Exhibit 4.2
SIXTH AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT
TABLE OF CONTENTS
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1. | Definitions | 1 | |
2. | Registration Rights | 5 | |
2.1 | Demand Registration | 5 | |
2.2 | Company Registration | 6 | |
2.3 | Form S-3 Registration | 7 | |
2.4 | Underwriting Requirements | 7 | |
2.5 | Obligations of the Company | 9 | |
2.6 | Furnish Information | 10 | |
2.7 | Expenses of Registration | 10 | |
2.8 | Delay of Registration | 11 | |
2.9 | Indemnification | 11 | |
2.10 | Reports Under Exchange Act | 13 | |
2.11 | Limitations on Subsequent Registration Rights | 13 | |
2.12 | “Market Stand-off” Agreement | 14 | |
2.13 | Assignment of Registration Rights | 14 | |
2.14 | Restrictions on Transfer | 15 | |
2.15 | Termination of Registration Rights | 16 | |
3. | Information and Observer Rights | 16 | |
3.1 | Delivery of Annual, Quarterly and Monthly Financial Statements | ’16 | |
3.2 | Inspection | 18 | |
3.3 | Observer Rights | 18 | |
3.4 | Termination of Information and Observer Rights | 18 | |
3.5 | Confidentiality | 18 | |
4. | Rights to Future Stock Issuances | 19 | |
4.1 | Right of First Offer | 19 | |
4.2 | Amendment & Waivers | 21 | |
4.3 | Termination | 21 | |
5. | Additional Series G Right to Certain Future Stock Issuances | 21 | |
5.1 | Right of First Offer | 21 | |
5.2 | Amendment & Waivers | 22 | |
5.3 | Termination | 22 | |
6. | Additional Covenants | 22 | |
6.1 | Board Committees | 22 | |
6.2 | Board Expenses | 22 | |
6.3 | Successor Indemnification | 22 | |
6.4 | Directors and Officers Liability Insurance | 22 | |
6.5 | Director Indemnification | 23 | |
6.6 | Indemnification Matters | 23 |
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6.7 | Stock Repurchases | 23 | |
6.8 | Repurchases from Strategic Investment | 23 | |
6.9 | Termination of Covenants | 24 | |
7. | Miscellaneous | 24 | |
7.1 | Successors and Assigns | 24 | |
7.2 | Governing Law | 24 | |
7.3 | Counterparts | 24 | |
7.4 | Titles and Subtitles | 24 | |
7.5 | Notices | 24 | |
7.6 | Amendments and Waivers | 25 | |
7.7 | Severability | 25 | |
7.8 | Aggregation of Stock | 26 | |
7.9 | Additional Investors | 26 | |
7.10 | Entire Agreement | 26 | |
7.11 | Dispute Resolution | 26 | |
7.12 | Delays or Omissions | 26 | |
7.13 | WAIVER OF JURY TRIAL | 26 |
Schedule A | - Schedule of Investors |
Schedule B | - Schedule of Key Holders |
Schedule C | - Schedule of Other Holders |
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SIXTH AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT (“Agreement”) is made as of the 10th day of November, 2010, by and between Everyday Health, Inc., a Delaware corporation (the “Company”), each of the investors listed onSchedule A hereto, each of which is referred to in this Agreement as an “Investor,” each of the stockholders listed onSchedule B hereto, each of whom is referred to herein as a “Key Holder” and each of the persons or entities listed onSchedule C hereto, each of whom is referred to herein as a “Other Holder.”
RECITALS
WHEREAS, certain of the Investors (the “Existing Investors”) hold shares of the Company’s Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, SeriesD Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and/or shares of CommonStock issued upon conversion thereof and possess certain rights pursuant to a Fifth Amended and Restated Stockholder Rights Agreement dated as of October 15, 2008 between the Company andsuch Investors, as amended (the “Prior Agreement”); and
WHEREAS, the Existing Investors are holders of at least the Requisite Threshold (asdefined in the Prior Agreement), and desire to amend and restate the Prior Agreement in itsentirety and to accept the rights created pursuant to this Agreement in lieu of the rights granted tothem under the Prior Agreement; and
WHEREAS, certain of the Investors are parties to that certain Series G PreferredPurchase Agreement dated as of November 10, 2010 between the Company and certain of theInvestors (the “Purchase Agreement”), under which certain of the Company’s and such Investors’ obligations are conditioned upon the execution and delivery of this Agreement bysuch Investors, Existing Investors holding at least the Requisite Threshold (as defined in thePrior Agreement), and the Company;
NOW, THEREFORE, the Existing Investors hereby agree that the Prior Agreementshall be amended and restated, and the parties to this Agreement further agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 “Affiliate” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control or common investment management with such specified Person, including without limitation anypartner, officer, director, manager or employee of such Person and any venture capital fund now or hereafter existing that is controlled by or under common control with one or more generalpartners (or members thereof) or managing members of, or shares the same management company with, such Person.
1.2 “BEV” means Brand Equity Ventures II, L.P.
1.3 “Certificate” means the Tenth Amended and Restated Certificate ofIncorporation of the Company, as amended from time to time after the date hereof.
1.4 “Common Stock” means shares of the Company’s common stock, parvalue $0.01 per share.
1.5 “Damages” means any loss, claim, damage, or liability (joint or several)to which a party hereto may become subject under the Securities Act, the Exchange Act, or otherfederal or state law, insofar as such loss, claim, damage, or liability (or any action in respectthereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of amaterial fact contained in any registration statement of the Company, including any preliminaryprospectus or final prospectus contained therein or any amendments or supplements thereto;(ii) an omission or alleged omission to state therein a material fact required to be stated therein,or necessary to make the statements therein not misleading; or (iii) any violation or allegedviolation by any other party hereto of the Securities Act, the Exchange Act, any state securitieslaw, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or anystate securities law.
1.6 “Derivative Securities” means any securities or rights convertible into, or exercisable or exchangeable for, Common Stock, including options and warrants.
1.7 “Exchange Act” means the Securities Exchange Act of 1934, as amended,and the rules and regulations promulgated thereunder.
1.8 “Excluded Registration” means a registration relating either to the sale ofsecurities to employees of the Company pursuant to a stock option, stock purchase, or similarplan or to an SEC Rule 145 transaction; a registration on any form that does not includesubstantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also beingregistered.
1.9 “Form S-3” means such form under the Securities Act as in effect on thedate hereof or any registration form under the Securities Act subsequently adopted by the SECthat permits incorporation of substantial information by reference to other documents filed by theCompany with the SEC.
1.10 “GAAP” means generally accepted accounting principles in the UnitedStates.
1.11 “Holder” means any holder of Registrable Securities who is a party to thisAgreement.
1.12 “Immediate Family Member” means a child, stepchild, grandchild,parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a naturalperson referred to herein.
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1.13 “Initiating Holders” means, collectively, Holders who properly initiate aregistration request under this Agreement.
1.14 “IPO” means the Company’s first underwritten public offering of itsCommon Stock under the Securities Act.
1.15 “Major Investor” means each of TCV, WF Holding Company, LLC(“WF Holding”), Scale Venture Partners II, LP (“Scale VP”), NeoCarta Ventures, L.P.(“NeoCarta”), Rho Management Trust I, Rho Ventures VI, L.P., SVE Star Ventures Enterprises No. VII, a German Civil Law Partnership (with limitation of liability), Village Ventures PartnersFund, L.P., BEV, Time Warner Inc. and William S. Peabody as long as such Investor (and itsAffiliates), holds at least two percent (2%) of the Company’s Common Stock (assuming fullconversion and exercise of all Derivative Securities).
1.16 “New Securities” means, collectively, equity securities of the Company,whether or not currently authorized, including any stock appreciation or similar rights,contractual or otherwise, convertible debt or units of equity and debt, as well as rights, options,or warrants to purchase such equity securities, or securities of any type whatsoever that are, ormay become, convertible or exchangeable into or exercisable for such equity securities.
1.17 “Person” means any individual, corporation, partnership, trust, limitedliability company, association or other entity.
1.18 “Preferred Stock” means, collectively, shares of the Company’s Series APreferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,Series E Preferred Stock, Series F Preferred Stock and Series G Preferred Stock.
1.19 “Register,” “registered,” and “registration” refer to a registrationeffected by preparing and filing a registration statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statementor document.
1.20 “Registrable Securities” means (i) any Common Stock issued uponconversion of any Preferred Stock of the Company or issuable upon conversion of any Preferred Stock of the Company that is currently held or acquired after the date hereof, by the Investors orOther Holders (excluding the Warrants); (ii) any shares of Common Stock held by the KeyHolders or BEV, provided, however, that such shares of Common Stock shall not be deemed Registrable Securities and the Key Holders or BEV shall not be deemed Holders for the purposesof Sections 2.1, 2.3, 2,4(a), 2.7, 2.11 and Section 7.6; (iii) any shares of Common Stock held bythe Investors or Other Holders (not issued upon conversion of any Preferred Stock of the Company); provided, however, that such shares of Common Stock shall not be deemedRegistrable Securities for the purposes of Sections 2.1, 2.3, 2.4(a), 2.7, 2.11 and Section 7.6; (iv)any shares of Common Stock held by Square 1 Bank (“Square 1”) or Compass Horizon FundingCompany LLC (“Compass”) issued or issuable upon conversion of the Series F Preferred Stock issued pursuant to the exercise of the Warrants (as defined herein), provided, however, that such shares of Common Stock shall not be deemed Registrable Securities and neither Square 1 norCompass shall be deemed Holders for purposes of Sections 2.1, 2.4(a), 2.7, 2.11 and Section
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7.6; and (v) any Common Stock issued as (or issuable upon the conversion or exercise of anywarrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clauses (i), (ii) and (iii) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction inwhich the rights under Section 2 hereof are not assigned or any shares for which registrationrights have terminated pursuant to Section 2.15 of this Agreement.
1.21 “Registrable Securities then outstanding” means the number of shares determined by adding the Common Stock outstanding and the Common Stock issuable pursuant to then exercisable or convertible securities that are Registrable Securities.
1.22 “Restricted Securities” means the securities of the Company required tobear the legend set forth in Section 2.14(b) hereof.
1.23 “SEC” means the Securities and Exchange Commission.
1.24 “SEC Rule 144” means Rule 144 promulgated by the SEC under theSecurities Act.
1.25 “SEC Rule 145” means Rule 145 promulgated by the SEC under theSecurities Act.
1.26 “Securities Act” means the Securities Act of 1933, as amended, and therules and regulations promulgated thereunder.
1.27 “Selling Expenses” means all underwriting discounts, sellingcommissions, and stock transfer taxes applicable to the sale of Registrable Securities, and feesand disbursements of counsel for any Holder, except as provided in Section 2.7.
1.28 “Series A Preferred Stock” means shares of the Company’s Series APreferred Stock, par value $0.01 per share.
1.29 “Series B Preferred Stock” means shares of the Company’s Series BPreferred Stock, par value $0.01 per share.
1.30 “Series C Director” means the director of the Company that the holdersof record of the Series C Preferred Stock are entitled to elect pursuant to the Company’s Certificate.
1.31 “Series C Preferred Stock” means shares of the Company’s Series CPreferred Stock, par value $0.01 per share.
1.32 “Series D Director” means the director of the Company that the holdersof record of the Series D Preferred Stock are entitled to elect pursuant to the Company’s Certificate.
1.33 “Series D Preferred Stock” means shares of the Company’s Series DPreferred Stock, par value $0.01 per share.
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1.34 “Series E Directors” means the directors of the Company that the holdersof record of the Series E Preferred Stock are entitled to elect pursuant to the Company’s Certificate.
1.35 “Series E Preferred Stock” means shares of the Company’s Series EPreferred Stock, par value $0.01 per share.
1.36 “Series E Preferred Class Vote Provisions” shall mean the calculationset forth in Subsection 3.1.2 of the Certificate.
1.37 “Series F Preferred Stock” means shares of the Company’s Series FPreferred Stock, par value $0.01 per share.
1.38 “Series F Director” means the director of the Company that the holders ofrecord of the Series F Preferred Stock are entitled to elect pursuant to the Company’s Certificate.
1.39 “Series G Preferred Stock” means shares of the Company’s Series GPreferred Stock, par value $0.01 per share.
1.40 “Series G Director” means the director of the Company that the holdersof record of the Series G Preferred Stock are entitled to elect pursuant to the Company’s Certificate.
1.41 “TCV” means TCV VII, L.P. and TCV VII(A), L.P., and/or any otheraffiliated entity.
1.42 “Warrants” means the warrants to purchase a certain number of shares of Series F Preferred Stock issued to (a) Square 1 pursuant to the Loan and Security Agreement, byand between the Company, Square 1, Revolution Health Group LLC and CarePages, Inc., datedas of September 18, 2009 and (b) Compass pursuant to the Venture Loan and Security Agreement by and among the Company, Compass, Revolution Health Group LLC and CarePages, Inc., dated as of October 8, 2009.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Demand Registration.
(a) If upon the earlier of (i) November 10, 2012 or (ii) one hundredeighty (180) days after the effective date of the registration statement for the IPO, the Companyreceives a request from Holders of the Requisite Threshold (as defined below) that the Companyeffect a registration with respect to at least twenty percent (20%) of the Registrable Securitiesthen outstanding (or a lesser percent if the anticipated aggregate offering price, net of Selling Expenses, would exceed $40 million), then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”), to all Holders other thanthe Initiating Holders; and (ii) as soon as practicable, and in any event within sixty (60) daysafter the date such request is given by the Initiating Holders, file a registration statement underthe Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration
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by any other Holders, as specified by notice given by each such Holder to the Company withintwenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations ofSections 2.1(b) and2.1(c).
(b) Notwithstanding the foregoing obligations, if the Companyfurnishes to Holders requesting a registration pursuant to thisSection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as suchregistration statement otherwise would be required to remain effective, because such actionwould (i) materially interfere with a significant acquisition, corporate reorganization, or othersimilar transaction involving the Company; (ii) require premature disclosure of materialinformation that the Company has a bona fide business purpose for preserving as confidential; or(iii) render the Company unable to comply with requirements under the Securities Act orExchange Act, then the Company shall have the right to defer taking action with respect to such filing, for a period of not more than ninety (90) days after the request of the Initiating Holders is given;provided, however, that the Company may not invoke this right more than twice in anytwelve (12) month period. For the purposes of determining whether the Company has invokedthis right in any twelve (12) month period, such calculation shall also include any delay of aregistration statement pursuant toSection 2.3(b).
(c) The Company shall not be obligated to effect, or to take any actionto effect, any registration pursuant to thisSection 2.1 (i) during the period that is sixty (60) daysbefore the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration,provided, that the Company is actively employing in good faith commercially reasonable efforts to causesuch registration statement to become effective; (ii) if it delivers notice to the holders of the Registrable Securities within thirty (30) days of any registration request of its intent to file aregistration statement for such initial public offering within ninety (90) days; (iii) after the Company has effected two registrations pursuant to thisSection 2.1; or (iv) if the InitiatingHolders propose to dispose of shares of Registrable Securities that may be immediatelyregistered on Form S-3 pursuant to a request made pursuant toSection 2.3. A registration shall not be counted as “effected” for purposes of thisSection 2.1 until such time as the applicableregistration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor,and forfeit their right to one demand registration statement pursuant toSection 2.7, in which casesuch withdrawn registration statement shall be counted as “effected” for purposes of thisSection 2.1.
2.2Company Registration. If the Company proposes to register (including,for this purpose, a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Securities Act in connection with the public offeringof such securities solely for cash (other than an Excluded Registration), the Company shall, atsuch time, promptly give each Holder notice of such registration. Upon the request of eachHolder given within twenty (20) days after such notice is given by the Company, the Companyshall, subject to the provisions ofSection 2.4, cause to be registered all of the RegistrableSecurities that each such Holder has requested to be included in such registration. The Company
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shall have the right to terminate or withdraw any registration initiated by it under thisSection 2.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses of such withdrawn registration shall beborne by the Company in accordance withSection 2.7.
2.3 Form S-3 Registration. If the Company receives a request from Holdersof at least ten percent (10%) of the Registrable Securities then outstanding that the Companyeffect a registration on Form S-3 with respect to all or a part of the Registrable Securities ownedby such Initiating Holders, then the Company shall:
(a) within ten (10) days after the date such request is given, givenotice of the proposed registration to all Holders other than the Initiating Holders (the “S-3Notice”); and
(b) as soon as practicable, use its commercially reasonable efforts toeffect such registration as would permit or facilitate the sale and distribution of all or such portion of such Initiating Holders’ Registrable Securities as are specified in such request,together with all or such portion of the Registrable Securities of any other Holders joining insuch request as are specified in a request given to the Company within fifteen (15) days after theS-3 Notice is given;provided, however, that the Company shall not be obligated to effect anysuch registration pursuant to thisSection 2.3 (i) if Form S-3 is not then available for suchoffering by the Holders; (ii) if the Holders, together with the holders of any other securities of theCompany entitled to and requesting inclusion in such registration, propose to sell RegistrableSecurities and such other securities (if any) at an aggregate price to the public (net of SellingExpenses) of less than $1,000,000; and (iii) if the Company furnishes to the Holders a certificatesigned by the chief executive officer of the Company stating that in the good-faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company andits stockholders for such Form S-3 registration to be effected at such time, in which event theCompany shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders under thisSection 2.3;provided,however, that the Company shall not invoke this right morethan once in any twelve (12) month period. For the purposes of determining whether theCompany has invoked this right in any twelve (12) month period, such calculation shall alsoinclude any delay of a registration statement pursuant toSection 2.1(b).
(c) Registrations effected pursuant to thisSection 2.3 shall not becounted as demands for registration or registrations effected pursuant toSection 2.1.
2.4 Underwriting Requirements.
(a) If, pursuant toSection 2.1 orSection 2.3, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant toSection 2.1(a) orSection 2.3, and the Company shall include such information in the DemandNotice or the S-3 Notice, as the case may be. The underwriter will be selected by the Companyand shall be reasonably acceptable to a majority in interest of the Initiating Holders. In suchevent, the right of any Holder to include such Holder’s Registrable Securities in such registration
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shall be conditioned upon such Holder’s participation in such underwriting and the inclusion ofsuch Holder’s Registrable Securities in the underwriting to the extent provided herein. AllHolders proposing to distribute their securities through such underwriting shall (together with theCompany as provided inSection 2.5(e)) enter into an underwriting agreement in customary formwith the underwriter(s) selected for such underwriting. Notwithstanding any other provision ofthis Agreement, if the underwriter(s) determine(s) in good faith that marketing factors require alimitation of the number of shares to be underwritten, then the underwriter(s) may exclude shares (including Registrable Securities) from the registration and the underwriting, and the number ofshares that may be included in the registration and the underwriting shall be allocated, first, toHolders requesting inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the number of Registrable Securities each such Holder has requested tobe included in the registration, and second, to each of the other Holders on a pro rata basis basedon the total number of Registrable Securities then held by each such Holder. To facilitate theallocation of shares in accordance with the above provisions, the underwriters may round thenumber of shares allocated to any Holder to the nearest 100 shares.
(b) In connection with any offering involving an underwriting ofshares of the Company’s capital stock pursuant toSection 2.2, the Company shall not be requiredto include any of the Holders’ Registrable Securities in such underwriting unless the Holdersaccept the terms of the underwriting as agreed upon between the Company and its underwriters.If the total number of securities, including Registrable Securities, requested by stockholders to beincluded in such offering exceeds the number of securities to be sold (including by theCompany) that the underwriter(s) in their reasonable discretion determine is compatible with thesuccess of the offering, then the number of securities that may be included in the offering andunderwriting shall be allocated, first, to the Company, and second, to each of the Holdersrequesting inclusion of their Registrable Securities in such registration on a pro rata basis based on the total number of Registrable Securities then held by each such Holder or in such other proportions as shall mutually be agreed to by all such selling Holders, but in no event shall theamount of Registrable Securities of the selling Holders included in the offering and underwritingbe reduced below twenty-five percent (25%) of the total amount of securities included in such offering and underwriting, unless such offering is the Company’s IPO, in which case the sellingHolders may be excluded entirely if the underwriters make the determination described above.In no event shall any Registrable Securities be excluded from such offering unless all otherstockholders’ securities have been first excluded.
(c) For purposes ofSections 2.4(a) and2.4(b) concerningapportionment, for any selling stockholder that is a Holder and a partnership, limited liabilitycompany, or corporation, the partners, members, retired partners, retired members, stockholders,and Affiliates of such Holder, or the estates and Immediate Family Members of any suchpartners, retired partners, members, and retired members and any trusts for the benefit of any ofthe foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro ratareduction with respect to such “selling Holder” shall be based upon the aggregate number ofRegistrable Securities owned by all Persons included in such “selling Holder,” as defined in thissentence.
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2.5Obligations of the Company. Whenever required under thisSection 2 toeffect the registration of any Registrable Securities, the Company shall, as expeditiously asreasonably possible:
(a) prepare and file with the SEC a registration statement with respectto such Registrable Securities and use its commercially reasonable efforts to cause suchregistration statement to become effective and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for aperiod of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated inthe registration statement has been completed;provided,however, that (i) such one hundredtwenty (120) day period shall be extended for a period of time equal to the period the Holderrefrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration ofRegistrable Securities on Form S-3 that are intended to be offered on a continuous or delayedbasis, subject to compliance with applicable SEC rules, such one hundred twenty (120) dayperiod shall be extended for up to 60 days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;
(b) prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registrationstatement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;
(c) furnish to the selling Holders such numbers of copies of aprospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of theirRegistrable Securities;
(d) use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws ofsuch jurisdictions as shall be reasonably requested by the selling Holders;provided that theCompany shall not be required to qualify to do business or to file a general consent to service ofprocess in any such states or jurisdictions, unless the Company is already subject to service insuch jurisdiction and except as may be required by the Securities Act;
(e) in the event of any underwritten public offering, enter into andperform its obligations under an underwriting agreement, in usual and customary form, with theunderwriter(s) of such offering;
(f) use its commercially reasonable efforts to cause all suchRegistrable Securities covered by such registration statement to be listed on a national securitiesexchange or trading system and each securities exchange and trading system (if any) on whichsimilar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable Securitiesregistered pursuant to this Agreement and provide a CUSIP number for all such RegistrableSecurities, in each case not later than the effective date of such registration;
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(h) promptly make available for inspection by the selling Holders, anymanaging underwriter participating in any disposition pursuant to such registration statement,and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties ofthe Company, and cause the Company’s officers, directors, employees, and independentaccountants to supply all information reasonably requested by any such seller, underwriter,attorney, accountant, or agent in connection with any such registration statement;
(i) use its reasonable best efforts to furnish, at the request of anyHolder requesting registration of Registrable Securities pursuant to thisSection 2, on the datethat such Registrable Securities are delivered to the underwriters for sale in connection with aregistration pursuant to this Section 2, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, and (ii) a letter dated such date, from the independent certified public accountants of the Company, in form andsubstance as is customarily given by independent certified public accountants to underwriters inan underwritten public offering, addressed to the underwriters.
(j) notify each selling Holder, promptly after the Company receivesnotice thereof, of the time when such registration statement has been declared effective or asupplement to any prospectus forming a part of such registration statement has been filed; and
(k) after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.
2.6 Furnish Information. It shall be a condition precedent to the obligations ofthe Company to take any action pursuant to thisSection 2 with respect to the RegistrableSecurities of any selling Holder that such Holder shall furnish to the Company such informationregarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s RegistrableSecurities.
2.7 Expenses of Registration. All expenses (other than Selling Expenses)incurred in connection with registrations, filings, or qualifications pursuant to Section 2,including all registration, filing, and qualification fees; printers’ and accounting fees; fees anddisbursements of counsel for the Company; and the reasonable fees and disbursements of onecounsel for the selling Holders, shall be borne and paid by the Company; provided, however, thatthe Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2.1 or Section 2.3 if the registration request is subsequently withdrawn at therequest of the Holders of a majority of the Registrable Securities to be registered (in which caseall selling Holders shall bear such expenses pro rata based upon the number of RegistrableSecurities that were to be included in the withdrawn registration), unless the Holders of amajority of the Registrable Securities agree to forfeit their right to one registration pursuant toSection 2.1 or Section 2.3, as the case may be, provided, however, that if at the time of suchwithdrawal, the Holders have learned from the Company of a material adverse change in thecondition, business or prospects of the Company from that known to the Holders at the time of
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their request and have withdrawn the request with reasonable promptness following disclosureby the Company of such material adverse change, then the Holders shall not be required to payany of such expenses and shall retain their rights pursuant to Section 2.1 or Section 2.3. All Selling Expenses relating to Registrable Securities to be registered pursuant to this Section 2shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.
2.8 Delay of Registration. No Holder shall have any right to obtain or seek aninjunction restraining or otherwise delaying any registration pursuant to this Agreement as theresult of any controversy that might arise with respect to the interpretation or implementation ofthisSection 2.
2.9 Indemnification. If any Registrable Securities are included in a registration statement under thisSection 2:
(a) To the extent permitted by law, the Company will indemnify andhold harmless each selling Holder, and the partners, members, officers, directors, andstockholders of each such Holder; legal counsel and accountants for each such Holder; anyunderwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, whocontrols such Holder or underwriter within the meaning of the Securities Act or the ExchangeAct, against any Damages, and the Company will pay to each such Holder, underwriter,controlling Person, or other aforementioned Person any legal or other expenses reasonablyincurred thereby in connection with investigating any matter or defending any proceeding fromwhich Damages may result, as such expenses are incurred;provided, however, that the indemnityagreement contained in thisSection 2.9(a) shall not apply to amounts paid in settlement of anysuch investigation or proceeding if such settlement is effected without the consent of theCompany, which consent shall not be unreasonably withheld, nor shall the Company be liable forany Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use inconnection with such registration.
(b) To the extent permitted by law, each selling Holder, severally andnot jointly, will indemnify and hold harmless the Company, and each of its directors, each of itsofficers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for theCompany, any underwriter (as defined in the Securities Act), any other Holder selling securitiesin such registration statement, and any controlling Person of any such underwriter or otherHolder, against any Damages, in each case only to the extent that such Damages arise out of orare based upon actions or omissions made in reliance upon and in conformity with writteninformation furnished by or on behalf of such selling Holder expressly for use in connection withsuch registration; and each such selling Holder will pay to the Company and each otheraforementioned Person any legal or other expenses reasonably incurred thereby in connectionwith investigating any investigation or defending any proceeding from which Damages mayresult, as such expenses are incurred;provided, however, that the indemnity agreement contained in thisSection 2.9(b) shall not apply to amounts paid in settlement of any such investigation orproceeding if such settlement is effected without the consent of the Holder, which consent shall
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not be unreasonably withheld; andprovided further that in no event shall any indemnity underthisSection 2.9(b) exceed the proceeds from the offering (net of any Selling Expenses) receivedby such Holder, except in the case of fraud or willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under thisSection 2.9 of notice of the commencement of any action (including any governmental action)for which a party may be entitled to indemnification hereunder, such indemnified party will, if aclaim in respect thereof is to be made against any indemnifying party under thisSection 2.9, givethe indemnifying party written notice of the commencement thereof. The indemnifying partyshall have the right to participate in such action and, to the extent the indemnifying party sodesires, participate jointly with any other indemnifying party to which notice has been given, andto assume the defense thereof with counsel mutually satisfactory to the parties;provided,however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel,with the fees and expenses to be paid by the indemnifying party, if representation of suchindemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the indemnifying partywithin a reasonable time of the commencement of any such action shall relieve suchindemnifying party of any liability to the indemnified party under thisSection 2.9, to the extentthat such failure materially prejudices the indemnifying party’s ability to defend such action.The failure to give notice to the indemnifying party will not relieve it of any liability that it mayhave to any indemnified party otherwise than under thisSection 2.9.
(d) To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any party otherwise entitled toindemnification hereunder makes a claim for indemnification pursuant to thisSection 2.9 but it isjudicially determined (by the entry of a final judgment or decree by a court of competentjurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that suchindemnification may not be enforced in such case, notwithstanding the fact that thisSection 2.9 provides for indemnification in such case, or (ii) contribution under the Securities Act may berequired on the part of any party hereto for which indemnification is provided under thisSection 2.9, then, and in each such case, such parties will contribute to the aggregate losses,claims, damages, liabilities, or expenses to which they may be subject (after contribution fromothers) in such proportion as is appropriate to reflect the relative fault of each of theindemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflectany other relevant equitable considerations. The relative fault of the indemnifying party and ofthe indemnified party shall be determined by reference to, among other things, whether theuntrue or allegedly untrue statement of a material fact, or the omission or alleged omission of amaterial fact, relates to information supplied by the indemnifying party or by the indemnifiedparty and the parties’ relative intent, knowledge, access to information, and opportunity tocorrect or prevent such statement or omission;provided, however, that, in any such case, (x) no Holder will be required to contribute any amount in excess of the public offering price of all suchRegistrable Securities offered and sold by such Holder pursuant to such registration statement,and (y) no Person guilty of fraudulent misrepresentation (within the meaning of section 11(f) ofthe Securities Act) will be entitled to contribution from any Person who was not guilty of such
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fraudulent misrepresentation; andprovided further that in no event shall a Holder’s liabilitypursuant to thisSection 2.9(d), when combined with the amounts paid or payable by such Holderpursuant toSection 2.9(b), exceed the proceeds from the offering (net of any Selling Expenses)received by such Holder, except in the case of willful misconduct or fraud by such Holder.
(e) Notwithstanding the foregoing, to the extent that the provisions onindemnification and contribution contained in the underwriting agreement entered into inconnection with the underwritten public offering are in conflict with the foregoing provisions,the provisions in the underwriting agreement shall control.
(f) Unless otherwise superseded by an underwriting agreemententered into in connection with the underwritten public offering, the obligations of the Company and Holders under thisSection 2.9 shall survive the completion of any offering of RegistrableSecurities in a registration under thisSection 2, and otherwise shall survive the termination ofthis Agreement.
2.10 Reports Under Exchange Act. With a view to making available to theHolders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may atany time permit a Holder to sell securities of the Company to the public without registration orpursuant to a registration on Form S-3, the Company shall:
(a) make and keep public information available, as those terms areunderstood and defined in SEC Rule 144, at all times after the effective date of the registrationstatement filed by the Company for the IPO;
(b) use commercially reasonable efforts to file with the SEC in atimely manner all reports and other documents required of the Company under the Securities Actand the Exchange Act (at any time after the Company has become subject to such reportingrequirements); and
(c) furnish to any Holder, so long as the Holder owns any RegistrableSecurities, forthwith upon request (i) a written statement by the Company that it has compliedwith the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after theeffective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to FormS-3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual orquarterly report of the Company and such other reports and documents so filed by the Company;and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under theExchange Act) or pursuant to such Form S-3 (at any time after the Company so qualifies to usesuch form).
2.11 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of the Requisite Threshold (as defined below), enter into any agreement with any holder or prospective
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holder of any securities of the Company that would allow such holder or prospective holder (i) toinclude such securities in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that are included or (ii) to demand registration of any securities held by such holder or prospective holder; provided that this limitation shall not apply to any Additional Investor whobecomes a party to this Agreement in accordance withSection 7.9.
2.12 “Market Stand-off” Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the periodcommencing on the date of the final prospectus relating to the IPO and ending on the datespecified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days or such longer period as is necessary to facilitate compliance with NASD Rule2711 or NYSE Member Rule 472 or any successor or similar rule or regulation), (i) lend; offer;pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option orcontract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or disposeof, directly or indirectly, any shares of Common Stock or any securities convertible into orexercisable or exchangeable for Common Stock held immediately before the effective date of theregistration statement for such offering or (ii) enter into any swap or other arrangement thattransfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settledby delivery of Common Stock or other securities, in cash, or otherwise. The foregoingprovisions of thisSection 2.12 shall apply only to the IPO, shall not apply to the sale of anyshares to an underwriter pursuant to an underwriting agreement, and shall be applicable to theHolders only if all officers, directors, and stockholders individually owning more than onepercent (1%) of the Company’s outstanding Common Stock are subject to the same restrictions.The underwriters in connection with the IPO are intended third-party beneficiaries of thisSection2.12 and shall have the right, power, and authority to enforce the provisions hereof as thoughthey were a party hereto. Each Holder further agrees to execute such agreements as may bereasonably requested by the underwriters in the IPO that are consistent with thisSection 2.12 orthat are necessary to give further effect thereto. Any discretionary waiver or termination of therestrictions of any or all of such agreements by the Company or the underwriters shall apply prorata to all holders subject to such agreements.
2.13 Assignment of Registration Rights. The rights to cause the Company toregister Registrable Securities pursuant to this Section 2 may be assigned (but only with allrelated obligations) by a Holder to a transferee of such Registrable Securities that (i) is anAffiliate, partner, member, limited partner, retired partner, retired member, or stockholder of aHolder; (ii) is a Holder’s Immediate Family Member or trust for the benefit of an individualHolder or one or more of such Holder’s Immediate Family Members; or (iii) after such transfer, holds at least 250,000 of shares of Registrable Securities (subject to appropriate adjustment forstock splits, stock dividends, combinations, and other recapitalizations); provided, however, that (x) the Company is, within a reasonable time after such transfer, furnished with written notice ofthe name and address of such transferee and the Registrable Securities with respect to whichsuch registration rights are being transferred; (y) such transferee agrees in writing to be bound byand subject to the terms and conditions of this Agreement, including the provisions of Section2.12. For the purposes of determining the number of shares of Registrable Securities held by a
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transferee, the holdings of a transferee (1) that is an Affiliate, limited partner, retired partner, member, retired member, or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s ImmediateFamily Member shall be aggregated together and with those of the transferring Holder; providedfurther that all 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, receivingnotices, or taking any action under this Section 2.
2.14Restrictions on Transfer.
(a) The Preferred Stock and the Registrable Securities shall not besold, pledged, or otherwise transferred, and the Company shall not recognize any such sale,pledge, or transfer, except upon the conditions specified in this Agreement, which conditions areintended to ensure compliance with the provisions of the Securities Act. A transferring Holderwill cause any proposed purchaser, pledgee, or transferee of the Preferred Stock and theRegistrable Securities held by such Holder to agree to take and hold such securities subject to theprovisions and upon the conditions specified in this Agreement.
(b) Each certificate representing (i) the Preferred Stock, (ii) theRegistrable Securities, and (iii) any other securities issued in respect of the securities referencedin clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions ofSection 2.14(c)) be stamped or otherwise imprinted with a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEENACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BESOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BETRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF ANAGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, ASMAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ONFILE WITH THE SECRETARY OF THE COMPANY.
The Holders consent to the Company making a notation in its records and giving instructions toany transfer agent of the Restricted Securities in order to implement the restrictions on transferset forth in thisSection 2.14.
(c) The holder of each certificate representing Restricted Securities, byacceptance thereof, agrees to comply in all respects with the provisions of thisSection 2. Beforeany proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect aregistration statement under the Securities Act covering the proposed transaction, the Holderthereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, ortransfer. Each such notice shall describe the manner and circumstances of the proposed sale,
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pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall,and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to theCompany, to the effect that the proposed transaction may be effected without registration underthe Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in arecommendation by the staff of the SEC that action be taken with respect thereto; or (iii) anyother evidence reasonably satisfactory to counsel to the Company to the effect that the proposedsale, pledge, or transfer of the Restricted Securities may be effected without registration underthe Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell,pledge, or transfer such Restricted Securities in accordance with the terms of the notice given bythe Holder to the Company. Notwithstanding anything to the contrary set forth above, theRestricted Securities shall not be sold, pledged or transferred prior to the IPO if such sale, pledge or transfer would subject the Company to the reporting requirements of the Exchange Act. Each certificate evidencing the Restricted Securities transferred as above provided shall bear, except ifsuch transfer is made pursuant to Rule 144, the appropriate restrictive legend set forth inSection 2.14(b), except that such certificate shall not bear such restrictive legend if, in theopinion of counsel for such Holder and the Company, such legend is not required in order toestablish compliance with any provisions of the Securities Act.
2.15Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant toSection 2.1,Section 2.2, orSection 2.3 shall terminate upon the earlier of:
(a) the closing of a Deemed Liquidation Event, as such term is definedin the Company’s Certificate;
(b) five (5) years after the closing of the Company’s initial publicoffering; or
(c) such time as such Holder holds less than 1% of the Company’soutstanding Common Stock (treating all shares of Preferred Stock on an as converted basis), the Company has completed its IPO and all Registrable Securities of the Company issuable or issuedupon conversion of the Preferred Stock held by and issuable to such Holder (and its Affiliates)may be sold pursuant to Rule 144 during any ninety (90) day period.
3. Information and Observer Rights.
3.1Delivery of Annual, Quarterly and Monthly Financial Statements. TheCompany shall deliver to each Major Investor, each Key Holder (so long as such Key Holderholds at least one percent (1%) of the Company’s Common stock assuming full conversion andexercise of all Derivative Securities), provided that the Board of Directors has not reasonably determined that such Major Investor or Key Holder is a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred andtwenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year; (ii) statements of income and of cash flows for such year; and (iii) a statement
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of stockholders’ equity as of the end of such year, in each case, audited and certified byindependent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45) daysafter the end of each quarter of each fiscal year of the Company, unaudited statements of incomeand of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of suchfiscal quarter, all prepared in accordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may berequired in accordance with GAAP) which quarterly financial statements shall include acomparison of the actual operating results and financial condition of the Company for suchquarterly period to the projected operating results and financial condition of the Company in theCompany’s Budget for such quarterly period;
(c) as soon as practicable, but in any event within thirty (30) days afterthe end of each month of each fiscal year of the Company, unaudited statements of income andof cash flows for such fiscal month, and an unaudited balance sheet as of the end of such fiscal month, all prepared in accordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required inaccordance with GAAP);
(d) as soon as practicable, but in any event within forty-five (45) daysafter the end of each quarter of each fiscal year of the Company, a statement showing the numberof shares of each class and series of capital stock and securities convertible into or exercisablefor shares of capital stock outstanding at the end of the period, the Common Stock issuable uponconversion or exercise of any outstanding securities convertible or exercisable for CommonStock and the exchange ratio or exercise price applicable thereto, and the number of shares ofissued stock options and stock options not yet issued but reserved for issuance, if any, all insufficient detail as to permit the Major Investors and Key Holders to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chiefexecutive officer of the Company as being true, complete, and correct; and
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the“Budget”), prepared on a monthly basis, including balance sheets, income statements, andstatements of cash flow for such months and, promptly after prepared, any other budgets orrevised budgets prepared by the Company.
If, for any period, the Company has any subsidiary whose accounts are consolidated with thoseof the Company, then in respect of such period the financial statements delivered pursuant to the foregoingSections 3.1 and shall be the consolidated and consolidating financial statements of theCompany and all such consolidated subsidiaries.
Notwithstanding anything else in thisSection 3.1 to the contrary, the Company may cease providing the information set forth in thisSection 3.1 during the period starting with the datesixty (60) days before the Company’s good-faith estimate of the date of filing of a registrationstatement; provided that the Company’s covenants under thisSection 3.1 shall be reinstated at
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such time as the Company is no longer actively employing its commercially reasonable efforts tocause such registration statement to become effective.
3.2 Inspection. The Company shall permit each Major Investor and KeyHolder, at such Major Investor and Key Holder’s expense, to visit and inspect the Company’sproperties; examine its books of account and records; and discuss the Company’s affairs,finances, and accounts with its officers, during normal business hours of the Company as may bereasonably requested by the Major Investor or Key Holder; provided, however, that theCompany shall not be obligated pursuant to thisSection 3.2 to provide access to any informationthat it reasonably considers to be a trade secret or confidential information (unless covered by anenforceable confidentiality agreement, in form acceptable to the Company) or the disclosure ofwhich would adversely affect the attorney-client privilege between the Company and its counsel.
3.3 Observer Rights. As long as Time Warner Inc., BEV, Scale VP, TCV and NeoCarta each owns not less than two percent (2%) of the Company’s Common Stock on a fullydiluted, as converted basis, and as adjusted for any stock splits, stock dividends, recapitalizationsor the like, the Company shall invite a representative of Time Warner Inc., BEV, Scale VP, TCVand NeoCarta to attend all meetings of its Board of Directors in a nonvoting observer capacityand, in this respect, shall give such representative copies of all notices, minutes, consents, andother materials that it provides to its directors;provided, however, that such representative shallagree to hold in confidence and trust and to act in a fiduciary manner with respect to allinformation so provided; andprovided further, that the Company reserves the right to withholdany information and to exclude such representative from any meeting or portion thereof if accessto such information or attendance at such meeting could adversely affect the attorney-clientprivilege between the Company and its counsel, or if such Investor or its representative is acompetitor of the Company.
3.4 Termination of Information and Observer Rights. The covenants set forthinSection 3.1,Section 3.2 andSection 3.3 shall terminate and be of no further force or effect(i) immediately before the consummation of the IPO, (ii) when the Company first becomessubject to the periodic reporting requirements of section 12(g) or 15(d) of the Exchange Act, or(iii) upon a Deemed Liquidation Event (other than a sale of all or substantially all of the assets ofthe Company, in which event the foregoing covenants shall survive until the dissolution of theCompany), as such term is defined in the Certificate, whichever event occurs first.
3.5 Confidentiality.
(a) Each Holder agrees that such Holder will keep confidential andwill not disclose, divulge, or use for any purpose (other than to monitor its investment in theCompany) any confidential information obtained from the Company pursuant to the terms of thisAgreement (including notice of the Company’s intention to file a registration statement), unlesssuch confidential information (a) is known or becomes known to the public in general (other thanas a result of a breach of thisSection 3.5 by such Holder), (b) is or has been independentlydeveloped or conceived by the Holder without use of the Company’s confidential information, or(c) is or has been made known or disclosed to the Holder by a third party without a breach of anyobligation of confidentiality such third party may have to the Company;provided, however, thatnotwithstanding the foregoing, each Holder that is a limited partnership or limited liability
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company may disclose such proprietary or confidential information to any former partners or members who retained an economic interest in such Holder, current or prospective partner of thepartnership or any subsequent partnership under common investment management, limitedpartner, general partner, member or management company of such Holder (or any employee orrepresentative of any of the foregoing) (each of the foregoing persons, a “Permitted Disclosee”)or legal counsel, accountants or representatives for such Holder provided that such Holderinforms such person that such information is confidential and directs such Person to maintain theconfidentiality of such information. Notwithstanding the foregoing, each Holder may discloseany confidential information of the Company provided to or learned by such Holder inconnection with such rights to the minimum extent necessary: (i) as required by any court orother government body, provided that such Holder provides the Company with prompt notice of such court order or requirement to enable the Company to seek a protective order or otherwiseprevent or restrict such disclosure; (ii) to its attorneys, accountants, consultants, and otherprofessionals to the extent necessary to obtain their services in connection with monitoring itsinvestment in the Company, provided that such Holder informs such Person that suchinformation is confidential and directs such Person to maintain the confidentiality of suchinformation; (iii) to any prospective purchaser of any Registrable Securities from such Holder, ifsuch prospective purchaser agrees to be bound by the provisions of thisSection 3.5; (iv) tocomply with applicable law, statutes, rules or regulations of any governmental authority,provided that the Holder promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure; and (v) to its employees or agents having a reasonable need to know the contents of such information provided such employees oragents are subject to substantially similar confidentiality requirements with respect to suchconfidential information. Furthermore, nothing contained herein shall prevent any Holder or anyPermitted Disclosee from entering into any business, entering into any agreement with a thirdparty, or investing in or engaging in investment discussions with any other company (whether or not competitive with the Company), provided that such Holder or Permitted Disclosee does not, except as permitted in accordance with this Section 3.5, disclose or otherwise make use of any proprietary or confidential information of the Company in connection with such activities.
4.Rights to Future Stock Issuances.
4.1Right of First Offer. Subject to the terms and conditions of thisSection 4.1,5.1 and applicable securities laws, if the Company proposes to offer or sell any NewSecurities, the Company shall first offer such New Securities to each Investor. Each Investorshall be entitled to apportion the right of first offer hereby granted to it among itself and itsAffiliates in such proportions as it deems appropriate.
(a) The Company shall give notice (the “Offer Notice”) to eachInvestor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of suchNew Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offersuch New Securities.
(b) By notification to the Company within twenty (20) days after theOffer Notice is given, each Investor may elect to purchase or otherwise acquire, at the price andon the terms specified in the Offer Notice, up to that portion of such New Securities whichequals the proportion that the Common Stock issued and held, or issuable upon conversion of the
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Preferred Stock and any other Derivative Securities then held, by such Investor bears to the total Common Stock of the Company then outstanding (assuming full conversion and exercise of allDerivative Securities held by the Investors). At the expiration of such twenty (20) day period,the Company shall promptly notify each Investor that elects to purchase or acquire all the sharesavailable to it (each, a “Fully Exercising Investor”) of any other Investor’s failure to dolikewise. During the ten (10) day period commencing after the Company has given such notice,each Fully Exercising Investor may, by giving notice to the Company, elect to purchase oracquire, in addition to the number of shares specified above, up to that portion of the NewSecurities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by such Fully Exercising Investor bears to theCommon Stock issued and held, or issuable upon conversion of the Preferred Stock then held, byall Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to thisSection 4. 1(b) shall occur within sixty (60) days of the date that theOffer Notice is given.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided inSection 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided inSection 4.1(b), offer and sellthe remaining unsubscribed portion of such New Securities to any Person or Persons at a pricenot less than, and upon terms no more favorable to the offeree than, those specified in the OfferNotice. If the Company does not enter into an agreement for the sale of the New Securitieswithin such period, or if such agreement is not consummated within thirty (30) days of theexecution thereof, the right provided hereunder shall be deemed to be revived and such NewSecurities shall not be offered unless first reoffered to the holders of Preferred Stock in accordance with thisSection 4.1.
(d) The right of first offer in thisSection 4.1 shall not be applicable to (i) up to 7,850,000 shares (subject to appropriate adjustment in the event of any stock dividend,stock split, combination or similar recapitalization affecting such shares) of Common Stockissued or deemed issued to employees or directors of, or consultants to, the Company or any ofits subsidiaries pursuant to a plan, agreement, or arrangement approved by the Board of Directorsof the Company (as such number may be increased by the approval of the Board of Directors of the Company, including the affirmative vote of at least two (2) of the directors elected by theholders of the Preferred Stock); (ii) the issuance of securities pursuant to the conversion,exercise, or exchange of Derivative Securities outstanding on the date hereof; (iii) the issuance ofsecurities in connection with a bona fide business acquisition by the Company of a bona fide operating company, whether by merger, consolidation, purchase of assets, exchange of stock, orotherwise, which issuance has been approved by the Board of Directors or the Company including the affirmative vote of at least two (2) of the directors elected by the holders ofPreferred Stock; (iv) shares of Common Stock, options or Convertible Securities (as defined in the Certificate) issued to banks, equipment lessors or other comparable financial institutions, orto real property lessors, pursuant to a debt financing, equipment leasing, real property leasingtransaction or a strategic corporate partnership or joint venture with a non-affiliate of theCompany, in each case, where such issuance has been approved by the Board of Directors of the Company including the affirmative vote of at least two (2) of the directors elected by the holders of the Preferred Stock; (vi) shares of Common Stock offered or sold, or proposed to be offered or
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sold, by the Company in the IPO; or (vii) the issuance of securities to TCV in a Repurchase Financing.
4.2 Amendment & Waivers. Notwithstanding anything in this Agreement tothe contrary, the provisions of this Section 4 (including the defined terms used herein) may not be amended or modified, or any provision of this Section 4 waived (either generally or in aparticular instance, and either retroactively or prospectively), without the prior written consent ofthe holders of a majority of the Registrable Securities then outstanding and the holders of amajority of the Series G Preferred Stock then outstanding; provided that the Series E PreferredClass Vote Provisions shall not apply for purposes of such vote or written consent and the holders of Series E Preferred Stock shall be entitled to one vote for each share of Series EPreferred Stock then held; and provided further that in the event the right of first offer set forth inSection 4.1 above is waived in accordance with this Section 4.2 with respect to the issuance ofNew Securities set forth in any Offer Notice or otherwise and any Investor purchases any NewSecurities (any such Investor, a “Purchasing Investor”) included in such Offer Notice orotherwise proposed to be offered subsequent to such waiver in connection with such OfferNotice, each other Investor shall have the right to purchase up to such other Investor’s pro ratashare of such New Securities, determined based on the proportion that the Registrable Securities held by each such other Investor, as a percentage of the aggregate Registrable Securities held byall Investors entitled to participate in the issuance of any New Securities under this Section 4,bears to the number of New Securities sold or proposed to be sold by the Company to thePurchasing Investors, in the aggregate, that purchased or are purchasing New Securities.
4.3 Termination. The covenants set forth inSection 4.1 shall terminate and beof no further force or effect (i) immediately before the consummation of the IPO or (ii) upon aDeemed Liquidation Event, as such term is defined in the Certificate, whichever event occursfirst.
5.Additional Series G Right to Certain Future Stock Issuances.
5.1Right of First Offer. Notwithstanding the right of first offer set forth inSection 4 above, subject to the terms and conditions of thisSection 5.1 and applicable securitieslaws, if the Company proposes to offer or sell any New Securities during the ninety (90) dayperiod following the date hereof in which the proceeds of such sale are to be used, directly or indirectly to repurchase capital stock or other equity securities (including Derivative Securities)of the Company (the “Repurchase Financing”), then the Company shall first offer the right toparticipate in the Repurchase Financing to TCV.
(a) The Company shall give notice (the “TCV Offer Notice”) to TCV,stating the proposed terms of the Repurchase Financing.
(b) By notification to the Company within twenty (20) days after theTCV Offer Notice is given, TCV may elect to purchase or otherwise acquire, up to that dollaramount of the Repurchase Financing in an amount equal to the sum of $5,000,000.00 plus fifty percent (50%) of any additional amount of the Repurchase Financing in excess of $5,000,000.00through the issuance and sale of additional shares of the Company’s Series G Preferred Stock toTCV at a price per share of $9.00 (as equitably adjusted for stock splits, stock dividends,
21 |
recapitalizations or the like). The terms and conditions of such issuance to TCV will besubstantially identical to the terms and conditions of such sale to TCV at the Closing. At theexpiration of such twenty (20) day period, the Company may offer any portion of the Repurchase Financing not elected to be purchased by TCV to the other Investors in accordance with the right of first offer set forth in Section 4 above (the “Secondary Repurchase Offering”) provided thatthe securities offered in the Secondary Repurchase Offering shall be at a price and on terms nomore favorable (both individually and in the aggregate) to the Company than the price (asequitably adjusted for stock splits, stock dividends, recapitalizations or the like) and the terms ofthe Series G Preferred Stock issued and sold on the date hereof.
5.2 Amendment & Waivers. Notwithstanding anything in this Agreement tothe contrary, the provisions of this Section 5 (including the defined terms used herein) may not be amended or modified, or any provision of this Section 5 waived (either generally or in aparticular instance, and either retroactively or prospectively), without the prior written consent ofTCV.
5.3 Termination. The covenants set forth inSection 5 shall terminate and beof no further force or effect (i) immediately before the consummation of the IPO, (ii) upon aDeemed Liquidation Event, as such term is defined in the Certificate, or (iii) ninety (90) daysfrom the date hereof, whichever event occurs first.
6. Additional Covenants.
6.1 Board Committees. Each of the Series D Director, Series E Directors,Series F Director and Series G Director shall have the right to be designated for election on theCompany’s compensation committee or any other committee of the Board of Directors.
6.2 Board Expenses. The Company shall reimburse the directors for allreasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy)in connection with attending meetings of the Board of Directors or committees thereof.
6.3 Successor Indemnification. If the Company or any of its successors orassignees (i) consolidates with or merges into any other Person and is not the continuing orsurviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all orsubstantially all of its properties and assets to any Person, then, and in each such case, to theextent necessary, proper provision shall be made so that the successors and assignees of theCompany assume the obligations of the Company with respect to indemnification of members ofthe Board of Directors as in effect immediately before such transaction, whether such obligationsare contained in the Company’s Bylaws, its Certificate, or elsewhere, as the case may be.
6.4 Directors and Officers Liability Insurance. The Company shall within 180days following the Closing (as defined in the Purchase Agreement) obtain and maintain in full force and effect, with a carrier reasonably acceptable to the Board of Directors, directors andofficers liability insurance providing for customary coverage in the amount of at least$10,000,000. Such insurance shall be maintained for so long as the holders of Preferred Stockhave elected, or are entitled to elect, a representative to the Board of Directors of the Company.
22 |
6.5 Director Indemnification. The Company’s Certificate and Bylaws shallprovide (a) for elimination of the liability of director to the maximum extent permitted by lawand (b) for indemnification of directors for acts on behalf of the Company to the maximumextent permitted by law. In addition, the Company shall enter into and use its best efforts to atall times maintain indemnification agreements substantially in the form attached asExhibitA(the “Indemnification Agreement”) hereto with each of its directors to indemnify such directorsto the maximum extent permissible under applicable law.
6.6 Indemnification Matters. The Company hereby acknowledges that theSeries C Director, the Series D Director, the Series E Directors, Series F Director and Series GDirector (each a “Preferred Director”) may have certain rights to indemnification, advancementof expenses and/or insurance provided by one or more of the Investors and certain of theiraffiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (a) that it is theindemnitor of first resort (i.e., its obligations to each Preferred Director are primary and anyobligation of the applicable Fund Indemnitors to advance expenses or to provide indemnificationfor the same expenses or liabilities incurred by a Preferred Director are secondary), (b) that itshall be required to advance the full amount of expenses incurred by the each Preferred Directorand shall be liable for the full amount of all expenses, judgments, penalties, fines and amountspaid in settlement by or on behalf of any Preferred Director to the extent legally permitted and as required by the Certificate or Bylaws of the Company (or any agreement between the Companyand any Preferred Director), without regard to any rights a Preferred Director may have against the Fund Indemnitors, and, (c) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogationor any other recovery of any kind in respect thereof. The Company further agrees that noadvancement or payment by the Fund Indemnitors on behalf of any Preferred Director withrespect to any claim for which a Preferred Director has sought indemnification from theCompany shall affect the foregoing and the Fund Indemnitors shall have a right of contributionand/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of a Preferred Director against the Company.
6.7 Stock Repurchases. The Company may not repurchase nor enter into any agreement to repurchase within ninety (90) days of the date hereof any shares of its capital stockor other equity securities (including Derivative Securities) without the prior approval of TCVwith respect to the price per share at which such shares will be repurchased. Notwithstandinganything in this Agreement to the contrary, the provisions of this Section 6.7 may not beamended or modified, or any provision of this Section 6.7 waived (either generally or in aparticular instance, and either retroactively or prospectively), without the prior written consent ofTCV.
6.8 Repurchases from Strategic Investment. The Company may notrepurchase nor enter into any agreement to repurchase within ninety (90) days following the datehereof any shares of its capital stock or other equity securities (including Derivative Securities) with the proceeds of any equity issuances (or securities exercisable or convertible into equitysecurities including, without limitation, convertible debt) to strategic investors (any person otherthan venture capital funds, private equity funds or similar investment funds) without the priorwritten approval of TCV. Notwithstanding anything in this Agreement to the contrary, theprovisions of this Section 7.8 may not be amended or modified, or any provision of this Section
23 |
6.8 waived (either generally or in a particular instance, and either retroactively or prospectively),without the prior written consent of TCV.
6.9Termination of Covenants. The covenants set forth in thisSection 6,except forSection 6.3 and 6.6, shall terminate and be of no further force or effect (i) immediatelybefore the consummation of the IPO or (ii) when the Company first becomes subject to theperiodic reporting requirements of section 12(g) or 15(d) of the Exchange Act, or (iii) upon theconsummation of a Deemed Liquidation Event (other than a sale of all or substantially all of the assets of the Company, in which event the foregoing covenants shall survive until the dissolution of the Company), as such term is defined in the Certificate, whichever event occurs first.
7.Miscellaneous.
7.1 Successors and Assigns. Each Investor hereby agrees that it shall not, and may not, assign any of its rights and obligations hereunder, unless such rights and obligations areassigned by such Investor (i) to any Person to which Registrable Securities are transferred bysuch Investor pursuant toSection 2.13 or (ii) with respect to the right of first offer set forth inSection 4.1, to any other Investor, and, in each case, such assignee shall be deemed an “Investor” for purposes of this Agreement; provided that such assignment of rights shall be contingent uponthe assignee providing a written instrument to the Company notifying the Company of suchassignment and agreeing in writing to be bound by the terms of this Agreement. The terms andconditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express orimplied, is intended to confer upon any party other than the parties hereto or their respectivesuccessors and permitted assignees any rights, remedies, obligations or liabilities under or byreason of this Agreement, except as expressly provided herein.
7.2 Governing Law. This Agreement shall be governed by and construed inaccordance with the laws of the State of Delaware without regard to its principles of conflicts oflaws.
7.3 Counterparts. This Agreement may be executed in two or morecounterparts, each of which shall be deemed an original, but all of which together shall constituteone and the same instrument. This Agreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all ofwhich together shall constitute one and the same instrument.
7.4 Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
7.5 Notices. All notices, requests, and other communications given or madepursuant to this Agreement shall be in writing and shall be deemed effectively given (i) uponpersonal delivery to the party to be notified; (ii) when sent by confirmed electronic mail orfacsimile if sent during normal business hours of the recipient, and if not so confirmed, then onthe next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next-day delivery, with written verification of receipt.
24 |
All communications shall be sent to the respective parties at their addresses as set forth on the signature page or Schedule A, Schedule B or Schedule C (as applicable) hereto, or to such emailaddress, facsimile number, or address as subsequently modified by written notice given inaccordance with thisSection 7.5. If notice is given to the Company, it shall be sent to EverydayHealth, Inc., 345 Hudson Street, 16th Floor, New York, NY 10014, Attention: Alan Shapiro,Esq.; and a copy (which shall not constitute notice) shall also be sent to Babak Yaghmaie, Esq.,Cooley LLP, 1114 Avenue of the Americas, New York, NY 10036.
7.6 Amendments and Waivers. Subject to Section 4.2, 5.2, 6.7 and 6.8, anyterm of this Agreement may be amended and the observance of any term of this Agreement maybe waived (either generally or in a particular instance, and either retroactively or prospectively)only with the written consent of the Company and the holders of at least a majority of theRegistrable Securities then outstanding (the “Requisite Threshold”); provided that the Companymay in its sole discretion waive compliance withSection 2.14(c) (and the Company’s failure toobject promptly in writing to a proposed assignment allegedly in violation ofSection 2.14(c)shall be deemed to be a waiver);furtherprovided that any determination with respect to thesatisfaction of the Requisite Threshold prescribed hereunder shall be based upon the applicationof the Series E Preferred Class Vote Provisions for the purpose of determining the number ofshares of Series E Preferred Stock deemed to be included in the Requisite Threshold.Notwithstanding the foregoing, but still subject to Section 4.2, (i) this Agreement may not beamended or terminated and the observance of any term hereof may not be waived with respect toany Investor without the written consent of such Investor, unless such amendment, termination,or waiver applies to all Investors in the same fashion (it being agreed that a waiver of theprovisions ofSection 4 with respect to a particular transaction shall be deemed to apply to all Investors other than holders of Series E Preferred Stock in the same fashion if such waiver doesso by its terms, notwithstanding the fact that certain Investors may nonetheless, by agreementwith the Company, purchase securities in such transaction), (ii) this Agreement may not beamended or terminated and the observance of any term hereof may not be waived without thewritten consent of the holders of a majority of the shares of Common Stock held by the Key Holders insofar as such amendment, termination or waiver adversely affects the rights held bythe Key Holders, including without limitation those set forth inSections 2.2 and3.1, and (iii) the provisions ofSections 6.4 and6.5 may not be amended without the prior written consent of theholders of a majority of the outstanding shares of Series E Preferred Stock and Series GPreferred Stock, voting as separate classes. The Company shall give prompt notice of anyamendment or termination hereof or waiver hereunder to any party hereto that did not consent inwriting to such amendment, termination, or waiver. Any amendment, termination, or waivereffected in accordance with thisSection 7.6 (and to the extent applicable, Section 4.2) shall bebinding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one ormore instances, shall be deemed to be or construed as a further or continuing waiver of any suchterm, condition, or provision.
7.7 Severability. In case any one or more of the provisions contained in thisAgreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement,and such invalid, illegal, or unenforceable provision shall be reformed and construed so that itwill be valid, legal, and enforceable to the maximum extent permitted by law.
25 |
7.8 Aggregation of Stock. All shares of capital stock held or acquired byAffiliates shall be aggregated together for the purpose of determining the availability of anyrights under this Agreement.
7.9 Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Series G Preferred Stock after the date hereof pursuant to the Purchase Agreement, any purchaser of such shares of Series GPreferred Stock may become a party to this Agreement by executing and delivering an additionalcounterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinderto this Agreement by such additional Holder, so long as such additional Holder has agreed inwriting to be bound by all of the obligations as an “Investor” hereunder.
7.10 Entire Agreement. This Agreement (including any Schedules and Exhibitshereto) constitutes the full and entire understanding and agreement between the parties withrespect to the subject matter hereof, and any other written or oral agreement relating to thesubject matter hereof existing between the parties is expressly canceled. Upon the effectiveness of this Agreement, the Prior Agreement shall be deemed amended and restated and supersededand replaced in its entirety by this Agreement, and shall be of no further force or effect.
7.11 Dispute Resolution. The parties (a) hereby irrevocably andunconditionally submit to the jurisdiction of the federal and state courts located in Wilmington,Delaware for the purpose of any suit, action or other proceeding arising out of or based upon thisAgreement, (b) agree not to commence any suit, action or other proceeding arising out of orbased upon this Agreement except in the federal and state courts located in Wilmington,Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, orotherwise, in any such suit, action or proceeding, any claim that it is not subject personally to thejurisdiction of the above-named courts, that its property is exempt or immune from attachment orexecution, that the suit, action or proceeding is brought in an inconvenient forum, that the venueof the suit, action or proceeding is improper or that this Agreement or the subject matter hereofmay not be enforced in or by such court.
7.12 Delays or Omissions. No delay or omission to exercise any right, power,or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreachingor nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any suchbreach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore orthereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
7.13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETOHEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OROTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
26 |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
COMPANY: | ||||
EVERYDAY HEALTH, INC. | ||||
By: | /s/ Benjamin Wolin | |||
Name: | Benjamin Wolin | |||
Title: | Chief Executive Officer |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | ||||
TCV VII, L.P. | ||||
a Cayman Islands exempted limited partnership,
Technology Crossover Management VII, L.P.
Technology Crossover Management VII, Ltd. | ||||
By: | /s/ R. Fenton | |||
Name: | R. Fenton | |||
Title: | Authorized Signatory | |||
TCV VII (A), L.P.
a Cayman Islands exempted limited partnership,
Technology Crossover Management VII, L.P.
Technology Crossover Management VII, Ltd. | ||||
By: | /s/ R. Fenton | |||
Name: | R. Fenton | |||
Title: | Authorized Signatory |
Signature Page to the Stockholders Rights Agreement
INVESTORS (CONT’D):
TCV MEMBER FUND, L.P.
a Cayman Islands exempted limited partnership,
Technology Crossover Management VII, Ltd. | ||||
By: | /s/ R. Fenton | |||
Name: | R. Fenton | |||
Title: | Authorized Signatory |
Signature Page to the Stockholders Rights Agreement
INVESTORS:
WF HOLDING COMPANY, LLC | ||||
By: | /s/ John Richardson | |||
Name: | John Richardson | |||
Title: | Vice President and Secretary |
Signature Page to the Stockholders Rights Agreement
INVESTORS:
SCALE VENTURE PARTNERS II, LP
By: Scale Venture Management II, LLC, | ||||
By: | /s/ Sharon Wienbar | |||
Name: | Sharon Wienbar | |||
Title: | Managing Director |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | |||
NEOCARTA VENTURES, L.P. | |||
By: | NeoCarta Associates, LLC, | ||
its General Partner | |||
By: | /s/ D. Jarrett Collins | |||
Name: | D. Jarrett Collins | |||
Title: | Managing Director | |||
NEOCARTA SCOUT FUND LLC | |||
By: | NeoCarta Associates, LLC, | ||
its Manager | |||
By: | /s/ D. Jarrett Collins | |||
Name: | D. Jarrett Collins | |||
Title: | Managing Director |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | ||||
RHO MANAGEMENT TRUST I | ||||
By: | RHO CAPITAL PARTNERS, INC. INVESTMENT ADVISOR | |||
By: | /s/ Jeffrey I. Martin | |||
Name: | Jeffrey I. Martin | |||
Title: | Attorney-In-Fact |
RHO VENTURES VI, L.P. | ||||
By: | RMV VI, L.L.C., its General Partner | |||
By: | Rho Capital Partners LLC, its Managing Member | |||
By: | /s/ Jeffrey I. Martin | |||
Name: | Jeffrey I. Martin | |||
Title: | Attorney-In-Fact |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | ||||
SVM STAR VENTURES | ||||
MANAGEMENTGESELLSCHAFT mbH NR.3 | ||||
By: | /s/ Dr. Meir Barel | |||
Name: | Dr. Meir Barel | |||
Title: | Managing Director | |||
SVM STAR VENTURES | |
MANAGEMENTGESELLSCHAFT mbH NR.3 | |
& CO. BETEILIOUNGS KG NR.2 | |
By: SVM STAR VENTURES | |
MANAGEMENTGESELLSCHAFT mbH NR.3 its Managing Partner | |
By: | /s/ Dr. Meir Barel | |||
Name: | Dr. Meir Barel | |||
Title: | Managing Director | |||
SVE STAR VENTURES ENTERPRISES NO. VII, A | |
GERMAN CIVIL LAW PARTNERSHIP (WITH | |
LIMITATION OF LIABILITY) | |
By: SVM STAR VENTURES | |
MANAGEMENTGESELLS CHAFT mbH NR.3 its | |
MANAGING PARTNER | |
By: | /s/ Dr. Meir Barel | |||
Name: | Dr. Meir Barel | |||
Title: | Managing Director | |||
SVE STAR VENTURES ENTERPRISES GmbH NO. | |
VIIa KG, | |
By: SVM STAR VENTURES | |
MANAGEMENTGESELLSCHAFT mbH NR.3 its Managing Limited Partner | |
By: | /s/ Dr. Meir Barel | |||
Name: | Dr. Meir Barel | |||
Title: | Managing Director |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | ||||
TIME WARNER INC. | ||||
By: | ||||
Name: | ||||
Title: |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | |||
THE BERKSHIRES CAPITAL INVESTORS Limited Partnership | |||
By: | The Berkshires Management Company, LLC its General Partner | ||
By: | |||
Name: | |||
Title: | |||
THE BERKSHIRES CAPITAL INVESTORS FUND II L.P. | |||
By: | The Berkshires Management Company, LLC its General Partner | ||
By: | |||
Name: | |||
Title: |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | |||
By: | /s/ William Bo S. Peabody | ||
William Bo S. Peabody |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | |||
VILLAGE VENTURES PARTNERS FUND, L.P. | |||
By: | VILLAGE VENTURES CAPITAL PARTNERS I, LLC, its General Partner | ||
By: | VILLAGE VENTURES, INC., its Manager | ||
By: | /s/ Steven H. Massicotte | |||
Name: | Steven H. Massicotte | |||
Title: | Chief Operating Officer | |||
VILLAGE VENTURES PARTNERS FUND A, L.P. | ||||
By: | VILLAGE VENTURES CAPITAL PARTNERS, I, LLC, its General Partner | |||
By: | VILLAGE VENTURES, INC., Its Manager | |||
By: | /s/ Steven H. Massicotte | |||
Name: | Steven H. Massicotte | |||
Title: | Chief Operating Officer |
Signature Page to the Stockholders Rights Agreement
INVESTORS:
BRAND EQUITY VENTURE II, L.P.
By: Brand Equity Partners II, L.L.C. | |||
By: | /s/ Marc Singer | ||
Name: Marc Singer | |||
Title: Member |
Signature Page to the Stockholders Rights Agreement
INVESTORS:
HERCULES TECHNOLOGY GROWTH CAPITAL, INC. | |||
By: | |||
Name: K. Nicholas Martitsch | |||
Title: Associate General Counsel |
Signature Page to the Stockholders Rights Agreement
INVESTORS & KEY HOLDERS:
DRUGSITE TRUST | |||
By: | |||
Name: | |||
Title: |
Signature Page to the Stockholders Rights Agreement
INVESTORS&KEY HOLDERS:
FOUNDATION CAPITAL V, L.P.
By: Foundation Capital Management Co. V, LLC, its Manager | ||||
By: | /s/ Warren Weiss | |||
Name: | Warren Weiss | |||
Title: | Manager |
FOUNDATION CAPITAL V PRINCIPALS FUND, LLC
By: Foundation Capital Management Co. V, LLC, its Manager | ||||
By: | /s/ Warren Weiss | |||
Name: | Warren Weiss | |||
Title: | Manager |
Signature Page to the Stockholders Rights Agreement
INVESTORS: | ||
Daniel Burstein |
Signature Page to the Stockholders Rights Agreement
KEY HOLDERS: | ||
/s/ Michael Keriakos | ||
Michael Keriakos | ||
/s/ Benjamin Wolin | ||
Benjamin Wolin |
Signature Page to the Stockholders Rights Agreement
OTHER HOLDERS: | |||
BRAND EQUITY VENTURES II, L.P. | |||
By: Brand Equity Partners II, L.L.C. | |||
Its General Partner | |||
By: | /s/ Marc Singer | ||
Name: Marc Singer | |||
Title: Member | |||
/s/ Douglas W. McCormick | |||
Douglas W. McCormick | |||
Peter B. Rankin, Sr. | |||
Louis D. Schwartz | |||
Ronald A. Sege | |||
Ethan R. Zuekerman | |||
Kenneth M. Morris |
Signature Page to the Stockholders Rights Agreement
Jeffrey R. Johnson | ||
Norman R. Nelson | ||
John H. Ferguson | ||
John Tiebout | ||
David and Margaret Gould Stewart | ||
David and Angela Epstein | ||
Zachary Julius | ||
Robert P. Chabot | ||
Sherwood Guernsey | ||
Bradley C. Svrluga | ||
John Halpern |
Signature Page to the Stockholders Rights Agreement
Roger H. Lee | ||
Les Levine | ||
Mark Tauber | ||
Robert Verrico | ||
Jackie Verrico |
SOFTWARE VENTURE PARTNERS | |||
By: | |||
Name: | |||
Title: |
Richard H. Sabot | ||
Raymond Montgomery |
ALLEN & COMPANY INCORPORATED | |||
By: | |||
Name: | |||
Title: |
Signature Page to the Stockholders Rights Agreement
Francis P. Birmingham | ||
Joshua Field | ||
Tim Sedlock | ||
David Parks | ||
Katharine Nylen | ||
Ken Leung | ||
Chris O’Brien | ||
Ignacio Fanlo |
Signature Page to the Stockholders Rights Agreement
SCHEDULE A
Investors
TCV VII, L.P.
Technology Crossover Ventures
528 Ramona Street
Palo Alto, California 94301
Phone: | (650) 614-8200 |
Fax: | (650) 614-8222 |
Attention: | Carla S. Newell Ric Fenton |
TCV VII (A), L.P.
Technology Crossover Ventures
528 Ramona Street
Palo Alto, California 94301
Phone: | (650) 614-8200 |
Fax: | (650) 614-8222 |
Attention: | Carla S. Newell |
Ric Fenton |
TCV Member Fund, L.P.
Technology Crossover Ventures
528 Ramona Street
Palo Alto, California 94301
Phone: | (650) 614-8200 |
Fax: | (650) 614-8222 |
Attention: | Carla S. Newell |
Ric Fenton |
WF Holding Company, LLC
Attention: John Richardson, Vice President and Secretary
1717 Rhode Island Avenue, N.W.
Washington, DC 20036
Scale Venture Partners II, LP
Attn: Sharon Wienbar
950 Tower Lane, Suite 700
Foster City, CA 94404
Fax: (650) 378-6040
NeoCarta Ventures, L.P.
Attn: D. Jarrett Collins
396 Washington Street, Suite 278
S-1 |
Wellesley Hills, MA 02481
NeoCarta Scout Fund, L.L.C.
Attn: D. Jarrett Collins
396 Washington Street, Suite 278
Wellesley Hills, MA 02481
Rho Management Trust I
c/o Rho Capital Partners, Inc.
152 West 57th Street, 23rdFloor
New York, New York 10019
Attn: Chief Financial Officer
Fax: 212-751-3613
Rho Ventures VI, L.P.
c/o Rho Capital Partners, Inc.
152 West 57th Street, 23rdFloor
New York, New York 10019
Attn: Chief Financial Officer
Fax: 212-751-3613
SVM Star Ventures
Managementgesellschaft
mbH Nr. 3 & Co.
Beteiligungs KG Nr. 2
Possartstr 9
81679 Munich Germany
Attn: Chief Financial Officer
SVM Star Ventures
Managementgesellschaft mbH Nr. 3
Possartstr 9
81679 Munich
Germany
Attn: Chief Financial Officer
SVE Star Ventures
Enterprises No. VII,
a German Civil Law
Partnership (with
Limitation of Liability)
Possartstr 9
81679 Munich
Germany
Attn: Chief Financial Officer
SVE Star Ventures
S-2 |
Enterprises GmbH No. VIIa, KG
Possartstr 9
81679 Munich
Germany
Attn: Chief Financial Officer
The Berkshires Capital Investors Fund II L.P.
430 Main St. - Suite 4
Williamstown, MA 01267
Attn: Russell Howard
Fax: 413-458-5603
The Berkshires Capital Investors Limited Partnership
430 Main St. - Suite 4
Williamstown, MA 01267
Attn: Russell Howard
Fax: 413-458-5603
William Bo S. Peabody & Peabody Family Ventures
214 Hopper Road
Williamstown, MA 01267
Village Ventures Partners Fund, L.P.
c/o Village Ventures, Inc.
430 Main Street - Suite 1
Williamstown, MA 01267
Fax: 413.458.0338
Village Ventures Partners Fund A, L.P.
c/o Village Ventures, Inc.
430 Main Street - Suite 1
Williamstown, MA 01267
Fax: 413.458.0338
Time Warner Inc.
One Time Warner Center
New York, NY 10019
Attn: Managing Director, Time Warner Investments
Attn: General Counsel
Brand Equity Ventures II, L.P.
263 Tresser Blvd, 9th Floor
Stamford, CT 06901
ph (203) 724-1103
fax (203-724-1155
Att: Marc Singer
S-3 |
Daniel Burstein
Millenium Technology Ventures
747 Third Avenue, 38th Floor
New York, New York 10017
Office Ph (646) 521-7802
Home Ph (203) 226-9999 ??
Fax (203) 226-0583 ??
Foundation Capital V, L.P.
250 Middlefield Road
Menlo Park, CA 94025
Fax (650) 614-0500
Foundation Capital V Principals Fund, LLC
250 Middlefield Road
Menlo Park, CA 94025
Fax (650) 614-0500
Drugsite Trust
25 Apollo Drive, Suite A
North Shore
Auckland 0632
New Zealand
S-4 |
SCHEDULE B
Key Holders
Michael Keriakos
c/o Everyday Health, Inc.
345 Hudson Street, 16th Floor
New York, NY 10014
Benjamin Wolin
c/o Everyday Health, Inc.
345 Hudson Street, 16th Floor
New York, NY 10014
S-5 |
SCHEDULE C
Other Holders
Brand Equity Ventures II, L.P.
263 Tresser Blvd, Suite 9th Floor
Stamford, CT 06901
ph (203) 724-1103
fax (203-724-1155
Att: Marc Sinfger
Allen & Company Incorporated
711 Fifth Avenue
New York, New York 10022
Attn: Eugene Protash
The Berkshires Capital Investors Fund II L.P.
430 Main St., Suite 4
Williamstown, MA 01267
Attn: Russell Howard
Fax: 413-458-5603
The Berkshires Capital Investors Limited Partnership
430 Main St., Suite 4
Williamstown, MA 01267
Attn: Russell Howard
Fax: 413-458-5603
SVM Star Ventures
Managementgesellschaft mbH Nr. 3
Possartstr 9
81679 Munich
Germany
Attn: Chief Financial Officer
William Bo S. Peabody
1547 Green River Road
Williamstown, MA 01267
Douglas W. McCormick
c/o Rho Capital Partners
152 West 57th Street, 23rdFloor
New York, New York 10019
Peter B. Rankin Sr.
PO Box 5760
Hanover, New Hampshire
S-6 |
Ronald A. Sege
Ellacoya Networks, Inc.
127 Laurel Avenue
Menlo Park, CA 94025
Tel: 650-353-2735
Ethan R. Zuckerman
PO Box 669
Williamstown, MA 01267
Kenneth M. Morris
c/o Lightbulb Press
112 Madison Avenue
New York, NY 10016
Fax: 212-218-7968
Jeffrey R. Johnson
5211 Blacksburg Way
The Villages, FL 32162
Norman R. Nelson
411 West End Avenue
New York, NY 10024
Tel: 212-362-7012
John H. Ferguson
2627 Dumbarton Street NW
Washington DC 20007
Tel: 202-338-4798
John Tiebout
1316 Langdon Lane
Mamaroneck, New York 10543
Tel: 914-777-3458
David and Margaret Gould Stewart
1025 Charter Place
Charlotte, NC 28211
Tel: 413-458-2274
Zachary Julius
300 East 56th Street, #2A
New York, New York 10022
S-7 |
Sherwood Guernsey
69 East Housatonic Street
Pittsfield, MA 01201
Tel: 413-499-3520
Bradley C. Svrluga
c/o High Peaks Venture Partners
10 2nd Street
Troy, New York 12180
Katharine Nylen
786 Bug Hill Road
Ashfield, MA 01330
John Halpern
45 E. 82nd Street
New York, NY 10028
Roger H. Lee
c/o Corio Corporation
700 Bay Road, Suite 210
Redwood City, CA 94063
Fax: 650-298-0345
Software Venture Partners
P.O. Box 69
Zepher Cove, NV 89448
Attn: Bill Lohse
Fax: 415-674-3782
The Amended and Restated Richard H. Sabot Revocable Trust Marital Trust
1331 Oblong Road
Williamstown, MA 01267
Raymond Montgomery
P.O. Box 414
Warren, VT 05674
Fax: 802-496-5542
Francis P. Birmingham
8 Carson Avenue
Wilmington, MA 01887
Les Levine
7401 Helmsdale Road
Bethesda, MD 20817
S-8 |
Steven & Sybil Wolin
3210 Newark St. NW
Washington, DC 20008
Mark Tauber
1255 42nd Avenue
San Francisco, CA 94122
Tel: 415-477-4446
Robert & Jackie Verrico
144 Churchill Road
Morristown, VT 05661
Joshua Field
29 Holbrook Street
North Adams, MA 01247
David Parks
34 Glass Works Road
Berkshire, MA 01224
Timothy Sedlock
1633 Northwest Hill Road
Pownal, Vermont 05261
Peter Rankin, Jr.
13 Franklin Place #5D
Morristown, New Jersey 07960
David and Angela Epstein
806 Prospect Avenue
Hartford, CT 06105
Kenneth Leung
67-20 172nd Street
Fresh Meadows, New York 11365
Christopher O’Brien
118 Bergen Street
Brooklyn, New York 11201
Ignacio Fanlo
DealTime, Inc.
8000 Marina Boulevard, 3rd Floor
Brisbane, CA 94005
S-9 |
EXHIBIT A
Director Indemnification
E-1 |