8X8, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement")
is made as of December 16, 1999, between 8x8, Inc., a Delaware corporation
("8x8"), and FleetBoston Robertson Stephens Inc. ("RS").
- Definitions. As used in this
Agreement:
- "Closing Date" means the Closing Date as defined
in Section 1(b) of that certain Securities Purchase Agreement dated as of
December 15, 1999 by and among 8x8 and the Buyers listed therein.
- "Form S-3" means such form under the
Securities Act as in effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the SEC which similarly permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the commission.
- "Material Event" means the happening of any event
during the period that the registration statement described in Section 2
hereof is required to be effective as a result of which, in the reasonable
judgment of 8x8, such registration statement or the related prospectus contains
or may contain any untrue statement of a material fact or omits or may omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
- "Registrable Securities" means (i) the 8x8 shares
of Common Stock issuable upon exercise of that certain Warrant, dated
December 16, 1999, made by 8x8 and issued to RS and (ii) any shares of
capital stock issued or issuable with respect to the 8x8 shares of Common Stock
as a result of any stock split, stock dividend, recapitalization, exchange or
similar event or otherwise.
- "SEC" means the Securities and Exchange
Commission.
- "Securities Act" means the Securities Act of 1933,
as amended.
Terms not otherwise defined herein have the meanings given to
them in the Share Exchange Agreement.
- Registration. 8x8 shall use commercially
reasonable efforts to file with the SEC a registration statement no later than
the first business day after the date which is 95 days after the Closing
Date and shall use commercially reasonable efforts to cause to become effective,
a Form S-3 covering the Registrable Securities within 150 days after the Closing
Date; provided, however, that (i) RS shall provide all such information
and materials relating to RS, and take all such action as may be required in
order to permit 8x8 to comply with all the applicable requirements of the SEC
and to obtain any desired acceleration of the effective date of such Form S-3,
such provision of information and materials to be a condition precedent to the
obligations of 8x8 pursuant to this Agreement and (ii) if the SEC reviews the
registration statement, the Company shall have 180 days to cause the
registration statement to be effective. The offerings made pursuant to such
registrations shall not be underwritten. Notwithstanding the foregoing, 8x8
shall not be required to cause the Registrable Securities to be registered if
8x8's legal counsel delivers a legal opinion to RS that such sale may be
effected in a single three-month period without registration under the
Securities Act pursuant to Rule 144 under the Securities Act.
- Postponement of Registration.
- Registration. Notwithstanding Section 2
above, 8x8 shall be entitled to postpone the declaration of effectiveness of any
Form S-3 prepared and filed pursuant to Section 2 for a reasonable period
of time, but not in excess of 60 calendar days after the applicable deadline, if
the Board of Directors of 8x8, acting in good faith, determines that there
exists material non-public information about 8x8.
- Material Event. RS agrees that, upon receipt of
any notice from 8x8 of the happening of a Material Event, RS will forthwith
discontinue disposition of the Registrable Securities pursuant to any Form S-3
described in Section 2 until RS's receipt of copies of supplemented or
amended prospectuses prepared by 8x8 (which 8x8 will use its commercially
reasonable efforts to prepare and file promptly), and, if so directed by 8x8, RS
will deliver to 8x8 all copies in their possession, other than permanent file
copies then in RS's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In no event shall 8x8
delay causing to be effective a supplement or post-effective amendment to any
Form S-3 pursuant to Section 2 or the related prospectus, for more than 15
consecutive days or 30 days during any 365 consecutive calendar day
period.
- Obligations of 8x8. Except as set forth in
Sections 2 and 3, 8x8 shall (i) prepare and file with the SEC the Form S-3
in accordance with Section 2 hereof with respect to the shares of
Registrable Securities and shall use commercially reasonable efforts to cause
such Form S-3 to become effective as provided in Section 2 and to keep such
Form S-3 continuously effective until the earlier to occur of (A) the sale
of all of the Registrable Securities so registered and (B) the first
anniversary of the Effective Time; (ii) furnish to RS such number of copies
of any prospectus (including any preliminary prospectus and any amended or
supplemented prospectus), as RS may reasonably request in order to effect the
offering and sale of the shares of the Registrable Securities to be offered and
sold, but only while 8x8 shall be required under the provisions hereof to cause
such Form S-3 to remain current; (iii) use its commercially reasonable
efforts to register or qualify the shares of the Registrable Securities covered
by such Form S-3 under the securities or blue sky laws of such jurisdictions as
RS shall reasonably request (provided that 8x8 shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such jurisdiction where it
has not been qualified), and do any and all other acts or things which may be
reasonably necessary or advisable to enable RS to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions;
(iv) cause all such Registrable Securities to be listed on each securities
exchange or National Association of Securities Dealers, Inc. Automated Quotation
System on which similar securities issued by 8x8 are then listed;
(v) notify RS upon the happening of any event as a result of which the
prospectus included in such Form S-3, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; (vi) so long as the Form S-3
remains effective, promptly prepare, file and furnish to RS a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of the Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing; (vii) notify RS promptly after it shall receive notice
thereof, of the date and time any Form S-3 and each post-effective amendment
thereto has become effective or a supplement to any prospectus forming a part of
such Form S-3 has been filed; (viii) notify RS promptly of any request by
the SEC for the amending or supplementing of such Form S-3 or prospectus or for
additional information; and (ix) advise RS promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of any Form S-3 or the initiation or threatening of
any proceeding for that purpose and promptly use commercially reasonable efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
- Ineligibility for Form S-3. In the event
that Form S-3 is not available for any registration of Registrable Securities
hereunder, the Company shall (i) register the sale of the Registrable Securities
on another appropriate form and (ii) undertake to register the Registrable
Securities on Form S-3 as soon as such form is available, provided that the
Company shall maintain the effectiveness of the registration statement then in
effect until such time as a registration statement on Form S-3 covering the
Registrable Securities has been declared effective by the SEC.
