CT 240,000
Plan
NFIB Employee Pension Trust Houvis & Co. FBO NFIB Employee TN 120,000
Pension Trust
Norwalk Employees' Pension Plan Hare & Co. CT 120,000
Public Employee Retirement System of Idaho Mellon Bank NA custodian for ID 760,000
XXXXX-Xxxxxxx Capital
City of Stamford Firemen's Pension Fund City of Stamford Firemen's Pension CT 120,000
Fund
State of Oregon PERSZCG Westcoast & Co. OR 2,800,000
Tab Products Co. Pension Plan Xxxx & Co. CA 120,000
Trustees of Xxxxxxx Xxxxxxx Xxxxxx & Xx. XX 120,000
Xxxxxxxx School General Investment Fund Xxxxxx & Co. NY 60,000
Xxxx Xxxxxx Foundation Xxxx & Co. CA 100,000
Xxxxx Foundation Hare & Co.. OR 40,000
Xxxxxxx Xxxxxxxxxx of NY Xxxx & Co. NY 40,000
Xxxxxx Family LLC Xxxx & Co. CA 40,000
Xxxxx Xxxx Xxxxxxx Hare & Co. NJ 60,000
Xxxx & Xxxx Xxxxxxxx JTWROS Xxxx & Xxxx Xxxxxxxx JTWROS NY 20,000
Xxxxxx Xxxxxxxx Aulis & Co. NY 120,000
Xxxxx Xxxx Xxxx & Co. NM 40,000
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx VA 40,000
Xxxxxx Capital, LLC Xxxxxx Capital, LLC NY 60,000
49
STATE OF NO. OF
NAME RECORD HOLDER DOMICILE SHARES
---- ------------- -------- ------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx NY 100,000
Xxxxxx Trust Co. of the Bahamas Ltd. as Trustee Xxxxxx Trust Co. of the Bahamas Ltd. FOREIGN 80,000
U/A/D 11/30/93 as Trustee U/A/D 11/30/93
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx OR 40,000
Xxxxx Family LLC Xxxxxx & Co. NY 160,000
Xxxxxx & Xxxxx Xxxxxxx JTWROS Xxxxxx & Xxxxx Xxxxxxx JTWROS CA 40,000
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx CT 200,000
Xxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx CT 80,000
Xxxxxxx Investment Partners XX Xxxxxxx Investment Partners LP DE 60,000