- Expenses. 8x8 shall pay the expenses
incurred by 8x8 in connection with any registration of Registrable Securities
pursuant to this Agreement including all SEC, NASD and blue sky registration and
filing fees, printing expenses, transfer agents' and registrars' fees, and the
reasonable fees and disbursements of 8x8's outside counsel and independent
accountants. RS shall be responsible for all commissions and transfer taxes, as
well as any other expenses incurred by RS.
- Indemnification. In the event of any
offering registered pursuant to this Agreement:
- 8x8 will indemnify RS with respect to any registration
effected pursuant to this Agreement, against all expenses, claims, losses,
damages and liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, or any amendment or
supplement thereto, or prospectus related thereto, incident to any such
registration, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not misleading,
or any violation by 8x8 of any rule or regulation promulgated under the
Securities Act, or state securities laws, or common law, applicable to 8x8 in
connection with any such registration, and will reimburse RS, for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that 8x8 will not be liable in any such case (i) to the extent that any
such claim, loss, damage, liability or expense arises out of or is based in any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to 8x8 by an
instrument duly executed by RS and stated to be specifically for use therein or
(ii) if a copy of the final prospectus relating to any registration statement
(as then amended or supplemented if 8x8 shall have furnished any amendments or
supplements thereto) (the "Final Prospectus") was not sent or
given by or on behalf of RS to a purchaser of RS's Registrable Securities, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Securities to such purchaser, and if
the final prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
- RS will severally indemnify 8x8, each of its directors
and officers, each person who controls 8x8 within the meaning of Section 15
of the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) or a material fact contained in any registration
statement, or any amendment or supplement thereto, or prospectus related
thereto, or 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, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement or prospectus in reliance upon and in conformity with written
information furnished to 8x8 by an instrument duly executed by RS and stated to
be specifically for use therein and will reimburse 8x8, the remaining
Shareholders, such directors, officers, or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus, in reliance upon
and in conformity with written information furnished to 8x8 by an instrument
duly executed by RS and stated to be specifically for use therein.
- Each party entitled to indemnification under this
Section 6 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has notice of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, and the Indemnified Party may
participate in such defense at such party's expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement, except
to the extent, but only to the extent, that the Indemnifying Party's ability to
defend against such claim or litigation is impaired as a result of such failure
to give notice. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Whether or not the defense of any claim or action is assumed by the
Indemnifying Party, such Indemnifying Party will not be subject to any liability
for any settlement without its consent.
- The obligations of 8x8 and RS under this Section 6
shall survive the completion of any offering of stock in a registration
statement under this Agreement.
- Non-Assignment of Registration Rights. The
rights to cause 8x8 to register Registrable Securities pursuant to this
Agreement may not be assigned by RS to any person or entity; provided,
however, that RS may assign the rights to cause 8x8 to register Registrable
Securities pursuant to this Agreement to any affiliates and up to two (2) non-
affiliates.
- Amendment of Registration Rights. This
Agreement may be amended by the holders of a majority of the Registrable
Securities and 8x8 at any time by execution of an instrument in writing signed
on behalf of each of the parties.
- Termination. The registration rights set
forth in this Agreement shall terminate at such time as all of the Registrable
Securities then held by RS can be sold by RS in a single 3-month period in
accordance with Rule 144 under the Securities Act.
- Grant of Additional Registration Rights.
RS acknowledges that 8x8 may grant registration rights to any other person or
entity with respect to their shares of 8x8 on terms which may be materially
different than the terms of this Agreement.
- Notices. All notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed effectively given upon delivery to the party to be notified in person or
by courier service or five days after deposit with the United States mail,
postage prepaid, addressed (a) if to RS, at RS's addresses as set forth in
the securities register of 8x8 as the case may be or (b) if to 8x8 at 2445
Mission College Blvd. Santa Clara, California 95054, Attention: Chief
Executive Officer.
- Governing Law; Interpretation. This
Agreement shall be construed in accordance and governed for all purposes by the
laws of the State of California regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
- Severability; Survival. If any portion of
this Agreement is held by a court of competent jurisdiction to conflict with any
federal, state or local law, or to be otherwise invalid or unenforceable, such
portion of this Agreement shall be of no force or effect, and this Agreement
shall otherwise remain in full force and effect and be construed as if such
portion had not been included in this Agreement.
- Entire Agreement. This Agreement contains
the entire agreement and understanding of the parties and supersedes all prior
discussions, agreement and understandings relating to the subject matter
hereof.
- Counterparts. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, 8x8 and RS have caused this Agreement to
be executed as of the date first above written.
8X8, INC.
By:
Name: Paul Voois
Title: Chief Executive Officer
FLEETBoston Robertson Stephens
Inc.
By:
Name:
Title:
